Richardson v Williams [2025] QCATA 75

(a) Remove all rocks & pot plants etc from my land & drains to stop water coming into my house;[1]

(b) Remove the board attached to my gutter & stop attaching items to my house.

(c) Allow access for the applicant to carry out maintenance upon request.

• [3] A large amount of material was filed in the proceeding addressing the issues that had arisen between the neighbours over the years. Photographs of the of the disputed area, including the narrow channel and the board attached to the dividing fence, both referred to in the reasons. The learned adjudicator considered that material and on 2 November 2023 made an order that the applicant remove the board attached to the dividing fence under s 27(2) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 20011. No order was made in respect of the rock and pot plants on the channel because it did not form part of the dividing fence wall. He provided comprehensive reasons for that decision.
• [4] From that decision the applicant filed an application for leave to appeal or appeal. It is difficult to discern the grounds of appeal attached to the application, they are more in the nature of a submission and also a chronology of the course of this litigation. The grounds of appeal are supposed to identify specifically where it is contended the decision maker made an error of law or error of mixed fact and law.
• [5] An appeal from a decision in the minor civil disputes jurisdiction of the tribunal is not as of right. Section 142(3)(a)(i) of the QCAT Act provides that an appeal against a decision in respect of minor civil dispute can only be made "if the party has obtained the appeal tribunal's leave to appeal".
• [6] For the appeal tribunal to give leave to appeal, the appellant must identify some error of law or other good reasons to interfere with the original tribunal as constituted. The issues raised on the question of whether to grant leave to appeal have been summarised in the recent case of Terera & Anor v Clifford,[2] they are whether:

(a) an appeal is necessary to correct a substantial injustice;

(b) there is a reasonable argument that there is an error to be corrected; and

(c) on the question of whether leave to appeal might be given, the court usually makes some preliminary assessment of the prospects of the proposed appeal.

• [7] There is one other consideration, the application for leave to appeal or appeal is not a rehearing on the merits of the case that was before the primary decision maker to achieve a different outcome.[3] The appellant must identify some error of law or alternatively some substantial injustice, generally on the basis that the conclusion of the Tribunal at first instance was simply not open on the evidence before it.
• [8] Another consideration is the discretion conferred on the decisionmakers in minor civil disputes under s.13 of the QCAT Act. It provides:

"(1) In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application."

• [9] I have identified the issues that the learned adjudicator was required to make a decision about as set out in the respondent's minor civil dispute application referred to in [2] above. Before addressing his findings in respect of those matters, it is necessary to say something about the minor civil dispute jurisdiction. The minor civil disputes the Tribunal can made a determination about are set out in definition of "minor civil dispute" in Sch 3 of the QCAT Act. The only relevant part of the definition applicable to this application is s 1(c):

a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount.

• [10] Therefore, the Tribunal had no jurisdiction or power to make any orders in relation to the use of the narrow channel between the properties, as sought by the respondent. The learned adjudicator found as much.
• [11] On the day of the hearing, to get a better understanding of the dispute between the parties, the adjudicator attended their respective residences to view the dividing fence and the channel. He took no evidence during the view however, the respondent did hand him a copy of photographs which had already been filed in the Tribunal. This was probably to give him a better understanding of the comparing the photographs to what he was viewing.
• [12] The hearing resumed at the Tribunal commencing at 1:59pm according to the transcript. At the commencement of the hearing he identified the issues for determination and then carefully took both parties through their evidence. He noted that the board that had been fixed to the guttering of the respondent's house had been removed and the only issue here was the board that remained affixed to the dividing fence.
• [13] During the course of the evidence the Adjudicator was careful to ensure the parties were aware of the limits of his jurisdiction and what he could decide. He was taken through the photographs produced by the respondent, which were explained to him and were consistent with what he had seen in the morning.
• [14] He was particularly concerned about whether the dividing fence, which consisted of concrete panels was on the common boundary. He was assisted in this respect by some evidence from a surveyor, Mr Cutler. Ultimately he was satisfied it was, which finding was open on the evidence.
• [15] There was particular focus on the fact that the board was fixed to the fence/concrete panel and protruded above the top of it. In other words it was not an integral part of the dividing fence.
• [16] The applicant sought to agitate a counterclaim, for the want of a better word, and this was discussed by reference to the by-laws of Northpoint. The adjudicator reminded the applicant that he had previously given her an opportunity to bring a counterapplication but she did not do so.[4] This of course only left the respondent's application for determination.
• [17] Having read the transcript it is clear that the parties were given every opportunity to present their respective cases over the 2 hour 22 minute hearing.
• [18] Turning then to his reasons, the Adjudicator succinctly identified the issues about which he had to make a decision.[5] He referred to the history of the application and that the respondent had obtained orders in the absence of the applicant. After an application to reopen, those orders were set aside and the applicant was given an opportunity to litigate her defence.
• [19] The initial hearing was on 14 June 2023 at which time and interim order was made for the removal of the attachments to the dividing fence. It was at this hearing that the Adjudicator assisted the applicant with an explanation about the need for, and purpose of, a counter-application if she wanted to pursue her own claim against the respondent. The application was adjourned to facilitate this, it seems. However no counterapplication was filed.
• [20] There is a discussion about the view on the morning of the final hearing and as noted above no evidence was taken during the course of the view. The reasons note that at this point the only issue for determination was the respondent's application.[6]
• [21] The next point of discussion was the board. He found that the board had raised the height of the fence from 1.8m to 2m. He rejected the applicant's evidence that the increase in height was to protect from trespass on the basis that anyone could enter the property from either along the fence or through the gate onto the road.[7] He also rejected the reason for privacy because from his observations at the view and photographs there was already adequate privacy.[8] He went onto say:

