Prime Management Pty Ltd v McKay
[2022] QCAT 376
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- Unreported Judgment
- Prime Management Pty Ltd v McKay[2022] QCAT 376
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Prime Management Pty Ltd v McKay[2022] QCAT 376
Prime Management Pty Ltd v McKay[2022] QCAT 376
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Prime Management Pty Ltd v McKay & Anor [2022] QCAT 376 | |
PARTIES: | PRIME MANAGEMENT PTY LTD A.C.N. 010 071 897 UNDER INSTRUMENT 720097051 (applicant) V MAXINE LESLIE CAROLINE MCKAY (first respondent) AND ROWAN JOHN GAUNT (second respondent) | |
APPLICATION NO/S: | NDR011-21 | |
MATTER TYPE: | Other civil dispute matters | |
DELIVERED ON: | 3 November 2022 | |
HEARD AT: | Brisbane | |
DECISION OF: | Member Lember | |
ORDERS: |
| |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – whether to award costs of application ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – whether to award costs Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46, s 52, s 66, s 72 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 32, s 47, s 62, s 95, s 100, s 102 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Dey v Victorian Railways Commissioners [1949] 78 CLR 62 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 Yeo v Brisbane Polo Club Inc [2013] QCAT 261 | |
APPEARANCES & | 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 the application about?
- [1]Prime Management Pty Ltd (Prime) owns a property that it says was impacted by a Lilly Pilly tree situated on and overgrowing from adjoining land owned by the respondents, Ms McKay and Mr Gaunt.
- [2]In an application filed on 13 January 2021, Prime noted that in January 2019 a large branch fell from the tree onto its carport and said that other damage to a wall and drains was caused by roots from the tree. Prime expressed the view that the tree was unsafe and sought orders that the tree be removed and that its costs of the application be paid by the respondents.
- [3]Ms McKay and Mr Gaunt filed a response on 25 February 2011 explaining that the branch fell during a storm, otherwise denying any damage caused by or risk of damage from the tree, and expressed that they wanted to keep the tree, but were willing to undertake ongoing pruning of the tree at their expense.
- [4]On 12 July 2021 the tribunal directed that the parties contribute $500.00 each towards the cost of a tree assessor to be appointed, which each party did.
- [5]On 23 September 2021, the tree assessment took place, following which a report issued that put forward two options: the first for the tree to be pruned, and the second for the tree to be removed. The tree was found to be in poor condition, with extensive decay that was likely to lead to the eventual failure of the tree.
- [6]On 4 May 2022, an arborist engaged by the respondents removed the tree, having first attended to undertake the recommended pruning but, according to the respondents, encountering interference from the applicant. The removal of the tree resolved the substantive tree dispute.
- [7]The only issue remaining to the determined by the tribunal is Prime’s request that the respondents reimburse its filing fee on the application.
What laws apply?
- [8]Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the NDA) makes tree keepers responsible for their trees.[1]
- [9]Section 46 of the NDA provides:
Land is affected by a tree at a particular time if—
(a) any of the following applies—
(i) branches from the tree overhang the land;
(ii) the tree has caused, is causing, or is likely within the next 12 months to cause—
(A) serious injury to a person on the land; or
(B) serious damage to the land or any property on the land; or
(C) substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land; and
(b) the land—
(i) adjoins the land on which the tree is situated; or
(ii) would adjoin the land on which the tree is situated if it were not separated by a road.
- [10]Under section 66(2) of the NDA, the tribunal can make orders in relation to trees to:
- (a)prevent serious injury to any person;
- (b)remedy, restrain or prevent:
- serious damage to the neighbour’s land or any property on it; and
- substantial, ongoing and unreasonable interference with the use and enjoyment of the neighbour’s land.
- (a)
- [11]Importantly, section 72 of the NDA provides that the removal of a tree should be an order of last resort, and if the issue with the tree can be resolved another way, the tribunal is bound to explore it.
- [12]In tree disputes, tree assessors assist the tribunal by providing expert evidence.[2] The assessor will inspect the tree/s and properties the subject of the dispute and provide a report that outlines solutions to the issues raised in the application from which the parties will be invited to reach agreement, or the matter will proceed to a hearing on the basis that the tree assessor’s evidence will be the only expert evidence permitted at the hearing.[3]
- [13]The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)[4] include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick, and, to that end, section 4 of the Act requires the tribunal, among other things, to:
- (a)
- (b)ensure proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[6]
- [14]Proceedings may be finally determined, or interlocutory applications decided upon the written submissions of the parties without those parties or their representatives appearing at a hearing.[7] These proceedings are known as decisions made “on the papers”.
