QLD Sold the house to get out of the contract for a dividing fence and committed fraud.

[Yaksha500]

Hi,

Firstly, I am in QLD.

I have an issue in that
1. The neighbor wanted a new dividing fence.
2. After months and months back and forth and applications and notices to QCAT we made an agreement together at a local coffee shop. (me to pay 500 they would pay the rest around 3,000, due to damage their plants had caused to the fence).
3. They then reneged on the agreement/contract.
4. They then put in an application into QCAT.
5. They where trying to sell the house, received an offer and withdrew the application, and signed the offer the day after pulling the application, i then put in another application.
6. The neighbor didn't provide a copy of the application to the "new owner"
7. My application we had to go to mediation first, i jumped up and down going no no no cause they are selling the house.


8. The new owners 30 days later went to move in and i went in that day and told them hey what about the fencing issue did you know about it etc. they didn't know at all and had no idea all of this had gone on for almost 12 months.
9. We ended up going to mediation and making an agreement they once again reneged.


10. We then went in front of QCAT the member, 1. didn't add the new owners to the suit, 2. They didn't listen or care that;
a) the original neighbor damaged the fence
b) the original owner didn't provide a copy of application
c) the original owner signed the contract of sale which states the following warranties - there is no order, impending order or THREAT of an action - given 12 months of back and forth, the applications actually there hmmmm.


11. QCAT said well the house is sold and they don't owe it therefore there is no case, case dismissed. THEY DIDN'T EVEN HAVE MY PAPERWORK OR READ IT because the court house 2 hours before said it was to much to print and bring it and that the member would review it in the room. which was a load of rubbish. To my knowledge they didn't even email it to the member to review prior to the case being called, and i was given no opportunity.
12. The new owners now come to me 2 years later wanting to sort out the fence.

I don't believe i should have to pay because the other person committed fraud, on them, and they did nothing, and i don't believe their inaction at the time warrants me having to pay more and them trying to force the previous owners fraud to them onto me. The previous owner also committed fraud on me if i have to pay more so any advice would be greatly appreciated. This should be a landmark case haha, to do with outstanding warranties and contracts at sale, and misrepresentation of land at sale. The current laws don't deal with the fact of fraud happening they only deal with the fact if everyone followed the correct process aka providing the application not lieing on the contract of sale and then the member doing their job all of it would no have occurred. I even have the log of phones to the registry where rang pleading daily to have it heard ASAP and no medication because of a sale and i knew they would lie, as they had already acted in bad faith for 12 months.

If there any lawyers who would want to look at this happy to provide 300 pages of evidence.

 

[Docupedia]

So the neighbour wanted a new fence, then didn’t, and you were trying to force the issue? You’d have a tough time with that in QCAT for any number of reasons.

Any failure of the old owners to tell the new ones about the situation is a potential breach of the contract - but that is nothing to do with you and not something you can enforce due to privity of contract. In basic terms: you can’t sue someone under a contract if you’re not a party to the contract.

Maybe if you had an enforceable contract with the old owner over the fencing and could prove a loss against what it would cost to do a new fence and your contribution, but at best that would appear to be an action for about $1,250 ($3,500 total cost of fence, halved to $1,750, less the $500 you agreed to pay). For that amount of money it’s probably not worth anyone’s while. You’d likely have to put $5,000 into a solicitor‘s trust account before anything would be filed.

It’s also outside QCAT’s jurisdiction from memory.

I would think this all happened during COVID, which meant you were doubly out of luck. QCAT is severely jammed up and backlogged due to lockdowns and suspension of hearings. They run a totally paper based system, so if staff weren’t able to be at work then nothing could essentially be done. Mediation is also a requirement, so you weren’t going to get around that.

In terms of the fence, I would think you’d have to start again on the basis that it doesn’t appear anywhere that you’ve served a notice under the Act on the new owner - or the old one for that matter.

 

[Yaksha500]

i am not required to serve notice to the new owners that is on the sellor.

 

[Yaksha500]

not this happened 2 years ago as the post

 

[Yaksha500]

and they wanted the fence as per the post

 

[Docupedia]

To summarise as I see it:
- The old owner wanted a fence. They served a notice. There was some negotiation. The fence wasn't done.
- The old owner made an application to QCAT. They then dropped the application and sold the house.
- The new owner apparently knew nothing about the fence until you told them.
- You made an application to QCAT against the old owner. QCAT dismissed the application.
- Now the new owners want to redo the fence, roughly two years later.

- The old owner dropped their claim against you for a fence - before selling the property. The standard REIQ contract only requires disclosure regarding tree applications and orders, in line with section 83 of the Neighbourhood Disputes (Dividing Fences and Tress) Act. The Act does not mention disclosure requirements about fencing matters. Regardless, the application was dropped - and it would not likely have been capable of finding out via search. Whether disclosure was needed between the old and new owner appears to come down to a contractual obligation between them.
- You made an application against the old owner and were unsuccessful.
- There's been no apparent 'official' action between you and the new owner until now.
- The Act generally expects that adjoining owners will contribute equally to the cost of a sufficient dividing fence (section 21).
- You have some concerns about tree damage to the fence.

So you want the new owner, who hasn't apparently done anything wrong, to be bound by your apportionment of cost for the fence - which is based on an agreement you made with the old owner (and not an order)? That's hardly fair on the new owner. Yes it's a pain, but I would seriously doubt any court or tribunal is going to order them to pay that split unless you go through the whole process again - which will probably also need some expert evidence from an arborist about the effect of the trees on the fence (particularly if it's root damage). You'd be better off negotiating with the new owner - you've got to live next to them for at least some time.

 

[Yaksha500]

It states more than that man it states no "THREAT OF" and it was v15 they would have signed the new contract are different.

Not tree it a vine and the old owner has been told many times to remove it cause it would rot the fence they didnt. I dont believe its the issue of the new owner either, its the sellor who committed fraud have been to the police as well and they need the new owner to complain because at present the fraud is against them not me which makes sense.

 

[Docupedia]

Can you point me to where it says 'threat of' in version 15 of the REIQ contract? I can't find it.

Per section 45 of the Neighbourhood Disputes (Dividing Fences and Trees) Act, a 'tree' includes a vine.

I'm surprised the police were willing to do anything about it. It would appear to be a civil matter, not criminal - even assuming they were obliged to disclose the situation.

 

[Yaksha500]

The vine or tree is no the issue, the issue is contract law and the vine is simply the mechanism by which the fence was damage as it grow along the fence, and thus was attached, and also damaged the fence via rot.

My apologies its v14 please see picture. However this has a note about prior to the signing, however as per the act, and the law reform commission the intent of and application thereof it if at any stage they become aware of an application. Which is supported but the disputes section below and the sellers warrants section- The Seller warrants that, except as disclosed in this contract at the Contract Date and at settlement there are no current or threatened claims, notices or proceedings that may lead to a judgment, order or writ affecting the Property - this part is on page 10.

Because they made a financial decision and will be at a loss of money that is why the police will do the fraud charge.

Further to this the act has penalties for the seller not providing the application up to 500 penalty units.

Furthermore to this they also entered into a contract at mediation in contrary to their obligations under 8.3.

 

[Yaksha500]

v15 does also have the same seller warrants section