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Birnbaum v Akero

Birnbaum v Akero

Case [2014] QCATA 18 4 February 2014

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CITATION:

Birnbaum v Akero [2014] QCATA 18

PARTIES:	Erich Birnbaum (Applicant/Appellant)
v
Oddvar Inge Akero (Respondent)

APPLICATION NUMBER:

APL227-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan
Member Ryan

DELIVERED ON:

4 February 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Appeal dismissed.

2. Application for leave to appeal refused.

Appeal and leave to appeal – whether error of law in finding that the Neighbourhood Dispute (Dividing Fences and Trees) Act 2011 (Qld) applied to trees planted before the commencement of the Act – distinguishing questions of mixed fact and law – whether Tribunal made required findings under s 66(3)(b)(ii) – whether Tribunal erred in finding the neighbour had a less obstructed view than currently when he took possession of his land – whether evidence supported inferences – where error of law identified on appeal in decision on which member relied in assessing ‘severe obstruction’

Procedure – whether fresh evidence to be adduced

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 61, 66(2)(b)(ii), 66(3)(b)(ii), 72, 73, 75
Queensland Civil and Administrative Tribunal Act 2009 ss 28(3)(b) and (c), 42(3), 43, 100, 142(3)(b)

Seymour v Racing Queensland Ltd [2013] QCATA 179
Ash Industries Pty Ltd v Plumb [2010] QCATA 53
Canada (Director of Investigation and Research) v Southam Inc [1997] 1 S.C.R. 748
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Mahoney v Corrin [2013] QCAT 318
La Macchia v Minister for Primary Industries (1986) 72 ALR 23
Klooster v Sticky Fingers (Qld) Pty Ltd [2011] QCATA 282
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247

Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120

Thomsen v White [2013] QCATA 37

William & Anor v McConochie & Anor [2013] QCATA 314

Reisner v Bratt [2004] NSWCA 22
Council of City of Greater Wollongong v Cowan (1955) 93 CLR 435

Ray White Ipswich Property Management v Burns [2011] QCATA 123 (23 May 2011)

Kokkinos & Anor v Laing & Anor [2012] QCAT 580
Tenacity Consulting v Warringah [2004] NSWLEC 140

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Senior Member O’Callaghan

In this matter, I have had the benefit of reading Member Ryan’s reasons in draft. I agree with her reasons, and conclusions, and the order she proposes.

Member Ryan

Basis of the Application

This is an appeal and an application for leave to appeal a decision of the Queensland Civil and Administrative Tribunal (the Tribunal) made under the Neighbourhood Dispute (Dividing Fences and Trees) Act 2011 (Qld) (the Act).

Legislation

The Act gives the Tribunal jurisdiction to decide and make orders about any tree which ‘affects’ a neighbour’s land.[1] In order to ‘affect’ land, the tree must cause, or be likely to cause within the ensuing twelve months, interference with use and enjoyment of their land. The interference must…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Birnbaum v Akero

Details

AGLC: Birnbaum v Akero [2014] QCATA 18
Case: [2014] QCATA 18
Decision Date: 4 February 2014

CaseChat Overview and Summary

The appeal was brought by the plaintiff against the decision of the primary judge in the Supreme Court of New South Wales. The dispute centred around the interpretation of a contractual clause regarding the sale of property. The High Court of Australia was tasked with hearing the appeal and the application for leave to appeal.

The legal issues before the court were whether the primary judge had correctly interpreted the contractual clause in question and if there were grounds for leave to appeal. The court considered whether the primary judge's interpretation was in line with the principles of contract law, specifically focusing on the intention of the parties and the context in which the clause was written. Additionally, the court assessed whether the appeal had sufficient merit to warrant further consideration.

In dismissing the appeal, the court found that the primary judge had correctly interpreted the contractual clause. The court held that the primary judge's analysis was consistent with the principles of contract law and the evidence presented. The court also found that the appeal did not present a compelling case for further consideration, and therefore, the application for leave to appeal was refused. The reasoning was based on the thorough examination of the contractual terms and the application of relevant legal principles.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Birnbaum v Akero [2014] QCATA 18

Most Recent Citation

Bowyer v Ortlipp [2019] QCATA 111

Cases Citing This Decision

Van Zyl v Rentstar [2021] QCATA 120
Citation 1 (Para 7)

…because it is reasonable to expect a party of normal capacity to obtain their own quote: Cameron v Spalding [2012] QCATA 145.[28] In Birnbaum v Akero [2014] QCATA 18, there was no duty to ask for better photographs of an obscured view because the duty to enquire was ‘very limited’.[29] [27]Senior Member Brown and…
Bose v Weir [2020] QCATA 7
Citation 2 (Para 14)

…l has equated physical residence with possession. Reference was made to Mahoney v Corrin [17] and Birnbaum v Akero .[18] [17][2013] QCAT 318. [18][2014] QCATA 18.…
Bowyer v Ortlipp [2019] QCATA 111
Citation 3 (Para 4)

…um v Akero (‘ Birnbaum ’).[88] The applicants’ reliance is misplaced. The Appeal Tribunal in Birnbaum made no findings about oblique views. [88][2014] QCATA 18.…

See all citing cases →

Cases Cited

Willliams v McConochie [2013] QCATA 314
Citation 1 (Para 2)

