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PGC Holdings Pty Ltd v Jalfire Pty Ltd (No. 2)[2018] QCAT 363

PGC Holdings Pty Ltd v Jalfire Pty Ltd (No. 2)[2018] QCAT 363

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

PGC Holdings Pty Ltd v Jalfire Pty Ltd & Anor (No. 2) [2018] QCAT 363

PARTIES:

PGC HOLDINGS PTY LTD

(applicant)

v

JALFIRE PTY LTD

(first respondent)

HIGHER LEVEL THINKING PTY LTD (ACN 165 487 463) TRUSTEE UNDER INSTRUMENT 7177 16645

(second respondent)

APPLICATION NO:

NDR193-15

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

19 October 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. Jalfire Pty Ltd and Higher Level Thinking Pty Ltd must each pay to PGC Holdings Pty Ltd costs in the amount of $5,148.59 within fourteen (14) days;
  2. The proceeding against Jalfire Pty Ltd is otherwise dismissed;
  3. PGC Holdings Pty Ltd must file and serve any further expert evidence limited to:
  1. (a)
    A geotechnical engineer report;
  2. (b)
    A supplementary report by Benjamin Jones, by: 4:00pm on 16 November 2018.
  1. Higher Level Thinking Pty Ltd must provide such access to its property as may be required for the purpose of an inspection by a geotechnical engineer engaged by PGC Holdings Pty Ltd;
  2. Higher level Thinking Pty Ltd must file and serve any further expert evidence limited to a report by an appropriately qualified engineer, by: 4:00pm on 14 December 2018.
  3. No party, nor any expert engaged by a party, may rely upon or refer to any report by Jeffrey Hills & Associates filed in the proceeding;
  4. The evidence given at the hearing on 2 March 2017 may not be relied upon by the parties and will not be considered by the Tribunal in any final decision;
  5. The matter is listed for a Directions Hearing on a date to be advised;
  6. The matter is listed for a two day Tribunal Hearing on a date to be advised.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – PARTIES AND NON PARTIES – WHO IS A PARTY – whether interests of justice require an order for costs – where party not joined at the time of conduct leading to costs order – whether conduct of party before being joined relevant in consideration of costs – whether party can be liable for costs in respect of conduct before party joined

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 62(1), s 66, s 83, s 84

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6(7), s 7, s 39(b), s 40, s 42, s 46(1), s 47, s 47(1), s 47(2)(a), s 47(3), s 48, s 100, s 102, s 102(1), s 102(3)(a), s 102(3)(b), s 102(3)(c), s 102(3)(e), s 102(3)(f), s 103, s 106, s 107(1)

Burdekin Shire Council v Pioneer Sugar Mills Pty Ltd [2005] QPELR 13

Cachia v Hanes (1994) 179 CLR 403

Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114

Knight v FP Special Assets (1992) 174 CLR 178

Lyons v Queensland Building and Construction Commission & Dreamstarter Pty Ltd (in liquidation) [2016] QCAT 218

McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors [2014] QCATA 172

REPRESENTATION:

 

Applicant:

Self-represented

First Respondent:

Self-represented

Second Respondent:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this application about?

  1. [1]
    In December 2015 PGC Holdings Pty Ltd (PGC) filed in the tribunal an application for a tree dispute claiming its land was affected by trees located on Jalfire Pty Ltd (Jalfire)’s land. The trees have subsequently been removed. After numerous tribunal directions, directions hearings, the filing of evidence by the parties and an experts’ conclave, the matter proceeded to a hearing on 2 March 2017. On 31 January 2018, and before giving its final decision, the tribunal declared a mistrial and made orders accordingly (the tribunal decision).[1] The orders included the joinder of Higher Level Thinking as a respondent.
  2. [2]
    The following issues now fall for determination:
    1. (a)
      should there be an order in respect of the costs thrown of the experts’ conclave and the hearing?
    2. (b)
      what further directions should be made in the proceedings?

