Kuhnemann v Ollier and Glubb
[2014] QCAT 230
| CITATION: | Kuhnemann v Ollier & Glubb [2014] QCAT 230 |
| PARTIES: | Helen Kuhnemann (Applicant) |
| v | |
| Robert Ollier and Lynette Glubb (Respondent) |
| APPLICATION NUMBER: | NDR224-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers on 18 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 27 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Ms Kuhnemann’s claim for compensation in respect of damage alleged to have been caused by Robert Ollier and Lynette Glubb’s tree is struck out. 2. The application is continued in regard to the question of what tree work if any is required in respect of Mr Ollier and Ms Glubb’s tree. 3. The Tribunal’s directions of 17 February 2014 are vacated. 4. The application for the production of documents is dismissed. 5. Ms Kuhnemann is ordered to pay Mr Ollier and Ms Glubb the amount of $873.00 in respect of the costs of their expert in regard to the expert’s conclave within 14 days of the date of this order. 6. The application is listed for a directions hearing on a date to be advised. |
| CATCHWORDS: | TREE DIPSUTE – application to strike out or dismiss – failure to attend experts conclave Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 47 and 216 Aigner v State of Queensland and Anor [2012] QCAT 397 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Kuhnemann is the neighbour in respect of a property owned by Mr Ollier and Ms Glubb. Ms Kuhnemann has made application to the Tribunal under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (ND Act) for orders to deal with a camphor laurel tree located on the property owned by Mr Ollier and Ms Glubb[1].
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) ss 62 and 66.
The Tribunal appointed an assessor, Mr Jonathan Hobbs, who following an inspection on 28 February 2013 provided a report dated 8 April 2013 in regard to the issues raised by Ms Kuhnemann. Mr Hobbs stated that Ms Kuhnemann’s land was affected by the tree and meets the requirements of s 46 of the ND Act. He recommended that there be further investigation by a structural engineer in regard to the alleged damage to the house and root investigation work by an arboricultural consultant. If the tree was to be retained he also recommended some specific tree works for the pruning and cutting back of the crown of the tree.
The Tribunal made directions on 5 June 2013 that Ms Kuhnemann obtain an engineers report with Mr Ollier and Ms Glubb to file a reply. Ms Kuhnemann obtained a report dated 22 July 2013 from her engineer, Mr Lindsay Reid and filed the report in the Tribunal on 24 July 2013. Mr Ollier and Ms Glubb obtained a report dated 12 October 2013 from their engineer, Mr Peter Wright, which they filed in the Tribunal on 25 October 2013.
The Tribunal made directions on 30 October 2013 listing the application for an expert’s conclave on a date to be advised. The notice for an expert’s conclave to be held at 1.30 p.m. on 17 February 2014 issued on 19 November 2013. There was no appearance on the day of the expert conclave by Mr Reid as expert for Ms Kuhnemann and the member who presided at the expert’s conclave made directions fro the experts to prepare a joint report on or before 7 April 2014.
Mr Ollier and Ms Glubb have filed an application to dismiss the application on the following grounds:-
a) Ms Kuhnemann failed to have her expert witness attend an expert conclave on 17 February 2013, indicating an unpreparedness to engage in the Tribunal process;
b) Ms Kuhnemann has attempted to argue that Mr Ollier and Ms Glubb are responsible for damage to her property, whilst acknowledging that the claimed damage existed at the time of purchase;
c) Ms Kuhnemann has attributed to Mr Ollier and Ms Glubb significant costs for the repairs to her property. In large part, these repairs are the result of her failure to attend to routine maintenance across time, and particularly to her failure to attend to known problems to mitigate further damage (such as the leaking roof, which led to the deterioration of the ceilings and swelling of roof timbers);
d) One of Ms Kuhnemann’s major concerns is that the tree represents a significant rick to life and limb. However, several storms, including cyclonic winds have occurred in the Toowoomba area over the last few months and their real estate agent has reported no adverse outcomes from the storms; and
e) The Tribunal does not have jurisdiction to consider this matter. Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009, at 1(f) states that a minor civil dispute is a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, chapter 2 and is for an amount not more than the prescribed amount. In this case Ms Kuhnemann is seeking damages in the order of $80,000 and this in Mr Ollier and Ms Glubb’s opinion exceeds the prescribed amount of $25,000.00.
Mr Ollier and Ms Glubb are also requesting in a separate application that the directions made by the Tribunal on 17 February 2014 be rescinded, that is vacated, and that they be reimbursed for the cost of their expert attending the expert’s conclave on 17 February 2014 in the amount of $873.00, a copy of Mr Wright’s invoice for the attendance at the expert’s conclave was filed. This is on the basis that Ms Kuhnemann’s expert did not attend the conclave and she has now indicated that she does not intend to have her expert comply with the directions.
There is also an application for production of medical evidence in regard to a condition that Ms Kuhnemann has alleged that she has which affected her ability to recall certain conversations with a real estate agent in regard to Mr Ollier and Ms Glubb’s attitude to dealing with the tree. It is said this goes to her credibility as a witness and that her application is said to be predicated on these claims.
