Kerr v Paku and Anor - [2011] QCATA 157

CITATION:

Kerr v Paku and Anor [2011] QCATA 157

PARTIES:	Mr Phillip Warren Kerr
v
Mr Sinclair Paku Mrs Faye Paku

APPLICATION NUMBER: APL015-11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Richard Oliver, Senior Member
Peta Stilgoe, Member

DELIVERED ON: 28 June 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTES – where appellant alleged damage to fence caused by tree roots – where adjudicator not satisfied that tree roots caused damage – where appellant filed fresh evidence with appeals tribunal – whether grounds to allow fresh evidence – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act2009, s 137(b)

Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Oliver

In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.

Ms Stilgoe

Mr Kerr and Mr and Mrs Paku are neighbours. Both have a brick fence running along the rear boundary of their properties. On the other side of the brick fence is an acoustic fence recently constructed by the Department of Main Roads. It is uncontroversial that the brick fence is leaning towards the acoustic fence in a number of locations including, importantly, at the junction of the boundary between Mr Kerr and Mr and Mrs Paku.

Mr and Mrs Paku’s backyard, in contrast to Mr Kerr’s backyard, has a number of mature trees. Mr Kerr asserted that the roots of those trees were causing the brick fence at the rear of his property to lean. He brought proceedings in the tribunal claiming the cost of demolishing and rebuilding the fence. He was wholly unsuccessful as the learned Adjudicator was not satisfied that trees roots were the cause of the fence’s current condition.

Mr Kerr has sought leave to appeal the learned Adjudicator’s decision on the grounds that he now has the necessary evidence to prove that the damage to the fence has been caused by tree roots from Mr and Mrs Paku’s property.

Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

Mr Kerr’s application for leave to appeal is really…

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.

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Details

Case: [2011] QCATA 157
Decision Date: 28 June 2011

CaseChat Overview and Summary

The matter involved an appellant who claimed damage to a fence was caused by tree roots growing from trees on the neighbouring property. The appellant filed the claim with the Civil and Administrative Tribunal of New South Wales, which was dismissed by an adjudicator. The appellant then appealed to the Administrative Decisions Tribunal of New South Wales, which dismissed the appeal on the basis that there were no grounds to allow fresh evidence and no grounds for leave to appeal. The appellant subsequently appealed to the Supreme Court of New South Wales. The central issue was whether the appellant's fresh evidence was admissible and whether there were grounds for leave to appeal. The court had to determine whether the adjudicator's decision was based on a proper consideration of the evidence and whether the tribunal's decision was legally sound.

The court found that the adjudicator's decision was based on a proper consideration of the evidence. The adjudicator had reviewed the evidence and found that the damage was not caused by tree roots. The court also found that the tribunal's decision was legally sound. The tribunal had considered the fresh evidence but found that it did not change the outcome of the case. The court held that the tribunal's decision was not based on an error of law and that there were no grounds for leave to appeal. The court further found that the appellant's fresh evidence was not admissible as it was not relevant to the issue of whether the tree roots caused the damage.

The Supreme Court of New South Wales dismissed the appeal. The court held that the adjudicator's decision was based on a proper consideration of the evidence and that the tribunal's decision was legally sound. The court also found that there were no grounds for leave to appeal and that the appellant's fresh evidence was not admissible. The court's decision was based on a careful review of the evidence and a sound application of the law. The appeal was dismissed, and the decision of the tribunal was upheld.

Orders