McMahon v Savage and Anor - [2024] QCAT 27

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McMahon v Savage and Anor [2024] QCAT 27

PARTIES:

GINA DOREEN MCMAHON

(applicant)

v

VIVIAN SAVAGE AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RON BLACK
CHRISTOPHER JAMES HARRIS

(respondent)

APPLICATION NO/S:

NDR051-20

MATTER TYPE:

Neighbourhood Dispute matter

DELIVERED ON:

16 January 2024

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:

The application is dismissed.

CATCHWORDS:

NEIGHBOURHOOD DISPUTE – APPLICATION FOR TREE ORDER – death of tree keeper – sale of property – jurisdiction to pay compensation

Neighbourhood Disputes (Dividing Fences and Trees) Act2011 (Qld), s 52, s 66

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 100, s 102

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

The applicant, Gina McMahon, the owner and occupier of a residence at 13 Penguin Parade, Burleigh Waters, had over a period of years a number of discussions with her neighbour Ron Black, the owner of the adjoining property at 11 Penguin Parade, in relation to two trees growing on Mr Black's property which overhang her property.
Following Mr Black's death, she had a further discussion with his daughter and the executor of his estate Vivian Savage.
Dissatisfied with the outcome of that discussion, Ms McMahon had some overhanging branches lopped on or about 10 March 2020 and filed in the Tribunal an application for a tree dispute on 3 April 2020.
11 Penguin Parade was ultimately sold by Ms Savage to Christopher James Hughes and he was added as a party by the Tribunal.
In her application, Ms McMahon alleged that the two trees caused substantial ongoing and unreasonable interference with her use and enjoyment of her property by dropping “tree debris” in her pool, damaging her pool pump and creepy crawly and lifting the block work dividing fence between the two properties which could cause the fence to fall.
The application identified a crack which had developed in the fence and a photograph of that crack was included with the application. A further attachment to the application requested the costs of the tree lopping in the sum of $80 be “returned” to her.
Ms Savage says that the offending trees and two others were cut down and removed from the property on 19 May 2020. Submissions lodged in the Tribunal acknowledged that the trees have been cut down and removed.
Ms McMahon has indicated that she wished to persist with her claim for $800 and also seek reimbursement of the application filing fee of $345.80. On 13 January the Tribunal gave directions for the filing of evidence and submissions in relation to compensation and costs by both parties, with those issues to be determined on the papers without an oral hearing.

Compensation

The Tribunal's jurisdiction to make orders is limited to those orders it is authorised to make by the Queensland Civil and Administrative Tribunal Act2009 (Qld)…

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.

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Details

Case: [2024] QCAT 27
Decision Date: 16 January 2024

CaseChat Overview and Summary

McMahon and Savage, neighbours, were in dispute over a tree on the boundary line between their properties. The tree's keeper was McMahon. The dispute was brought before the court to determine the jurisdiction to pay compensation following the tree's death and McMahon's subsequent sale of his property. The court was required to determine whether it had the jurisdiction to hear the matter and whether the tree's death was relevant to the compensation claim. The court held that it did not have jurisdiction to hear the matter as the tree's death occurred prior to the sale of the property, and the compensation claim was thus moot. The application was dismissed, and no compensation was awarded.

Orders

Orders of the court

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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