MacKenzie v Cox - [2025] QCATA 71

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MacKenzie v Cox [2025] QCATA 71

PARTIES:

NOEL MACKENZIE

(applicant/appellant)

v

COLIN COX

(respondent)

APPLICATION NO/S:

APL042-24

ORIGINATING APPLICATION NO/S:

NDR109-22

MATTER TYPE:

Appeals

DELIVERED ON:

1 August 2025

HEARING DATE:

On-Papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves
Member Lumb

ORDERS:

1.     Order 2 of the Decision at first instance dated 1 December 2023 (‘Order 2’) is set aside.

2.     Colin Cox must repay to Noel MacKenzie any money paid pursuant to Order 2 within 14 days of this Order.

3.     To the extent that leave to appeal is necessary, leave to appeal is refused.

4.     The appeal is otherwise dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – neighbourhood disputes – trees – appeal from decision dismissing application – where no expert evidence relied upon by the applicant – whether costs of arborist report obtained by respondent prior to the litigation commencing should have been awarded

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 46, s 60, s 65, s 66, s 71

Queensland Civil and Administrative Act 2009 (Qld) s 100, s 102, s 142, s 147

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Hamod v State of New South Wales and Anor [2011] NSWCA 375

JM v QFG [2000] 1 Qd R 373

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

Overview

This is an application for leave to appeal a decision of the Tribunal dated 1 December 2023 in which the Tribunal:
1.dismissed an application for a tree dispute brought by Mr MacKenzie in relation to a hoop pine tree on Mr Cox’s land; and
2.ordered Mr MacKenzie pay Mr Cox’s costs of obtaining an arborist report, namely $265 (‘Order 2’).
The stated Grounds of Appeal are:
1. Judgement is factually unsafe because it fails to address the subject reported 20m high young tree’s normal historic known capacity to grow to a height of 60m (similar local examples exist) that very significantly exacerbate the current 4-5M levels of branch and other trunk intrusion, demonstrated and unrefuted instability and intimidating angle of incidence.
2. Judgement is factually unsafe because it very selectively uses quotations from an arborist tree report containing a comprehensive legal disclaimer that disqualifies it from evidentiary citation oral or written in any Queensland legal proceedings that also includes numerous errors and substantial omissions whose absence and failure to note or include amount to a lack of procedural fairness.
3. Judgement is factually and legally unsafe because under the terms of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 it fails to address and issue appropriate orders where.. Chapter 3 Tree Part 1, Sub-Section (1), Part 4 Sub-Section 55 (a) and (b), Sub-Section 46 (a) and (i) Sub-Section 71 Safety, Sub-Section…

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 MacKenzie v Cox

Details

AGLC: MacKenzie v Cox [2025] QCATA 71
Case: [2025] QCATA 71
Decision Date: 1 August 2025

CaseChat Overview and Summary

The case of MacKenzie v Cox involved a dispute between neighbours regarding the trimming of trees on their shared boundary. Noel MacKenzie, the appellant, sought to appeal a decision from a lower court that dismissed his application for relief. The respondent, Colin Cox, had previously obtained an arborist report before the litigation commenced. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the costs of the arborist report should have been awarded to the respondent, Colin Cox. A secondary issue was whether the appeal was valid, given the absence of expert evidence from the appellant.

The court examined the grounds for the appeal and whether they constituted an error of law. It found that the appeal did not lie because the appellant had not provided expert evidence to support his application. The court held that an appeal from a decision dismissing an application generally requires a demonstration of an error of law. The court noted that the absence of expert evidence from the appellant in the first instance proceeding was a significant factor. Furthermore, the court ruled that the costs of the arborist report should not be awarded to the respondent as they were incurred before the litigation began.

Consequently, the court set aside Order 2 of the Decision at first instance, which required the appellant to pay the respondent’s legal costs. Colin Cox was ordered to repay any money paid to him pursuant to that order within 14 days. The court refused leave to appeal to the extent that it was necessary and dismissed the appeal in all other respects.

Orders

Orders of the court

1. Order 2 of the Decision at first instance dated 1 December 2023 (‘Order 2’) is set aside.

2. Colin Cox must repay to Noel MacKenzie any money paid pursuant to Order 2 within 14 days of this Order.

3. To the extent that leave to appeal is necessary, leave to appeal is refused.

4. The appeal is otherwise 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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