Background

  1. [3]
    The application for a tree dispute was filed by PGC on 22 December 2015. Jalfire’s response was filed on 17 February 2016. Jalfire engaged an expert engineer, Mr Jeffrey Hills. Mr Hills’ first report is dated 19 April 2016[2] and was filed in the tribunal attached as appendix ‘A’ to a more comprehensive report by Mr Hills dated 9 August 2016.[3] On 26 September 2016 the tribunal made directions listing the matter for an experts’ conclave on 16 December 2016 and for hearing on 2 March 2017. At the time the directions were made, the parties had filed their expert evidence. PGC had filed expert reports by Mr Benjamin Stone, an engineer and Mr Craig Reid, an arborist. Jalfire had filed the aforesaid expert reports by Mr Hills and a report by Mr John Prince, an arborist. The experts’ conclave, conducted on 16 December 2016, was attended by all of the experts. A joint report was subsequently prepared and filed in the tribunal.[4]
  2. [4]
    Unbeknownst to PGC or the tribunal, and prior to the conclave, Jalfire transferred ownership of the land on which the trees had been situated to Higher Level Thinking Pty Ltd a company of which Mr Hills is a director, secretary and shareholder.[5]  Higher Level Thinking holds the land in trust for Energy Assessor Pty Ltd as trustee for Jeffrey and Jennifer Hills Superannuation Fund.[6] There is no evidence before the Tribunal as to the identity of office bearers or shareholders of Energy Assessor Pty Ltd. The relevant trust deed is not before the Tribunal. The transfer was registered on 14 December 2016.[7] As I have noted, the experts’ conclave was held two days later on 16 December 2016. The hearing took place on 2 March 2017. Mr Hills gave evidence at the hearing as an expert witness. Neither Jalfire nor Mr Hills disclosed during the hearing that the property had been transferred to Higher Level Thinking or that Mr Hills thereby had an interest in the outcome of the proceeding as director of the registered owner of the land as trustee. Both Jalfire and Mr Hills had the opportunity to disclose the sale of the property and the role of Mr Hills in respect of the sale, through his involvement in Higher Level Thinking, and did not do so. These observations cannot be controversial having been the subject of findings by the tribunal.

The findings by the tribunal

  1. [5]
    The tribunal made the following findings:
    1. (a)
      There had been a mistrial occasioned by the conduct of Jalfire and the expert engineer engaged by it;[8]
    2. (b)
      Jalfire’s director gave inappropriate and misleading evidence concerning ownership of the tree keeper’s property at the time of the oral hearing;[9]
    3. (c)
      The conduct of Jalfire’s expert, Mr Jeffrey Hills, who was also a director of the second respondent, was at least inappropriate and misleading by omission including in attending the experts’ conclave and being involved in the preparation of the joint expert report following the conclave;[10]
    4. (d)
      Mr Hills’ evidence could not be accepted as independent expert evidence and the evidence at the hearing was tainted.[11]

What do the parties say?

  1. [6]
    PGC seeks the payment of its costs thrown away of the conclave and as a result of the mistrial. The costs claimed by PGC total $49,668.99. Jalfire disputes the amount claimed by PGC principally on the basis that the costs are not limited to those thrown away of the conclave and by the mistrial. Jalfire says that any order for costs should be in the amount of $1,833.75. Higher Level Thinking says that it was not a party to the proceeding at the relevant time and therefore no order for costs should be made against it. In its submissions PGC also refers at some length to the conduct of Mr Hills. I will therefore also address in these reasons whether Mr Hills’ is a person against whom a costs order can be made.

Who may be the subject of a costs order and should there be an order for costs?

