PGC Holdings Pty Ltd v Jalfire Pty Ltd
[2018] QCAT 29
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- Unreported Judgment
- PGC Holdings Pty Ltd v Jalfire Pty Ltd[2018] QCAT 29
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PGC Holdings Pty Ltd v Jalfire Pty Ltd[2018] QCAT 29
PGC Holdings Pty Ltd v Jalfire Pty Ltd[2018] QCAT 29
CITATION: | PGC Holdings Pty Ltd v Jalfire Pty Ltd [2018] QCAT 29 |
PARTIES: | PGC Holdings Pty Ltd (Applicant) v Jalfire Pty Ltd (Respondent) |
APPLICATION NUMBER: | NDR193-15 |
MATTER TYPE: | Other civil dispute matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard |
DELIVERED ON: | 31 January 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | ENVIRONMENT AND PLANNING – TREE, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where proceeding heard – where before decision delivered a party files evidence to indicate that the tree-keeper has changed as a consequence of sale of subject land – where expert evidence purportedly given by engineer who has a personal interest in the proceedings consequent upon the sale and transfer of the subject land – where registered owner of land is not a party – where misleading evidence given as to ownership at hearing – whether mistrial – whether in the interests of justice for matter to be reheard – whether current owner should be joined as a party Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 48, s 83, s 84 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(1), s 62(1) |
APPEARANCES: |
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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]PGC Holdings Pty Ltd (PGC) is the registered owner of a property at 5 Enterprise Court, Molendinar. Jalfire Pty Ltd as Trustee for the Enterprise Unit Trust (Jalfire) was formerly the registered owner of 3 Enterprise Court, Molendinar.
- [2]In late 2015, PGC made an application for a tree dispute in the Tribunal. The application was listed for hearing before me on 2 March 2017. I reserved my decision on the application.
Events after the conclusion of the hearing on 2 March 2017
- [3]As it transpired, there was a delay before I was in a position to make my decision. My decision was in the process of being finalised, when two bundles of documents were filed by PGC, on 22 August 2017 and 25 August 2017 respectively.
- [4]In those documents, PGC advised the Tribunal that, notwithstanding the evidence of its director at the hearing, Jalfire ceased to be the registered owner of the premises at 3 Enterprise Street, Molendinar in December 2016. A copy of a titles search was provided. PGC submitted that it appeared the contract date for a sale of the property to Higher Level Thinking Pty Ltd CAN 165 487 463 as Trustee under an instrument (Higher Level Thinking) was dated 10 October 2016 and settlement had been effected on 1 December 2016, and the transfer lodged for registration on 14 December 2016.
- [5]Accordingly, PGC submitted that at the time of the hearing, Higher Level Thinking was the registered owner of the property (formerly owned by Jalfire) at 3 Enterprise Court. Further, PGC alleged that the directors of Higher Level Thinking included Jeffery Edward Hills. Mr Hills was engaged in the proceedings by Jalfire as an independent expert engineer. He gave evidence at the hearing.
- [6]PGC submitted that the director of Jalfire had falsely given evidence that Jalfire was the owner of the said property on 2 March 2017, and further that Jeffery Edward Hills, who purported to act as an independent expert, did not disclose that he was a director and member of the owner of the property at the time he gave evidence in the hearing. PGC asked that the Tribunal take this information into account when making its decision. PGC suggested that the director of Jalfire and Mr Hills personally should be punished for providing false evidence.
- [7]In effect, although the hearing had finished, PGC sought to reopen the evidence in the matter. Given the nature of the submissions and information provided, the issues raised caused me significant concern.
- [8]Firstly, the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) provides for a person selling land affected by an application for a tree dispute to give a copy of the application to the buyer before the buyer enters into a contract of sale, unless the person has a reasonable excuse.[1] If a copy of an application is given to the buyer, the buyer is joined as a party to the QCAT proceeding when the buyer enters into the contract of sale by operation of law.[2] Given Mr Hills’ engagement as an expert witness in the proceedings, it appeared that it may be reasonable to infer that he on behalf of Higher Level Thinking had received a copy of the application, as a director and shareholder of Higher Level Thinking, prior to Higher Level Thinking entering into the contract of sale. In this regard, I note that an expert report had been filed by Jeffery Hills & Associates, prepared under the hand of Jeffery Hills on behalf of Jalfire as early as 21 April 2016 in the proceedings. Therefore, it appeared likely that Higher Level Thinking was on notice of the application and should have been involved as a respondent at the time of the oral hearing.
- [9]Secondly, pursuant to the ND Act, a tree-keeper is relevantly a registered owner of a lot.[3] At the time of the hearing, the registered owner was Higher Level Thinking, not Jalfire.