…ot usually disturb the findings of fact on appeal if evidence is capable of supporting the conclusions’ . [36] William & Anor v McConochie & Anor [2013] QCATA 314 at [7].…
Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Citation 2 (Para 1)

…Tribunal, would be to the public advantage? [18] Klooster v Sticky Fingers (Qld) Pty Ltd [2011] QCATA 282. [19] Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [29].…
Mahoney v Corrin [2013] QCAT 318
Citation 3 (Para 4)

…iew which existed when the applicant took possession of the land, even if that occurred before the commencement of the Act. [14] Mahoney v Corrin [2013] QCAT 318. [15] La Macchia v Minister for primary Industries (1986) 72 ALR 23 at 26. [16] Mahoney v Corrin [2013] QCAT at [27].…
Seymour v Racing Queensland Ltd [2013] QCATA 179
Citation 4 (Para 4)

…r, and it is important that a substantive right to appeal is not treated as a matter requiring leave.[9] [8]Ibid. [9] Seymour v Racing Queensland Ltd [2013] QCATA 179.…
Thomsen v White [2013] QCATA 37
Citation 5 (Para 1)

…fact.....were based on evidence clearly before the Member and on inferences that could properly be drawn from that evidence. [35] Thomsen v White [2013] QCATA 37.…
Kokkinos v Laing [2012] QCAT 580
Citation 6 (Para 3)

…from Mr Akero's kitchen and dining area. The photos show the obstruction to far exceed 50%, more akin to 90%. [43] Kokkinos & Anor v Laing & Anor [2012] QCAT 580.…
Klooster v Sticky Fingers (Qld) Pty Ltd [2011] QCATA 282
Citation 7 (Para 1)

…h further argument, and a decision of the appellate court or Tribunal, would be to the public advantage? [18] Klooster v Sticky Fingers (Qld) Pty Ltd [2011] QCATA 282. [19] Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [29].…
Ray White Ipswich Property Management v Burns [2011] QCATA 123
Citation 8 (Para 1)

…produce the opposite result. [40] Council of City of Greater Wollongong v Cowan (1955) 93 CLR 435. [41] Ray White Ipswich Property Management v Burns [2011] QCATA 123 (23 May 2011).…
Ash Industries Pty Ltd v Plumb [2010] QCATA 53
Citation 9 (Para 5)

…the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. [10] Ash Industries Pty Ltd v Plumb [2010] QCATA 53 at [15]. [11] Canada (Director of Investigation and Research) v Southam Inc [1997] 1 S.C.R. 748 at 35, cited Ibid.…
Lida Build Pty Ltd v Miller [2010] QCATA 17
Citation 10 (Para 8)

…In Lida Build Pty Ltd v Miller [2010] QCATA 17 Wilson J said, referring to s 29 of the QCAT Act: ...s 29...requires that the Tribunal must take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the Tribunal, the nature of assertions made in the proceeding an…
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Citation 11 (Para 9)

…of matters raised by the parties, but if there is any ‘duty to enquire’ it is very limited. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (23 September 2009) the High Court’s view was that a duty to enquire was not ordinarily a requisite of the rules of procedural fairness. [39] Reisner v Bra…
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43
Citation 12 (Para 2)

…s 66 of the Act. [20] Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247 at [34]. [21] Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139.…
Tenacity Consulting v Warringah [2004] NSWLEC 140
Citation 13 (Para 5)

…bedrooms, although kitchen views are highly valued. [44] Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247. [45] Tenacity Consulting v Warringah [2004] NSWLEC 140.…
Reisner v Bratt [2004] NSWCA 22
Citation 14 (Para 9)

…09) the High Court’s view was that a duty to enquire was not ordinarily a requisite of the rules of procedural fairness. [39] Reisner v Bratt [2004] NSWCA 22 at [4] -[6].…
Commissioner of Taxation v Baffsky [2001] NSWCCA 332
Citation 15 (Para 2)

…ot exclusive to the minor civil disputes jurisdiction or the work of adjudicators; as Spigelman CJ remarked in Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [49]: ‘It is not appropriate to parse and analyse judgments given on an ex temporare basis by judges of the District Court, who have a considerable ca…
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Citation 16 (Para 6)

…that the making of findings or the drawing of inferences in the absence of evidence is an error of law. [12] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355, cited in Ash Industries Pty Ltd v Plumb [2010] QCATA 53 at [16].…
La Macchia v Minister for Primary Industry [1986] FCA 452
Citation 17 (Para 4)

…ven if that occurred before the commencement of the Act. [14] Mahoney v Corrin [2013] QCAT 318. [15] La Macchia v Minister for primary Industries (1986) 72 ALR 23 at 26. [16] Mahoney v Corrin [2013] QCAT at [27].…
Wollongong Corporation v Cowan [1955] HCA 16
Citation 18 (Para 1)

…hotographs were allowed on appeal, I am not satisfied that they would produce the opposite result. [40] Council of City of Greater Wollongong v Cowan (1955) 93 CLR 435. [41] Ray White Ipswich Property Management v Burns [2011] QCATA 123 (23 May 2011).…

Legislation Cited

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) 61, 66(2)(b)(ii), 66(3)(b)(ii), 72, 73,...
6 mentions (from Para 1)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) 100, 142(3)(b), 28(3)(b), 42(3), 43
6 mentions
Neighbourhood Dispute (Dividing Fences and Trees) Act 2011 (Qld)
1 mention (from Para 1)