  1. [7]
    The starting point in any consideration of costs in the tribunal is that, other than as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or an enabling Act, each party should bear their own costs.[12] The tribunal may order a party to pay all or a stated part of another party’s costs if the interests of justice require such an order to be made.[13] In deciding whether to award costs, the tribunal may have regard to the following considerations: whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding; the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; the financial circumstances of the parties; anything else the tribunal considers relevant. Costs may be awarded at any stage of a proceeding or after the proceeding has ended.[14]
  2. [8]
    I will first address the following question: when was Higher Level Thinking joined as a party to the proceeding? This requires a consideration of whether the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (ND Act) operated to join Higher Level Thinking as a party to the proceeding at a time earlier than the order of the tribunal made on 31 January 2018.
  3. [9]
    If a tree keeper has received an application for a tree dispute, and intends selling the land on which the tree is situated, the tree keeper must give a copy of the application to the buyer before the contract is entered into.[15] If a person gives a copy of an application to a buyer, the buyer is joined as a party to the proceeding in QCAT when the buyer enters into the contract.
  4. [10]
    The ND Act is an enabling Act. By s 6(7) of the QCAT Act, an enabling Act may include provisions about the conduct of proceedings for jurisdiction conferred by the enabling Act, including practices and procedures, and the tribunal’s powers, for the proceedings. If a provision in an enabling Act provides for, among other things, a matter mentioned in s 6(7) of the QCAT Act, the modifying provision prevails to the extent of any inconsistency with a provision of the QCAT Act.[16]
  5. [11]
    Section 42 of the QCAT Act provides for the joinder of parties in tribunal proceedings. To the extent of any inconsistency between s 84 of the ND Act and s 42 of the QCAT Act, s 84 prevails. Section 84 of the ND Act, where engaged, appears to operate to exclude consideration by the tribunal of the matters set out at s 42 of the QCAT Act. Section 84 of the ND Act would also appear to remove the discretion under s 42 of the QCAT Act to order the joinder of a person as a party. In other words, s 84 of the ND Act operates to effect the joinder of the purchaser of land as a party in a proceeding for a tree dispute upon the occurrence of the circumstances specified in the section.
  6. [12]
    If there was a contract of sale entered into between Jalfire and Higher Level Thinking it is not in evidence. Indeed, there is insufficient evidence to enable me to make a finding one way or the other as to whether Jalfire gave to Higher Level Thinking a copy of the application for a tree dispute before Higher Level Thinking entered into a contract (if any) to purchase the property. I am therefore unable to conclude whether Higher Level Thinking was, by operation of s 84 of the ND Act, joined as a party to the proceeding prior to the order of the tribunal on 31 January 2018.
  7. [13]
    As the tribunal found, the mistrial occurred as a direct result of the actions of Jalfire Pty Ltd and Mr Hills. Jalfire is a party to the proceeding. Higher Level Thinking, of which Mr Hills is a director, secretary and shareholder of, is also a party. Mr Hills is not a party. Can the Tribunal make an order requiring Mr Hills to pay all or part of PGC’s costs?
  8. [14]
    The starting point in addressing this question is a consideration of the scope of the tribunal’s power under s 102(1) of the QCAT Act to make an order for costs. In McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors[17] the QCAT Appeal Tribunal held:

Section 102 of the QCAT Act provides only for the making of costs orders requiring a party to pay costs of another party. There is no provision for payment of costs under s 102 to non-parties. It contains no power for the Tribunal to make an order requiring a party, in this case, McNab Constructions to pay costs of non-parties, that is, the proposed joinder parties. Having regard to the plain words of s 102, there is no basis upon which it could be said that a necessary implication arises that costs may be awarded to non-parties.

  1. [15]
    In Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd[18] the Court of Appeal considered whether s 102(1) of the QCAT Act gave the tribunal the power to make an order for costs in favour of a person in relation to whom an unsuccessful joinder application had been made. The Court of Appeal held that whether a person was a ‘party’ for the purposes of s 102(1) depended upon whether the proceeding was one in the tribunal’s original jurisdiction or in the review jurisdiction. By s 39(b) of the QCAT Act a party to a proceeding in the tribunal’s original jurisdiction includes a person in relation to whom a decision of the tribunal is sought by the applicant. Accordingly a person in relation to whom a decision of the tribunal is sought by the applicant is a party for the purposes of s 102(1) of the QCAT Act.
  2. [16]
    There has been no application by PGC to join Mr Hills as a respondent nor does PGC otherwise indicate that Mr Hills is a person in relation to whom a decision of the tribunal is sought. Mr Hills is not a party for the purposes of s 39(b) of the QCAT Act.   Accordingly, he is not a party for the purposes of s 102(1) of the QCAT Act and therefore no costs order can be made against Mr Hills.

Is it in the interests of justice for a costs order to be made?

  1. [17]
    I turn now to consideration of whether it is in the interests of justice for a costs order to be made.
  2. [18]
    As I have observed, the presumption under s 100 of the QCAT Act is that each party must bear their own costs in proceedings in the tribunal. A party may be ordered to pay all or a stated part of another party’s costs if the interests of justice require the tribunal to make the order.
  3. [19]
    In considering whether the interests of justice require an order for the payment of costs by Jalfire and Higher Level Thinking to PGC I have regard to the matters set out at s 102(3) of the QCAT Act:

Section 102(3)(a) – whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding

  1. [20]
    It is unnecessary for me to traverse in detail the tribunal decision and the reasons for the findings made. I am satisfied as to the matters upon which the tribunal made the findings referred to at [5] of these reasons. I am satisfied that the conduct of Jalfire contributed to the costs thrown away of the conclave and the mistrial, that Jalfire has acted in a way that has unnecessarily disadvantaged PGC and that the conduct of Jalfire was causative of the mistrial and of the costs thrown away of the experts’ conclave. I will address the conduct of Higher Level Thinking later in these reasons.

