Lowe v BCG Technical Ltd - [2015] QCAT 408

CITATION:

Lowe v BCG Technical Ltd [2015] QCAT 408

PARTIES:	Arthur Lowe Eileen Lowe (Applicants)
v
BCG Technical Ltd (Respondent)

APPLICATION NUMBER:

NDR203-14

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

15 October 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

TREE DISPUTE – Jurisdiction of Tribunal – whether applicants “neighbours” under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 – where land affected by tree is scheme land under the Building Units and Group Titles Act 1980 – application of Building Units and Group Titles Act 1980 to Chapter 2 and Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011

Acts Interpretation Act 1954 (Qld), s 35
Body Corporate and Community Management Act 1997 (Qld), s 325
Building Units and Group Titles Act 1980 (Qld), s 7, s 8, s 9, s 21, s 37, s 123,
Dividing Fences Act 1953 (Qld)
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), ch 2, ch 3, s 12, s 14, s 15, s 20, s 41, s 46, s 48, s 49, s 57, s 62, s 65, s 66, Schedule
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32
Sanctuary Cove Resort Act 1985 (Qld), s 23, sch 9

Wood v Kenyon [2015] QCAT 335

APPEARANCES:

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

What is this matter about?

Arthur and Eileen Lowe (‘the Lowes’) own a property at Hope Island. BGC Technical Ltd (‘BGC’) owns an adjoining property. The Lowes complain about a number of trees situated on BGC’s property. They filed an application in the Tribunal, following which a tree assessor was appointed and a report prepared. After the Lowes filed their statements of evidence in the Tribunal, potential jurisdictional issues arose. The parties were directed to file in the Tribunal submissions in relation to the Tribunal’s jurisdiction to determine the Lowes’ application.

Background

The Lowes live in a waterfront property at Hope Island on the Gold Coast. BGC owns an adjoining property. A number of trees grow on BGC’s property close to the boundary fence with the Lowes’ property. The Lowes say that the trees have caused damage to the boundary fence.
The Lowes say that they engaged in discussions with representatives of BGC over a lengthy period of time in an attempt to resolve the issues relating to the trees and the damage to the fence. Those discussions did not lead to a resolution.
Eventually in June 2014, the Lowes wrote to the Body Corporate for Rosebank GTP 3033 (‘the body corporate’) requesting the assistance of the body corporate in resolving the issues relating to the trees.
It is appropriate here to make some observations about the properties in question.
The Lowes’ property is described as Lot 17 on GTP 3033, County of…

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 Lowe v BCG Technical Ltd

Details

AGLC: Lowe v BCG Technical Ltd [2015] QCAT 408
Case: [2015] QCAT 408
Decision Date: 15 October 2015

CaseChat Overview and Summary

The parties in this case were Lowe and BCG Technical Ltd. The dispute centred on the jurisdiction of the tribunal in relation to a tree that was causing a nuisance. Lowe sought to have the tribunal resolve the dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, however BCG Technical Ltd argued that Lowe was not a "neighbour" as defined by the act because the land affected by the tree was a scheme land under the Building Units and Group Titles Act 1980. The case was heard in the Queensland Civil and Administrative Tribunal.

The legal issues before the court were whether the applicants were "neighbours" under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and whether the Building Units and Group Titles Act 1980 applied to Chapter 2 and Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. The court had to determine whether the definition of "neighbour" in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 included land that was a scheme land under the Building Units and Group Titles Act 1980. Additionally, the court had to consider whether the Building Units and Group Titles Act 1980 applied to Chapter 2 and Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

The court found that the applicants were not "neighbours" within the meaning of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 because the land affected by the tree was a scheme land under the Building Units and Group Titles Act 1980. The court held that the definition of "neighbour" in the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 did not include land that was a scheme land under the Building Units and Group Titles Act 1980. The court also found that the Building Units and Group Titles Act 1980 did not apply to Chapter 2 and Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. As a result, the tribunal did not have jurisdiction to hear the application.

The tribunal dismissed the application, finding that the applicants were not "neighbours" within the meaning of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 and that the Building Units and Group Titles Act 1980 did not apply to Chapter 2 and Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

Orders

Orders of the court

1. The application 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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