Carr v McKinlay - [2020] QCAT 186

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Carr & Anor v McKinlay & Anor [2020] QCAT 186

PARTIES:

ROWAN CARR

(first applicant)

FELICITY CARR
(second applicant)

v

IAN MCKINLAY

(first respondent)

MARY MCKINLAY

(second respondent)

APPLICATION NO/S:

RWL001-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

20 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

1. Pursuant to s 135 (2) of the Queensland Civil and Administrative Tribunal Act (2009), the Tribunal corrects an error arising from an omission as referred to in direction 2 of these directions.

2.     The consent order of 6 December 2018 is varied to read that Ian McKinlay and Mary McKinlay will arrange the following works be performed by an appropriately qualified and insured arborist, to be selected as the lower of two (2) quotes; such quotes to be provided to Rowan Carr and Felicity Carr; and such arborist to have the minimum qualifications of Australian Qualifications Framework Level 3:

a)      To trim and maintain the trees the subject of this dispute (i.e. the trees identified by number in Mr Inman’s report dated 26 September 2019 as numbers 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17, 18 and 20) to a maximum height of five (5) metres or to a height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees;

b)      All works will be carried out at the cost of Rowan Carr and Felicity Carr paying 50% of total cost and the applicants in RWL002-19, Robin Barnes and Avril Fallat, the other 50% of the total cost;

c)      The first trimming and maintenance of the trees is to occur within 90 days of the date of this decision; and

d)      Any further trimming and maintenance required to achieve the maximum tree height of five (5) metres or to the height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees will occur at such intervals as recommended by the arborist engaged under this order up until the date 12 months from the decision date.

3.       Ian McKinlay and Mary McKinlay will allow the arborist reasonable access to the property to perform the works upon Rowan Carr and Felicity Carr giving them 14 days written notice.

4.       All works are to comply with the requirements of the Australian Standard 4373 – 2007 Pruning of Amenity Trees

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – RENEWAL – where problem in implementing or enforcing orders – where Tribunal can only make the same final decision or any other appropriate decision ‘when the proceeding was originally decided’

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 133, s134,…

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 Carr v McKinlay

Details

AGLC: Carr v McKinlay [2020] QCAT 186
Case: [2020] QCAT 186
Decision Date: 20 May 2020

CaseChat Overview and Summary

The case of Carr v McKinlay involved a dispute between the Carrs and the McKinlays regarding the trimming of trees on the McKinlays' property. The dispute was heard by the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issue before the tribunal was whether it could renew consent orders to allow the trees to be trimmed to a height of five metres or the closest height to five metres that complied with Australian Standard 4373 – 2007 for the Pruning of Amenity Trees.

The tribunal found that the orders could be renewed as they were either the same as the original orders or an appropriate final decision that could have been made at the time the original orders were made. The tribunal emphasised that it was limited to making the same final decision or any appropriate final decision that it could have made when the proceeding was originally decided. In this case, the tribunal found that the proposed renewal orders were within its jurisdiction.

The tribunal also addressed the potential conflict between the orders for pruning to five metres and compliance with the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees. The tribunal found that this conflict could be resolved by an order that the trees be trimmed to five metres or the height closest to five metres that complied with the standard. This order was either in substance the same as the original order or was one which could have been made at that time.

The tribunal varied the consent order of 6 December 2018 to allow the trees to be trimmed to a maximum height of five metres or the closest height to five metres that complied with Australian Standard 4373 – 2007 Pruning of Amenity Trees. The tribunal also ordered that the first trimming and maintenance of the trees occur within 90 days of the decision date and that any further trimming and maintenance required to achieve the maximum tree height occur at such intervals as recommended by the arborist engaged under this order up until the date 12 months from the decision date.

Orders

Orders of the court

1. Pursuant to s 135 (2) of the Queensland Civil and Administrative Tribunal Act (2009), the Tribunal corrects an error arising from an omission as referred to in direction 2 of these directions.

2. The consent order of 6 December 2018 is varied to read that Ian McKinlay and Mary McKinlay will arrange the following works be performed by an appropriately qualified and insured arborist, to be selected as the lower of two (2) quotes; such quotes to be provided to Rowan Carr and Felicity Carr; and such arborist to have the minimum qualifications of Australian Qualifications Framework Level 3:

a) To trim and maintain the trees the subject of this dispute (i.e. the trees identified by number in Mr Inman’s report dated 26 September 2019 as numbers 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17, 18 and 20) to a maximum height of five (5) metres or to a height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees;

b) All works will be carried out at the cost of Rowan Carr and Felicity Carr paying 50% of total cost and the applicants in RWL002-19, Robin Barnes and Avril Fallat, the other 50% of the total cost;

c) The first trimming and maintenance of the trees is to occur within 90 days of the date of this decision; and

d) Any further trimming and maintenance required to achieve the maximum tree height of five (5) metres or to the height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees will occur at such intervals as recommended by the arborist engaged under this order up until the date 12 months from the decision date.

