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Queensland Judgments
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  • Unreported Judgment

El Abbassy v Eliasson (No 2)

 

[2016] QCAT 269

CITATION:

El Abbassy v Eliasson (No 2) [2016] QCAT 269

PARTIES:

Amira El Abbassy

(Applicant)

 

v

 

Jonathan Frans Alfred Eliasson

(Respondent)

APPLICATION NUMBER:

NDR021-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

2 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Jonathan Frans Alfred Eliasson must pay to Amira El Abbassy the sum of $4,623.30 within fourteen (14) days of the date of this decision.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where order made for respondent to pay for required work to tree and related rectification work – order fixing amount of compensation

El Abbassy v Eliasson [2016] QCAT 236

APPEARANCES:

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. [1]
    Mrs El Abbassy lives next door to Mr Eliasson. Growing on Mr Eliasson’s property is a spathodea campanulata commonly called an African tulip (‘the tree’). Mrs El Abbassy has filed an application for a tree dispute. She says that the tree has caused serious damage to her land or property on her land.
  2. [2]
    The proceeding has had a somewhat long and torturous history in the Tribunal largely as a result of Mr Eliasson’s failure to comply with various directions made by the Tribunal from time to time. This recalcitrance culminated in Mr Eliasson failing to attend a compulsory conference on 18 May 2016 resulting in a decision of the Tribunal on 18 May 2016 ordering Mr Eliasson to pay the cost of works to be undertaken to the tree and in respect of damage caused by the tree (“the Order”).
  3. [3]
    Specifically, Mr Eliasson was ordered to pay the cost of:
    1. Removal of the tree, including removal of the stump and its roots whether located on Mr Eliasson’s land or on Mrs El Abbassy’s land, by a suitably qualified and insured arborist; and
    2. Re-instating Mrs El Abbassy’s land including reinstating any damage caused by the roots of the tree and by the consequential flooding and water damage.
  4. [4]
    I will refer to these works collectively as ‘the work’. Directions were made for Mrs El Abbassy to file and serve submissions and evidence of quantum in respect of the work and for Mr Eliasson to file submissions in response. The Tribunal directed that the issue of quantum was then to be determined on the papers unless a party requested an oral hearing.
  5. [5]
    Mrs El Abbassy filed submissions as directed. Mr Eliasson did not. Neither party has requested an oral hearing. I will now proceed to determine the issue of the quantum of the work in accordance with the orders made.
  6. [6]
    Mrs El Abbassy has filed a quote prepared by MAAS Earthmoving & Home Repairs Pty Ltd dated 14 June 2016. The quote refers to three tranches of work:
    1. The removal of the tree to ground level, the excavation of the stump and roots and the discarding of waste;
    2. The excavation of the ground level adjacent to Mrs El Abbassy’s property to allow for water to run off, levelling excess soil and tapering to the front of the front of the property;
    3. The removal and disposal of the cracked and damaged concrete slab at the rear of Mrs El Abbassy’s property and the removal and disposal of the tree root system under the slab;
    4. Preparation and pouring of a replacement concrete slab.
  7. [7]
    The total amount of the quote is $4,623.30.
  8. [8]
    In the application for a tree dispute Mrs El Abbassy said that the tree had caused the dividing fence between her property and Mr Eliasson’s property to fall and was causing water run off issues as a result of the tree’s root system. She also complained that the tree roots had penetrated under the concrete slab of the pergola and garage on her land.[1]
  9. [9]
    Mrs El Abbassy filed a report by an arborist, Mr John Winnel dated 15 March 2015. Mr Winnel undertook an inspection of the tree and Mrs Abbassy’s property. Mr Winnel noted that the tree had been lopped previously resulting in profuse epicormic growth. Mr Winnel also noted the presence of a major surface root from the tree, which was approximately 150mm in diameter, growing through Mrs El Abbassy’s property towards the garage. The root, said Mr Winnel, obstructed the flow of water through Mrs El Abbassy’s property during heavy rain and diverted water into the garage at the property. Mr Winnel recommended the complete removal and stump grinding of the tree.
  10. [10]
    The learned Member who made the Order accepted the evidence of Mr Winnel and Mrs El Abbassy that the tree, including the roots of the tree, were substantially and unreasonably interfering with Mrs El Abbassy’s use and enjoyment of her property.[2]
  11. [11]
    I am satisfied that the work referred to in the quote by MAAS Earthmoving & Home Repairs Pty Ltd relates to the work. I am also satisfied that the amount contained in the quote is fair and reasonable for what is not inconsiderable work required to remove the tree and the tree roots and to undertake the necessary rectification work including the replacement of the concrete slab.
  12. [12]
    I order as follows:
  1. Jonathan Frans Alfred Eliasson must pay to Amira El Abbassy the sum of $4,623.30 within fourteen (14) days of the date of this decision.

Footnotes

[1] Application for tree dispute filed 30 January 2014.

[2] El Abbassy v Eliasson [2016] QCAT 236 at [20].

Close

Editorial Notes

  • Published Case Name:

    El Abbassy v Eliasson (No 2)

  • Shortened Case Name:

    El Abbassy v Eliasson (No 2)

  • MNC:

    [2016] QCAT 269

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    02 Aug 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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