Section 102(3)(b) – the nature and complexity of the dispute the subject of the proceeding 

  1. [21]
    Whilst there is some factual complexity to the dispute arising out of the expert evidence, this factor is not of significance in the consideration of costs.

Section 102(3)(c) – the relative strengths of the claims made by each of the parties to the proceeding

  1. [22]
    This factor is not of significance in the determination of costs in the present circumstances.

Section 102(3)(e) – the financial circumstances of the parties to the proceeding

  1. [23]
    There is no evidence before me as to the financial circumstances of the parties and no submissions have been made in this regard. I do not consider this factor to be of significance.

Section 102(3)(f) – anything else the tribunal considers relevant

  1. [24]
    In considering s 103(3)(f) and s 102(3)(a) by reference to Higher Level Thinking, I turn to the question of whether Higher Level Thinking can and should be ordered to pay all or a stated part of PGC’s costs thrown away of the conclave and as a result the mistrial.
  2. [25]
    The tribunal found that the mistrial was caused by the conduct of Jalfire and Mr Hills. It is relevant that, prior to the experts’ conclave, Higher Level Thinking became the registered owner of the land on which the trees had been situated. Mr Hills not only purported to be an independent expert at that time, he was a director, secretary and shareholder of Higher Level Thinking. Higher Level Thinking had a financial interest in the outcome of the litigation. Mr Hills knew or ought to have known this, as should Jalfire. Had Jalfire and Higher Level Thinking, the latter through Mr Hills, disclosed to PGC and the tribunal that Higher Level Thinking had purchased the property, and the role of Mr Hills with Higher Level Thinking, the conclave would not have proceeded and the course of the proceeding would have been much altered from that which transpired. The mistrial could, and would, have been avoided. Noting the active part Mr Hills played in the litigation prior to and following the conclave, in his role as an expert and in his role as an office holder and shareholder in Higher Level Thinking, I am satisfied that Higher Level Thinking has played an active part in the conduct of the proceeding. I am also satisfied that Higher Level Thinking has an interest in the subject of the litigation. 
  3. [26]
    The conduct by Mr Hills, and Higher Level Thinking, to which I have referred occurred prior to Higher Level Thinking being joined as a party. I must therefore consider two matters. Firstly, can a party be liable in costs for conduct before the party is joined to a proceeding? Secondly, can conduct by a party occurring prior to the party being joined to a proceeding be relevant in a consideration of ss 102 and 103 of the QCAT Act?
  4. [27]
    The submissions by the parties do not address the issue of whether an order for costs can extend to conduct of a person before the person is joined as a party to a proceeding. In Burdekin Shire Council v Pioneer Sugar Mills Pty Ltd[19] Wilson SC DCJ (as he then was) considered whether an order for costs could be made against the Department of Main Roads (DMR) in respect of conduct occurring when DMR was not a party to the proceedings. DMR had originally sought and obtained leave for the State of Queensland to be joined as a party on its behalf in proceedings in the Planning and Environment Court. DMR subsequently sought and obtained leave for the State to withdraw from the proceedings. Some considerable time later DMR sought (again), by the State of Queensland, to be joined as a party. Wilson DCJ held:

I am satisfied that the State, representing DMR was always a proper party to the proceeding; that it should not have withdrawn from the matter in October 2002; and, that but for its late application this matter should, and could have been set down for hearing in June 2004. It follows that, but for DMR's conduct, appearances by Counsel on all three occasions in late May and early June would not have been necessary; nor that Pioneer would be put to expense preparing material resisting DMR's application. In light of the history of the matter I am also of the view it was reasonable for Pioneer to contest that application.

