La Bella Waters Body Corporate v Northaust Leisure Pty Ltd
[2014] QCAT 372
| CITATION: | La Bella Waters Body Corporate v Northaust Leisure Pty Ltd [2014] QCAT 372 |
| PARTIES: | La Bella Waters Body Corporate (Applicant) |
| v | |
| Northaust Leisure Pty Ltd (Respondent) |
| APPLICATION NUMBER: | NDR009-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hughes |
| DELIVERED ON: | 15 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. La Bella Waters Body Corporate is not a neighbour under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and is thereby unable to apply for an order under section 66 of the Act; 2. The Application is dismissed; and 3. Each party pays its own costs of the proceedings. |
| CATCHWORDS: | TREES – whether Tribunal has jurisdiction –whether applicant is neighbour – where neighbour is defined by Act – whether statutory definition is exhaustive – whether contrary to purpose of Act – where applicant is sub-lessee of Crown leasehold –- whether costs payable Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, ss 4, 49, 59, 61, 62, 66 Barker v Edger [1898] AC 748 Urguhart v Paddington [2013] QCAT 133 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
What is this Application about?
Northaust Leisure Pty Ltd wants the Tribunal to dismiss La Bella Waters Body Corporate’s application. Northaust claims La Bella is not a “neighbour” under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and therefore cannot apply to the Tribunal for orders in relation to a tree affecting La Bella’s land.
What is the Tribunal’s jurisdiction?
Who may apply to the Tribunal?
A neighbour may apply for an order from the Tribunal.[1]
[1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 62.
The Tribunal’s jurisdiction is to make orders it considers appropriate in relation to a tree affecting the neighbour’s land.[2]
[2]Ibid s 66(2).
Who is a neighbour?
The Act specifically states that the dictionary in the schedule defines particular words used in this Act.[3] The Schedule to the Act defines “neighbour” as “for chapter 3, see section 49”.
[3]Ibid s 4.
Section 49 defines “neighbour” in relation to a particular tree or the tree-keeper for a particular tree as:
a) A registered owner or occupier of land under Land Title Act 1994;
b) A body corporate for land under the Body Corporate and Community Management Act 1997;
c) A body corporate for land under the Building Units and Group Titles Act 1980.[4]
[4]Ibis s 49(1).
The definition does not use the words “means” or “includes”. It instead commences with “Each of the following entities is a neighbour…”.
I am satisfied that “is” conveys a legislative intent closer to “means” than “includes”. This is because the Schedule uses directory language for the word neighbour within the context of Chapter 3: “see”.
The function of a definition provision in a statute is to indicate that when particular words or expressions as defined are found in the statute, they are to be understood in the defined sense.[5] This means that the words following “neighbour” in section 49 are an exclusive statement of meaning unless a contrary intention appears.
[5]Gibb v Commissioner of Taxation (1966) 118 CLR 628 at 634.
La Bella contends that section 49 must be read to be consistent with section 61 of the Act for the Tribunal to hear and decide any matter in relation to a tree in which it is alleged land is affected by the tree.
Section 61 provides that the Tribunal has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that land is affected by the tree.[6]
[6]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 61.
Section 61 is not to be read in isolation. Rather, the whole context must be considered although the focus of the inquiry is on the particular provision.[7]
[7]The Metropolitan Gas Co. v The Federated Gas Employees’ Industrial Union (1924) 35 CLR 449 at 451 – 458, per Isaacs and Rich JJ.
Section 61 falls within the context of Part 5 of the Act. Section 59 provides that Part 5 applies if a neighbour’s land is affected by a tree.[8] This earlier provision deals specifically with the application of Part 5. The Tribunal’s jurisdiction to make orders about trees therefore falls within the purview of Part 5.
[8]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 59(a).
It would be contrary to principles of construction for the Legislature to specifically define the application of a Part and then within one provision of that part broaden its scope without clear language:
…special provisions will stand unaffected by subsequent legislation of a general character, unless the Legislature makes it abundantly clear that it intends to interfere with special provisions.[9]
[9]Barker v Edger [1898] AC 748 at 754.
The later general provision about jurisdiction (section 61) is therefore subject to the earlier specific provision about the application of the Part (section 59).
