Chalker v Comlabore Pty Ltd - [2014] QCAT 176

CITATION:

Chalker v Comlabore Pty Ltd [2014] QCAT 176

PARTIES:	Garry Owen Chalker and Laurel Anne Chalker (Applicant)
v
Comlabore Pty Ltd (Respondent)

APPLICATION NUMBER:

NDR169-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

2 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Comlabore Pty Ltd pay Garry Owen Chalker and Laurel Anne Chalker the amount of $17,419.00 by 3 January 2014;

2. Comlabore Pty Ltd pay Garry Owen Chalker and Laurel Anne Chalker’s additional costs of and incidental to Mr and Mrs Chalker’s application fixed at $1,760.00 within 14 days

CATCHWORDS:

TREE DISPUTE - where tree brought down in storm-whether act of god-whether claim in negligence-costs of application where jurisdiction of Tribunal denied by respondent

Neighbourhood Disputes (Dividing fences and Trees) Act 2011 (Qld) ss 46, 48, 49, 52, 65, 66
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100, 102, 107

McEwen v Barker Builder Pty Ltd [2010] QCATA 49

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

Mr and Mrs Chalker are owners of the land at 231 O’Regan Creek Road, Toogoom. Comlabore Pty Ltd is the owner of adjoining land at Lots 553 and 54 Seashore Way, Toogoom. On 27 January 2013 a tree located on Comlabore’s land fell onto Mr and Mrs Chalker’s land and caused extensive damage to their house and garage. Mr and Mrs Chalker sought payment from Comlabore for the damage which was not forthcoming. They have now made an application to the Tribunal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The claim was for compensation in the amount of $18,079 including costs and the filing fee.
The Tribunal’s jurisdiction in regard to trees is based on consideration of the relationship between the parties. That is whether they are tree-keeper[1] and neighbour[2]. The land of the tree-keeper and neighbour must be adjoining and the neighbour’s land must be affected by a tree on the tree-keepers land[3]. Land is relevantly affected if a tree has caused serious damage to the land or any property on the land[4]. A tree-keeper is responsible for ensuring that the tree does not relevantly cause serious damage to a persons land or property on the land[5]. The Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbours land to again relevantly remedy damage to the land to any property on the land and this includes requiring the tree-keeper to pay compensation to a neighbour for such damage[6]. The Tribunal must be satisfied that the neighbour made a reasonable effort to reach agreement with the tree-keeper or tried to resolve the dispute under any relevant local law before it can make an order[7].
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) section 48.
[2]Ibid s 49.
[3]Ibid s 46(b).

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 Chalker v Comlabore Pty Ltd

Details

AGLC: Chalker v Comlabore Pty Ltd [2014] QCAT 176
Case: [2014] QCAT 176
Decision Date

CaseChat Overview and Summary

Garry Owen Chalker and Laurel Anne Chalker, owners of property at 231 O’Regan Creek Road, Toogoom, filed an application against Comlabore Pty Ltd, owners of adjoining land at Lots 553 and 54 Seashore Way, Toogoom, seeking compensation under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The dispute arose after a tree from Comlabore’s land fell onto the Chalkers' property during a storm on 27 January 2013, causing significant damage to their house and garage. Comlabore argued that the damage was due to an act of God and therefore beyond their control, asserting that the Tribunal lacked jurisdiction over a negligence claim.

The court needed to determine if Comlabore was responsible for the damage caused by the fallen tree and if the Tribunal had jurisdiction to award compensation under the Act. The court also had to decide if Comlabore was liable for the costs associated with the application. The key legal issues were whether the tree's condition and prior notice to Comlabore imposed a duty of care, and if so, whether Comlabore breached that duty by failing to take appropriate action to prevent the tree from falling.

The court found that Comlabore was indeed responsible for the tree and thus had a duty to ensure it did not cause damage to the Chalkers' property. The tree was leaning at an angle of 30-45 degrees, and its poor condition had been previously brought to Comlabore's attention. The court ruled that it was not a question of foreseeability but rather a matter of Comlabore failing to exercise its responsibility under the Act. The court held that the Tribunal had jurisdiction to award compensation as the damage was caused by a tree on Comlabore's land affecting the Chalkers' adjoining property. The court awarded the Chalkers $17,135.00 for property damage and additional costs of $284.00 for search and application fees, totalling $17,419.00. Given Comlabore's unreasonable conduct, the court also awarded the Chalkers $1,760.00 in legal costs.

The final orders were that Comlabore Pty Ltd must pay the Chalkers $17,419.00 by 3 January 2014 and an additional $1,760.00 within 14 days to cover costs and incidental expenses related to the application.

Orders