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Hughes v South East Water Properties Pty Ltd[2017] QCAT 177

Hughes v South East Water Properties Pty Ltd[2017] QCAT 177

CITATION:

Hughes v South East Water Properties Pty Ltd & Anor [2017] QCAT 177

PARTIES:

Natasha Hughes

(Applicant)

v

South East Water Properties Pty Ltd

Yu & Kuo Property Investments Pty Ltd

(Respondents)

APPLICATION NUMBER:

NDR002-16

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

22 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. South East Water Properties Pty Ltd and Yu & Kuo Property Investments Pty Ltd must undertake the following tree works in relation to the corymbia intermedia (‘the bloodwood’) situated on land at 79 Musgrave Avenue, Labrador:
  1. a.
    The branches of the bloodwood overhanging the boundary between 79 Musgrave Avenue and 14A Jimmieson Avenue, Labrador must be reduced by no less than 2 metres
  1. b.
    A crown clean of the canopy of the bloodwood is to be undertaken targeting crossing, rubbing, dead and redundant growth (collectively, ‘the tree works’);

2.[1] South East Water Properties Pty Ltd and Yu & Kuo Property Investments Pty Ltd are responsible for the cost of the tree works.

  1. The tree works must be completed by no later than sixty (60) days from the date of this order.
  2. The tree works must be undertaken by a suitably qualified and insured person or persons with a minimum of AQF Level 3 Arborist.
  3. Should South East Water Properties Pty Ltd and Yu & Kuo Property Investments Pty Ltd fail to comply with orders 1 and 3:
  1. Natasha Hughes and/or her servants and/or her agents are authorised to enter upon 79 Musgrave Avenue, Labrador to undertake the tree works;
  2. Natasha Hughes may recover from South East Water Properties Pty Ltd and Yu & Kuo Property Investments Pty Ltd the cost of the tree works.
  1. Any submissions on the costs of and incidental to the application for a tree dispute must be filed by the parties and exchanged within fourteen (14) days of the date of this order.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where approval sought from the council to remove the tree – where approval from the council to remove the tree declined – where approval from the council to undertake tree works including cleaning the canopy – where tribunal orders overhanging branches to be trimmed and canopy cleaned

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(d), s 28(3)(c)

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46(a)(i), s 46(a)(ii)(A), s 46(a)(ii)(B), s 46(a)(ii)(C), s 46(b)(i), s 46(b)(ii), s 47(1), s 48(1)(a), s 49(1)(a)(i), s 52(1), s 52(2), s 61, s 65(a), s 65(c)(i), 65(d),  s 66(2)(a), s 66(2)(b)(i), s 66(2)(b)(ii), s 66(3)(a), s 66(3)(b)(i), s 66(5)(e), s 71, s 72, s 73

Thomsen v White [2012] QCAT 381

Vecchio v Papavasiliou [2015] QCAT 70

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]
    A corymbia intermedia, also called a pink bloodwood, is an Australian native tree that can grow up to 35 metres in height.[2] Natasha Hughes says that her land is affected by a pink bloodwood situated on an adjoining property owned by South East Water Properties Pty Ltd and Yu & Kuo Property Investments Pty Ltd. Ms Hughes has filed an application for a tree dispute. The application now falls for determination.
  1. [2]
    The issues I must decide are:
    1. Does the bloodwood affect Ms Hughes’s land?
    2. If the answer to the first question is yes, is it appropriate to make an order in relation to the bloodwood to remedy restrain or prevent: serious damage to Ms Hughes’s land or property on her land; serious injury to any person; substantial, ongoing and unreasonable interference with the use and enjoyment of Ms Hughes’s land?
    3. If it is appropriate to make an order for tree work to be carried out, who should pay for the tree work?

