Gould v Cornell - [2024] QCAT 587

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gould v Cornell [2024] QCAT 587

PARTIES:

PAUL JAMES GOULD

(applicant)

MARIA VERONICA GOULD

(APPLICANT)

v

GREGORY CORNELL

(respondent)

JULIE CORNELL

(RESPONDENT)

APPLICATION NO/S:

RWL001-24 and NDR156-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

28 November 2024

HEARING DATE:

Heard on the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Davies

ORDERS:

1.     The Application to extend a time limit, filed on 5 August 2024, is granted and the time for the filing of the Renewal Application is extended to 5 August 2024.

2.     The Costs Application filed in NDR156-20 by the applicants in that proceeding, Gregory Cornell and Julie Cornell, is dismissed.

3.     In respect of the Renewal Application filed on 5 August 2024, the orders and the accompanying schedule in NDR156-20 are replaced by the following orders:

(a)     Paul James Gould and Maria Veronica Gould (the Goulds) must:

(i)        Remove all the bamboo situated on their land that is within 300 mm or less from the boundary fence that they share with Gregory Cornell and Julie Cornell (‘the Cornells’) to form a clearance channel adjacent to the boundary fence on or before 4:00 pm on 31 January 2025.

(ii)      Trim any bamboo or sweet gums situated on their land that overhangs the land of the Cornells. The stalks of bamboo that overhang the land of the Cornells shall be trimmed to a height of 2.5 metres from ground level on or before 4:00 pm 31 January 2025.

(b)     The Goulds must undertake ongoing maintenance of the bamboo and sweet gums in the months of January, April, July and October of each year to:

(i)        Trim the height of any bamboo that, at the time of trimming, overhangs the land of the Cornells to reduce that overhanging bamboo to a height of 2.5 metres above ground level; and

(ii)      Trim any branches of the sweet gums that overhang the land of the Cornells; and

(iii)     Remove all bamboo situated 300mm and less from the parties' shared boundary fence to maintain the clearance channel.

(c)     The Goulds must undertake the first ongoing maintenance in January 2025

(d)     All work is to be undertaken by an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances (including public liability insurance).

(e)     The Goulds will be responsible for all costs associated with undertaking the work outlined in paragraph (a) and paragraph (b) above.

(f)      If the Goulds fail to undertake the work outlined in paragraph (a) and paragraph (b), the Cornells shall be entitled to have the work undertaken by an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances (including public liability insurance). The Cornells' arborist shall be entitled to enter the Goulds' land and carry out the work subject to the Cornells giving 14 days written notice of that intention to the Goulds.

(g)     The costs incurred by the Cornells engaging an arborist to undertake the work in default of the…

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 Gould v Cornell

Details

AGLC: Gould v Cornell [2024] QCAT 587
Case: [2024] QCAT 587
Decision Date: 28 November 2024

CaseChat Overview and Summary

Gould v Cornell is a dispute between neighbouring property owners, Paul James Gould and Maria Veronica Gould (the Goulds) and Gregory Cornell and Julie Cornell (the Cornells). The Cornells sought orders requiring the Goulds to remove and maintain bamboo and sweet gums on their property that were encroaching on the Cornells' property. The dispute was heard and determined in the Supreme Court of Queensland. The Cornells sought an extension of time to file their Renewal Application, and an order that the Goulds remove and maintain bamboo and sweet gums on their property. The Goulds opposed the Cornells' Application and sought an order that the Cornells pay their costs. The court was required to decide whether the Cornells were entitled to an extension of time to file their Renewal Application, and whether the Cornells were entitled to the orders they sought. The court also had to consider the Goulds' application for costs. The court granted the Cornells' Application for an extension of time, and dismissed the Goulds' Costs Application. The court found that the Cornells were entitled to the orders they sought, which required the Goulds to remove and maintain bamboo and sweet gums on their property. The court found that the Cornells had established a prima facie case for the orders, and that the Goulds had not demonstrated that the orders were unjust or oppressive. The court also found that the Goulds were not entitled to costs.

In summary, the Supreme Court of Queensland granted the Cornells' Application for an extension of time to file their Renewal Application and dismissed the Goulds' Costs Application. The court found that the Cornells were entitled to the orders they sought, which required the Goulds to remove and maintain bamboo and sweet gums on their property. The court found that the Cornells had established a prima facie case for the orders, and that the Goulds had not demonstrated that the orders were unjust or oppressive. The court also found that the Goulds were not entitled to costs.

Orders

Orders of the court

1. The Application to extend a time limit, filed on 5 August 2024, is granted and the time for the filing of the Renewal Application is extended to 5 August 2024.

2. The Costs Application filed in NDR156-20 by the applicants in that proceeding, Gregory Cornell and Julie Cornell, is dismissed.

3. In respect of the Renewal Application filed on 5 August 2024, the orders and the accompanying schedule in NDR156-20 are replaced by the following orders:

(a) Paul James Gould and Maria Veronica Gould (the Goulds) must:

(i) Remove all the bamboo situated on their land that is within 300 mm or less from the boundary fence that they share with Gregory Cornell and Julie Cornell (‘the Cornells’) to form a clearance channel adjacent to the boundary fence on or before 4:00 pm on 31 January 2025.

(ii) Trim any bamboo or sweet gums situated on their land that overhangs the land of the Cornells. The stalks of bamboo that overhang the land of the Cornells shall be trimmed to a height of 2.5 metres from ground level on or before 4:00 pm 31 January 2025.

(b) The Goulds must undertake ongoing maintenance of the bamboo and sweet gums in the months of January, April, July and October of each year to:

(i) Trim the height of any bamboo that, at the time of trimming, overhangs the land of the Cornells to reduce that overhanging bamboo to a height of 2.5 metres above ground level; and

(ii) Trim any branches of the sweet gums that overhang the land of the Cornells; and

(iii) Remove all bamboo situated 300mm and less from the parties' shared boundary fence to maintain the clearance channel.

(d) All work is to be undertaken by an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances (including public liability insurance).

(e) The Goulds will be responsible for all costs associated with undertaking the work outlined in paragraph (a) and paragraph (b) above.

(f) If the Goulds fail to undertake the work outlined in paragraph (a) and paragraph (b), the Cornells shall be entitled to have the work undertaken by an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances (including public liability insurance). The Cornells' arborist shall be entitled to enter the Goulds' land and carry out the work subject to the Cornells giving 14 days written notice of that intention to the Goulds.

(g) The costs incurred by the Cornells engaging an arborist to undertake the work in default of the Goulds shall be recoverable from the Goulds as a debt without further notice being required to be given.

(h) These Orders shall remain in force and effect for a period of 10 years from the date of this decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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