De Zibicaray and Anor v Horston and Anor [2012] QCAT 134

CITATION: De Zibicaray and Anor v Horston and Anor [2012] QCAT 134 PARTIES: Ms Angel De Zibicaray Mrs Helen De Zibicarary (Applicants) v Mrs Anna Horston Mr Duncan Horston (Respondents) APPLICATION NUMBER: MCDO3007-11 MATTER TYPE: Other minor civil disputes matters HEARING DATE: 28 February 2012 HEARD AT: Brisbane DECISION OF: Kevin O’Hanlon, Adjudicator DELIVERED ON: 27 March 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. This application is dismissed for want of jurisdiction. CATCHWORDS: Damages – claim under the tort of nuisance – diversion wall – retaining wall – tree roots Dividing Fences Act 1953 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mrs Helen De Zibicarary and Dr Greig De Zibicarary leave to appeal on behalf of Ms Angel De Zibicaray RESPONDENT: Mrs Anna Horston REASONS FOR DECISION [1] Mrs Helen De Zibicarary and Ms Angel De Zibicaray filed the claim on 28 July 2011 in this Tribunal under the provisions of the Dividing Fences Act 1953. Accordingly this is a building/fence dispute between neighbours. The neighbour’s disputed fence and/or wall (which has the characteristic of a -- 1 of 3 -- 2 retaining wall) was constructed close to the back boundary between the two properties. [2] Of the applicants, I heard Mrs Helen De Zubicaray and her son Dr Greig De Zibicaray who was given leave to appear on behalf of his elderly grandmother Angel De Zibicaray. [3] The respondent was Mrs Anna Horston. Her Husband Mr Duncan Horston had died last year in or about September 2011. [4] During the course of evidence it was obvious that Mrs Anna Horston had no legal advice whereas the applicants had received such advice. Furthermore, Mrs Horston says that she took over running the matter only after the death of her husband. Up until then he was the one who had control of the issue. [5] The applicants have resided in their present property for approximately 40 years and Mrs Horston has resided on her subject property for approximately 15-20 years. [6] The problem with the boundary fence/“retaining wall” has been ongoing for approximately 10 or so years. [7] Essentially, the applicants say that the late Mr De Zibicaray constructed a block fence wall of approximately five blocks high one inch inside the common boundary line so that it was erected on the applicants’ land. The applicants’ evidence is that it was so built to shield water from running on to the applicants’ property from the respondents’ land which (then not owned by the respondents) sloped upwards and away from the wall. The applicants say that all times the wall was not built as a retaining wall. Subsequently they say over a period of many years the respondents’ land was backfilled to the wall and trees planted on top of the backfill and therefore partially on the respondents’ land. [8] Not surprisingly, over the period of years the trees and soil and effluxion of time have buckled the wall so that it is now leaning inwards and presents danger to the applicants’ land. [9] The applicants advised at hearing that they have obtained legal advice and they were not to touch the wall until a decision was made by QCAT. [10] The respondents obviously inherited the problem when they purchased the land and were quite unaware of the fact that the wall was not a retaining wall and obviously accepted the fact that the land went to that wall. The respondent also says that certain traveller palms were removed but it is clear that a melaluca and other palms as well as the root ball masses from the palms that were removed are still existent and causing pressure on the wall. [11] The questions to be answered in the hearing before me present as follows: -- 2 of 3 -- 3 1. Whether the wall built on the applicants’ land is indeed to be considered as a dividing fence. In any event the question arises as to whether the claim is really a common law claim of nuisance or whether it falls under the Dividing Fences Act 1953. 2. The removal of the trees which is causing the wall to buckle can not be adjudicated upon under the provisions of the Dividing Fences Act 1953 and, without giving legal advice it appears to me it should more properly have been brought under the provisions of the Neighbourhood Disputes Resolution Act 2011 and/or disputed in the Magistrates Court given that the application was made prior to the commencement of the Neighbourhood Disputes Resolution Act 2011 and seems to be a claim of nuisance seeking damages (see paragraph 12). [12] During the hearing Dr Greig De Zibicaray gave evidence that the retaining wall on the applicants’ property is not part of the claim under the Dividing Fences Act 1953 but rather for the construction of a replacement wall on their property. When questioned about dividing fence Dr Greig said that the new dividing fence is to be built on the boundary above the wall once it is built and the cost for the dividing fence will then be decided upon once that wall was repaired. The applicants sought the full repair costs for the wall from the respondents. [13] In the circumstances it appears that the claim for the costs and erection of a new retaining wall does not fulfil the definitions of a fence under the Dividing Fences Act 1953 and therefore that part of the claim will fall. [14] I have come to the conclusion that this claim has not been brought properly under the provisions of the Dividing Fences Act 1953 and is really a claim for damages for which this Tribunal has no jurisdiction. A claim for damages in tort cannot be brought under this Act. The claim for such damages should be brought in the Court system. The parties may also wish to receive legal advice about whether they could pursue a claim under the provisions of the Neighbourhood Disputes Resolution Act 2011. [15] For all these reasons I dismiss the application. -- 3 of 3 --