Ollier & Glubb v Kuhnemann - [2015] QCATA 112

CITATION:

Ollier & Glubb v Kuhnemann [2015] QCATA 112

PARTIES:	Robert Andrew Ollier and Lynette Michelle Glubb (Applicants/Appellants)
v
Helen Kuhnemann (Respondent)

APPLICATION NUMBER:

APL556-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott
Member Deane

DELIVERED ON:

30 July 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal as to the costs order is allowed.

2. Order 2 of the orders of the Tribunal dated 17 November 2014 is set aside.

3. The matter of costs of the original proceeding is remitted to the Tribunal for determination according to law.

4. There is no order as to costs of the appeal proceeding.

5. The proceeding, NDR224-12, is listed for a directions hearing on the matter of costs on a date to be fixed.

6. The proceeding, NDR224-12, is listed for a further hearing on the matter of costs on a date to be fixed.

CATCHWORDS:

APPEAL – NEIGHBOURHOOD DISPUTE – failure to make a consent order – whether error - failure to award costs – failure to give reasons – error of law

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s100, s102, s105, s 121, s 132, s142, s 146, s147
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 86

Pickering v McArthur [2005] QCA 294
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
Ricchetti v Lanbuilt Pty Ltd [2011] QCATA 266
Commissioner for Children and Young People
and Child Guardian v Eales [2013] QCATA 303
Better Homes Queensland Pty Limited v O’Reilly & Anor [2012] QCATA 37
Ericson v Queensland Building Services Authority [2013] QCA 391

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Mr Ollier and Ms Glubb own a house in Hampton Street, Harristown. A large Camphor Laurel tree is situated on their land. Ms Kuhnemann lives next door and brought proceedings[1] under the Neighbourhood Disputes Resolution Act 2011 (Qld) (the Act)[2] for various orders including that Mr Ollier and Ms Glubb at their cost remove the tree and remove or prune the roots of the tree.
[1]NDR224-12.
[2]Now known as the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld).
Following a hearing, the learned Member made orders for the management of the tree by Mr Ollier and Ms Glubb at their cost but not for its removal and ordered that there is no order as to costs.[3]
[3]Delivered 17 November 2014.
Mr Ollier and Ms Glubb filed an Application for leave to appeal or appeal. They challenge the learned Member’s decision in two respects and seek orders that:
a) the order for canopy work be made an order of consent.
b) the costs order be overturned and that reasonable costs be awarded to them.
Where the ground of appeal raises an error of law leave is not required.[4] Where grounds of appeal…

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: [2015] QCATA 112
Decision Date: 30 July 2015

CaseChat Overview and Summary

The appeal was brought by Ollier & Glubb against Kuhnemann, concerning a neighbourhood dispute. The dispute originated from a Tribunal decision that had been appealed on the grounds of several perceived errors, including the failure to make a consent order, the absence of a proper award of costs, and the lack of reasons for the decision. The appeal was heard in the New South Wales Civil and Administrative Tribunal Appeal Panel.

The central legal issues for the appeal panel to decide were whether the Tribunal had erred in its handling of the consent order, the allocation of costs, and the provision of reasons for its decisions. The appellants argued that the Tribunal had failed to make a consent order which had been agreed upon by both parties, that the costs awarded were inappropriate, and that the Tribunal had not provided adequate reasons for its decisions.

The appeal panel found that the Tribunal had indeed erred in its handling of the consent order and the allocation of costs. The panel held that the failure to make a consent order that had been agreed upon by both parties constituted an error. Additionally, the panel determined that the Tribunal had not adequately considered the principles of costs allocation, leading to an improper award. The lack of reasons for the decision was also identified as an error of law. Consequently, the appeal was allowed in part, and the matter of costs from the original proceeding was remitted back to the Tribunal for reconsideration according to law.

The orders of the appeal panel included setting aside the costs order made by the Tribunal and remitting the matter of costs to the Tribunal for redetermination. No order was made regarding the costs of the appeal proceeding itself. The case was scheduled for a directions hearing and a further hearing to specifically address the matter of costs.

Orders

Orders of the court

1. The appeal as to the costs order is allowed.

2. Order 2 of the orders of the Tribunal dated 17 November 2014 is set aside.

3. The matter of costs of the original proceeding is remitted to the Tribunal for determination according to law.

4. There is no order as to costs of the appeal proceeding.

5. The proceeding, NDR224-12, is listed for a directions hearing on the matter of costs on a date to be fixed.

6. The proceeding, NDR224-12, is listed for a further hearing on the matter of costs on a date to be fixed.

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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