- [10]Thirdly, in this situation, the alleged change of ownership would create an additional difficulty in that the purportedly expert evidence relied upon by Jalfire was given by Jeffery Hills, a director and shareholder of the Higher Level Thinking. Notwithstanding that the terms and beneficiaries of the trust under which the property is held are unknown by the Tribunal, Mr Hills association with Higher Level Thinking would indicate that he could not be disinterested in the outcome of the proceeding, as an independent expert must be. That is, if the allegations made by PGC had substance, Mr Hills’ was directly associated with the registered owner. I observe that Mr Hills and the expert engineer engaged by PGC agreed upon all issues in the joint report (prepared following an expert conclave on 16 December 2016) and dated 30 January 2017. Therefore, it appeared that, at the time of the conclave and the preparation of the joint report, Mr Hills was a director and shareholder of Higher Level Thinking at the time it was the registered owner.
- [11]Upon receiving the August submissions and other material from PGC about the change of ownership, I made directions requiring Jalfire to provide its submissions in response to PGC’s further submissions and evidence. Those submissions were received under the hand of Jalfire’s director.
- [12]Jalfire’s director acknowledged that he had given evidence that Jalfire was the owner of the property at the hearing. He stated that the premise of his evidence was that at the time the action was brought in the Tribunal this was the case, apologising for his ‘misunderstanding as I believed that the matter was between PGC Holdings Pty Ltd and Jalfire Pty Ltd’.[4] He proceeded to explain events relating to the sale of the property and submitted that he considered Mr Hills’ evidence could be relied upon as there is no difference in the fundamental opinion of the engineers. He submitted that the Tribunal should proceed to provide a ruling on the matter based on the evidence provided.[5]
- [13]I made further directions on 30 October 2017 as follows:
THE TRIBUNAL DIRECTS THAT:
- Unless any party objects by filing in the Tribunal and giving to the other party written submissions explaining the basis for their objection by 4:00pm on 10 November 2017, the Tribunal intends to make the following Orders and Directions:
- (a)the proceeding is to be reheard and the Tribunal re-constituted for the rehearing;
- (b)the current registered owner of Lot 4, Crown Plan S18282, Gold Coast, Higher Level Thinking Pty Ltd A.C.N 165 487 463 Trustee under instrument 7177 16645, is joined as a party to the proceeding;
- (c)PGC Holdings Pty Ltd must file in the Tribunal and give to Jalfire Pty Ltd and Higher Level Thinking Pty Ltd A.C.N 165 487 463 Trustee under instrument 7177 16645 any application for costs thrown away, supported by any witness statements and invoices for such costs, as a consequence of Jalfire Pty Ltd’s failure to inform the Tribunal and PGC Holdings Pty Ltd of the transfer of the property to the current registered owner;
- (d)The proceeding is listed for a Directions Hearing to make Directions as to the future conduct of the matter on a date to be advised.
- PGC Holdings Pty Ltd and Jalfire Pty Ltd must each serve a copy of their written submissions filed in accordance with Direction 1; a copy of this order; and a copy of their written submissions respectively filed in the Tribunal on 25 August 2017 and 3 October 2017 on Higher Level Thinking Pty Ltd A.C.N 165 487 463 Trustee under instrument 7177 16645 by 4:00pm on 10 November 2017.
3. (i) Higher Level Thinking Pty Ltd A.C.N 165 487 463 Trustee under instrument 7177 16645 is invited to make written submissions to the Tribunal about the issues referred to in Direction 1(b) and 1(d) above, by 4:00pm 24 November 2017.
- (ii)If Higher Level Thinking Pty Ltd A.C.N 165 487 463 Trustee under instrument 7177 16645 does give submissions to the Tribunal, it must provide a copy of its written submissions to PGC Holdings Pty Ltd and Jalfire Pty Ltd, by 4pm on 24 November 2017.
- (iii)If (ii) applies, PGC Holdings Pty Ltd and Jalfire Pty Ltd may file in the Tribunal and serve a copy on the other party and give a copy to Higher Level Thinking Pty Ltd A.C.N 165 487 463 Trustee under instrument 7177 16645 of any further written submissions in reply, by 4:00pm on 30 November 2017.
- Unless otherwise advised, the proceeding is listed for an on the papers hearing for the Tribunal to consider the submissions filed in accordance with these directions and to make directions, not before 4:00pm on 1 December 2017.
- [14]Jalfire provides submissions objecting to the proposed rehearing.
- [15]PGC makes lengthy submissions attaching further evidence, objecting to a rehearing, while acknowledging that fairness in the circumstances may support such an order. It proposes certain directions for the ongoing conduct of the proceedings. It also filed, although not in the correct form, an application for costs thrown away. Subsequently, it filed further invoice/s said to be relevant to the claim.
- [16]Higher Level Thinking failed to make submissions in the proceeding.
What orders are appropriate in the circumstances?
