O'Brien v Whiteside[2022] QCAT 45

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is the application about?

1. [1]
   In an application for a tree dispute filed 30 September 2020, Mr O'Brien says he is impacted, and that his property has been damaged, by falling branches from Eucalyptus trees growing on adjoining land owned by the respondent, Ms Whiteside. 
2. [2]
   Ms Whiteside (who goes by the name Ms Hobart), in her response filed 22 February 2021 confirms she is the registered owner of the property adjoining Mr O'Brien’s property but denies that her trees are problematic and wants Mr O'Brien’s application to be dismissed.
3. [3]
   In accordance with standard tribunal directions, Mr O'Brien submitted title searches of his and Ms Whiteside’s properties.  The title search for Ms Whiteside’s property indicated that the registered owner of that Lot (being Lot 104 on a specified RP) is “The State of Queensland (represented by the Department of Housing and Public Works”.
4. [4]
   The parties were given directions to make submissions on the preliminary issue of jurisdiction, noting that Mrs Whiteside did not appear to be the registered owner of the lot, and therefore, not a “tree keeper” according to the title search.
5. [5]
   Neither party made submissions.
6. [6]
   Further directions were made inviting Mr O'Brien to file an amended application for a tree dispute, but he did not do so.
7. [7]
   On or around 3 November 2021, the tribunal received a letter directed to Mrs O'Brien from the Moreton Bay Regional Council indicating that the property owner of Lot 104 on the specified RP, adjoining Mr O'Brien’s property, was in fact Ms Hobart.
8. [8]
   On 2 February 2022 I dismissed Mr O'Brien’s application for a tree dispute for the following reasons.

Legislative framework for tree disputes

9. [9]
   Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (“NDA”) applies to trees situated on land that includes, relevantly, land recorded in the freehold land register^[1].
10. [10]
    A neighbour can bring an application for a tree dispute against a “tree keeper” where the land they own is affected by a tree.^[2] 
11. [11]
    Under section 48(1)(a) of the NDA a “tree keeper” is, if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994 (Qld) (“LTA”), the registered owner of the lot under that Act^[3]. 
12. [12]
    Sections 27 and 28 of the LTA govern the keeping of the freehold land register by the Registrar of Titles, which must include the particulars necessary to identify:

    1. (a)
       every lot brought under the LTA; and
    2. (b)
       every interest registered in the register; and
    3. (c)
       the name of the person who holds, and the name of each person who has held, a registered interest; and
    4. (d)
       all instruments registered in the register and when they were lodged and registered.
13. [13]
    Pursuant to section 35 of the LTA, a person may search the information kept on the freehold land register.
14. [14]
    An infeasible title is created on the recording of the particulars of the lot on the freehold lang register.^[4]  

What can the tribunal do? 

15. [15]
    The objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”)^[5] 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:

    1. (a)
       encourage the early and economical resolution of disputes before the tribunal;^[6] and
    2. (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.^[7]
16. [16]
    Section 62(1) of the QCAT Act permits the tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
17. [17]
    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.^[8]  These proceedings are known as decisions made “on the papers”.
18. [18]
    The tribunal may inform itself in any way it considers appropriate.^[9]
19. [19]
    The tribunal must allow a party to a proceeding a reasonable opportunity to call or give evidence and to make submissions to the Tribunal.^[10]  
20. [20]
    I am satisfied that the preliminary issue of jurisdiction 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.
21. [21]
    I am also satisfied that the parties were allowed a reasonable opportunity to give evidence and to make submissions prior to the making of this decision on the papers.
22. [22]
    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”.^[11]

Decision

23. [23]
    This application involves a novel situation in which Ms Whiteside (Hobart) insists she is the owner of Lot 104 (the property that adjoins Mr O'Brien’s property and upon which the offending trees are situated) and Council records – usually derived from the freehold land register - apparently reflect that.
24. [24]
    However, by definition, the tree keeper under the NDA is “if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994 (Qld) (“LTA”), the registered owner of the lot under that Act”.
25. [25]
    The only evidence before the tribunal of the registered owner of Lot 104 according to the freehold land register is the title search dated 4 January 2021 filed by Mr O'Brien, that clearly records the registered owner of the lot as being the State of Queensland and not Mrs Whiteside (Hobart).
26. [26]
    Even if the freehold land register is in error, it must be relied upon by the tribunal until that error is corrected because the NDA requires it and because the State of Queensland is currently the holder of indefeasible title over that lot. 
27. [27]
    On that basis, Mrs Whiteside (Hobart) is not the correct respondent because she is not a tree keeper, which renders the application futile.
28. [28]
    For those reasons, the application for a tree dispute is dismissed.