Embra v Anderson - [2021] QCAT 387

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Embra v Anderson & Anor [2021] QCAT 387

PARTIES:

JOANNE CAROLL EMBRA

(applicant)

V

GLENDA JOY ANDERSON PERSONAL REPRESENTATIVE UNDER INSTRUCTION 712251424

(first respondent)

AND

ROSLYN RUTH PALMER

(second respondent)

APPLICATION NO/S:

NDR010-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

2 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application for a tree dispute is dismissed.

2. Each party is to bear its own costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – whether to award costs of application

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – whether to award costs

Land Title Act 1994 (Qld)

Land Valuation Act 2010 (Qld), s 9, s 10, s 11
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 18, s 42(1), s 42(2), s 42(3), s 42(4), s 45, s 46, s48(1), s 52, s 63, s 65, s 66, Schedule 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(b), 4(c),s 32(2), s 47, s 62(1), s 95(1), s 100, s 102

Dey v Victorian Railways Commissioners [1949] 78 CLR 62

Valuers Registration Board v Murphy (No. 2) [2019] QCAT 332

Yeo v Brisbane Polo Club Inc [2013] QCAT 261

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

What is the application about?

Ms Embra owns a property that she says was impacted by two large sweetgum (liquidambar styraciflua) trees situated on and overgrowing from adjoining land owned by the respondents, Ms Anderson (as representative) and Ms Palmer.
In an application she filed on 15 January 2020, Ms Embra noted that on 1 December 2020 a large branch had fallen from one of the trees causing damage to a vehicle parked in the driveway of her property, and that others were in danger of falling as well. She sought orders that the trees be removed or pruned, depending upon the opinion of an arborist, and that her costs of the application be paid by the respondents.
The respondents did not file a response, but rather Ms Anderson wrote a letter to the tribunal dated 14 February 2020 indicating that the tree branches fell on account of storm damage and that an arborist had attended to significantly prune the trees on 20 January 2020.
On 9 April 2020 the tribunal directed that the parties contribute $500.00 each towards the cost of a tree assessor to be appointed.
On 10 October 2020 the tree assessment took place, at which time removal of the two sweetgums was recommended by the tree assessor and agreed by both parties.
In November 2020 the first tree was removed and by 9 February 2021 the second tree had been removed, resolving the tree dispute.
The only issue remaining to the determined by…

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 Embra v Anderson

Details

AGLC: Embra v Anderson [2021] QCAT 387
Case: [2021] QCAT 387
Decision Date

CaseChat Overview and Summary

The applicant, Ms Embra, filed an application with the Queensland Civil and Administrative Tribunal (QCAT) seeking orders for the removal or pruning of two large sweetgum trees situated on land owned by the respondents, Ms Anderson and Ms Palmer. The trees, which had caused damage to Ms Embra's vehicle and posed a risk of further damage, had already been removed by the respondents by the time of the hearing. The primary issue for the tribunal to decide was whether Ms Embra was entitled to reimbursement of her costs from the respondents.

The legal issues revolved around the jurisdiction of the tribunal over tree disputes under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) and the criteria for awarding costs under the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The tribunal had to determine whether Ms Embra had made reasonable efforts to reach an agreement with the respondents before proceeding to the tribunal and whether the costs of the application should be awarded to her.

The tribunal found that Ms Embra had made an initial effort to resolve the matter with the respondents but proceeded urgently to the tribunal due to the serious damage caused by the trees. Although the respondents had acted swiftly to remove the trees after the incident, the tribunal noted that they were entitled to wait for the tree assessment before having the trees removed. Given that the tree dispute itself had resolved, the tribunal dismissed the application. Regarding the issue of costs, the tribunal considered various factors, including whether the respondents had unnecessarily disadvantaged the applicant and the financial circumstances of the parties. Ultimately, the tribunal determined that the factors did not favour awarding costs to Ms Embra, and each party was ordered to bear its own costs.

In summary, the tribunal dismissed Ms Embra's application for a tree dispute and ordered that each party bear its own costs. The tribunal found that Ms Embra had made a reasonable effort to resolve the matter with the respondents, but the respondents were entitled to wait for the tree assessment before having the trees removed. The tribunal also concluded that the factors did not favour awarding costs to Ms Embra.

Orders