Hastings v Thompson & Schnider - [2017] QCAT 182

CITATION:
Hastings v Thompson & Schnider [2017] QCAT 182

PARTIES:
Kenneth Bryant Hastings and Lynette Elizabeth Hastings

(Applicants)

v

Paul James Thompson and Christine Vivienne Schnider
(Respondents)

APPLICATION NUMBER: RWL003-16

MATTER TYPE: Other civil dispute matters

HEARING DATE: 24 May 2017

HEARD AT: Townsville

DECISION OF: Member Pennell

DELIVERED ON: 29 May 2017

DELIVERED AT: Townsville

ORDERS MADE:
1. The decision made by the Tribunal on 7 March 2013 is renewed.

2. That pursuant to section 42 of the Queensland Civil and Administrative Tribunal Act 2009 Christine Vivienne Schnider is joined as a party to these proceedings.

3. That by 4:00pm on 2 June 2017 the Applicants must obtain at least two (2) quotations from suitably qualified tree loppers to undertake the work described in Orders 4(a) to 4(g); and

(a) By 4:00pm on 9 June 2017 give to the Respondents the quotations from those suitably qualified tree loppers.

(b) By 4:00pm on 16 June 2017 the Respondents are to select from the quotations from those suitably qualified tree loppers one (1) quotation and advise the Applicants of their selection.

(c) By 4:00pm on 31 July 2017 the Applicants will engage the suitably qualified tree lopper selected by the Respondents to undertake the work described in Orders 4(a) to 4(g).

(d) The Respondents will be responsible for all costs incurred by, and associated with the work undertaken by the suitably qualified tree lopper in compliance with Order 4(a) to 4(g).

4. That by 4:00pm on 31 July 2017 the Respondents must allow the suitably qualified tree lopper selected by them to –

(a)    Carry out work to cut the Calliandra shrub on the Applicants’ side of the common boundary to an acceptable height so as to allow all reasonable access to the Applicants’ residence.

(b)   Destroy the Syzygium tree commonly known as a Lillypilly tree and identified as Tree “A”.

(c)    Cut the two Plumeria trees commonly known as a Frangipani trees identified as Trees “B” and “D” at the common boundary so that these trees do not protrude into the Applicants’ property.

(d)   Cut the Dypsis lutescens tree commonly known as the Golden Cane palm identified as Tree “C” at the common boundary so that this tree does not protrude into the Applicants’ property.

(e)    Cut the four Eucalyptus torellilana trees commonly known as the Cadaghi gums identified as Trees “E”, “F”, “G” and “H” at a height of not less than 3 metres and not more than 5 metres so that no part of those trees protrude into the Applicants’ property.

(f)     Cut the two Eucalyptus trees commonly known as the gums identified as Trees “I” and “J” at a height of not less than 3 metres and not more than 5 metres so that no part of those trees protrude into the Applicants’ property.

(g)   Cut the Calliandra shrub and the Murray paniculata shrub at the common boundary so that these shrubs do not protrude into the Applicants’ property.

5. That the Respondents must maintain the trees…

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 Hastings v Thompson & Schnider

Details

AGLC: Hastings v Thompson & Schnider [2017] QCAT 182
Case: [2017] QCAT 182
Decision Date: 29 May 2017

CaseChat Overview and Summary

In this matter, the applicants, Hastings, sought relief against the respondents, Thompson and Schnider, regarding a long-standing dispute involving the maintenance and upkeep of trees and shrubs on their shared boundary. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT) and subsequently in the Queensland Supreme Court. The applicants sought enforcement of QCAT’s orders, including tree removal and maintenance, and the respondents’ failure to comply with these orders. The court also had to consider the appropriate costs to be awarded in the circumstances.

The central legal issues before the court were whether the respondents had failed to comply with the QCAT orders and, if so, what consequences should flow from this non-compliance. Specifically, the applicants argued that the respondents had not maintained the trees and shrubs on the shared boundary, causing substantial, ongoing, and unreasonable interference with the applicants' use and enjoyment of their property. The applicants sought enforcement of the QCAT orders, including the removal and maintenance of certain trees and shrubs, and the respondents' failure to comply with these orders. Additionally, the court had to consider the appropriate costs to be awarded under the circumstances.

In deciding these issues, the court noted that the QCAT had made detailed findings about the interference caused by the respondents' trees and shrubs. The court found that the respondents had not complied with the QCAT's orders and had caused ongoing interference to the applicants. The court emphasised the importance of enforcing tribunal orders to ensure that parties adhere to legally binding decisions. The court also considered the principles governing the award of costs, noting the presumption that each party bears their own costs. However, the court found that the respondents' non-compliance without reasonable excuse and their causing a disadvantage to the applicants warranted an order for the respondents to pay the applicants' costs.

The court concluded that the QCAT's decision should be renewed and that Christine Schnider should be joined as a party to the proceedings. The court ordered the respondents to comply with specific deadlines for obtaining quotations, selecting a tree lopper, and undertaking the required tree maintenance work. The respondents were also ordered to pay the applicants' costs of $35.60. The applicants were granted permission to allow the respondents and their agents to enter their property to carry out the required maintenance.

Orders

Orders of the court

1. The decision made by the Tribunal on 7 March 2013 is renewed.

2. That pursuant to section 42 of the Queensland Civil and Administrative Tribunal Act 2009 Christine Vivienne Schnider is joined as a party to these proceedings.

3. That by 4:00pm on 2 June 2017 the Applicants must obtain at least two (2) quotations from suitably qualified tree loppers to undertake the work described in Orders 4(a) to 4(g); and

(a) By 4:00pm on 9 June 2017 give to the Respondents the quotations from those suitably qualified tree loppers.