The height of the board adds is silhouetted above the fence, is unpainted, and restricts the ingress of light to Ms Williams' property in the vicinity of the laundry area.[9]

• [22] He rejected the applicant's argument that the board was attached with Council approval due to the lack of evidence to support that contention. As a consequence he ordered that the board above the fence be removed. In doing so he relied on s 27 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ("NDA"), which provides:

(1) An owner, or a person who has entered the owner's land with the owner's express consent, must not, without the consent of the adjoining owner, attach a thing to a dividing fence that unreasonably and materially alters or damages the dividing fence.

_Examples of an attachment - _

carport, shade sails, lattice work, canvas, signs

(2) If an owner does not comply with subsection(1), the adjoining owner may apply to QCAT for an order requiring the owner to remove the thing attached and restore the dividing fence to a reasonable standard, having regard to its state before the thing was attached.

• [23] He then provided reasons why the Tribunal had no jurisdiction to make any orders about the channel. There were other ancillary matters, a tap installed many years ago and a post for a gate.
• [24] He made no order for costs and provide cogent reasons for do so.

• [25] As noted above the grounds of appeal do not identify, with any precision, an error in the learned adjudicator's reasoning. What the applicant is seeking to do, by reference to the "grounds of appeal" is to reargue the case that was before the Tribunal. It is necessary for the applicant, by reference to the evidence given at the hearing, and the adjudicator's reasons to identify some error in the conclusions he reached about the issues he had to decide. I will attempt to discern from the narrative attached to the application for leave to appeal what I perceive to be her complaints.
• [26] The first being that the adjudicator failed to make a finding that the increase in height of the wall was approved by the Gold Coast City Council. The issue was certainly raised, and referred to in the reasons. This was addressed by the adjudicator as set out above when the applicant was told she could bring a counterapplication or crossclaim to address this issue. She did not lead any evidence to support the contention as found by the adjudicator. Also, the applicant's complains that the adjudicator did not contact the Council during the hearing and speak with the Compliance Officer about the issue. It goes without saying that it is not for the Tribunal to run her case for her. So much was made clear to her during the hearing. The Tribunal was not in error in not contacting the Compliance Officer, whoever that may have been.
• [27] The applicant contends that the respondent failed to follow the procedures of giving notice under Chapter 2 Division 2 of the NDA. Specifically s 31 relates to the requirement to give and adjoining neighbour a "notice to contribute for fencing work" if a contribution is sought. That is not what this application was about. It had nothing to do with additional fencing work or contribution to the cost of that work. It was solely related to the removal of the extra boards that increased the height. Authority to make the order the adjudicator made is found in s 27 of the NDA and referred to above. He made finding of fact to come to the conclusion he did and those findings were open on the evidence.
• [28] The remainder of the applicant's grounds relate to the history of the litigation, the fact that the earlier adjudication was set aside because of a successful re-opening application. The circumstance of all of that and the ultimate relisting of the matter are not grounds of appeal going to the final decision.
• [29] A complaint is made about the site visit and the fact that the applicant was not shown the photos given to the adjudicator by the respondent. This was dealt with in the reasons and there is no evidence to contradict that statement. It is mere assertion that there may have been more to handing over of the evidence that was already on file.
• [30] The applicant has failed to identify any error on the part of the adjudicator, either in law or fact, which would warrant a grant of leave to appeal. He was meticulous in guiding the parties through their evidence during the hearing and his conclusion, in particular about the removal of the boards, was open on the evidence.
• [31] In the circumstances leave to appeal is refused.

[1] For this part of the land, I propose to adopt the terminology used by the Adjudicator in the transcript and his reasons being referred to as a "channel". Transcript page 7 line 40

[2] [2017] QCA 181.

[3] Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39.