Harrison v Ellis

[2024] QCAT 118

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Harrison v Ellis [2024] QCAT 118

PARTIES:

ANTONIETTA HARRISON

(applicant)

v

JANE MEGAN ELLIS

(respondent)

APPLICATION NO/S:

NDR180-22

MATTER TYPE:

Neighbourhood Disputes

DELIVERED ON:

21 March 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:

1.   Antonietta Harrison has standing to make an application for a tree dispute in these proceedings.

CATCHWORDS:

NEIGHBOURHOOD DISPUTE – APPLICATION FOR TREE ORDER – whether applicant has standing to apply – whether applicant is a neighbour – meaning of occupier – whether registered owner has refused to apply

Neighbourhood Disputes (Dividing Fences and Trees)Act 2011

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

1. Section 49 of the Neighbourhood Disputes (Dividing Fences and Trees)Act 2011. (“the Act”) defines the term neighbour, to include a registered owner of the lot and an occupier of the land.

2. Section 62 of the act provides relevantly that a neighbour may make application to QCAT in a tree dispute, if the neighbour is not a registered owner of the land, only if the registered owner of the land has refused to make the application.

3. Ms Ellis has asserted that Ms Harrison is not a neighbour as she neither owns or occupies the property. Both parties have provided materials and submissions to the tribunal and the matter has come before me for determination on the papers.

4. The material filed on behalf of Ms Harrison includes three registration confirmation statements and one historical title search. These documents indicate that initially, Ms Harrison held the property as joint tenants with Patricia Irene Leggat, her mother. They subsequently altered their holding from joint tenants to tenants in common in equal shares. On Miss Leggat’s death the public trustee as personal representative replaced Miss Leggat as a one half owner of the property as tenant in common with Ms Harrison. On or about 14 April 2022 the property was transferred to Peter John Sheehy and Bruce John Doyle as statutory trustee for sale is pursuant to an order of the District Court.

5. While Ms Harrison retains a beneficial interest in respect of one half of the property, she is clearly not a registered owner for the purposes of section 49.

6. By affidavit dated 28 February 2023, Ms Harrison swears that she has occupied the residence since March 2018 at least on a part time basis. She says that she is often away from the property.

7. Ms Ellis disputes this in her submissions saying that she has seen Ms Harrison's children but has not seen Ms Harrison other than occasionally.

8. Section 49 does not require an applicant to occupy on a full time basis or as a principal place of residence. Ms Harrison has given evidence that she has occupied the premises since 2018. In the absence of sufficient evidence to the contrary I am minded to accept her evidence.

9. Ms Harrison has provided a copy of an e-mail forwarded to her by one of the statutory trustees, Bruce Doyle. Unfortunately, she did not provide her letter of request. While Mr. Doyle's letter stopped short of saying that the trustees refused to make an application, it is quite plain that the trustees are unwilling to involve themselves in proceedings of this nature. It is also noted that the District Court order of 7 March 2022 does not appear to give the trustees any power to participate in proceedings in respect of the property.

10. In those circumstances I am satisfied that Ms Harrison is a neighbour for the purposes of. Section 49 and that the registered owner has refused to make the application pursuant to section 62. She has standing to bring an application for a tree dispute in these proceedings.