The statutory framework – the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the NDA)

  1. [3]
    The conduct and resolution of a tree dispute in the Tribunal is subject to the provisions of the NDA.
  2. [4]
    The Tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land to prevent serious injury to any person,[3] to remedy, restrain or prevent serious damage to a neighbour’s land or property on the land,[4] or to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.[5]
  3. [5]
    A neighbour includes the registered owner of freehold land affected by a tree.[6] A tree keeper includes the registered owner of freehold land on which a tree is situated.[7]
  4. [6]
    For interference that is an obstruction of sunlight, the tree must rise at least 2.5 metres above the ground[8] and the obstruction must be a severe obstruction of sunlight to a window or roof of a dwelling on the neighbour’s land.[9]
  5. [7]
    The Tribunal has jurisdiction to hear and decide any matter in relation to a tree if land is said to be affected by a tree.[10] Land is affected by a tree if branches from the tree overhang the land;[11] or the tree has caused, is causing or is likely within the next 12 months to cause serious injury to a person on the land,[12] serious damage to the land or property on the land,[13] or substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.[14] The affected land must also adjoin the land on which the tree is situated[15] or would adjoin the land if it were not separated by a road.[16]
  6. [8]
    A number of matters must be considered by the Tribunal in deciding an application for an order about a tree.[17] The primary consideration in deciding an application is the safety of any person.[18]

Is Ms Hughes’s land affected by the bloodwood?

  1. [9]
    In her application for a tree dispute, Ms Hughes says that:
    1. the branches of the bloodwood overhang her property by 5 metres to 6 metres;
    2. in the event of a storm or strong winds the bloodwood has the potential to cause harm/injury;
    3. the bloodwood causes leaf litter and debris to continually fall into Ms Hughes’s property, and onto the roof, and into the gutters, of her dwelling;
  2. [10]
    The respondents have not filed a response to the Application for a tree dispute or any other material.
  3. [11]
    Ms Hughes says that her land is affected by the bloodwood. She says that the branches overhang her property by at least 5 metres to 6 metres. Ms Hughes says that the bloodwood has caused, is causing and is likely in the next 12 months to cause injury to a person, damage to land or property and ongoing interference with the use and enjoyment of land. Ms Hughes refers to the “continual dropping of dead wood and branches” from the bloodwood and the risk this poses to her house and persons using the rear area and yard of her house.[19] Ms Hughes refers to the dropping of branches causing damage to the roof tiles of her house and exhibits to her statement a photograph of what she says is evidence of such damage.[20] Ms Hughes also complains of continual leaf litter being deposited from the bloodwood into the gutters of her dwelling which she says is causing the gutters to deteriorate.
  4. [12]
    Ms Hughes relies upon a report dated 17 November 2016 prepared by Mr Dan Morgan of Environmental Management Contractors Pty Ltd.[21] Mr Morgan was engaged by Ms Hughes to identify whether the retention of the bloodwood is likely to cause harm to any person or property located on Ms Hughes’s land. [22]
  5. [13]
    In his report Mr Morgan noted that the canopy of the bloodwood extended to well over 3 metres above the premises. Whilst the report does not specify what premises are being referred to I am prepared to accept that Mr Morgan is referring to Ms Hughes’s land and the dwelling on the land. Photographs of the bloodwood are appended to Mr Morgan’s report. The photographs show branches that appear to extend over Ms Hughes’s land.
  6. [14]
    I am satisfied that the bloodwood is situated on the respondents’ land,[23] that the respondents’ are tree keepers[24] and that Ms Hughes is a neighbour.[25]
  7. [15]
    I accept the evidence of Ms Hughes and Mr Morgan regarding the branches of the bloodwood overhanging Ms Hughes’s land. I find that Ms Hughes’s land is affected by the bloodwood.

Is it appropriate for an order to be made in relation to the bloodwood?

