CITATION: Rice and Ors v Livingstone [2015] QCATA 53
PARTIES: Michael Rice and Helen Reice
Elizabeth Peek
Robert Grant and Anne Grant
Ronald Gove and Mariette Gove
(Applicants/Appellants)v Albert Thomas Livingstone and
Betty Livingstone
(Respondents)
APPLICATION NUMBER: APL384-14
MATTER TYPE: Appeals
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Member Allen, Presiding Member
Member Lumb
DELIVERED ON: 14 April 2015
DELIVERED AT: Brisbane
| ORDERS MADE: | 1. With respect to Michael Rice and Helen Rice (NDR 058-13), Elizabeth Peek (NDR 059-13) and Robert Grant and Anne Grant (NDR 060-13): a) The appeal in respect of Ground 2 is dismissed; b) The application for leave to appeal in respect of Grounds 1, 3 and 4 is refused. 2. With respect to Ronald Gove and Mariette Gove (NDR 062-13): a) the appeal is allowed; b) the Tribunal’s decision of 15 July 2014, dismissing the application for a tree dispute by the Goves, is set aside; c) the application for a tree dispute by the Goves is remitted to the Tribunal at Maroochydore for hearing by a different member; d) before the next hearing, an inspection of the Goves’ property be conducted. 3. Each of the parties is at liberty to file (and serve on the other party), within 14 days, written submissions (no longer than 4 pages with a font size of no less than the equivalent of Arial 11) in relation to the question of costs. |
CATCHWORDS: APPEAL – LEAVE TO APPEAL – NEIGHBOURHOOD DISPUTE – TREES – claimed severe obstruction of views by trees located on adjoining property – ascertainment of views that existed at the date of possession of property – obstruction of view that existed when the neighbour took possession of the land –expert arborist evidence – expert conclave – challenge to Tribunal’s rejection of expert evidence – alleged failure of Tribunal to act fairly or to observe the rules of natural justice – identification of correct test – whether test properly applied to the facts – whether all relevant considerations taken into account
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2), s 28(3)(a), s 111
Neighbourhood Disputes Resolution Act 2011 (Qld), s 49, s 66Bannink v Solar Energy Group Pty Ltd [2012] QCATA 148
Cachia v Grech [2009] NSWCA 232
Coshott v Shipton Lodge Cobbitty Pty Ltd [2006] NSWSC 556
Indorato Enterprises Pty Ltd and Panbar Pty Ltd t/as Ray White Smithfield v Kattab & anor [2014] QCATA 257
Laing & Anor v Kokikos & Anor (No 2) [2013] QCATA 247
McKegney v Roofley Pty Ltd [2011] QCATA 221
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381
R v De Voss [1995] QCA 518
Seymour v Racing Queensland Ltd [2013] QCATA 179
Wood v Berg [2011] NSWLEC 1068APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
[1]This…
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- Rice v Livingstone [2015] QCATA 53
- Case
- [2015] QCATA 53
- Decision Date
CaseChat Overview and Summary
The court examined the legal issues, focusing on whether the Tribunal had correctly identified the test for determining the severity of tree obstruction and whether they had applied this test appropriately to the facts of the case. The appellants argued that the Tribunal had failed to act fairly by rejecting expert evidence and not conducting an inspection of the properties. The court needed to determine if the Tribunal's decisions were legally sound and whether the appellants' claims of unfairness were substantiated.
In its reasoning, the court found that the Tribunal had indeed erred in their application of the legal test for tree obstruction. The court held that the Tribunal had failed to consider the views that existed at the time the appellants took possession of their properties and had not adequately weighed the expert evidence presented. The court also noted that the Tribunal had not conducted an inspection of the properties, which was a significant oversight. As a result, the court allowed the appeal of Ronald and Mariette Gove, set aside the Tribunal's decision, and remitted the application back to the Tribunal for a hearing by a different member, with an instruction to conduct an inspection of the properties beforehand.
The court dismissed the appeals of the other parties, finding that the Tribunal's decisions regarding them were correct. Each party was granted the liberty to file written submissions on the matter of costs within 14 days.
Orders
Orders of the court
1. With respect to Michael Rice and Helen Rice (NDR 058-13), Elizabeth Peek (NDR 059-13) and Robert Grant and Anne Grant (NDR 060-13):
a) The appeal in respect of Ground 2 is dismissed;
b) The application for leave to appeal in respect of Grounds 1, 3 and 4 is refused.
2. With respect to Ronald Gove and Mariette Gove (NDR 062-13):
a) the appeal is allowed;
b) the Tribunal’s decision of 15 July 2014, dismissing the application for a tree dispute by the Goves, is set aside;
c) the application for a tree dispute by the Goves is remitted to the Tribunal at Maroochydore for hearing by a different member;
d) before the next hearing, an inspection of the Goves’ property be conducted.
3. Each of the parties is at liberty to file (and serve on the other party), within 14 days, written submissions (no longer than 4 pages with a font size of no less than the equivalent of Arial 11) in relation to the question of 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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