  1. [28]
    His Honour found:

DMR's conduct (whatever the cause of it) has been disappointing. It has, in the past, acted in a way which delayed the proper conduct of the application itself and, very late in that proceeding, exacerbated that default by the untimely realisation of its mistaken withdrawal. Those circumstances warrant the exercise of the discretion arising under subs(2)(f) and the granting of the order Pioneer seeks that the Co-Respondent pay its costs assessed on the standard basis from 20 May to 4 June 2004 inclusive, specifically including counsel's costs of appearance on 28 May, 2 June and 4 June 2004.

  1. [29]
    In considering whether DMR could be liable for costs in respect of events occurring prior to it being joined as a party, Wilson DCJ held:

… it would be an odd result, and an unattractive construction of IPA if a party obtaining leave to join a proceeding and thereby being, for example, the effective cause of the adjournment of a hearing could nevertheless avoid or limit the consequences of its actions because the costs rules would only apply to its conduct after the formal order for joinder was made. To her credit, Ms Brian of Counsel for DMR did not make that submission.[20]

  1. [30]
    The power to order costs which was considered in Burdekin Shire Council was found in s 4.1.23 of the Integrated Planning Act 1997 (Qld). Section 4.1.23 empowered the court to order costs for a proceeding as it considered appropriate in certain specified circumstances. The matters set out in s 4.1.23(2) of the IPA are narrower in scope than the matters set out at s 102(3) of the QCAT Act, the latter section being expressed in broader terms. 
  2. [31]
    Section 102(1) of the QCAT Act empowers the tribunal to make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order. In discussing the approach to be adopted to the interpretation of the power to award costs, Gaudron J held in Knight v FP Special Assets Ltd:[21]

It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.

  1. [32]
    Section 102 must be read as a whole and in the context in which it appears. The discretion to award costs is enlivened if the tribunal is satisfied that the interests of justice require a costs order to be made. That discretion is a broad one, to be exercised judicially. Beyond the requirement that an order for costs be in the interests of justice, s 102(1) does not place upon the exercise of the discretion to order the payment of costs any restriction or fetter. The tribunal may order a party to pay all or a stated part of the costs of another party to the proceeding. In favouring a liberal construction of s 102(1) as referred to by Gaudron J in Knight I am of the view that the costs a party may be ordered to pay can, in an appropriate case, extend to costs arising out of conduct by the party before it was joined to the proceedings in circumstances where the interests of justice require such an order to be made.
  2. [33]
    Can conduct by a party occurring prior to the party being joined to a proceeding be relevant in a consideration of ss 102 and 103 of the QCAT Act? In my view, the answer to this question is ‘yes’. As I have observed, the discretion to award costs is a broad one to be exercised if the tribunal is satisfied that the interests of justice require such an order. Section 102(3)(f) permits the tribunal to have regard to ‘anything else’ considered relevant in deciding whether to award costs. In my view the section is expressed in sufficiently broad terms to capture consideration of the conduct of a person before that person is joined as a party subject to the overarching requirement that an order for costs must be in the interests of justice.
  3. [34]
    I will now consider when costs may be ordered against a party for conduct occurring before the party is joined. The principles in relation to non-party costs orders provide useful guidance in considering this issue. In Knight the High Court identified circumstances in which considerations of justice may support an order for costs against a non-party and identified a category of case in which such an order should be made. That category included circumstances where the non-party has played an active part in the conduct of the litigation and where the non-party has an interest in the subject of the litigation. Where the circumstances of a case fell within that category the Court found that an order for costs should be made against the non-party if the interests of justice require that it be made. In my view these considerations are relevant in deciding whether costs should be ordered against a party in respect of conduct prior to the party being joined.
  4. [35]
    I have found that Higher Level Thinking has played an active part in the conduct of the proceeding. I have also found that Higher Level Thinking has an interest in the subject of the litigation. In applying the principles identified in Knight I am satisfied that it is in the interests of justice that Higher Level Thinking be ordered to pay part of PGC’s costs thrown away of the conclave and as a result of the mistrial being costs incurred before Higher Level Thinking was joined as a party.  
  5. [36]
    Taking into consideration the conduct of Jalfire and Higher Level Thinking, I am of the view that both respondents have contributed to the costs thrown away of the conclave and as a result of the mistrial. I find that Jalfire and Higher Level Thinking should pay equally PGC’s costs thrown away of the experts’ conclave and of the mistrial.

What costs should be ordered?