  1. [16]
    I am satisfied that Ms Hughes has made a reasonable effort to reach agreement with the respondents,[26] that the branches of the bloodwood extend at least 50 centimetres over Ms Hughes’s land[27] and that the respondents’ have been given copies of the application.[28]
  2. [17]
    Orders about the bloodwood can be made if I am satisfied that such orders are appropriate to prevent serious injury,[29] or to remedy, restrain or prevent serious damage to Ms Hughes’s land or property on the land[30] or substantial, ongoing and unreasonable interference with the use and enjoyment of Ms Hughes’s land.[31]
  3. [18]
    Ms Hughes has filed a statement of evidence.[32] She says that there were originally two (2) trees on the respondents’ land with which she had concerns. The respondents’ advised Ms Hughes that they were happy for Ms Hughes to ‘deal with the trees’ at her expense.[33] Ms Hughes sought, and was granted, permission from the Gold Coast City Council (‘the GCCC’) to remove one of the trees. The tree was removed in October 2015.[34]
  4. [19]
    The GCCC declined to consent to the removal of the second tree, the bloodwood. In a Decision Notice dated 10 August 2015 the GCCC identified the bloodwood as being healthy with no visible defects. The only tree work authorised by the GCCC in respect of the bloodwood was the cleaning of the canopy, targeting crossing, rubbing, dead and redundant growth and the reduction of lateral branches extending over and towards the neighbouring dwelling by 2 metres. No lopping or topping of the bloodwood was authorised.[35]
  5. [20]
    Ms Hughes says that the respondents have not undertaken the tree works on the bloodwood as identified in the Decision Notice despite numerous requests to do so. [36]
  6. [21]
    The general thrust of the evidence of Ms Hughes is that the bloodwood presents a risk of damage to her land or property on her land or injury to persons on her land as a result of branches dropping. Ms Hughes has filed photographic evidence of what she says is a large branch that dropped from the tree. She has also filed photographic evidence of damage to the tiles on the roof of her dwelling. Ms Hughes does not say that the particular branch in the photograph caused the damage seen in the photograph of the roof. It is tolerably clear from Ms Hughes’s evidence and submissions that she suggests large branches of the type and size photographed caused damage to the roof.
  7. [22]
    In the absence of any evidence to the contrary I am prepared to accept that the photograph of the branch depicts the type and size of branch Ms Hughes says fall from the bloodwood from time to time. I accept the evidence of Mr Morgan that the bloodwood is over 20 metres tall. I also accept that a branch of the type and size shown in the photograph would be capable of damaging a concrete roof tile if it fell from a height of 20 metres or more.
  8. [23]
    Whilst it is difficult to say with any certainty the precise size of the fallen branch, it appears to be of considerable size and, presumably, weight. The end of the branch has an appearance consistent with having torn away from the main body of the tree.  I accept that a branch of at least similar proportions, falling with some velocity, is likely to have damaged the concrete roof tile photographed by Ms Hughes.
  9. [24]
    Ms Hughes complains of the excessive leaf litter deposited by the bloodwood into the gutters of her residence. The presence of leaf litter will generally be insufficient to support a finding of a substantial, ongoing and unreasonable interference with the use and enjoyment of land.[37] Neighbours are expected to undertake maintenance of their land and any dwelling and other structures on the land. This maintenance includes the periodic cleaning of gutters. In some cases, the intervals at which the clearing of gutters is required will be more regular than others. Ms Hughes does not say how frequently she is required to clean her gutters. The deterioration in the gutters complained of by Ms Hughes suggests that leaf litter may be permitted to accumulate in the gutters.
  10. [25]
    It is Ms Hughes’s responsibility to clear the gutters of leaf debris notwithstanding that this might be a regular, and subjectively onerous, requirement. I am not prepared to find that the presence of leaf litter is a substantial, ongoing and unreasonable interference with the use and enjoyment of Ms Hughes’s land. Given that Ms Hughes is responsible for the maintenance of her dwelling, including the gutters, I am also not persuaded that an order about the tree relating to the leaf litter is appropriate to prevent serious damage to Ms Hughes’s land or property on the land. If Ms Hughes properly maintains her dwelling and clears the gutters of leaf litter on a regular basis, damage to the gutters caused by leaf debris will be prevented.
  11. [26]
    Mr Morgan recommends removal of the bloodwood or, in the alternative, reduction of the overhanging limbs. He expresses the view that bloodwood trees are known for dropping limbs and causing harm or damage. Mr Morgan also says that the root-ball of the bloodwood “may likely” be underneath existing property foundations, including Ms Hughes’s dwelling. This, says Mr Morgan, could potentially undermine the infrastructure of the properties surrounding the bloodwood. Mr Morgan says that any of the properties and associated infrastructure is likely to sustain damage from the retention of the tree. He says that pre-dominant south easterly winds and violent storm activity are likely to contribute to any potential tree fall. It is unclear whether Mr Morgan is referring to the entire tree falling or tree branches. 
  12. [27]
