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

1. 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.

2. 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).

   [4]Ibid s 46(a).

   [5]Ibid s 52.

   [6]Ibid s 66(2), (5)(f).

   [7]Ibid s 65.

3. Mr and Mrs Chalker provided photos of the damage and quotes and invoices in respect of the papers. There was correspondence between Mr and Mrs Chalker and Comlabore and their representatives including insurance adjusters showing that they had attempted to resolve the dispute prior to it coming to the Tribunal. The material provided by Mr and Mrs Chalker notes that the tree was on a lean of between 30-45 degrees prior to it falling in the storm and that the condition of the tree had been brought to the attention of Comlabore by a previous owner of Mr and Mrs Chalker property.

4. Comlabore in its response to the application states that the tree was broken in a severe storm on 27 January 2013, the damage was caused by an act of God, it was not foreseeable that such a severe storm event would occur that would break the tree, the tribunal does not have jurisdiction to hear a negligence case. The response did not indicate that Comlabore specifically disagreed with any of the matters raised in the application.

5. Mr and Mrs Chalker are not seeking damages for the tort of negligence. They are claiming compensation for damage under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

6. The tree in question was the responsibility of Comlabore and having regard to the lean on it and the fact that its condition had been brought to Comlabore’s attention some action should have been taken by it to ensure that the tree did not cause damage to Mr and Mrs Chalker’s property. It is not a question of foreseeability but one of a tree-keeper exercising their responsibility under the Act.

7. The Tribunal is satisfied that a tree situated on land owned by Comlabore has fallen and caused damage to the property of Mr and Mrs Chalker the owners of land adjoining that of Comlabore and that Mr and Mrs Chalker are entitled to compensation in respect of the damage caused in accordance with s 66 of the Act.

8. The damage to Mr and Mrs Chalker’s property was extensive with the total amount of being costing $17,135.00.  Comlabore has not raised any issue with the repair costs and these are accepted by the Tribunal as being the amount that Mr and Mrs Chalker are entitled to as compensation for the damage to their property.

9. There are three other amounts being an ASIC company search $9.00, filing fee $275.00 and costs incurred in pursuing the claim $660.00. These three items are considered costs in relation to the application. The question as to whether they are allowable is determined in accordance with sections 100 and 102 of the QCAT Act.

10. The starting point is that each party must bear their own costs; this presumption may be displaced if the Tribunal considers it in the interests of justice to order a party to pay all or part of the costs of another party[8]. In determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to the nature and complexity of the dispute the relative strengths of the claims made by each of the parties; and whether a party has acted in a way that unnecessarily disadvantages another party: QCAT Act s 102(3)[9].

    [8]McEwen v Barker Builder Pty Ltd [2010] QCATA 49 at para 13 per Wilson J.

    [9]Ibid at para 14.

11. The Tribunal having made an initial decision awarding Mr and Mrs Chalker the amount of $17,135.00 for compensation with an additional amount of $284.00 for search and application fees totalling $17,419.00 and invited the parties to make submissions in regard to costs.

12. Mr and Mrs Chalker submitted that the matter could have been settled with a minimum of delay and without them incurring unnecessary legal costs had it not been for the respondents and their representatives making unreasonable allegations that it was their responsibility to obtain an arborist’s report on the failed tree prior to the event; their apparent refusal to acknowledge and accept the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and failure to communicate in a timely manner. Comlabore did not take the opportunity to make any submissions in reply to those of Mr and Mrs Chalker.

13. The Tribunal is mindful of s 100 but here it is considered that the claim of Mr and Mrs Chalker was so self-evident in accordance with the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and if Comlabore have had looked at the matter in accordance with its obligations under that Act that Mr and Mrs Chalker would not have been put to the expense of bringing the application. Therefore the Tribunal is satisfied that the relative strength of Mr and Mrs Chalker’s claim against Comlabore is such that it is in the interests of justice that they be awarded their costs in the application.

14. Mr and Mrs Chalker have claimed and amount of $1,760.00 for legal costs in respect of negotiating with Comlabore and the drafting of the application to the Tribunal. They have provided tax invoices in respect of this amount which are accepted by the Tribunal and they are fixed as the cost of the application[10].

    [10]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107.

15. Mr and Mrs Chalker have also claimed interest under s 58 of the Civil Proceeding Act 2011. That Act does not apply to the Tribunal and no interest will be awarded.

16. There is an additional claim of $1,500.00 costs for substantial, ongoing and unreasonable interference with the use and enjoyment of Mr and Mrs Chalker’s property. This is essentially a further claim for compensation and the award for compensation was previously made this would be an enlargement of the original claim and will not be allowed. Additionally there is no evidence to support this amount.

17. The Tribunal orders are that:

    a)    Comlabore Pty Ltd pay Mr and Mrs Chalker the amount of $17,419.00 by 3 January 2014; and

    b)    Comlabore Pty Ltd pay Mr and Mrs Chalker additional costs of and incidental to Mr and Mrs Chalker’s application fixed at $1,760.0 within 14 days.