May v Heywood - [2025] QCATA 99

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

May & Anor v Heywood [2025] QCATA 99

PARTIES:

IAN LESLIE CHARLES MAY

(first applicant/appellant)

VALMA RUTH DUNSTAN

(second applicant/appellant)

v

DIANNE RHONDA HEYWOOD

(respondent)

APPLICATION NO/S:

APL352-25

ORIGINATING APPLICATION NO/S:

NDR039-22

MATTER TYPE:

Appeals

DELIVERED ON:

30 October 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Fitzpatrick

ORDERS:

1. The Appeal Tribunal record is amended to reflect the correct spelling of the Second Respondent as Valma Ruth Dunstan.

2. The application to stay a decision is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where Tribunal made an order for the tree owners to prune bamboo trees – where application for leave to appeal or appeal and application to stay a decision filed by the tree owners – where applicant tree owners say the Tribunal erred in law by failing to apply s 73(1)(g) of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), by taking into account an irrelevant consideration, by applying the wrong test; and/or failing to take into account a relevant consideration, and by making a finding on no evidence – whether applicants raise a reasonably arguable case of error – whether the Appeal Tribunal should grant a stay of the pruning orders

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 66, s 66(3)(b)(ii), s 73, s 73(1)(g), s 73(1)(d), s 73(1)(e)

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 58, s 145

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Day v Humphrey [2017] QCA 104
Hamrod v Suncorp Metway [2006] NSWCA 243
Hessey-Tenny v Jones [2018] QCATA 131

Rintoul v Sate of Queensland & Others [2018] QCA 20

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

I make an order that the Appeal Tribunal record is amended to reflect the correct spelling of the Second Respondent as Valma Ruth Dunstan.
On 5 August 2025 the applicants Ian May and Valma Dunstan were ordered to prune certain bamboo so that it is no taller than 2.5 metres from the base of the bamboo on or before 1 November 2025. Other orders were made in relation to regular maintenance and for the tree owners to meet the cost incurred by the neighbour for the pruning work in the circumstance that the work is not undertaken by the tree owners.
Mr May and Ms Dunstan have filed an application for leave to appeal or appeal and an application to stay the decision pending the appeal.
Both parties have filed submissions in the stay application.
In order to obtain a stay of a decision an applicant must show a reasonably arguable case on the appeal, 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 May v Heywood

Details

AGLC: May v Heywood [2025] QCATA 99
Case: [2025] QCATA 99
Decision Date: 30 October 2025

CaseChat Overview and Summary

The appeal in this case was brought by the tree owners, the appellants, against the original decision of the Neighbourhood Disputes Tribunal, the first respondent, and the decision-maker, the second respondent. The appellants sought to appeal the decision of the Tribunal, which had ordered them to prune their bamboo trees. They also applied to the Tribunal to stay the enforcement of the pruning orders. The appellants argued that the Tribunal had made a series of errors in its decision and that, as a result, they had a reasonably arguable case for appeal. They contended that the Tribunal had erred in law, taken into account irrelevant considerations, applied the wrong legal test, failed to take into account relevant considerations, and made a finding without evidence. The appellants sought leave to appeal and a stay of the pruning orders pending the outcome of the appeal.

The court was required to determine whether the appellants had raised a reasonably arguable case of error in law that was sufficient to warrant an appeal and a stay of the enforcement of the pruning orders. The court considered the general principles that apply to the grant or refusal of a stay of proceedings. It noted that the grant of a stay is not automatic and that the court must consider the merits of the appeal and the potential prejudice to the parties if the stay is granted or refused. The court also noted that the appellants had not raised any arguable errors of law that would warrant a stay of the enforcement of the pruning orders. The court held that the appellants had not demonstrated that they had a reasonably arguable case of error in law that would warrant a stay of the enforcement of the pruning orders.

The court ordered that the record of the Appeal Tribunal be amended to reflect the correct spelling of the second respondent's name. The court refused the application to stay the enforcement of the pruning orders.

Orders

Orders of the court

1. The Appeal Tribunal record is amended to reflect the correct spelling of the Second Respondent as Valma Ruth Dunstan.

2. The application to stay a decision is refused.

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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