Marshall v Rodgers - [2022] QCAT 226

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Marshall & Anor v Rodgers [2022] QCAT 226

PARTIES:

BRYAN CRAIG MARSHALL
KARIN MARSHALL

(applicants)

v

KAREN JOY RODGERS

(respondent)

APPLICATION NO/S:

NDR095-21

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

17 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1. It is declared that the Body Corporate for Bullima Gardens Community Titles Scheme 5018 is the ‘tree-keeper’ pursuant to section 48 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).

2.     The Body Corporate for Bullima Gardens Community Titles Scheme 5018 is joined as a respondent.

3.     Bryan Craig Marshall and Karin Marshall must give to the Body Corporate for Bullima Gardens Community Titles Scheme 5018 one (1) copy of:

(a)     the Application for a tree dispute filed 3 June 2021;

(b)     the directions made 10 June 2021;

(c)     the documents filed on 22 July 2021 in compliance with direction 3 made 10 June 2021;

(d)     the Response filed 19 August 2021;

(e)     the directions made 17 November 2021;

(f)      Bryan Craig Marshall and Karin Marshall’s submissions filed 1 December 2021;

(g)     Karen Joy Rodgers’ submissions filed 10 December 2021;

(h)     Bryan Craig Marshall and Karin Marshall’s statements of evidence filed 14 January 2022;

(i)      Karen Joy Rodgers’ statements of evidence filed 14 February 2022;

(j)      Bryan Craig Marshall and Karin Marshall’s submissions filed 15 February 2022;

(k)     this decision and the reasons for decision,

by 4:00pm 15 July 2022.

4.     Bryan Craig Marshall and Karin Marshall must establish compliance with order 3 by filing in the Tribunal an affidavit of service or a form of acknowledgement from the Body Corporate for Bullima Gardens Community Titles Scheme 5018, by 4:00pm on 15 July 2022.

5.     Bryan Craig Marshall and Karin Marshall must file in the Tribunal two (2) copies and give one (1) copy to the Body Corporate for Bullima Gardens Community Titles Scheme 5018 and Karen Joy Rodgers evidence of their reasonable efforts either prior to or after commencement of these proceedings to reach agreement with the Body Corporate for Bullima Gardens Community Titles Scheme 5018, by 4:00pm on 12 August 2022.

6.     If Bryan Craig Marshall and Karin Marshall fail to comply with orders 3, 4 or 5 the application may be dismissed without further reference to the parties.

7.     If Bryan Craig Marshall and Karin Marshall comply with orders 3, 4 and 5, the Body Corporate for Bullima Gardens Community Titles Scheme 5018 must file in the Tribunal two (2) copies and give one (1) copy to Bryan Craig Marshall and Karin Marshall and to Karen Joy Rodgers of a completed Form 52 – Response to application for a tree dispute, by 4:00pm on 9 September 2022.

8.     The application is listed for a Directions Hearing not before 16 September 2022.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where tree located on common property – effect of exclusive use
by-law – whether respondent…

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 Marshall v Rodgers

Details

AGLC: Marshall v Rodgers [2022] QCAT 226
Case: [2022] QCAT 226
Decision Date

CaseChat Overview and Summary

Bryan Craig Marshall and Karin Marshall, the applicants, sought orders against Karen Joy Rodgers, the respondent, under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) in relation to certain trees on the respondent’s property. The applicants sought a declaration that Ms Rodgers was the tree-keeper of the trees, or alternatively, that the Body Corporate for Bullima Gardens Community Titles Scheme 5018 was the tree-keeper. The applicants also sought orders for Ms Rodgers to carry out work on the trees and for damages for the damage caused to the applicants’ property by the trees. The application was heard and determined on the papers by Member Deane of the Queensland Civil and Administrative Tribunal (QCAT). The Tribunal was required to decide whether Ms Rodgers was the tree-keeper for the purposes of the Act, or whether the Body Corporate was the tree-keeper. The Tribunal found that the Body Corporate was the tree-keeper, as the land on which the trees were situated was common property for a community titles scheme under the Body Corporate and Community Management Act 1997 (Qld). The Tribunal also found that the Body Corporate was a proper and necessary party to the proceedings, and that Ms Rodgers should remain a party, as her interests may be affected by the proceedings. The Tribunal ordered that the Body Corporate be joined as a respondent to the proceedings and that the applicants provide the Body Corporate with copies of the application, the directions, and other documents filed in the proceedings. The Tribunal also made directions for the future conduct of the application and listed it for a Directions Hearing.

This decision is a preliminary ruling on the identity of the tree-keeper and the proper respondent in a tree dispute. The Tribunal found that the Body Corporate, and not the respondent, was the tree-keeper and the proper respondent. The Tribunal also found that the respondent should remain a party to the proceedings, as her interests may be affected. The Tribunal made orders for the Body Corporate to be joined as a respondent, for the applicants to provide the Body Corporate with copies of the application and other documents, and for the future conduct of the application. This decision is an important step in resolving the tree dispute between the applicants and the respondents, and it clarifies the legal issues and parties involved in the proceedings.

Orders