Bose v Weir (No. 2) - [2017] QCAT 448

CITATION:

Bose v Weir (No. 2) [2017] QCAT 448

PARTIES:	Dipjit Bose and Sujita Bose (Applicants)
v
Michelle Weir (Respondent)

APPLICATION NUMBER:

NDR165-16

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

11 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application for a tree dispute dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees obstruct a view that previously existed – where no dwelling upon the land at the time of settlement – where s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) not engaged if no dwelling on neighbour’s land when the neighbour took possession of land – where Tribunal found that the applicants were unable to establish the jurisdictional fact required for the Tribunal to make an order in relation to the trees – where the Tribunal must decide whether the proceeding should be dismissed on the basis that it is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process – where application unsustainable in law – Where Tribunal finds that Application should be dismissed

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 66(3)(b)(ii)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47(2)(a)

Bose v Weir [2017] QCAT 352

Jones v Cusack (1992) 109 ALR 313

Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271

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

REASONS FOR DECISION

On 13 October 2017 I made a declaration that, for the purposes of s 66(3)(b)(ii) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), there was no view from a dwelling on the land at 34 Harrison Street, Bulimba, when the applicants took possession of the land. I directed the parties to file submissions addressing whether the Application for a tree dispute should be dismissed pursuant to s 47(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
As I set out in my earlier reasons, because there was no dwelling on their land when they took possession of the land, the applicants, Mr and Mrs Bose, are unable to establish the jurisdictional fact required for the Tribunal to make an order in relation to the trees situated on Mrs Weir’s land, at least insofar as the applicants complain that the trees cause an obstruction of a view.
In order to ensure that the parties were afforded procedural fairness, directions were made for the parties to file submissions addressing whether the proceeding should be dismissed on the basis that it is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process.
Mr and Mrs Bose have filed no submissions. Mrs Weir has. Mrs Weir says that the basis of the tree dispute by the Boses has never been clearly established. Mrs Weir says…

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 Bose v Weir (No. 2)

Details

AGLC: Bose v Weir (No. 2) [2017] QCAT 448
Case: [2017] QCAT 448
Decision Date: 11 December 2017

CaseChat Overview and Summary

The case of Bose v Weir (No. 2) involves a dispute between neighbours regarding the obstruction of a view by trees on an adjoining property. The matter was brought before the Tribunal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), which provides a framework for resolving disputes between neighbours about trees and vegetation. The applicants argued that the trees were obstructing a previously existing view, while the respondents contended that the application was unsustainable in law due to the absence of a dwelling on the neighbour's land at the time of settlement. The Tribunal was required to determine whether the proceeding should be dismissed as frivolous, vexatious or misconceived.

The primary legal issue before the Tribunal was whether section 66(3)(b)(ii) of the Act applied to the circumstances of the case. This section allows for the making of an order where a tree obstructs a view that previously existed, but only if there was a dwelling on the neighbour's land at the time of settlement. The applicants had to establish that this jurisdictional fact was met for the Tribunal to make an order. The Tribunal found that the applicants could not establish this fact, as there was no dwelling on the neighbour's land when the neighbour took possession of the land. Consequently, the Tribunal concluded that the application was unsustainable in law.

Following its finding that the application was unsustainable in law, the Tribunal was required to decide whether the proceeding should be dismissed on the grounds that it was frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. The Tribunal found that the application should be dismissed, as it was unsustainable in law and therefore lacked the necessary substance to proceed. The Tribunal's decision was based on the clear interpretation of the statutory provisions and the evidence presented, which demonstrated that the jurisdictional fact required for an order could not be established. The Tribunal's decision was a dismissal of the application for a tree dispute, leaving the parties to resolve their differences outside the statutory framework provided by the Act.

Orders

Orders of the court

1. Application for a tree dispute dismissed.

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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