Lukic v Perera - [2020] QCAT 515

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lukic & Anor v Perera & Anor [2020] QCAT 515

PARTIES: LEON LUKIC
LJUBINKA LUKIC

(applicants)

v

CHAMATH MAHARABA PERERA

VERONIC PERERA

(respondents)

APPLICATION NO/S:

NDR066-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

3 December 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

The Application for a tree dispute filed 8 November 2018 is dismissed.

CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION –

DISPUTES BETWEEN NEIGHBOURS – whether trees likely to cause serious damage to the neighbours’ land or property –trees already removed - whether trees causing substantial, ongoing and unreasonable interference

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 61, s 65, s 66, s 72, s 73

Laing & Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
Ortlipp & Anor v Bowyer & Anor [2017] QCAT 225
Robertson v Darvas [2016] QCAT 136
Thomsen v White [2012] QCAT 381
Young v Salmon [2016] QCAT 508

REASONS FOR DECISION

The Lukics and the Pereras own adjoining suburban properties.
On 8 November 2018 Mr and Ms Lukic filed an amended application to commence proceedings under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (the ND Act). Mr and Ms Lukic claimed that bamboo (the Trees) from the respondents property had infiltrated their yard and was causing damage to the yard itself and lawns. The applicants said that they had been aware of the damage since 2017 and that the bamboo had now been removed from the respondent’s property but was still affecting their property. They described the damage as extreme and continuing. The Lukics sought from the tribunal orders that (i) the respondents pay compensation to the applicants for damage to their land or property in the amount of $3955.87 and (ii) that the respondent pay the costs of carrying out the tribunal’s orders.
The Pereras submit that the application should be dismissed. They are seeking orders that (i) they are not liable to pay any invoices sent to them by Merlot Residential Australia, (the management company for the Lukics’ rental property ); (ii) there be an agreement that both parties maintain their own back yards and (iii) there is no ongoing issue. It was also the evidence of the Pereras that their property is “100% bamboo free”.
In their amended application the Lukics claims the Trees:
Did not cause serious injury to a person however they also state that the Trees caused injury in the past and now.
Didcause serious injury to their land or property. They describe this damage as in the past and continuing.
Did cause substantial, ongoing unreasonable interference with their use and enjoyment of their land. This interference was characterised as the bamboo shoots in their yard causing a tenant to vacate the property “due to not being able to use the backyard” and loss of rent experienced by the Owner due to the tenant vacating.
In their application the applicants claimed that the…

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 Lukic v Perera

Details

AGLC: Lukic v Perera [2020] QCAT 515
Case: [2020] QCAT 515
Decision Date

CaseChat Overview and Summary

The case of Lukic v Perera involved the Lukics, who sought compensation and orders from the Pereras for alleged damage caused by bamboo trees on the Pereras' property. The Lukics claimed that the bamboo had infiltrated their property, causing damage and interference with their use and enjoyment of their land. The Pereras denied planting the bamboo and claimed that they had removed it from their property. The tribunal was required to determine whether the trees caused serious damage to the neighbours’ land or property and whether they were causing substantial, ongoing, and unreasonable interference with the Lukics' use and enjoyment of their land. The tribunal also considered whether the applicants had established their entitlement to orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

The tribunal found that the applicants had not discharged their onus of proof. The tribunal was satisfied that the trees had been removed from the respondents' property and that there was insufficient evidence to establish that the trees had caused substantial, ongoing, and unreasonable interference with the applicants' use and enjoyment of their land. The tribunal accepted the evidence of the independent expert, Mr Inman, who found that there was no evidence of damage caused by the trees. The tribunal also found that the applicants had failed to provide sufficient evidence to support their claims. As such, the tribunal dismissed the application for a tree dispute.

The tribunal dismissed the application for a tree dispute filed on 8 November 2018. The tribunal found that the applicants had not established their entitlement to orders under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld). The tribunal accepted the evidence of the independent expert, Mr Inman, who found that there was no evidence of damage caused by the trees. The tribunal also found that the applicants had failed to provide sufficient evidence to support their claims. As such, the tribunal dismissed the application for a tree dispute.

Orders