    Mr Morgan recommends that the GCCC review its decision regarding the bloodwood. He says that any decision by the GCCC should firstly consider removal of the tree. The decision should, secondly, consider reduction and removal of overhanging limbs by at least 2 metres to accommodate for sway and fall during inclement weather. I understand Mr Morgan to be recommending that the overhanging branches be cut back to a point 2 metres inside the boundary of the respondents’ property.
  13. [28]
    The report by Mr Morgan does not comply with QCAT Practice Direction No 4 of 2009. It does not comply with rule 428 of the Uniform Procedure Rules 1999. Mr Morgan’s qualifications are not set out in the report. As a result, I express some reservations regarding the report and the recommendations by Mr Morgan. I would observe that if parties wish to rely upon expert evidence, such evidence should comply with the practice direction. 
  14. [29]
    Mr Morgan identifies his qualifications only by reference to a series of abbreviations.  I understand those qualifications to be, relevantly, a Bachelor of Science and Diplomas in Sustainability and Project Management and a Certificate 4 in workplace health and safety. Mr Morgan is also a Certified Environmental Practitioner. Section 28 of the QCAT Act requires me to act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, the NDA and a proper consideration of the matters before the Tribunal permit.[38] The Tribunal may also inform itself in any way it considers appropriate.[39]
  15. [30]
    I have referred to the Certified Environmental Practitioner website.[40] An applicant for certification must satisfy minimum criteria.[41] Having considered Mr Morgan’s identified qualifications, I am prepared to accept Mr Morgan is a suitably qualified expert. I am also prepared to consider Mr Morgan’s report and the opinions expressed in the report despite non compliance with the practice direction.
  16. [31]
    I accept the evidence of Mr Morgan as to the risk associated with violent storm activity and falling branches. I also accept the evidence of Mr Morgan that bloodwood trees, generally, are known for dropping limbs. I do not accept the evidence of Mr Morgan that the retention of the bloodwood is likely to cause damage to Ms Hughes’s land or property on the land as a result of the roots of the tree. Firstly, Mr Morgan does not say that he observed tree roots from the bloodwood on Ms Hughes’s land. Secondly, Mr Morgan does not disclose that he conducted any specific tests to identify the extent of the bloodwood’s root-ball or root spread. Any opinion by Mr Morgan about the existence and spread of the root-ball and roots generally  is speculative. Thirdly, Mr Morgan says that the root-ball “may likely” be underneath existing property foundations. It is unclear whether the root-ball may be underneath foundations or is likely to be underneath foundations and it is also unclear what foundations Mr Morgan is referring to. Fourthly, Mr Morgan refers to his assessment as a “non scientific preliminary assessment” and not to be construed as a final scientific assessment. Finally, there is the fact that Ms Hughes has not identified the presence of, nor complained of any issue relating to, the roots of the bloodwood and the impact of the roots on her land or property on her land.
  17. [32]
    I accept that the risks of branches falling from the tree include damage to Ms Hughes’s dwelling or persons on Ms Hughes’s land, and for that matter on the respondents’ land. I accept that a large branch falling from the bloodwood, should it strike a person, given the height and maturity of the tree, is likely to cause serious injury. Similarly, I accept that a large branch falling from the bloodwood onto Ms Hughes’s house may cause serious damage, either in the form of damage to roof tiles as I have found has occurred, or other damage such as to gutters or a sufficiently large branch penetrating the roof. 
  18. [33]
    The primary consideration in making an order in relation to a tree is the safety of any person.[42] A living tree should not be removed or destroyed unless the issue of the tree cannot otherwise be satisfactorily resolved.[43]
  19. [34]
    For the reasons that follow, it is appropriate that an order be made in relation to the bloodwood however an order for the removal of the bloodwood is not appropriate.
  20. [35]
    I am required to consider all of the matters set out in s 73 of the NDA. Not all of the matters contained in s 73(1) are relevant to this dispute and making orders regarding the bloodwood. Ms Hughes’s evidence does not specifically address the matters in s 73(1).
  21. [36]
    The impact of pruning the bloodwood is a relevant matter.[44] Mr Morgan does not identify any adverse impact on the tree should the branch reduction work he recommends be undertaken. The assessment of the bloodwood undertaken by the GCCC is a relevant consideration. The tree work approved by the GCCC in the Decision Notice accords broadly with the recommendations by Mr Morgan although Mr Morgan makes no recommendation regarding the cleaning of the canopy. 
  22. [37]
    I have also considered the matters set out at s 74 of the NDA. There is no evidence to suggest that there is anything other than the bloodwood contributing to the risk of injury to a person or the damage to property I have identified.
  23. [38]
    It is appropriate to make orders for tree works to be carried out that effectively minimise, and thus restrain or prevent, the risk of serious damage to Ms Hughes’s dwelling and injury to persons who may come within the spread of the canopy of the bloodwood over Ms Hughes’s land. The reduction of the branches overhanging Ms Hughes’s land, as recommended by Mr Morgan and the GCCC, and the canopy clean referred to in the Decision Notice will minimise the risk of falling branches seriously damaging Ms Hughes’s dwelling and causing serious injury to persons on her land. The bloodwood can thereby be preserved and an order for the removal of the tree unnecessary.

