Lake v Hermann - [2021] QCAT 425

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lake v Hermann [2021] QCAT 425

PARTIES:

PAUL JAMES LAKE
SLAVICA LAKE

(applicants)

V

STUART GORDON HERMANN
WENDY JANET HERMANN

(respondents)

APPLICATION NO/S:

NDR128-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

30 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1.       The application for miscellaneous matters filed 3 February 2021 (directions to produce) is dismissed.

2.       The application for miscellaneous matters filed 9 June 2021 (tree assessor’s report) is dismissed.

3.       The application for interim orders (pruning of tree) filed 30 July 2021 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – neighbourhood disputes – trees – interlocutory applications – application to strike out evidence – whether to direct production of documents – whether to strike out tree assessment – whether to order pruning on an interim basis pending final hearing

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – tree disputes – whether to make interim orders

Land Title Act 1994 (Qld)

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 18, s 42(1), s 42(2), s 42(3), s 42(4), s 45, s 46, s48(1), s 52, s 63, s 65, s 66, Schedule 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 4(b), 4(c), s 28, s 32(2), s 47, s 62(1), s 95(1), s 111

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Australian Property Custodian Holdings Ltd (in liq) (recs and mgrs apptd) (controllers appointed) v Woolridge [2013] VSC 154

Blue Angel Investments Pty Ltd t/as Salt Seafood Bar and Grill v Beach Plaza Pty Ltd [2015] QCAT 230

Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226

Fox v Percy (2003) 214 CLR 118

Gosbell v Linehurst Pty Ltd [2015] QCAT 74

Hatton v Attorney-General (Cth) & Ors [2000] FamCA 892

Langan & Langan [2013] FCCA 258

Ling v Commonwealth (1996) 68 FCR 180

Pinnacle Sales & Management Pty Ltd & Ors v Lisa Douglas [2019] QCATA 52

Rae v Qantas Airways Limited [2021] QCAT 376

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is the application about?

Mr and Mrs Lake own a property that they say has been impacted, variously, by over-hanging branches, leaf litter and roots from golden cane palm trees, a gum tree, a ficus tree and an umbrella tree situated on and encroaching/overgrowing from adjoining land owned by Mr and Mrs Hermann.
The parties are also in dispute regarding several other issues over which the tribunal does not have jurisdiction, ranging from allegations of harassment, unapproved structures and privacy concerns. There also appear to be issues regarding the dividing fence and retaining wall. Unfortunately, these issues – and the acrimony accompanying them – have invaded the tree dispute between the parties, which is now long-standing, largely due…

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 Lake v Hermann

Details

AGLC: Lake v Hermann [2021] QCAT 425
Case: [2021] QCAT 425
Decision Date

CaseChat Overview and Summary

In this case, Mr. and Mrs. Lake have brought proceedings against Mr. and Mrs. Hermann, their neighbours, in relation to a long-standing dispute over trees on the Hermanns' property that they say are encroaching on their property. The Lakes seek orders in relation to the trees and reimbursement of their costs. This decision addresses three interlocutory applications filed by the Lakes, being an application for directions to produce, an application for various directions arising from the tree assessment, and an application for interim orders. The court dismissed all of the applications. The court found that the application for directions to produce was not relevant to the proceedings. Further, the court found that the tree assessment report was not to be struck out and that the evidence in support of the application for interim orders was insufficient to satisfy the court that the balance of convenience weighed in favour of making the interim orders.

Orders