Gould v Cornell[2024] QCAT 587

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   On 5 August 2024 the Tribunal Registry received three related applications.^[1] These applications were instigated by Paul James Gould and Maria Veronica Gould (‘the Goulds’).^[2] The first of these applications was instituted by the filing of a Form 43. It is an application for renewal of a ‘final decision’ (‘Renewal Application’). The final decision that is the subject of the Renewal Application is a proceeding with the QCAT case number of NDR156-20. The nominated legislative basis for the Renewal Application is s 133 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).^[3] The Renewal Application has been given the QCAT Case number RWL001-24.
2. [2]
   The second application instigated by the Goulds on 5 August 2024 is an application to extend a statutory time limit (‘EOT Application’).^[4] The EOT Application is necessary because, as is acknowledged by the Goulds in the Renewal Application,^[5] that application was not made within the time limited for such an application. The nominated legislative basis for EOT Application is s 61 of the QCAT Act.^[6]
3. [3]
   The third application instigated by the Goulds was instituted by the filing of a Form 44 (an application to stay a decision). This application seeks a stay of the decision in NDR156-20 (‘Stay Application’). The Stay Application does not specifically set out the legislative basis for the requested stay but does, in its Annexure A, reference the Renewal Application and the affidavit of Paul Gould filed in the Renewal Application.
4. [4]
   The nominated respondents to the EOT Application and the Stay Application are Gregory Cornell and Julie Cornell (‘the Cornells’). The Cornells are also the effective respondents to the Renewal Application.^[7]
5. [5]
   The Cornells have also filed an application in NDR156-20. This application, filed on 7 August 2024, was instituted by filing a Form 40 application (an application for miscellaneous matters). The respondents to this application are the Goulds. By this application the Cornells are seeking costs against the Goulds (‘Costs Application’). The legislative basis for this is nominated as (s) ‘102 of the QCAT Act – section 48(1) costs against a party.’^[8]
6. [6]
   The Cornells’ Costs Application was filed two days after the three applications instituted by the Goulds. Even if the Cornells had not, at the time of filing their Costs Application, seen the Renewal and EOT Applications, their material in support of their Costs Application reveals that they were advised on or about 10 July 2024 that the Goulds were preparing an application for renewal under s 133 of the QCAT Act.^[9]
7. [7]
   Further, the material filed in support of the Costs Application is largely directed toward the proposition that the Goulds have failed to comply with their obligations under the terms of the final decision. That is, the Cornells’ material addresses matters that are relevant to the Renewal Application.
8. [8]
   I conclude from a review of the four applications and the material filed in support of those applications that the Goulds and the Cornells have set out their respective positions in more than sufficient detail for these applications to be determined by an on the papers hearing.^[10]

NDR156-20

9. [9]
   To put these four applications in context it is appropriate to summarise QCAT case number NDR156-20. That proceeding was a tree dispute between adjoining landholders. The Cornells were the applicants and the Goulds were the respondents. The governing statute for the dispute was the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’).
10. [10]
    The decision in NDR156-20, which is dated  29 November 2022, found that the Goulds were ‘tree keepers’ of certain trees (being bamboo and sweet gums) and the Cornells were the ‘neighbours’ of the Goulds as those terms are used in the ND Act.^[11] The decision in NDR156-20 incorporated orders and a schedule that specified work that was to be carried out on the bamboo and sweet gums by the tree-keepers or, failing that, the neighbours.
11. [11]
    It is apparent from the four applications now under consideration here that the dispute between the Goulds and the Cornells was not quelled by the decision in NDR156-20.
12. [12]
    As addressed further below, the essential point of contention between the Cornells and the Goulds is as to the interpretation or implementation of the orders and schedule that formed part of the decision in NDR156-22.
13. [13]
    On 8 August 2024 the Tribunal made an order in RWL001-24 staying the execution of the work identified in the decision in NDR156-20 pending the outcome of the Renewal Application.