- [15]Section 47 of the QCAT Act allows the tribunal to strike out or dismiss a proceeding (47(2)) but the power should only be exercised “sparingly” and “to prevent an abuse of process when a claim is groundless or futile”.[8]
- [16]I am satisfied that the remaining issue of costs is appropriate for an on-the-papers decision having regard to the tribunal’s mandate to conduct matters in a way that is quick and economical.
- [17]The tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the tribunal before making an on the papers decision.[9] I am satisfied that such an opportunity was given to the parties in this instance.
- [18]On the issue of costs the starting point in the tribunal is that each party to a proceeding must bear its own costs[10]. This differs from the Courts where the starting point is that costs follow the event. However, the tribunal can order costs if it considers it is in the interests of justice to do so.[11]
- [19]The question is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in section 100 of QCAT Act.[12]
- [20]In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)[13] Justice Wilson (then President) said:
The phrase “in the interests of justice” is not defined in the Act but is to be construed according to its ordinary and plain meaning, which obviously confers a broad discretionary power on the decision-maker.
- [21]In deciding whether to award costs in a matter the tribunal may have regard to factors such as: [14]
- (a)whether a party to a proceeding acted in a way that unnecessarily disadvantages another party to the proceeding;
- (b)the nature and complexity of the dispute the subject of the proceeding;
- (c)the relative strengths of the claims made by each of the parties to the proceeding;
- (d)the financial circumstances of the parties; and
- (e)anything else the Tribunal considers relevant.
- (a)
- [22]These factors are not grounds for awarding costs but factors to be considered in determining whether, in a particular case, the interests of justice require a costs order.[15]
Findings and Decision
Dismissal
- [23]As the Lilly Pilly was removed after the application was filed and did cause or at least appears to have been likely to cause damage to the applicant’s property at that time, then, as at the date of the application the applicant’s claim that its property was affected by the trees triggers the tribunal’s prima facie jurisdiction over the dispute.
- [24]The material attached to the application establishes a prima facie case that the applicant made a brief effort to resolve the matter with the respondents, even if the respondents described the efforts as “limited and hostile”.[16]
- [25]However, as the tree dispute itself has resolved by the removal of the tree, the proceedings should be dismissed.
Costs
- [26]On the issues of costs, I am not convinced that the factors favour a departure from the usual position that each party bears their own costs, and, therefore, I am not satisfied that the interests of justice require an award of costs in the applicant’s favour because:
- (a)I am not satisfied that the respondents acted in a way that disadvantaged the applicant in the proceeding. The respondents filed a response indicating a willingness to prune the trees and were entitled to wait for the tree assessment before agreeing to remove the tree. The matter has resolved before either party was put to the effort of filing statements of evidence or the unpleasantness of a final hearing;
- (b)The dispute is not overly complex in nature;
- (c)As to the relative strengths of the claims, although the matter did not progress to a hearing and none of the evidence could be tested, the untested opinion of the tree assessor supported the respondents’ case, to the extent it proposed pruning as an option. Although removal of the tree was also an option, the tribunal could only have ordered it as an outcome of last resort and is less likely to have done that in light of the tree assessor posing pruning as alternative; and
- (d)There is no evidence before the tribunal about the parties’ financial positions, other than each mentioning costs incurred during the dispute (the applicant has to replace rocks, the respondents paid the arborists’ costs for tree removal and consequential works and each paid their share of the tree assessor’s costs).
- (a)
- [27]For those reasons, I make the following orders:
- (a)The application for a tree dispute is dismissed.
- (b)Each party is to bear its own costs.
- (a)
Footnotes
[1] Section 52, NDA.
[2] Section 112, QCAT Act.
[3] Practice Direction 7 of 2013.
[4] Section 3(b) of the QCAT Act.
[5] Section 4(b), ibid.
[6] Section 4(c), ibid.
[7] Section 32(2) QCAT Act.
[8] Yeo v Brisbane Polo Club Inc [2013] QCAT 261, [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62.
[9] Section 95(1), ibid.
[10] Section 100, ibid.
[11] Section 102(1), ibid.
[12] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29].
[13] Ibid at [4].
[14] Section 102(3), of the QCAT Act.
[15] Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 at [9].
[16] Respondents’ submissions made 26 September 2022.