Giallousis v Malcolm
[2014] QCATA 337
•8 December 2014
| CITATION: | Giallousis v Malcolm [2014] QCATA 337 |
| PARTIES: | Angelis Giallousis (Applicant/Appellant) |
| v | |
| Michael Alan Malcolm (Respondent) |
| APPLICATION NUMBER: | APL286-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe OAM |
| DELIVERED ON: | 8 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE RESOLUTION - TREES – where tree branch fell in storm – where branch fell on power lines – where damage to electricity supply – where claim for damage to house – where tribunal ordered compensation for rectification of electricity supply and house – whether tree-keeper should be liable for act of God – whether grounds for leave to appeal Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 73(i), 74(1) Dearman v Dearman (1908) 7 CLR 549 |
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
In the Australia Day storm of 2013, a branch from a tree on Mr Giallousis’ property fell onto the power lines running from the street to Mr Malcolm’s house. Mr Malcolm lost power. On 1 February 2013, he arranged for the branch to be removed and power restored. In March 2013, Mr Malcolm arranged for further repairs to his house that he considered had been caused by the fallen branch.
Mr Malcolm filed a claim for $3,455.70 compensation. A member of the tribunal accepted most of his claim and ordered Mr Giallousis pay Mr Malcolm $2,950.70.
Mr Giallousis wants to appeal that decision. He says the learned Member failed to consider s 74(1) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). He says the learned Member’s decision about the cost of repairs was excessive and unfair. He says the learned Member failed to acknowledge that the branch fell because of a storm, for which he was not responsible.
Because this is an appeal from a decision of mixed fact and law, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
In separate correspondence, Mr Giallousis notes that his main reason for appealing is his view that the damage should be covered by Mr Malcolm’s insurance and that Mr Malcolm has not proven that he paid the invoices produced to the tribunal.
The tribunal is not normally concerned with whether a party has access to insurance cover. The fact of insurance does not affect the legal liability established under the Act, although it may affect to whom the payment is made. In any event, Mr Malcolm answered the questions in his submission before the learned Member by stating that his insurer did not cover the loss.
In his submissions, Mr Malcolm also noted that he had paid the invoices submitted to the tribunal. As there was no evidence to the contrary, the learned Member was entitled to accept the truth of Mr Malcolm’s submissions.
The learned Member did consider s 74 of the Act when making his decision. He acknowledged Mr Giallousis’ argument that the delay in removing the branch resulted in further damage[3]. He found that the branch caused some damage that would require repair[4]. He noted that Mr Giallousis’ quote, obtained in May, was less than Mr Malcolm’s quote obtained in March, which indicated that there could not have been an increase in the damage over time[5]. He specifically found that:
… there were no factors under s 74 which have adversely affected Mr Malcolm’s claim.
[3]Reasons for decision [10].
[4]Ibid at [10].
[5]Ibid at [11].
In support of his application for leave to appeal, Mr Giallousis repeats submissions he made to the learned member. He states that Mr Malcolm never asked him to trim trees. Mr Malcolm could have asked Mr Giallousis to trim overhanging branches. Given the way this tree fell, forward onto the power lines, I am not persuaded that trimming the tree would have prevented the loss.
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[6] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[7]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[7]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Mr Giallousis has two reasons for stating that the amount of the order is excessive. The first is that the damage on 2 February 2013, when Ms Browning saw it, was not as extensive as Mr Malcolm’s claim.
The learned Member acknowledged that[8] but he found that Mr Giallousis should be responsible for all damage caused by the fallen branch. He also found that the repair work was a necessary consequence of the fallen branch. The evidence can support the learned Member’s finding and I can find no compelling reason to take a different view of the facts.
[8]Reasons for decision at [7].
Mr Giallousis’ second reason for stating that the cost of repair was excessive was that the damage was caused by an act of God, not by any negligence or neglect. The learned Member dealt with this submission. He noted[9] that a tree may fail for many reasons and the fact that it failed in a storm does not relieve Mr Giallousis from liability.
[9]Ibid at [12].
In fact, the learned Member did have evidence that the tree had been neglected. Mr Rae from Nail iT Property and Building Services noted that the tree had been undermined and was top heavy. The photos show a long spindly tree that was growing in a confined area between the driveway and a fence. Its condition was in marked contrast to the robust trees in the front of Mr Giallousis’ yard to the left of the driveway. Had it been necessary, the learned Member was entitled to find that Mr Giallousis had not taken any steps to ensure that the tree was safe.
Mr Giallousis also refers to s 73(i) of the Act, submitting that this section means the tribunal should not order compensation for storm damage. I prefer an alternative construction of the section, which requires the tribunal, when deciding whether to require work to a tree, to consider whether a tree may present a particular risk if there is an extreme weather event. The section should not be construed as absolving a tree-keeper from any responsibility if a tree falls during a storm.
There is no reasonably arguable case that the learned Member was in error. Leave to appeal should be refused.
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