3. Ian McKinlay and Mary McKinlay will allow the arborist reasonable access to the property to perform the works upon Rowan Carr and Felicity Carr giving them 14 days written notice.

4. All works are to comply with the requirements of the Australian Standard 4373 – 2007 Pruning of Amenity Trees

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Again, in the words of Member Hughes from Wood v Kenyon[4]: Rather, the Tribunal is limited to making the same final decision or any appropriate final decision that it could have made when the proceeding was originally decided (my emphasis)’.[5] ‘Decision’ means an order made or direction given by the Tribunal.[6]‘Final decision’ means the Tribunal’s decision that finally decides the matters the subject of the proceeding.[7][4][2020] QCAT 119 [15][16].[5]See Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 134(1).[6]Ibid, Schedule 3 (definition of ‘decision’).[7]Ibid, Schedule 3 (definition of ‘final decision’). In the current proceeding the application was decided by agreement and consent at a directions hearing of the Tribunal on 6 December 2018. It was not decided on the merits and the final decision that was made at the directions hearing was a consent order. Therefore based on s 134(2) of the QCAT Act the Tribunal may only make the same decision it made when the proceeding was originally decided or any other appropriate final decision it could have made acting under this Act or an enabling Act when the proceeding was originally decided.Identification As outlined above, on the material available to the parties at the time of the consent orders being agreed to, the trees the subject of the dispute were readily identifiable. However to aid the ease of compliance and implementation and for the sake of absolute clarity it is desirable to describe the trees in the terms used in the arborist’s report. This is not introducing new untested evidence into the proceedings, rather simply a method of moving the matter forward towards achieving the resolution the parties agreed to on 6 December 2018; implementing the orders. I am satisfied that the arborist’s report, ordered by Senior Member Brown, can properly be regarded in these proceedings for this purpose.First Issue: Height as Compliant with Standards The next issue is that there seems to be some difficulty in guaranteeing that some of the trees the subject of the orders can trimmed to exactly five metres. This does not appear to be an insurmountable problem and may well be solved by an order that the trees be trimmed to five metres or the height that is closest to five metres and still in compliance with the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees. Such an order is either in substance the same as the original order, or is one which could have been made at that time; thus it is within the jurisdiction for renewal. This deals with issue one of the applicants’ concerns relating to compliance with the original consent orders.Second Issue: Potential Conflict between Orders The parties’ second issue with compliance with the orders is the potential conflict between Order 1 for pruning (described as trimming and maintenance) to five metres and compliance with the Australian Standard 4373 – 2007 for the Pruning of Amenity Trees referred to in Consent Order 3.

Ratio Decidendi

Legal Principle Established

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CITATION:	Carr & Anor v McKinlay & Anor [2020] QCAT 186
PARTIES:	ROWAN CARR (first applicant) FELICITY CARR (second applicant)
v
IAN MCKINLAY (first respondent) MARY MCKINLAY (second respondent)
APPLICATION NO/S:	RWL001-19
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	20 May 2020
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Kent
ORDERS:	1. Pursuant to s 135 (2) of the Queensland Civil and Administrative Tribunal Act (2009), the Tribunal corrects an error arising from an omission as referred to in direction 2 of these directions. 2. The consent order of 6 December 2018 is varied to read that Ian McKinlay and Mary McKinlay will arrange the following works be performed by an appropriately qualified and insured arborist, to be selected as the lower of two (2) quotes; such quotes to be provided to Rowan Carr and Felicity Carr; and such arborist to have the minimum qualifications of Australian Qualifications Framework Level 3: a) To trim and maintain the trees the subject of this dispute (i.e. the trees identified by number in Mr Inman’s report dated 26 September 2019 as numbers 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 15, 17, 18 and 20) to a maximum height of five (5) metres or to a height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees; b) All works will be carried out at the cost of Rowan Carr and Felicity Carr paying 50% of total cost and the applicants in RWL002-19, Robin Barnes and Avril Fallat, the other 50% of the total cost; c) The first trimming and maintenance of the trees is to occur within 90 days of the date of this decision; and d) Any further trimming and maintenance required to achieve the maximum tree height of five (5) metres or to the height closest to five (5) metres that complies with the requirements of Australian Standard 4373 – 2007 Pruning of Amenity Trees will occur at such intervals as recommended by the arborist engaged under this order up until the date 12 months from the decision date. 3. Ian McKinlay and Mary McKinlay will allow the arborist reasonable access to the property to perform the works upon Rowan Carr and Felicity Carr giving them 14 days written notice. 4. All works are to comply with the requirements of the Australian Standard 4373 – 2007 Pruning of Amenity Trees
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – RENEWAL – where problem in implementing or enforcing orders – where Tribunal can only make the same final decision or any other appropriate decision ‘when the proceeding was originally decided’ Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 133, s134,…