It is therefore not correct to isolate the reference in section 61 to “any matter in relation to a tree” as a legislative intention to depart from the statutory definition of “neighbour”. Merely omitting “neighbour” from section 61 does not evince a contrary intention by the Legislature to extend the Tribunal’s jurisdiction to any land:
… the contrary or other intention must… be found within the particular context in which the defined word appears, and when found, the definition is then departed from for the purposes of that particular provision only. It cannot be right to search through the Act to find a number of provisions not including the relevant provision in which the intention to depart from the definition appears and having found them, then to say that the contrary intention appears for all the purposes of the Act and hence for the purposes of the relevant provision.[10]
[10]Duperouzel v Cameron [1973] WAR 181 at 183, per Burt J.
Section 61 does not provide a basis to alter the specific definition in the Act or ascribe an interpretation that would effectively amend the plain wording of the Act by broadening the definition of “neighbour”.[11]
[11]Similar reasoning was applied in In re Prince Bucher: Ex parte Debtor [1931] 2 Ch. 70 at 72 – 75.
Therefore, for Chapter 3 of the Act, a neighbour is as it is defined by the Act and does not extend to its ordinary meaning.[12]
[12]Bell v Griffiths [2013] QCAT 655 at [8].
The land alleged to be affected by trees is Crown leasehold land. La Bella is a sub-lessee of that land. La Bella is therefore not a “neighbour” as defined by section 49 of the Act and is therefore unable to apply for an order under section 66 of the Act.
This approach is not contrary to the purpose of the Act:
Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context… the fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction… if one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.[13]
[13]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 319 – 323, per Mason and Wilson JJ.
The Act does not purport to be a legislative scheme enshrining the rights and remedies of persons with interests in land. That the Act’s orders are available only to its own legislatively defined “neighbour” does not leave La Bella without rights and remedies outside the Act.
Should costs be awarded?
Northaust sought an order that La Bella pay its costs on the District Court scale.
Costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs[14], unless the interests of justice require the Tribunal to order a party to pay the costs of another party.[15]
[14]QCAT Act s 100.
[15]Ibid s 102.
There is therefore a strong indicator against costs:
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s.100.[16]
[16]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [29].
In deciding this, I may consider prescribed circumstances[17] and some of these may be more apposite in a particular case:
… the applicant relies on s 102 and the matters to be taken into account in that section… are always helpful general principles to apply with respect costs any award of costs is discretionary.[18]
[17]QCAT Act s 100(3).
[18]Urguhart v Paddington [2013] QCAT 133 at [106].
The apposite circumstance here is the relative strengths of the claims. Although La Bella’s application has been dismissed, Northaust felt compelled to engage solicitors who filed no fewer than 14 pages of submissions plus annexures to dismiss the application and no fewer than nine pages of submissions plus annexures in reply to La Bella’s submissions. This does not suggest that La Bella’s application was unarguable or devoid of merit.
Although La Bella did not accept Northaust’s invitation to withdraw its application, I do not consider this means La Bella acted in a way that unnecessarily disadvantaged Northaust. A party’s failure to accept an invitation to withdraw does not necessarily equate to that party unnecessarily disadvantaging the other.[19]
[19]Coming Home Pty Ltd ATF The Coming Home Trust v Body Corporate for Sunnybank Close [2014] QCAT 110 at [9].
La Bella had an arguable case. By pursuing that case in the normal course of litigation, it did not act in a way that unnecessarily disadvantaged Northaust.[20]
[20]Joanne Baxter and Fifties Food Pty Ltd atf The Ninja Bear Trust t/as Subway Wynnum Central v Subway Realty Pty Ltd & Anor [2013] QCAT 316 at [12].
The circumstances are insufficient to counter the strong indicator against the awarding of costs in Tribunal proceedings.
What are the appropriate Orders?
Because I have determined that La Bella is not a “neighbour” as required by the Act, the application lacks substance and is therefore to be dismissed.[21]
[21]QCAT Act s 47(1)(b).
The circumstances do not warrant departing from the strong indicator against awarding costs in Tribunal proceedings.
The appropriate Orders are:
1. La Bella Waters Body Corporate is not a neighbour under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and is thereby unable to apply for an order under section 66 of the Act;
2. The Application is dismissed; and
3. Each party pays its own costs of the proceedings.
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