Pearson v Aussie Payday Loans Pty Ltd as trustee for the Dangill Family Trust

[2013] QCAT 675

CITATION: Pearson v  Aussie Payday Loans Pty Ltd as trustee for the Dangill Family Trust [2013] QCAT 675

PARTIES:	Mrs Madge Pearson (Applicant)
v
Aussie Payday Loans Pty Ltd as trustee for the Dangill Family Trust (Respondent)

APPLICATION NUMBER: NDR172-13

MATTER TYPE: Other civil dispute matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Allen

DELIVERED ON: 17 December 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application for a tree dispute is dismissed pursuant to direction 2 of Tribunal directions dated 18 October 2013.

2.    The amount of $400.00 paid to the Tribunal by Graeme Gillard be refunded to him.

CATCHWORDS:

TREE DISPUTE – dismissal for failure to comply with direction in regard to assessors costs.

Queensland Civil and Administrative Tribunal Act 2009 ss 48 and 62

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 (QCAT Act).

REASONS FOR DECISION

1. Mrs Pearson has made an application under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 to the Tribunal in regard to trees located on land owned by Aussie Payday Loans Pty Ltd as trustee for the Dangill Family Trust which, she alleges, are causing damage to her property.

2. The Tribunal made an order on 20 September 2013 that the parties share the costs of an assessor to be appointed to prepare a report in regard to the trees by each making a contribution of $400.00; this was in accordance with practice Direction No. 7 of 2013.  The payment was to be made within 14 days of the order.  Aussie Payday Loans Pty Ltd as trustee for the Dangill Family Trust complied with the order but Mrs Pearson did not comply.

3. The time for compliance with the order was extended by the Tribunal on 18 October 2013 to 25 October 2013.  With a further direction that if Mrs Pearson did not comply with the direction in regard to payment the application would be dismissed without a hearing or further notice.

4. Mrs Pearson did not comply within the extended timeframe and the application was dismissed by order of the Tribunal on 29 October 2013. The Tribunal has power to make directions under section 62 of the Queensland Civil and Administrative Tribunal Act 2009 for the speedy and fair conduct of the proceeding.

5. It is an integral part of a dispute in the tree jurisdiction that an assessor be appointed to provide expert advice in regard to the trees the subject of the dispute.  By not complying with the direction Mrs Pearson was effectively stalling her own application as it could not proceed without the assessor’s report and that could not occur until the assessor’s fees had been paid.

6. The Tribunal’s power to dismiss where a party is causing disadvantage is contained in s 48 of the QCAT Act. Mrs Pearson, by not complying with the order was unnecessarily disadvantaging the other party because the matter could not proceed and this is a ground for dismissal.[1]  The Tribunal’s order of 18 October 2013 made it clear that non-compliance with the direction as to payment of the amount of $400.00 would result in dismissal of the application and that has occurred in accordance with the Act.[2]

   [1] QCAT Act s 48(1)(a).

   [2] QCAT Act s 48(2)(b).

7. A payment of $400.00 had been received on behalf of Aussie Payday Loans Pty Ltd as trustee fro the Dangill Family Trust and that amount will be refunded.