Renewal Application

14. [14]
    The QCAT Act, in s 133, recognises that that problems may arise with the interpretation, implementation or enforcement of a ‘final decision’ made by the Tribunal.^[12] In those circumstances, a party who contends that a final decision has one or more of these problems may apply to the Tribunal for what is referred to as a ‘renewal’ of the final decision.
15. [15]
    A ‘final decision’ is relevantly defined in Schedule 3 to the QCAT Act, the Dictionary, to mean the Tribunal’s decision that finally decides the matters the subject of a proceeding.
16. [16]
    A preliminary issue in respect of the Renewal Application is whether the decision in NDR156-20 dated 29 November 2022 is a final decision.^[13] I find that the decision of 29 November 2022 is a final decision as it finally decided the matter the subject of the proceeding. The matter in dispute was the tree dispute between the neighbours. That substantive issue was addressed by the 29 November 2022 decision.
17. [17]
    Further, it is apparent from Annexure A to the Goulds’ Renewal Application that a problem has arisen with respect to the interpretation, implementation or enforcement of the final decision in NDR156-20. That Annexure states relevantly as follows:

An ongoing dispute has arisen between the parties and their respective arborists as to the interpretation of the prescribed works in the Schedule annexed to the Final Decision. The ongoing dispute has resulted in the Applicants carrying out additional works which the Respondents allege is not permitted under the Schedule…

18. [18]
    The Cornells agree with the Goulds that there are problems with the interpretation, implementation or enforcement of a ‘final decision’. This is apparent form the Cornell’s Costs Application. The material that accompanies the Costs Application commences with the submission that ‘Mr and Mrs Gould have not followed the order’ in NDR156-20. I therefore find that s 133(1)(b) of the QCAT Act has been satisfied.
19. [19]
    The Renewal Application has, however, been instituted beyond the time provided by the QCAT Rules for such an application. This is acknowledged by Goulds – hence their EOT Application.^[14]
20. [20]
    The Tribunal is empowered, by s 61 of the QCAT Act, to extend a time limit fixed by the QCAT Rules.^[15] Should time be extended for the filing of the Renewal Application?
21. [21]
    The Tribunal may not extend or shorten a time limit if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party.^[16] The discretion to extend time should be exercised in accordance with the applicable common law and equitable principles and the Tribunal must assign appropriate weight to the requirement of finality of proceedings.^[17]
22. [22]
    The relevant considerations, when evaluating an application to extend time, can be summarised as:

    1. the duration of the delay;
    2. whether there is a satisfactory explanation for the delay;
    3. the merits of the application and its prospects of success;
    4. the likelihood of any prejudice to other parties or potential parties; and
    5. whether the extension of time is in the interests of justice.^[18]
23. [23]
    These considerations provide a useful framework for an assessment of the EOT Application. The delay here is significantly beyond the 28-day period set out in rule 89 of the QCAT Rules. On the Goulds’ own material, the delay was almost 12 months after they received the schedule to the November 2022 decision.
24. [24]
    The explanation for the delay given by the Goulds is that between October 2023 and July 2024 there was (and continues to be) a dispute between themselves and the Cornells regarding the interpretation or application of the schedule to the final decision. Both the Goulds and the Cornells took legal advice but even so, the impasse persisted. The Renewal Application is an attempt to have this impasse resolved.
25. [25]
    As to the merits of the application and its prospects of success, what is apparent from the material of both the Goulds in the Renewal Application and the Cornells in the Costs Application is that the current orders and accompanying schedule remain in dispute. Given this continuing dispute, it is appropriate for the Tribunal to consider whether any other final decision that could have been made should be made to quell, insofar as the Tribunal is able, the dispute between the Goulds and the Cornells.^[19] I have therefore concluded that, considering the merits of the Renewal Application and its prospects of success, circumstances support extending the time for the hearing of the Renewal Application.
26. [26]
    As to the likelihood of prejudice and the interests of justice as factors for consideration, given both the Goulds and the Cornells hold strong but opposing views as to the interpretation or application of the orders and schedule to NDR156-20, then I consider that the circumstances here also support granting the extension of time sought by the EOT Application.

Renewal of a final decision

27. [27]
    The renewal of a final decision is addressed in Chapter 2 Division 5 of the QCAT Act. In summary, s 133 of the QCAT Act provides that a party to a proceeding that is sought to be renewed may apply to the Tribunal for a renewal of the final decision if it is not possible for the Tribunal’s final decision in a proceeding to be complied with or there are problems with interpreting, implementing or enforcing the Tribunal’s final decision.^[20]
28. [28]
    A renewed final decision is addressed in s 134 which relevantly provides that the Tribunal may make the same final decision it made when the proceeding was originally decided, or the Tribunal may make ‘any other appropriate final decision that it could have made … when the proceeding was originally decided.’
29. [29]
    Unsurprisingly, the Goulds and the Cornells disagree as to what would be an appropriate renewed final decision under s 134 of the QCAT Act. The gravamen of the Cornells’ Costs Application is that the Tribunal should make the same final decision it made when the proceeding was originally decided with, perhaps, the substitution of the word ‘will’ for the word ‘may’ paragraph 1, line 2 of the schedule. That is, the paragraph that relates to the work to be carried out on the bamboo in respect of which the Goulds are tree-keepers.
30. [30]
    On the other hand, the Goulds’ view of the ‘2.5 metres’ reference in the schedule is set out in their Renewal Application. Their view is that the 2.5 metre height is not mandatory. This position is informed by an interpretation given to the schedule by an arborist engaged by the Goulds. The arborist’s interpretation is set out in a Tree Assessment Report by Oasis Tree Management.^[21] At page 2 of that report Bruce Herlihy, of Oasis Tree Management, states that:

It's important to note that the schedule mentioned that the bamboo ‘may be pruned to a limited height of approximately 2.5 meters.’ It did not specify that it must be reduced to 2.5 meters in height.