  1. [37]
    The costs thrown away of the conclave include PGC’s expert’s fees for preparing and attending the conclave and the expert’s fees associated with the preparation of the joint experts’ report. The costs thrown away as a result of the mistrial include PGC’s witness expenses properly incurred and any other expense properly incurred in the conduct of the hearing and which will have to be expended again when the hearing proceeds for a second time.
  2. [38]
    If the tribunal makes an order for costs, the tribunal must fix the costs if possible.[22]
  3. [39]
    Doing the best I can with the submissions by PGC, it appears that the following amounts are properly characterised as costs thrown away relating to the experts’ conclave and as a result of the mistrial:
    1. (a)
      Globe Consulting   $5,775.00[23]
    2. (b)
      Globe Consulting   $   618.75[24]
    3. (c)
      The Tree Advisory Centre $1,350.00[25]
    4. (d)
      The Tree Advisory Centre $1,215.00[26]
  4. [40]
    These amounts are reasonably and appropriately claimed by PGC and I allow them in full.
  5. [41]
    Various other amounts are also claimed by PGC. Many of these claims relate not to the costs of the conclave and the hearing thrown away, but are costs in the substantive proceeding. PGC claims its solicitors’ fees associated with investigating the transfer of the property from Jalfire to Higher Level Thinking. Without PGC undertaking the enquiries it did, including the enquiries undertaken by its solicitors, the actions of Jalfire, Higher Level Thinking and Mr Hills may well not have been revealed. In my view, it is reasonable and appropriate that PGC recover these costs limited to an amount of $1,338.43.[27]
  6. [42]
    PGC claims out of pocket expenses associated with postage and courier fees. Amounts are also claimed for expenses incurred at Officeworks. A litigant in person is entitled to recover reasonably incurred disbursements and witness expenses, including costs and disbursements for legal work done by others, but may not recover travelling expenses or loss of earnings.[28] Of the various amounts claimed by PGC for postage, courier fees and the Officeworks expenses, it is unclear whether and to what extent these claims properly form part of the costs thrown away as a result of the conclave and the mistrial. I therefore make no allowance for recovery of these amounts.
  7. [43]
    Accordingly I fix the costs payable by Jalfire and Higher Level Thinking to PGC in the amount of $10,297.18.
  8. [44]
    I order that Jalfire and Higher Level Thinking each pay to PGC costs in the amount of $5,148.59 within fourteen days of the date of this order.