- [17]The Tribunal is a creature of statute. It has jurisdiction to make orders only in respect of those matters which parliament has given it jurisdiction. In this case, it can make orders in relation to tree disputes, in essence between tree-keepers and neighbours.[6] Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Tribunal must act fairly and according to the substantial merits of the case.[7] It may give a direction at any time as necessary for, amongst other things, the fair conduct of the proceeding.[8]
- [18]The Tribunal cannot proceed to make orders about the tree dispute in these circumstances as between PGC and Jalfire as though the transfer to Higher Level Thinking had not occurred. It has no power to do so. Higher Level Thinking is the tree-keeper and the proper respondent. Further, the sale and transfer of the property to Higher Level Thinking and the failure of both Jalfire and Mr Hills to disclose that sale and transfer raises issues affecting the substantial merits of the case. Those issues are outlined in paragraphs [8]-[10] above. Although Higher Level Thinking has not responded, the further evidence and submissions of Jalfire confirm the allegations made by PGC about the sale and transfer of the property.
- [19]Effectively, there has been a mistrial occasioned by the conduct of Jalfire, and the expert engineer engaged by it. Jalfire’s director admits to giving evidence that was incorrect (irrespective of his explanation about why he did so) concerning ownership of the relevant property at the time of the oral hearing. This was, at least, inappropriate and misleading. Mr Hills, like all expert witnesses, had an overriding duty to the Tribunal in giving expert evidence. He was obliged to disclose any personal interest in the outcome of the proceeding, but did not do so. He attended the expert conclave; was involved in the preparation of a joint expert report; and gave evidence at the hearing when he was, by then, a director and shareholder of Higher Level Thinking. Again, his conduct was at least inappropriate and misleading by omission. As PGC submits, Mr Hills’ own interests may have influenced the outcome of the experts’ conclave and joint report, as well as his evidence at the hearing. In any event, Mr Hills evidence cannot be accepted as independent expert evidence. The evidence given at the hearing is accordingly tainted.
- [20]I do not lightly reach the conclusion that there has been a mistrial. An order for a rehearing imposes a very significant burden on PGC and the Tribunal. However, the demands of justice require that it must occur in the circumstances of this case. Further, having regard to my involvement in the oral hearing and this current application, it is not appropriate for me to be involved in the fresh hearing of the proceeding.
- [21]To some extent, the burden of a rehearing may be alleviated by an order for costs, should the Tribunal be satisfied that PGC incurred costs that may be properly the subject of such a costs order, including relevant costs associated with its expert witness at the hearing.
- [22]Before that application is determined, PGC should clarify the amount of its application for costs thrown away, as well as the various components of it. It should do this by filing an application for miscellaneous matters in Form 40, setting out the amount of the costs it seeks, and attaching a schedule setting out the various components said to form part of the claim. It appears that at least some invoices for amounts claimed have already been filed, although not all necessarily at one time. The invoices claimed as costs thrown away should be clearly identified.
- [23]The parties will have the opportunity to make submissions about the future conduct of the matter, including how evidence filed to date is to be treated, at a directions hearing with another Senior Member.
- [24]I will refer a copy of these reasons for decision to the President of the Tribunal who may consider whether any action should be taken against any person/s for contempt.
- [25]I make orders as follows:
- The proceeding be reheard by a differently constituted Tribunal;
- The current registered owner of Lot 4, Crown Plan S18282, Gold Coast, Higher Level Thinking Pty Ltd A.C.N 165 487 463 Trustee under instrument 7177 16645, is joined as a party to the proceeding;
- PGC Holdings Pty Ltd must file in the Tribunal and give to Jalfire Pty Ltd and Higher Level Thinking Pty Ltd A.C.N 165 487 463 Trustee under instrument 7177 16645 its application for costs thrown away setting out the amount claimed, and attaching a schedule detailing the components and the filing date of the supporting invoices, by: 4:00pm on 15 February 2018;
- Jalfire Pty Ltd and Higher Level Thinking Pty Ltd A.C.N 165 487 463 Trustee under instrument 7177 16645 may file in the Tribunal and give to PGC Holdings Pty Ltd any submissions and supporting statements in response to PGC Holdings Pty Ltd’s application for costs thrown away, by: 4:00pm on 1 March 2018;
- Unless otherwise ordered, any application for costs thrown away will be decided on the basis of the written submissions and evidence of the parties and without an oral hearing, not before 4:00pm on 1 March 2018.
- The proceeding is listed for a Directions Hearing for the making of directions for the future conduct of the matter on a date to be advised.
Footnotes
[1] ND Act, s 83.
[2] Ibid, s 84.
[3] Ibid, s 48.
[4] Respondent’s submissions filed 5 October 2017 (Entitled “Response to Submissions by PGC Holdings Pty Ltd dated 22 August 2017”), 1.
[5] Ibid, 1-2.
[6] ND Act, Chapter 3, especially ss 48, 49 and 66. For completeness, I note s 87 of the ND Act but which does not apply here as no relevant order had been made at the time of the transfer.
[7] QCAT Act, s 28(1).
[8] QCAT Act, s 62(1).