Easey v Ho - [2024] QCAT 441

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Easey & Anor v Ho & Anor [2024] QCAT 441

PARTIES:

MICHAEL ANDREW EASEY

(applicant)

ANNE-LOUISE DOROTHEA EASEYY

(applicant)

v

POON CHUNG HO

(first respondent)

LISA BLANKENSHIP

(second respondent)

APPLICATION NO/S:

NDR068-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

23 September 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. Lisa Blankenship is removed as a respondent.

2. The application for a tree dispute is dismissed.

CATCHWORDS:

TREE DISPUTE – Jurisdiction of Tribunal – where second respondent not the registered owner of the lot where the tree was situated prior to removal - whether second respondent is a “tree keeper” under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree dispute – where dispute relates to a hibiscus tree and a fig vine – where trees removed by tree-keeper prior to sale of land to first respondent – where damage caused by trees was sustained before sale of land by tree-keeper to first respondent – whether the tribunal can make an order about damage caused prior to the sale of the property

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 45, s 47 s 48, s 49, s 68, s 72, s 83,

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 42

Qui & Anor v Khoo & Anor [2024] QCAT 265

Salmond v S & S Accounting Services Pty Ltd [2012] QCATA 218

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

This proceeding is about a tree dispute. In accordance with directions by the Tribunal, the matter is to be determined on the papers.
The Easeys complain about a fig vine and a hibiscus tree (the trees) situated on an adjoining property. They say that the trees have damaged property on their land, specifically a dividing fence and a retaining wall. They also make other complaints about the trees. The applicants have expressed concern about potential damage to the foundations of the dwelling on their land.
Ms Molinari was the owner of the adjoining property when the proceeding was commenced. It is not controversial that on or about 9 October 2023 Mr Ho entered into a contract to purchase Ms Molinari’s property. On 21 November 2023 Mr Ho was registered on the title as the owner of the property.
Mr Ho was joined as a respondent on 28 August 2024. At that time Ms Molinari’s daughter, Ms Blankenship, was also joined as a respondent and Ms Molinari was removed as a respondent. I will return to the issue of Ms Blankenship’s role in the proceeding later in these reasons.
Jurisdiction
I make the following findings about jurisdiction:
(a)The Easeys are neighbours;[1]
(b)Mr Ho is a tree-keeper;[2]
(c)The fig vine and hibiscus tree are each a ‘tree’.[3]
[1]Neighbourhood Disputes (Dividing Fences…

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.

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Details

Case: [2024] QCAT 441
Decision Date: 23 September 2024

CaseChat Overview and Summary

In the matter of Easey v Ho, the dispute involved a hibiscus tree and a fig vine situated on land owned by the first respondent, with the second respondent having previously been the registered owner of the lot where the trees were located. The dispute was brought before the tribunal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The primary legal issue was whether the tribunal had jurisdiction to make an order regarding the trees, particularly considering that the second respondent had sold the land to the first respondent before the trees were removed and the damage they caused occurred prior to the sale. Additionally, the tribunal needed to determine whether it could make an order about the damage caused by the trees before the sale of the property to the first respondent.

The tribunal examined the provisions of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, particularly sections 48, 68, and 83. It found that a 'tree keeper' is defined as the registered owner of the lot where the tree is situated. However, in this case, the second respondent was not the registered owner of the lot at the time the trees were removed. Section 68(2) of the Act specifically precludes the tribunal from making an order to remedy damage caused by a tree that has been removed if the tree-keeper has sold the land on which the tree was situated since the damage was caused. The tribunal concluded that there was no basis for an order to be made about the trees under s 66(2) of the ND Act, as the trees had been removed and the damage occurred before the first respondent became the owner of the land.

Consequently, the tribunal made the following orders: (a) Lisa Blankenship, the second respondent, was removed as a party to the proceedings, and (b) the application for a tree dispute was dismissed. This decision underscores the tribunal's limited jurisdiction to make orders regarding trees that have been removed and damage caused before the current owner acquired the property.