Further directions

  1. [45]
    The parties have made submissions regarding further directions in the proceedings.
  2. [46]
    PGC seeks an order that the respondent not be permitted to rely upon:
    1. (a)
      the expert evidence of Mr Hills;
    2. (b)
      the expert evidence of the arborist, Mr Prince;
    3. (c)
      the evidence of the director of Jalfire, Mr Vanderstaay;
  3. [47]
    PGC also says that the joint report issued following the experts’ conclave be disregarded as should all of the evidence given at the hearing.
  4. [48]
    PGC seeks to be permitted to rely upon the following further evidence:
    1. (a)
      expert evidence by a geotechnical engineer to determine the soil type and soil pressure coefficients;
    2. (b)
      expert evidence from a further structural engineer to oversee excavation work along the boundary;
    3. (c)
      evidence from an excavation and/or hydrovac company following the excavation of a trench along the boundary between the properties;
    4. (d)
      expert evidence from a builder regarding rectification works on the basis that the engineers ‘seriously under costed the works they deemed caused by the tree roots.’
  5. [49]
    Jalfire says that it should be removed from the proceeding as it is no longer the tree keeper as defined under the ND Act.
  6. [50]
    Higher Level Thinking says that it seeks to rely upon the joint report of the arborists however concedes that no regard should be had to the joint report of the engineers. Higher Level Thinking seeks to be permitted to rely upon further evidence by a structural engineer. Higher Level Thinking says it is prepared to allow access to the property for the purposes of borehole investigation by a geotechnical engineer engaged by PGC on the basis that a copy of any report is provided to it. Higher Level Thinking objects to any further investigations by PGC which it characterises as a ‘fishing expedition’. Higher Level Thinking does not seek to file any further non-expert evidence.
  7. [51]
    I will deal firstly with the continuing claim by PGC against Jalfire. A neighbour may apply to the tribunal for orders in relation to a tree if the neighbour’s land is affected by the tree.[29] The tribunal may make orders it considers appropriate in relation to a tree affecting a neighbour’s land.[30] The circumstances in which land may be affected by a tree are set out at s 46 of the ND Act. A tree keeper includes the registered owner of a freehold lot on which a tree is situated. Jalfire is no longer a tree keeper as it is no longer the registered owner of the land on which the trees were formerly situated. The tribunal has no power under the ND Act to make orders against a former tree keeper in relation to a tree. Accordingly, there is no basis for the claim by PGC against Jalfire to continue. Higher Level Thinking is the registered owner of the land on which the trees were previously situated. Higher Level Thinking is the tree keeper and therefore the proper respondent.
  8. [52]
    There is no provision in the QCAT Act or rules for the removal of a party. Proceedings against a party may be brought to an early end including by:
    1. (a)
      Filing and serving a Notice of Withdrawal;[31]
    2. (b)
      Order of the tribunal.[32]
  9. [53]
    The tribunal may, if it considers a proceeding or part of a proceeding to be frivolous vexatious or misconceived, lacking in substance or otherwise an abuse of process, order the proceeding or part thereof be struck out.[33] The tribunal may act on the application of a party or on its own initiative.[34]
  10. [54]
    I am satisfied that there is no longer any basis for the tribunal to make orders against Jalfire in respect of the trees. The proceeding, although properly commenced by PGC against Jalfire, no longer has substance and, in the absence of the tribunal having jurisdiction to make orders against Jalfire regarding the trees, PGC no longer has a viable cause of action against Jalfire. To require Jalfire to continue to respond to the claim in circumstances where it is no longer the tree keeper and cannot be the subject of any final orders would result in Jalfire being put to unjustified trouble. The proceeding by PGC against Jalfire should be dismissed.
  11. [55]
    PGC seeks to adduce further expert evidence. In his report dated August 2016, PGC’s expert Mr Stone refers to the need for further geotechnical investigation to ascertain the relevant geotechnical forces and to determine the ‘least cost option’ in relation to providing support to the neighbour’s land along the relevant section of the retaining wall (where there is evidence or rotation of the wall). In his report dated October 2016 Mr Stone expressed the view that the most likely cause of the retaining wall rotating was excessive force from tree roots on the tree keeper’s land.
  12. [56]
    I am satisfied that it is appropriate for PGC to have the opportunity to obtain evidence from a geotechnical engineer as suggested by Mr Stone. That evidence can then be supplied to Mr Stone to enable him to provide a supplementary report. Higher Level Thinking should provide such access as may be required by PGC’s geotechnical expert in order to prepare the report.
  13. [57]
    Once the further report by Mr Stone has been filed and served, Higher Level Thinking should be given the opportunity to file any further expert evidence in reply. As I have noted Higher Level Thinking does not seek to rely upon any further non expert evidence.
  14. [58]
    I have reviewed the arborists’ reports and the joint report by the arborists. I do not accept PGC’s submission that the evidence of Jalfire’s expert, Mr Prince, is in any way tainted. I see no reason, at this time at least, why any further expert evidence from the arborists is required. This may change depending on the further engineering evidence. The question of the arborists’ evidence can be revisited once further engineering evidence has been filed and served.
  15. [59]
    It will be necessary for oral evidence to be given again at the time the matter proceeds to a further hearing. I do not propose to attempt to filter out the tainted evidence given at the previous hearing. The task is too difficult. I will order that the evidence given at the previous hearing may not be relied upon by either of the parties. Evidence will be required to be given afresh.

Orders 

  1. [60]
    I order as follows:
    1. (a)
      Jalfire Pty Ltd and Higher Level Thinking Pty Ltd must each pay to PGC Holdings Pty Ltd costs in the amount of $5,148.59 within fourteen (14) days;
    2. (b)
      The proceeding against Jalfire Pty Ltd is otherwise dismissed;
    3. (c)
      PGC Holdings Pty Ltd must file and serve any further expert evidence limited to:
      1. A geotechnical engineer report;
      2. A supplementary report by Benjamin Jones; by 4:00pm on 16 November 2018.
    4. (d)
      Higher Level Thinking Pty Ltd must provide such access to its property as may be required for the purpose of an inspection by a geotechnical engineer engaged by PGC Holdings Pty Ltd;
    5. (e)
      Higher Level Thinking Pty Ltd must file and serve any further expert evidence limited to a report by an appropriately qualified engineer, by: 4:00pm on 14 December 2018;
    6. (f)
      No party, nor any expert engaged by a party, may rely upon or refer to any report by Jeffrey Hills & Associates filed in the proceeding;
    7. (g)
      The evidence given at the hearing on 2 March 2017 may not be relied upon by the parties and will not be considered by the Tribunal in any final decision;
    8. (h)
      The matter is listed for a Directions Hearing on a date to be advised; 
    9. (i)
      The matter is listed for a two day Tribunal Hearing on a date to be advised.