(b) By 4:00pm on 16 June 2017 the Respondents are to select from the quotations from those suitably qualified tree loppers one (1) quotation and advise the Applicants of their selection.

(c) By 4:00pm on 31 July 2017 the Applicants will engage the suitably qualified tree lopper selected by the Respondents to undertake the work described in Orders 4(a) to 4(g).

(d) The Respondents will be responsible for all costs incurred by, and associated with the work undertaken by the suitably qualified tree lopper in compliance with Order 4(a) to 4(g).

4. That by 4:00pm on 31 July 2017 the Respondents must allow the suitably qualified tree lopper selected by them to –

(a) Carry out work to cut the Calliandra shrub on the Applicants’ side of the common boundary to an acceptable height so as to allow all reasonable access to the Applicants’ residence.

(b) Destroy the Syzygium tree commonly known as a Lillypilly tree and identified as Tree “A”.

(c) Cut the two Plumeria trees commonly known as a Frangipani trees identified as Trees “B” and “D” at the common boundary so that these trees do not protrude into the Applicants’ property.

(d) Cut the Dypsis lutescens tree commonly known as the Golden Cane palm identified as Tree “C” at the common boundary so that this tree does not protrude into the Applicants’ property.

(e) Cut the four Eucalyptus torellilana trees commonly known as the Cadaghi gums identified as Trees “E”, “F”, “G” and “H” at a height of not less than 3 metres and not more than 5 metres so that no part of those trees protrude into the Applicants’ property.

(f) Cut the two Eucalyptus trees commonly known as the gums identified as Trees “I” and “J” at a height of not less than 3 metres and not more than 5 metres so that no part of those trees protrude into the Applicants’ property.

(g) Cut the Calliandra shrub and the Murray paniculata shrub at the common boundary so that these shrubs do not protrude into the Applicants’ property.

5. That the Respondents must maintain the trees described in Orders 4(a) to 4(g) with proper care and maintenance to abate any nuisance caused by the trees and shrubs and ensure that those trees and shrubs do not protrude over, into or onto the Applicants’ land so as to cause substantial, ongoing or unreasonable interference with the Applicants’ use and enjoyment of their land.

6. That the Applicants will allow the Respondents and any other person or persons acting under the direction of the Respondents to enter the Applicants’ property for a reasonable time so that the maintenance of the trees and shrubs can be undertaken.

7. That on or before 4:00pm on 31 July 2017, the Respondents must pay the Applicants’ costs for this application fixed at $35.60.

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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CITATION:	Hastings v Thompson & Schnider [2017] QCAT 182
PARTIES:	Kenneth Bryant Hastings and Lynette Elizabeth Hastings (Applicants)
v
Paul James Thompson and Christine Vivienne Schnider (Respondents)
APPLICATION NUMBER:	RWL003-16
MATTER TYPE:	Other civil dispute matters
HEARING DATE:	24 May 2017
HEARD AT:	Townsville
DECISION OF:	Member Pennell
DELIVERED ON:	29 May 2017
DELIVERED AT:	Townsville
ORDERS MADE:	1. The decision made by the Tribunal on 7 March 2013 is renewed. *2. That pursuant to section 42 of the Queensland Civil and Administrative Tribunal Act 2009* Christine Vivienne Schnider is joined as a party to these proceedings. 3. That by 4:00pm on 2 June 2017 the Applicants must obtain at least two (2) quotations from suitably qualified tree loppers to undertake the work described in Orders 4(a) to 4(g); and (a) By 4:00pm on 9 June 2017 give to the Respondents the quotations from those suitably qualified tree loppers. (b) By 4:00pm on 16 June 2017 the Respondents are to select from the quotations from those suitably qualified tree loppers one (1) quotation and advise the Applicants of their selection. (c) By 4:00pm on 31 July 2017 the Applicants will engage the suitably qualified tree lopper selected by the Respondents to undertake the work described in Orders 4(a) to 4(g). (d) The Respondents will be responsible for all costs incurred by, and associated with the work undertaken by the suitably qualified tree lopper in compliance with Order 4(a) to 4(g). 4. That by 4:00pm on 31 July 2017 the Respondents must allow the suitably qualified tree lopper selected by them to – (a) Carry out work to cut the Calliandra shrub on the Applicants’ side of the common boundary to an acceptable height so as to allow all reasonable access to the Applicants’ residence. (b) Destroy the Syzygium tree commonly known as a Lillypilly tree and identified as Tree “A”.** (c) Cut the two Plumeria trees commonly known as a Frangipani trees identified as Trees “B” and “D” at the common boundary so that these trees do not protrude into the Applicants’ property. *(d) Cut the Dypsis lutescens* tree commonly known as the Golden Cane palm identified as Tree “C” at the common boundary so that this tree does not protrude into the Applicants’ property.** (e) Cut the four Eucalyptus torellilana trees commonly known as the Cadaghi gums identified as Trees “E”, “F”, “G” and “H” at a height of not less than 3 metres and not more than 5 metres so that no part of those trees protrude into the Applicants’ property. (f) Cut the two Eucalyptus trees commonly known as the gums identified as Trees “I” and “J” at a height of not less than 3 metres and not more than 5 metres so that no part of those trees protrude into the Applicants’ property. *(g) Cut the Calliandra* shrub and the Murray paniculata shrub at the common boundary so that these shrubs do not protrude into the Applicants’ property. 5. That the Respondents must maintain the trees…**