Orders

Orders of the court

1. Lisa Blankenship is removed as a respondent.

2. The application for a tree dispute is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that there is no basis for an order to be made about the trees pursuant to s 66(2) of the ND Act. Conclusion I make the following orders:(a)Lisa Blankenship is removed as a respondent.(b)The application for a tree dispute is dismissed.

Ratio Decidendi

Legal Principle Established

The Tribunal has jurisdiction to decide the dispute.ConsiderationThe law Under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘ND Act’) a ‘tree keeper’ means, inter alia, if the land on which the tree is situated is a lot recorded in the freehold land register under the Land Title Act 1994, the registered owner of the lot under that Act.[4][4]Ibid s 48(1)(a). The ND Act contains a number of provisions relevant to circumstances in which a tree keeper sells the land on which a tree is situated. Section 83 of the ND Act deals with circumstances in which a tree-keeper proposes to sell land on which a tree is situated and in relation to which an application for a tree dispute has been filed or an order made by the Tribunal about the tree:If a person is selling land affected by an application or order, the person must give the buyer a copy of the application or order before the buyer enters into a contract of sale for the land unless the person has a reasonable excuse. Section 83 contemplates two scenarios that might pertain at the time a person is entering into a contract to purchase land on which trees are situated: the first is where a proceeding for a tree dispute has been commenced in the tribunal but no final decision made; the second is where a final decision has been made. In respect of the first scenario, if the seller provides to the buyer a copy of the originating tree dispute application, the buyer is joined as a party to the proceeding upon signing the contract. If the seller does not give to the buyer a copy of the application, the purchaser may terminate the contract prior to settlement.[5] The ND Act provides no consequences for the seller if the seller fails to give the buyer a copy of the application and the buyer does not terminate the contract. [5]Ibid, s 86(2). In respect of the second scenario, if the seller provides to the buyer a copy of the final order before the contract of sale is entered into, the buyer is bound by the order to the extent the order has not been complied with by the seller. If the seller does not provide the buyer with a copy of the order before the contract of sale is entered into: (a) the buyer may terminate the contract prior to settlement; (b) if the buyer does not terminate the contract, and the seller has not before settlement carried out the work the subject of the order, the seller remains liable to carry out the work. Section 68(1) of the ND Act provides that the tribunal may make an order in relation to a tree even if the tree has been completely removed. By s 68(2) the tribunal may not make an order to remedy damage caused by a tree that has been completely removed, if the tree-keeper has sold the land on which the tree was situated since the damage was caused.[6][6]‘Sold’ means the day on which title is transferred – s 68(3). Section 68(2) confines the circumstances in which the tribunal may make an order in relation to a tree that has been completely removed. The section is expressed in the past tense and relates to damage caused in the past by a tree that has been removed on land which the tree-keeper has sold. The section contemplates that these are all past events that occurred when the tree keeper was the owner of the land.[7] The ‘tree-keeper’ in s 68(2) is the person who, for the purposes of s 48(1), was a ‘tree-keeper’ at the time a tree caused damage, and who has since sold the land on which the tree was situated. The section has a significant consequence for the owner of the land on which the (removed) tree was situated. The current owner of land on which a tree was previously situated and which caused damage to adjoining land or property on the land before the current owner purchased the land, cannot be ordered to remedy the damage. There is a clear legislative policy intent behind s 68(2). It would be inequitable for a person who is the owner of land to be responsible for damage to adjoining land or property caused by a tree which was removed before the person became the owner of the land in circumstances where the damage was also caused before the person became the owner of the land. [7]See for example Qui & Anor v Khoo & Anor [2024] QCAT 265 where, despite damage having been caused by trees before the respondents became the owners of the land, the trees that had caused the damage had not been removed prior to the date of purchase with the result that s 68(2) did not apply.