Footnotes

[1]PGC Holdings Pty Ltd v Jalfire Pty Ltd [2018] QCAT 29.

[2]Report prepared by Jeffrey Hills of Jeffrey Hills & Associates (Report No.1) dated 19 April 2016.

[3]Report prepared by Jeffrey Hills of Jeffrey Hills & Associates (Report No.2) dated 9 August 2016.

[4]Joint report filed 30 January 2017.

[5]Australian Securities and Investments Commission (ASIC) Current Organisation Extract dated 26 August 2017.

[6]Enterprise Avenue Trust - Trust Deed dated 5 October 2016.

[7]Historical title search dated 22 August 2017.

[8]PGC Holdings Pty Ltd v Jalfire Pty Ltd [2018] QCAT 29, [19].

[9]Ibid.

[10]Ibid.

[11]Ibid.

[12]QCAT Act, s 100.

[13]Ibid, s 102(1).

[14]Ibid, s 106.

[15]ND Act, s 83.

[16]QCAT Act, s 7.

[17][2014] QCATA 172.

[18][2015] QCA 114 – an appeal from the decision of the QCAT Appeal Tribunal in McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors [2014] QCATA 172.

[19][2005] QPELR 13.

[20]Ibid, 15 [9].

[21](1992) 174 CLR 178.

[22]QCAT Act, s 107(1).

[23]Tax invoice dated 20 January 2017, includes additional 10% GST.

[24]Tax invoice dated 31 March 2017, includes additional 10% GST.

[25]Tax invoice dated 31 January 2017.

[26]Tax invoice dated 2 March 2017.

[27]Tax invoice dated 19 September 2017.

[28]Cachia v Hanes (1994) 179 CLR 403.

[29]ND Act, s 62(1).

[30]Ibid, s 66.

[31]QCAT Act, s 46(1).

[32]Ibid, s 47, s 48.

[33]Ibid, s 47(1), s 47(2)(a).

[34]Ibid, s 47(3).

Close

Editorial Notes

  • Published Case Name:

    PGC Holdings Pty Ltd v Jalfire Pty Ltd & Anor (No. 2)

  • Shortened Case Name:

    PGC Holdings Pty Ltd v Jalfire Pty Ltd (No. 2)

  • MNC:

    [2018] QCAT 363

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    19 Oct 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Burdekin Shire Council v Pioneer Sugar Mills Pty Ltd and The State of Queensland [2005] QPELR 13
3 citations
Jump To
Cite 1 - [2005] QPELR 13
Cite 2 - [2005] QPELR 13
Cite 3 - [2005] QPELR 13
Cachia v Hanes (1994) 179 CLR 403
2 citations
Jump To
Cite 1 - (1994) 179 CLR 403
Cite 2 - (1994) 179 CLR 403
Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114
2 citations
Jump To
Cite 1 - [2015] QCA 114
Cite 2 - [2015] QCA 114
Knight v F. P. Special Assets Ltd (1992) 174 CLR 178
2 citations
Jump To
Cite 1 - (1992) 174 CLR 178
Cite 2 - (1992) 174 CLR 178
Lyons v Queensland Building and Construction Commission [2016] QCAT 218
1 citation
Jump To
Cite 1 - [2016] QCAT 218
McNab Constructions Australia Pty Ltd v Donovan Hill Pty Ltd & Ors [2014] QCATA 172
3 citations
Jump To
Cite 1 - [2014] QCATA 172
Cite 2 - [2014] QCATA 172
Cite 3 - [2014] QCATA 172
PGC Holdings Pty Ltd v Jalfire Pty Ltd [2018] QCAT 29
2 citations
Jump To
Cite 1 - [2018] QCAT 29
Cite 2 - [2018] QCAT 29

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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