Hoy v Fox - [2013] QCAT 728

CITATION:

Hoy v Fox & Anor [2013] QCAT 728

PARTIES:	Richard Derick Hoy (Applicant)
v
Tyrone Spencer Fox and Kathleen Fox (Respondent)

APPLICATION NUMBER:

NDR155-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

6 December 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application for a tree dispute filed on 28 June 2013 is dismissed.

CATCHWORDS:

TREE DISPUTE – uprooted tree – damage to dividing fence – compensation – not serious damage – not substantial, ongoing and unreasonable interference – severe weather – aberrant event - notices to contribute for urgent fencing work – substantive non-compliance

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 28, 30, 32, 42, 65, 73, 74, 75

Watkins v. Queensland Building Services Authority [2013] QCAT 535

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 (QCAT Act).

REASONS FOR DECISION
What is this Application about?

Disputes can sometimes unnecessarily escalate. Resources are expended disproportionately to the actual issues in dispute. This application is an example.
Richard Hoy wants Tyrone Fox and Kathleen Fox to pay for the rectification of the fence dividing their properties. This is because a tree on Mr and Mrs Fox’s property fell and damaged the fence. Mr Hoy’s most recent quote claims the costs of rectification are $1,193.50.[1]
[1]Quote 16513 of Kerry J. Cunnington, Building Contractor dated 6 May 2013.
Mr and Mrs Fox claim they should only be responsible for half the costs of rectification because it is not their fault that the tree fell. They claim the costs of rectification are $850.[2]
[2]Quote of Stuart Jolly Builder Pty Ltd dated 27 May 2013.
As early as three months before filing his application, Mr Hoy informed Mr and Mrs Fox that he was willing to accept 50 percent of his (initial) quote.[3] This equated to $600. Just over one month later, Mr and Mrs Fox informed Mr and Mrs Hoy they were willing to contribute $200.[4] The parties were only $400 apart. Despite this, Mr Hoy withdrew his offer and sought all his repair costs.[5]
[3]Letter Jaz and Rick Hoy to Mr and Mrs Fox dated 1 March 2013 and Quote 3 of Kabooms Garden Care dated 17 February 2013.
[4]Letter Ty and Kathy Fox to Mr and Mrs Hoy dated 14 April 2013.
[5]Letter Rick and Jaz Hoy to Mr and Mrs Fox dated 23 April 2013.
One month later, Mr and Mrs Fox increased their offer to 50 percent of their quote.[6] This equated to $425. This means that the difference between Mr Hoy’s best offer and Mr and Mrs Fox’s best offer was only $175.
[6]Letter Ty and Kathy Fox to Mr and Mrs Hoy dated 14 June 2013.
Despite the small dichotomy, the parties chose to protract their dispute. This culminated in Mr Hoy filing an application in the Tribunal on 28 June 2013. To…

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 Hoy v Fox

Details

AGLC: Hoy v Fox [2013] QCAT 728
Case: [2013] QCAT 728
Decision Date: 6 December 2013

CaseChat Overview and Summary

The case of Hoy v Fox involved a dispute between neighbours regarding the damage caused by an uprooted tree to a dividing fence. The matter was brought before the court, which was tasked with determining the liability for the repair of the fence and the associated costs. The respondents were required to decide whether the damage constituted a serious interference with the appellant's property, warranting compensation, and whether the appellants' notices to contribute for urgent fencing work were substantially non-compliant.

The legal issues before the court were whether the damage to the dividing fence caused by the uprooted tree constituted serious damage, and whether the appellants' notices to contribute for urgent fencing work were substantially non-compliant. The respondents argued that the damage was not serious, as it was a result of severe weather, an aberrant event, and therefore not a substantial, ongoing, and unreasonable interference. The appellants, on the other hand, contended that the damage was significant and required compensation. The court also had to consider the issue of the appellants' notices to contribute for urgent fencing work, which the respondents claimed were substantially non-compliant.

In dismissing the application for a tree dispute, the court held that the damage caused by the uprooted tree did not amount to serious damage. The court found that the damage was a result of an aberrant event, namely severe weather, and did not constitute a substantial, ongoing, and unreasonable interference with the respondents' property. The court also found that the appellants' notices to contribute for urgent fencing work were not substantially non-compliant. The court reasoned that the appellants' notices were not unreasonable, as the circumstances of the case warranted urgent action to prevent further damage to the fence. The court concluded that the respondents were not liable for compensation for the damage caused by the uprooted tree.

The court dismissed the application for a tree dispute, finding that the damage caused by the uprooted tree did not constitute serious damage and that the appellants' notices to contribute for urgent fencing work were not substantially non-compliant. No compensation was awarded to the appellants, and the respondents were not held liable for the repair of the dividing fence.

Orders

Orders of the court

1. The Application for a tree dispute filed on 28 June 2013 is dismissed.

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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