Who should pay for the tree work?

  1. [39]
    The Tribunal can make an order requiring the tree keeper or the neighbour to pay the costs associated with carrying out tree works.[45] The respondents are responsible for cutting and removing any branches of the bloodwood that overhang Ms Hughes’s land.[46] The respondents are also responsible for ensuring that the bloodwood does not cause serious damage to Ms Hughes’s land or property on her land, serious injury to any person, or substantial, ongoing and unreasonable interference with Ms Hughes’s use and enjoyment of her land.[47] Whilst ss 52(1) and (2) of the NDA do not create a civil cause of action for breach of a tree keeper’s responsibilities, the sections are relevant considerations in determining who should pay for the cost of the tree works.
  2. [40]
    I accept the evidence of Ms Hughes that the respondents were not prepared to address any issues regarding the bloodwood however were prepared for Ms Hughes to do so at her expense.[48] The attitude of the respondents  evidences a disregard by the respondents of their obligations as tree keepers. This conclusion is reinforced by the respondents’ failure to comply with any directions made by the Tribunal or in any way engage in the proceeding. Also relevant is that Ms Hughes, at her expense, removed the second tree situated on the respondents’ land identified in the Decision Notice as showing signs of decline and previous storm damage.
  3. [41]
    The respondents should pay the cost of the tree works. I express some reservations as to whether the respondents will comply with orders to carry out tree works. My orders will therefore permit for the eventuality that the respondents’ continue to ignore Tribunal directions and decisions.
  4. [42]
    I order as follows:
    1. South East Water Properties Pty Ltd and Yu & Kuo Property Investments Pty Ltd must undertake the following tree works in relation to the corymbia intermedia (‘the bloodwood’) situated on land at 79 Musgrave Avenue, Labrador:
    1. a.
      The branches of the bloodwood overhanging the boundary between 79 Musgrave Avenue and 14A Jimmieson Avenue, Labrador must be reduced by no less than 2 metres
    1. b.
      A crown clean of the canopy of the bloodwood is to be undertaken targeting crossing, rubbing, dead and redundant growth (collectively, ‘the tree works’);
    1. South East Water Properties Pty Ltd and Yu & Kuo Property Investments Pty Ltd are responsible for the cost of the tree works.
    1. The tree works must be completed by no later than sixty (60) days from the date of this order.
    2. The tree works must be undertaken by a suitably qualified and insured person or persons with a minimum of AQF Level 3 Arborist.
    3. Should South East Water Properties Pty Ltd and Yu & Kuo Property Investments Pty Ltd fail to comply with orders 1 and 3:
    1. Natasha Hughes and/or her servants and/or her agents are authorised to enter upon 79 Musgrave Avenue, Labrador to undertake the tree works;
    2. Natasha Hughes may recover from South East Water Properties Pty Ltd and Yu & Kuo Property Investments Pty Ltd the cost of the tree works.
    1. Any submissions on the costs of and incidental to the application for a tree dispute must be filed by the parties and exchanged within fourteen (14) days of the date of this decision.

