El Abbassy v Eliasson

[2014] QCAT 430

CITATION: El Abbassy v Eliasson [2014] QCAT 430

PARTIES:	Amira El Abbassy  (Applicant)
V
Jonathan Frans Alfred Eliasson (Respondents)

APPLICATION NUMBER: NDR021-14

MATTER TYPE: Other civil dispute matters

HEARING DATE: 30 June 2014

HEARD AT: Brisbane

DECISION OF: Member Allen

DELIVERED ON: 1 September 2014 (amended reasons)

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Applicant, Amira El Abbassy and the Respondent, Jonathan Frans Alfred Eliasson must each pay $400 to the Tribunal towards the costs of a tree assessor to be appointed in respect to this application within 14 days of the date of this order.

CATCHWORDS:

TREE DISPUTE – question of how costs of tree assessor to be shared.

Queensland Civil and Administrative Tribunal Act 2009 s112.
Practice Direction No 7 of 2013

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 (QCAT Act).

REASONS FOR DECISION

1. Miss El Abbassy has made an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 to the Tribunal in regard to a tree located on Mr Eliasson’s land which, she alleges, has caused damage to the fence and pergola slab on her land.

2. The Tribunal has procedures[1] to ensure that relevant expert evidence is available to assist the Tribunal to make its decisions in regard to these applications. The “timely and effective resolution of disputes about trees is assisted by the tribunal and parties having access to independent expert evidence about the subject trees/s[2]”. The Tribunal will generally appoint an expert tree assessor to “avoid parties incurring excessive costs in engaging their own experts”[3].

   [1] QCAT Practice Direction No 7 of 2013

   [2] Para 4 of QCAT Practice Direction No 7 of 2013

   [3] Para 5 of QCAT Practice Direction No 7 of 2013 (The Tribunal power to appoint an assessor and require a contribution is contained in s112 of the Queensland Civil and Administrative Tribunal Act 2009

3. The Tribunal “may make an order requiring a party or all parties to pay all or part of the cost of the assessor up to a total of $800.00[4]”. The Tribunal “when considering the payment of the assessor’s costs will start from the proposition that the parties are to share equally the costs of the assessor. In its absolute discretion the Tribunal may make a different order, having regard to the contents of the application, any other submission or document filed in the proceeding and any other matter the Tribunal may consider relevant”[5].

   [4] Para 6 of QCAT Practice Direction No 7 of 2013

   [5] Para 7 of QCAT Practice Direction No 7 of 2013

4. In this case the Tribunal gave consideration to Miss El Abbassy’s application and her submissions in regard to the Tribunal’s intention to appoint an assessor, as stated in its direction of 29 May 2014.

5. Miss El Abbassy states in her submissions that the tree is on Mr Eliasson’s property and many attempts have been made to contact him and have a face to face discussion at his property. She then set out further detail in regard to the damage that she alleges has occurred. She ended by stating that she had done more than the norm to communicate and resolve this matter over the last three years, with no response what so ever form Mr Eliasson.

6. Mr Eliasson has not filed a response to the application or submissions in regard to the assessor’s costs.

7. Miss El Abbassy’s application on its face raises issues in regard to damage from a tree which may if proven lead the Tribunal to make an order in his favour. Matters raised by Mr Eliasson when he respond’s to the application would be considered in any final decision of the Tribunal. The independent expert evidence of the tree assessor will assist the Tribunal to make its decision as intended in regard to such things as the type of tree involved and its characteristics, its growth pattern, the amenity of the tree, whether the tree has caused the damage alleged.

8. While there is alleged to be a lack of co-operation by Mr Eliasson the expert evidence of the tree assessor will be required for the Tribunal to makes its decision and as the Tribunal starts from the perspective that each party should bear their own costs it will only be at the end of the hearing process and upon reconsideration that the Tribunal will be able to determine if it should depart from an equal sharing by the parties of the assessor’s costs.

9. The order of the Tribunal is that, the Applicant, Amira El Abbassy and the Respondent, Jonathan Frans Alfred Eliasson must each pay $400 to the Tribunal towards the costs of a tree assessor to be appointed in respect to this application within 14 days of the date of this order.