SUPREME COURT OF QUEENSLAND
CITATION:
Miles & Anor v Gough & Ors [2017] QCA 190
PARTIES:
JUSTIN MILES
LISA MILES
(applicants)
v
WAYNE LEE GOUGH
ROYALIE ANNE WALTERS
(first respondents)
CRAIG WILLIAMS
AMBER WILLIAMS
(second respondents)
BODY CORPORATE FOR SOLARUS RESIDENTIAL CTS 41491
(third respondent)FILE NO/S:
Appeal No 10490 of 2016
QCATA No 109 of 2015DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal Appeal Tribunal at Brisbane – [2016] QCATA 130 (Senior Member Brown)
DELIVERED ON:
1 September 2017
DELIVERED AT:
Brisbane
HEARING DATE:
7 June 2017
JUDGES:
Holmes CJ and Gotterson JA and Boddice J
ORDERS:
Application for leave to appeal refused with costs.
CATCHWORDS:
PROCEDURE – INFERIOR COURTS – QUEENSLAND –QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants owned a penthouse apartment in a building, one level above apartments owned by the first and second respondents – where the applicants contended that awnings erected by the first and second respondents obstructed their view and constituted an unreasonable interference with the use or enjoyment of their property, contrary to s 167(b) of the Body Corporate and Community Management Act 1997 – where an adjudicator’s decision that the awnings did not constitute an unreasonable interference was upheld by a Senior Member of the Queensland Civil and Administrative Tribunal – where the applicants sought leave to appeal the Senior Member’s decision, contending that he erred in law by rejecting their contentions of error by the adjudicator – where the applicants contended that the adjudicator had erroneously conflated the tests for nuisance and unreasonable interference – where the applicants contended that the adjudicator had wrongly undertaken a purely quantitative assessment of the impact on the applicants’ views – where the applicants contended that the adjudicator had wrongly taken into account the awnings’ conformance with local government approval – where the applicants contended that the adjudicator had wrongly taken into account the reasonableness, from the respondents’ perspective, of erecting the awnings – where the applicants contended that the adjudicator had wrongly failed to consider whether reasonable alternatives were available – where the applicants contended that the adjudicator had wrongly failed to make a finding on competing valuation evidence – whether the applicants have any reasonable prospect of demonstrating that the Senior Member erred in law by rejecting their contentions of error by the adjudicator – whether leave to appeal should be granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150
Laing & Anor v Kokkinos & Anor(No 2) [2013] QCATA 247, considered
Norbury v Hogan [2010] QCATA 27, cited
Quinn v The Body Corporate of Sanctuary Bay CTS 6523 [2013] QCATA 25, considered
Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140, consideredCOUNSEL:
P Roney QC for the applicants
A Fraser for the first and second respondents
B Strangman for the third respondentSOLICITORS:
Cohen Legal for the applicants
Connolly Suthers for the first and…
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- AGLC
- Miles v Gough [2017] QCA 190
- Case
- [2017] QCA 190
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Senior Member had erred in law by rejecting the applicants’ contentions regarding the adjudicator's decisions. The applicants argued that the adjudicator had conflated the tests for nuisance and unreasonable interference, conducted a purely quantitative assessment of the impact on their views, and taken into account factors such as local government approval and the reasonableness of the respondents’ actions. Additionally, the applicants argued that the adjudicator failed to consider the availability of reasonable alternatives and did not make a finding on competing valuation evidence. The court had to determine whether the applicants had a reasonable prospect of demonstrating that the Senior Member erred in law and whether leave to appeal should be granted.
The court found that the applicants did not have a reasonable prospect of demonstrating that the Senior Member erred in law. The court held that the Senior Member had properly considered the relevant principles and evidence, and there was no basis for concluding that the Senior Member's decision was flawed. Consequently, the court refused the application for leave to appeal and ordered the applicants to pay costs.
The court's decision underscores the importance of adhering to legal principles and evidence when resolving disputes related to property and interference. The refusal of leave to appeal indicates that the applicants' arguments did not meet the required threshold for demonstrating a legal error by the Senior Member. The court's order for costs also highlights the consequences for unsuccessful appeals in such matters.
Orders
Orders of the court
Application for leave to appeal refused with costs.
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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