Diachkoff v Hoeft-Marwick [2012] QCAT 281

CITATION: Diachkoff v Hoeft-Marwick [2012] QCAT 281 PARTIES: Alec Diachkoff (Applicant) v Ian Hoeft-Marwick (Respondent) APPLICATION NUMBER: MCDO792-12 MATTER TYPE: Other minor civil disputes matters HEARING DATE: 19 June 2012 HEARD AT: Brisbane DECISION OF: K O’Hanlon, Adjudicator DELIVERED ON: 11 July 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent, Ian Hoeft-Marwick at his sole cost and expense reduce the height of the fence between 721 Holland Rd, Holland Park and 92 Rita Street, Holland Park to 1.2 metres within 60 days of this order; and 2. The respondent pay to the applicant the sum of $1,080.00 within 60 days. CATCHWORDS: Fencing dispute – contribution – unauthorised work – unauthorised erection of dividing fence – urgent fencing Neighbourhood Disputes Resolution Act 2011, ss 35, 36 APPEARANCES and REPRESENTATION (if any): APPLICANT: Alec Diachkoff and D Diachkoff RESPONDENT: No appearance REASONS FOR DECISION 1 Amended "74" to "72" by order of the Tribunal. -- 1 of 3 -- 2 [1] In this matter the applicant, Alec Diachkoff, applied on an urgent basis for an interim order and injunction restraining the respondent from continuing to erect a fence. It came before the President, Justice Wilson, who made an order on 23 March 2012 that Mr Hoeft-Marwick must not construct or authorise any other person to construct a dividing fence on the boundary of his property at 92 Rita Street, Holland Park and that further the matter be referred to an Adjudicator for directions. [2] Accordingly, directions were made by the Tribunal on 26 March 2012 that both parties file documents and statements of reasons to be given to the Tribunal and to each other by certain dates and that the matter was then to be listed for further hearing. [3] It is noted that the applicant filed written submissions on 25 May 2012 and that the respondent did not file any documents or appear at any hearing. [4] Subsequently this matter was set down for hearing on 19 June 2012. Mr Alec Diachkoff attended and was assisted by his son Darryl Diachkoff. There was no appearance by the respondent Ian Hoeft-Marwick. [5] The applicant gave evidence that despite the interim order restraining the respondent from continuing to erect the fence the respondent nevertheless continued with the construction of the fence. [6] At the hearing on 19 June 2012 the applicant provided photographs of the completed fence and also provided information that the standard fence generally in that area was of chain mesh fencing not exceeding 1 metre. The applicant provided in their written submissions the reasons why they had to construct a temporary fence to prevent trespass and dealings with their land. It is noted that the respondent did not comply with any of the provisions of the Neighbourhood Disputes Resolution Act 2011 in relation to fencing the common boundary between the properties nor was their any agreement as to the type of fence to be built between the adjoining blocks of land. The evidence before the Tribunal is that the applicant was compelled to provide temporary fencing whilst the house on the respondent’s land was being built. The respondent also constructed a retaining wall built 30mm inside the common boundary on the respondent’s side of the boundary line. Thereafter, or at the same time, a paling wooden fence which exceeds 1.8 to 2 metres in parts was constructed by the respondent without any agreement of the applicant. [7] In the absence of any evidence at all from the respondent to the contrary it is evident that the fence does not comply with the usual fencing in that area. Nor is there any provision in the plans provided by the Brisbane City Council to the respondent which plans were provided in written submissions by the applicant as to the height of the fence or the type of the fence to be erected. Accordingly the Tribunal takes into consideration the usual fence for that area (photographs of other fences provided by the applicants). It is found that the fence exceeds the common variety fence in that area. However, the applicant has advised the Tribunal on 19 June that the fence can remain as long as it is reduced in height to 1.2 metres. -- 2 of 3 -- 3 [8] Accordingly, the Tribunal accepts the submissions of the applicant and will order that the fence be reduced in height, at the sole expense and cost of the respondent, to 1.2 metres within 60 days from the date of this order and furthermore that the respondent pay to the applicant the sum of $1,080.00 being the cost of the temporary urgent fencing required by the applicant during the course of the construction of the fence in dispute. Orders [1] It is ordered that the paling boundary fence erected by Ian Hoeft-Marwick between the properties situated at 92 Rita Street, Holland Park and 72 Holland Road, Holland Park be reduced in height to 1.2 metres within 60 days of date of this order and that the cost of reduction be at the sole cost of the respondent. Secondly, that the respondent pay to Alec Diachkoff the sum of $1,080.00 within 60 days from the date of this order. -- 3 of 3 --