Ms Kuhnemann responded to the matters raised by Mr Ollier and Ms Glubb as follows:-
a) That she misunderstood the process of the expert’s conclave. She said that she had contacted her expert and he indicated that he would not be able to attend the conclave. She stated that the expert advised his costs would be $10,000 and she thought she would let Mr Ollier have this one. She then mentioned the directions and that the Tribunal had given her a second go. In later communication with Mr Ollier which he filed Ms Kuhnemann confirmed by email to Mr Ollier that her expert would not be meeting with his expert in regard to the joint experts report and that she would not be using her expert.
b) In regard to damage to her property Ms Kuhnemann mentioned the latest incident which involved raw sewerage pouring out of the trap on the footpath. Though when Council attended they could not identify which tree was involved. She said that only thing she can provide is visual proof that the Camphor Laurel exceeds the fenceline by the legal requirement, drops berries, leaves, branches, blocks sunlight and has dead branches.
c) In regard to jurisdiction she stated that she had never mentioned that she was seeking damages of $80,000 and that the Tribunal had asked her to get quotes and she had given her estimate of the damages.
d) She confirmed that she had short term memory loss as a result of her condition in regard to the claim for proof of that condition.
The Tribunal may dismiss or strike out a proceeding or part of a proceeding if it considers it frivolous, vexatious or misconceived; lacking in substance or otherwise an abuse of process[2]. The summary end of proceedings is a very serious matter and ‘an argument for striking out a claim must be very clear to justify the Tribunal’s intervention to prevent a party from submitting its case for determination. It is a very serious matter for the Tribunal to dismiss a claim without allowing a hearing of that claim to take place’[3]. Further, ‘the authorities suggest that there must be a plain and obvious case that the substantive case will not succeed before a decision is made to prevent a claimant from submitting a case for determination’.[4]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47(1).
[3]Jones v Queensland Health [2012] QCAT 167.
[4]Aigner v State of Queensland and Anor [2012] QCAT 397.
As stated in the set of reasons for the first application to strike out or dismiss, the tree assessor’s report makes it clear that in terms of the ND Act Ms Kuhnemann’s land is affected by Mr Ollier and Ms Glubb’s tree. The report also makes some recommendations for tree work. This is clear evidence that the application is not one which should be dismissed or struck out. If the Tribunal accepted those recommendations an order could be made in Ms Kuhnemann’s favour. This is then not a case where it is clear the substantive case will not succeed at least in part. That is in respect of tree work.
Mr Ollier and Ms Glubb raised an issue about jurisdiction. The Tribunal notes that the definition referred to by them is in respect of Chapter 2 of the ND Act which deals with dividing fences and does not apply in relation to tree disputes which are contained in chapter 3 of that Act. So there is no ground for dismissal of the application on the basis of lack of jurisdiction.
There is a claim for compensation for damage to Ms Kuhnemann’s house allegedly caused by roots from the tree in question. Mr Hobbs in his report stated that
There is evidence of movement of the applicant’s home (e.g. cracked walls and glass) which should be investigated by a structural engineer. The applicant claims that there have been problems with the sewer so it may be necessary to have the service inspected by a registered plumber.
Whilst the applicant’s house is within the zone of influence of the tree’s root. I did not observe any roots or any substantial evidence of root activity as there is very little uncovered ground within the applicant’s property so the presence or absence of roots cannot be confirmed without further investigation.
The root investigation work should be undertaken by an arboricultural consultant should be engaged in order to establish whether or not there are roots (from the Camphor Laurel) under or near to the footings of the house so that the evidence can be factored in to the appraisal of the building damage.
In this case it is not clear that the application will fail in regard to the work on the tree and so it should not be dismissed. In regard to the claim for compensation though while there is some evidence of damage to Ms Kuhnemann’s house without expert evidence there is nothing to link that damage to the tree located on Mr Ollier and Ms Glubb’s property. Mr Hobbs stated that further expert evidence would be required and Ms Kuhnemann is not now prepared to proceed with the Tribunal process of obtaining expert evidence and so the claim for compensation must be struck out. This will result in the directions of 17 February 2014 being vacated as the joint expert report will not be necessary.
The issue in regard to Ms Kuhnemann’s medical condition was dealt with in the first set of reasons. This matter is only relevant in regard to whether attempts have been made to resolve the dispute between the parties. As for Ms Kuhnemann’s credibility as a witness this will be dealt with at the hearing of the matter. The application for production of medical evidence is dismissed.
Other than as provided under the QCAT Act or the ND Act each party must bear their own costs[5]. There are no provisions in the ND Act which deal with costs in the nature of experts expenses. The Tribunal may order a party to pay all or part of the costs of another party if it considers it is in the interests of justice[6]. Examples of this are given including whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party which references ss 48(1)(a) to (g) of the Act. This includes not complying with a Tribunal order without reasonable excuse.
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100.
[6]Ibid s 102.
The Tribunal considers that Ms Kuhnemann’s failure to advise the Tribunal that her expert would not be attending the expert’s conclave caused Mr Ollier and Ms Glubb to incur unnecessary costs for their expert’s attendance which disadvantaged them to the extent of those costs. Ms Kuhnemann is ordered to pay Mr Ollier and Ms Glubb the amount of $873.00 in respect of the costs of their expert in regard to the expert’s conclave within 14 days of the date of this order.
A directions hearing will also be required for the further progress of the application.
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