Footnotes

[1]Formatting amended 29 August 2017.

[2]Queensland Government, Department of Agriculture and Fisheries, ‘Wood Properties and Uses of Australian Timbers’.

[3]NDA s 66(2)(a).

[4]Ibid s 66(2)(b)(i).

[5]Ibid s 66(2)(b)(ii).

[6]Ibid s 49(1)(a)(i).

[7]Ibid s 48(1)(a).

[8]Ibid s 66(3)(a).

[9]Ibid s 66(3)(b)(i).

[10]Ibid s 61.

[11]Ibid s 46(a)(i).

[12]Ibid s 46(a)(ii)(A).

[13]Ibid s 46(a)(ii)(B).

[14]NDA s 46(a)(ii)(C).

[15]Ibid s 46(b)(i).

[16]Ibid s 46(b)(ii).

[17]Ibid s 73.

[18]Ibid s 71.

[19]Statement of evidence of Natasha Hughes dated 1 December 2016 at [24(b)].

[20]Ibid annexure NCH 3.

[21]Ibid annexure NCH 5.

[22]Report Dan Morgan at page 2, “Executive Summary”.

[23]NDA s 47(1).

[24]Ibid s 48(1)(a); Current Title Search, Dept of Natural Resources and Mines, 18.03.17.

[25]NDA s 49(1)(a)(i).

[26]Ibid s 65(a).

[27]Ibid s 65(c)(i).

[28]Ibid s 65(d).

[29]Ibid s 66(2)(a).

[30]Ibid s 66(2)(b)(i).

[31]Ibid s 66(2)(b)(ii).

[32]Statement of evidence of Natasha Hughes dated 1 December 2016.

[33]Ibid at [9].

[34]Statement of evidence of Natasha Hughes dated 1 December 2016 at [11].

[35]GCCC Decision Notice, 10 August 2015.

[36]Op cit 18 at [12] to [14].

[37]See Vecchio v Papavasiliou [2015] QCAT 70; Thomsen v White [2012] QCAT 381.

[38]QCAT Act s 28(3)(d).

[39]Ibid s 28(3)(c).

[40]www.cenvp.org

[41]An environment-related degree and evidence thereof; Nomination by three respected environmental professionals who are willing to act as referees for the candidate; Five years of full time equivalent experience in the functional areas of environmental practice during the last ten years; Evidence of and ongoing commitment to training and professional improvement (100 points of training, professional improvement, service to professional practice over a two year period); Evidence that the candidate is a respected, competent, ethical and active member of the profession in the form of at least two referee statements (at least one should be external to current employer), a detailed curriculum vitae, reports, publications, citations, conference / seminar presentations, etc.; A signed (and witnessed) statement of claim covering qualifications, experience, ethics, commitment and the accuracy of materials provided to the Certification Board.

[42]NDA s 71.

[43]Ibid s 72.

[44]Ibid s 71(j).

[45]Ibid s 66(5)(e).

[46]Ibid s 52(1).

[47]Ibid s 52(2).

[48]Affidavit of Natasha Hughes filed 5.12.16 at [9].

Close

Editorial Notes

  • Published Case Name:

    Hughes v South East Water Properties Pty Ltd & Anor

  • Shortened Case Name:

    Hughes v South East Water Properties Pty Ltd

  • MNC:

    [2017] QCAT 177

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    22 May 2017

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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