Low v Body Corporate the Preston CMS 8268

[2014] QCATA 298

CITATION: Low v Body Corporate The Preston CMS 8268 [2014] QCATA 298

PARTIES:	Dora Low (Applicant/Appellant)
v
Body Corporate The Preston CMS 8268 (Respondent)

APPLICATION NUMBER: APL363-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe, OAM

DELIVERED ON: 20 October 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where notice to fence – where Colorbond fence proposed – whether Colorbond fence appropriate – whether existing fence sufficient – whether grounds for leave to appeal

Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld) s 21

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
Pickering v McArthur [2005] QCA 294
Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms Low owns Southport Tourist Park. The Preston CMS 8268 adjoins the park. Preston wanted to build a Colorbond fence between the two properties and asked Ms Low to pay half the cost. Ms Low refused, so Preston filed an application in the tribunal for an order that Ms Low pay for half the fence. Two Justices of the Peace, sitting in the minor civil disputes jurisdiction of the tribunal, ordered Ms Low pay Preston $4,886.75, which is about half of the cost of a Colorbond fence.

2. Ms Low wants to appeal that decision. She says the current fencing is secure and operational. She says Preston only wants to upgrade for aesthetic reasons. She says she cannot afford the cost of the fencing. She wants to negotiate a different outcome.

3. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3) (a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

1. Both parties have filed fresh material with their submissions to the appeals tribunal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. Could Ms Low have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[3]

   [3]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Ms Low has not explained why this material was not available earlier. Some of it relates to the new fence. The fact that Preston has built a new fence cannot be a reason to set aside the learned Justices’ decision. If there is a problem with the new fence, then Ms Low has remedies. The fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Justices.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[4]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[5] 

   [4]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.

   [5]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. The learned Justices found that the parties agreed the fence was in disrepair[6]. The evidence before them supports that finding. Ms Low’s submission on appeal that the fence was secure and operational is contrary to her admissions at the hearing.

   [6]Transcript page 1-38, lines 26 – 28.

1. Mr Mync, for Preston, told the learned Justices that a Colorbond fence was usual for the area[7]. He told the learned Justices that a Colorbond fence is more durable than a timber fence[8]. The learned Justices knew that Ms Low did not want a Colorbond fence[9]. They found that the Colorbond fence was reasonable and the transcript shows there are good reasons for their decision as Mr Mync told the learned Justices he wanted a visual barrier because of the behaviour of park residents[10]. The evidence can support a finding that a Colorbond fence was a reasonable fence for the area.

   [7]Transcript page 1-10, line 17.

   [8]Transcript page 1-10, lines 22 – 25.

   [9]Transcript pages 1-38, lines 36 – 37, 41 – 43 and 1-39, line 14.

   [10]Transcript page 1-12, lines 18 – 21.

1. Generally, adjoining owners are required to contribute equally to the cost of a dividing fence[11]. Ms Low’s lack of funds is not a reason to depart from the general principle.

   [11]Neighbourhood Dispute Resolution (Dividing Fences and Trees) Act 2011 (Qld) s 21.

1. Ms Low wants to negotiate. The learned Justices offered the parties mediation before the hearing[12]. Ms Low told the learned Justices that she wanted them to make the decision[13]. Mr Mync told the learned Justices that he tried, and failed, to negotiate with Ms Low[14]. The time for negotiation has passed.

   [12]Transcript page 1-5 line 21 to page 1-6 line 16.

   [13]Transcript page 1-6, lines 18 – 20, 28 – 29.

   [14]Transcript page 1-6, lines 35 – 36.

1. There is nothing in the transcript to persuade me the learned Justices should have taken a different view of the facts. There is no reasonably arguable case that the learned Justices were in error. Leave to appeal should be refused.