Smith v Andrews
[2014] QCAT 356
| CITATION: | Smith v Andrews [2014] QCAT 356 |
| PARTIES: | Brian Smith Gillian Kenway (Applicants) |
| v | |
| Col Andrews (Respondent) |
| APPLICATION NUMBER: | REO004-14 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 22 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE | 1. The application for reopening, correction, renewal or amendment is refused. |
| CATCHWORDS: | TREE DISPUTE – application to reopen, renew, correct or amend a final decision – alleged failure to comply to comply with settlement agreement and change of parties personal circumstances not sufficient grounds to reopen, renew or correct a decision – where application dismissed consequent upon a settlement agreement matters alleged not to have been included in settlement agreement not ground to amend order Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 84, 88, 133, 134, 135 Ash v Australian Retirement Homes Limited [2013] QCAT 55 |
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 Smith and Ms Kenway, the neighbours, own the property at 18 Illawarra Drive, Tugun and Mr Andrews, the tree-keeper owns the adjoining property at 8 Bob Bernard Drive, Tugun. The neighbours filed an application in the Tribunal in respect of trees located on the tree-keeper’s land. Following a settlement reached at a compulsory conference on 13 September 2013 the application was dismissed on the basis that the parties had agreed to the works necessary to resolve the dispute in accordance with the agreement.
The neighbours have now made an application to reopen the proceeding, to correct a decision, for renewal of the final decision and to amend the settlement order. The grounds for these applications are stated to be as follows:-
a) The tree-keeper has not complied with the agreement and so has breached the contract,
b) The complaint about the bamboo and leper(sic) tree to be noted as well.
c) Mr Smith is 74 years old and requires a knee replacement so my 1861 m2 of 45 degree slopping land in a “high fire risk” zone is my sole responsibility.
The neighbours request that the Tribunal make an order for all of the tree-keepers trees, bamboo, leopard tree and pines which overhang the neighbour’s property be removed in particular due to Mr Smith’s injury.
The tree-keeper considers that he has been complying with the settlement agreement, that the bamboo was discussed at the mediation and that plans are being made to reduce the size of the leopard tree.
The Tribunal may reopen a proceeding[1] if it is satisfied that a reopening ground[2] exists. That is either that a party did not appear at the hearing and had a reasonable excuse or the party would suffer substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided. In this case all parties were available at the original compulsory conference and the new evidence relates to whether or not the tree-keeper is complying with the agreement and a change in circumstances of one of the neighbours, that is Mr Smith’s knee problems.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 139.
[2]Ibid, Schedule 3.
The question as to whether Mr Andrews is complying with the settlement agreement relates to the enforcement of the agreement. The Tribunal has previously refused to reopen an application in similar circumstances and held that the enforcement of the settlement is a matter for another court[3]. The Tribunal is satisfied that Mr Andrews compliance or otherwise with the terms of the settlement agreement is not a ground to reopen the application.
[3]Yazdani v Golbarani [2012] QCAT 632.
There is then the question of whether Mr Smith’s change of circumstance constitutes new evidence. While the state of Mr Smith’s health may have been a factor in the settlement negotiations it would not be evidence is such if the matter had have gone to hearing. There is always the chance of a change in circumstances after a settlement is made and that is one of the risks which must be considered when negotiations are ongoing. The Tribunal does not consider that Mr Smith’s knee problems constitute new evidence in respect of the application and therefore this ground of reopening does not apply and the application for reopening is refused.
The Tribunal may correct a decision made by it if it contains a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation of figures, a defect of form[4]. The ground here is said to be that the complaint about the bamboo and leopard tree was overlooked due to Mr Andrews having to depart. This relates to the negotiation between the parties and not any mistake by the Tribunal in the form of the order and the purpose of this section is to correct errors made by the Tribunal which is not the case here. The application to correct an error is refused.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 135.
If it is not possible for the Tribunal’s final decision to be complied with or there are problems with interpreting, implementing or enforcing the Tribunal’s final decision then an application to renew the decision may be made[5]. In this case the grounds for renewal are said to be that in five months Mr Andrews has done nothing and Mr Smith’ change in circumstances. The final decision in question here is that the application was dismissed so there can be no issue with interpreting the decision or implementing it. There are issues raised about compliance with the settlement agreement this though is not enforcement of the agreement. The Tribunal has previously decided that “a refusal of a party to comply with an order does not constitute grounds for renewal. Section 132 of the QCAT Act sets out the enforcement procedure for non-monetary orders[6]”
[5]Ibid s 133.
[6]Ash v Australian retirement Homes Limited [2013] QCAT 55.
If the presiding member at the compulsory conference had have made an order to give effect to the settlement, the parties to the proceeding may apply to the Tribunal for an amendment of the order if the order does not reflect the intention of the parties to the settlement[7]. In this case the order made by the Tribunal was that the application be dismissed so the terms of the settlement were not incorporated into the order. There is then no ground to amend the order and the application to amend is refused.
[7]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 88.
The Tribunal orders that the application for reopening, correction, renewal or amendment is refused.
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