31. [31]
    In paragraph 35 of his affidavit Paul Gould puts his and his wife’s position in the following terms:

… we respectfully seek direction regarding the use of the word “may” in the Schedule and whether or not it imposes a strict requirement for the bamboo to be pruned to a height of 2.5 meters, clarification as to whether such requirement applies to all bamboo on our property or only to bamboo within a particular distance of the boundary between us and the (Cornells).

32. [32]
    Addressing the question of whether the 2.5 metre requirement applies to all bamboo on the Goulds’ property. It is necessary to state some key elements of the ND Act, and the findings set out in the decision in NDR156-20. As stated above, the decision found that the Goulds were the tree-keepers for the bamboo. The responsibilities of a tree-keeper are set out in s 52 of the ND Act and include that a tree-keeper is responsible for cutting and removing any branches of a tree that overhang a neighbour’s land. Further, under s 46 of the ND Act land is affected by a tree if branches from the tree overhang the neighbour’s land. The decision in NDR156-20 also found that the Goulds as tree-keepers have not appropriately attended to their responsibilities to remove overhanging branches.^[22]
33. [33]
    The schedule to the decision in NDR156-20 states that in respect of the bamboo the work required of the Goulds was to ‘cut back all growth that overhangs the dividing boundary…’ with the Cornells’ property. In this context the request by the Goulds for clarification as to whether a 2.5 metre height limit applies to all bamboo on the Goulds’ property or only to bamboo within a particular distance of the boundary is somewhat disingenuous. The reference in the decision in NDR156-20 is to overhanging bamboo. That is bamboo that is situated on the Goulds’ land, and which overhangs the land of the Cornells.
34. [34]
    As to the issue of the word ‘may’ in the schedule, I consider that Mr Herlihy and by extension the Goulds have not properly considered the schedule in the context of the reasons in NDR156-20. The reasons in [40] state the finding ‘that the bamboo, appropriately pruned to a height of about 2.5 meters will provide adequate screening and privacy to the Respondents.’
35. [35]
    This leads to the question of whether the renewed final decision should be the same decision that was made in NDR156-20, or whether any other appropriate final decision that could have been made should be made.^[23]
36. [36]
    Given the need for quelling, insofar as that is possible, the dispute between the Goulds and the Cornells the order will be to replace the schedule to NDR156-20 with the orders set out above. These new orders also obviate the need to further consider the Stay Application.
37. [37]
    As to the Cornells’ Costs Application, s 102 of the QCAT Act gives the Tribunal the power 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. The Tribunal is empowered to award costs even after a proceeding has ended.^[24]
38. [38]
    The Costs Application also refers to s 48(1) of the QCAT Act as the legislative basis for the application. By this reference the Cornells are contending that the Goulds are acting in a way that unnecessarily disadvantages another party to a proceeding. I infer, from the material supplied in support of the Costs Application, that the Cornells’ contention is that the Goulds have not complied with the Tribunal order (the schedule) without reasonable excuse. One of the remedies open to the Tribunal when it determines that a party to a proceeding is acting in a way that disadvantages another party is that the Tribunal may make a costs order under s 102 of the QCAT Act.
39. [39]
    The QCAT Act in s 102(3) sets out certain matters that the Tribunal may have regard to in coming to a costs decision. Amongst those matters the Tribunal must have regard to is whether a party is acting in a way that unnecessarily disadvantages another party including the matter mentioned in s 48(1) of the QCAT Act.
40. [40]
    As mentioned above, there are aspects of the conduct of the Goulds that I consider are disingenuous. Despite this, the instigation by them of the Renewal Application suggests that they did consider that there were problems with interpreting or implementing the Tribunal’s final decision in NDR156-20 and they sought the Tribunal’s assistance to resolve what they saw as a difficulty with the schedule in that decision.  As a result, I am of the view that costs should be determined in the manner provided for in s 100 of the QCAT Act. That is, each party to the proceeding should bear their own costs for the proceeding.