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
Yazdani v Golbarani [2012] QCAT 632

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…

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.

Continue reading Smith v Andrews

Details

AGLC: Smith v Andrews [2014] QCAT 356
Case: [2014] QCAT 356
Decision Date

CaseChat Overview and Summary

The applicants, Brian Smith and Gillian Kenway, sought to reopen, correct, renew, or amend a final decision regarding a tree dispute with the respondent, Col Andrews. The dispute centred on trees located on Mr Andrews' property that were causing issues for the applicants. Initially, the applicants filed an application in the Tribunal, which was subsequently dismissed after the parties reached a settlement agreement during a compulsory conference. The applicants now sought to reopen the proceeding, arguing that Mr Andrews had not complied with the settlement agreement and that Mr Smith's health issues constituted new evidence. The Tribunal was tasked with determining whether the application to reopen, correct, renew, or amend the final decision was justified.

The Tribunal examined whether the grounds provided by the applicants warranted a reopening of the proceeding, correction of the decision, renewal of the final decision, or amendment of the settlement order. The Tribunal found that the alleged non-compliance with the settlement agreement did not constitute a ground for reopening as enforcement of the agreement was not within its jurisdiction. The change in Mr Smith's personal circumstances, while noted, did not qualify as new evidence that was unavailable at the time of the original hearing. The Tribunal also ruled that the application to correct the decision was inappropriate since it did not involve a clerical error or miscalculation by the Tribunal. The application to renew the decision was dismissed as the final decision had already been made, and the issues raised pertained to compliance with the settlement agreement, which was outside the scope of renewal. Lastly, the application to amend the settlement order was denied because the terms of the settlement had not been incorporated into the Tribunal's order.

In conclusion, the Tribunal denied all the applications made by the applicants. The Tribunal found that the alleged non-compliance with the settlement agreement, the change in personal circumstances, and the alleged oversight of the bamboo and leopard tree did not constitute valid grounds for reopening, correcting, renewing, or amending the final decision. The Tribunal upheld the original decision dismissing the application, finding no basis for altering the outcome.

Orders