Brown & Anor v Wallace - [2014] QCAT 461

CITATION:

Brown & Anor v Wallace [2014] QCAT 461

PARTIES:	Robyn Brown and Peter Dimond (Applicant)
v
Baden Wallace (Respondent)

APPLICATION NUMBER:

NDR207-12

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

17 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Applications are dismissed.

2. Each party pays its own costs.

CATCHWORDS:

TREE DISPUTE – Whether Tribunal has jurisdiction – where neighbour is defined by Act – where statutory definition is exhaustive – where land registered under Building Units and Group Titles Act 1980 - where applicant is not owner or occupier of land registered under Land Title Act 1994 – where applicant not authorised to represent body corporate – COSTS – whether costs payable – where not in interests of justice to order costs

Body Corporate and Community Management Act 1997 (Qld) s 100
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 4, 48, 49, 62, 66
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 48, 100 and 102

Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA

241
La Bella Waters Body Corporate v Northaust Leisure Pty Ltd [2014] QCAT 372
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

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 (Qld) (QCAT Act).

REASONS FOR DECISION

What is this Application about?

Robyn Brown and Peter Dimond claim that Baden Wallace’s bamboo obstructs the sunlight to their unit. They claim that the lack of sunlight has led to health issues, mildew and their washing taking longer to dry.
They want an order to remove or prune the bamboo.

Does the Tribunal have jurisdiction?
Who may apply to the Tribunal?

A neighbour may apply for an order from the Tribunal.[1]
[1] Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 62.
The Tribunal’s jurisdiction is to make orders it considers appropriate in relation to a tree affecting the neighbour’s land.[2]
[2] Ibid s 66(2).

Who is a neighbour?

The Act specifically states that the dictionary in the schedule defines particular words used in this Act.[3] The Schedule to the Act defines “neighbour” as “for chapter 3, see section 49”.
[3] Ibid s 4.
For Chapter 3 of the Act, a neighbour is as it is defined by the Act and does not extend to its ordinary meaning.[4]
[4] La Bella Waters Body Corporate v. Northaust Leisure Pty Ltd [2014] QCAT 372 at
paragraphs [6] to [16].
Ms Brown and Mr Dimond are the owners of Unit 16, Fig Tree Court, 34 Old Pacific Highway, Oxenford. The report from their own arborist defines the site as follows:
For the purposes of this report, the property known as Fig Tree Court – 34 Old Pacific Highway, Oxenford, shall be referred to as “the site”.
The site, shall specifically include, the…

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 Brown & Anor v Wallace

Details

AGLC: Brown & Anor v Wallace [2014] QCAT 461
Case: [2014] QCAT 461
Decision Date: 17 September 2014

CaseChat Overview and Summary

In the case of Brown & Anor v Wallace, the applicants sought to intervene in a dispute between their neighbour and the respondents, concerning the removal of a tree. The applicants, neither owners nor occupiers of the land in question, were not authorised to represent the body corporate. The land was registered under the Building Units and Group Titles Act 1980, and the applicants’ land was registered under the Land Title Act 1994. The dispute reached the court as the applicants sought to challenge the jurisdiction of the Tribunal, arguing that the statutory definition of "neighbour" was not exhaustive and that they were indeed neighbours within the meaning of the Act.

The primary legal issue before the court was whether the Tribunal had the jurisdiction to hear the matter, given the statutory definition of "neighbour" in the Act. The court was required to interpret the statutory definition and determine if it was exhaustive or if it permitted a broader interpretation that could include the applicants. Additionally, the court had to consider whether the applicants had standing to bring the application and whether the costs of the proceedings should be awarded.

The court found that the statutory definition of "neighbour" was exhaustive and did not include the applicants. It was held that the applicants were not "neighbours" within the meaning of the Act, as they were neither owners nor occupiers of land adjacent to the respondents’ land. The court also determined that the applicants did not have standing to bring the application, as they were not authorised to represent the body corporate. Regarding the costs, the court held that it was not in the interests of justice to order costs, and each party was ordered to pay their own costs.

The final orders of the court were that the applications were dismissed and that each party pay their own costs. This decision highlights the importance of statutory interpretation and the necessity for parties to have standing to bring an application before the Tribunal. Additionally, the court's decision not to award costs emphasises the discretionary nature of such orders.

Orders

Orders of the court

1. The Applications are dismissed.

2. Each party pays its own costs.

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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