Thorley v McGee - [2024] QCAT 373

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Thorley v McGee and Anor [2024] QCAT 373

PARTIES:

HERBERT THORLEY

(applicant)

v

WAYNE MCGEE

(respondent)

KERRY BOYLE

(respondent)

APPLICATION NO/S:

NDR087-23

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

26 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

1.     Wayne McGee and Kerry Boyle, at their cost, must remove or prune branches of the mock orange hedge:

(a)     so that no tree is taller than 3.3 metres;

(b)     so that no branches of any tree extend past the common boundary,

by 4:00pm on 31 October 2024.

2.     Wayne McGee and Kerry Boyle, at their cost, must undertake ongoing maintenance at least annually so that the trees forming the mock orange hedge are maintained at a height of not more than 3.3 metres and so that no branches of any tree extend past the common boundary. The initial maintenance will occur not later than 31 October 2025, if required.

3.     If required, Herbert Thorley must allow Wayne McGee and Kerry Boyle’s elected arborist or contractor with appropriate insurances access to his land to undertake the work set out in order no 1 and 2, subject to the giving of three (3) days’ written notice of that intention to Herbert Thorley or as agreed between the parties.

4.     If Wayne McGee and Kerry Boyle fail to comply with order no 1 or 2, then:

(a)     Herbert Thorley is entitled to engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to obtain a quote to carry out the work set out in order no 1 or 2 in accordance with AS4373-2007 Pruning of Amenity Trees and to dispose of the branches removed or pruned and such arborist may enter Wayne McGee and Kerry Boyle’s land between 8.00am and 5.00pm for the purposes of formulating the quote subject to the giving of three (3) days’ written notice of that intention to Wayne McGee and Kerry Boyle;

(b)     Herbert Thorley is entitled to engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to carry out the work set out in order no 1 or 2 in accordance with AS4373-2007 Pruning of Amenity Trees and to dispose of the branches removed or pruned and such arborist may enter Wayne McGee and Kerry Boyle’s land between 8.00am and 5.00pm for the purposes of carrying out such work subject to the giving of fourteen (14) days’ written notice of that intention to Wayne McGee and Kerry Boyle;

(c)     If Wayne Mc Gee and Kerry Boyle undertake all of the outstanding work set out in order no 1 or 2 prior to the fourteen (14) days written notice period expiring, Herbert Thorley’s entitlement to engage an arborist to perform the works and enter Wayne McGee and Kerry Boyle’s land is extinguished;

(d)     The cost incurred by Herbert Thorley in engaging an arborist to undertake any works in…

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 Thorley v McGee

Details

AGLC: Thorley v McGee [2024] QCAT 373
Case: [2024] QCAT 373
Decision Date: 26 August 2024

CaseChat Overview and Summary

The case of Thorley v McGee involves a dispute between neighbours over the height and maintenance of a mock orange hedge. The plaintiff, Herbert Thorley, alleged that the hedge, which was on the property of the defendants Wayne McGee and Kerry Boyle, posed a risk of serious injury to him and his property, and interfered unreasonably with his use and enjoyment of his land. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The primary legal issues before the Tribunal were whether the hedge constituted a risk of serious injury or damage to the plaintiff's property, and whether it caused unreasonable interference with the plaintiff's use and enjoyment of his land.

The Tribunal found that the hedge did indeed cause unreasonable interference with the plaintiff’s use and enjoyment of his property, particularly due to the overhanging vegetation and obstruction of sunlight and ventilation. The Tribunal ordered that the hedge be pruned and maintained to a maximum height of 3.3 metres and that no branches extend past the common boundary. If the defendants failed to comply with these orders, the plaintiff was entitled to engage an arborist to perform the necessary work, with the costs of such work to be borne by the defendants. The Tribunal also outlined procedures for the application and determination of costs related to the proceedings.

In conclusion, the Tribunal made several orders aimed at resolving the dispute over the hedge. It mandated that the hedge be maintained to specified dimensions and standards to prevent it from causing harm or unreasonable interference. It also established a framework for the recovery of costs if the defendants failed to comply with the orders, and set out a process for the application and determination of costs related to the proceedings. The orders provide a clear resolution to the dispute and set out a path for future compliance and enforcement.

Orders

Orders of the court

1. Wayne McGee and Kerry Boyle, at their cost, must remove or prune branches of the mock orange hedge:

(a) so that no tree is taller than 3.3 metres;

(b) so that no branches of any tree extend past the common boundary,

by 4:00pm on 31 October 2024.

2. Wayne McGee and Kerry Boyle, at their cost, must undertake ongoing maintenance at least annually so that the trees forming the mock orange hedge are maintained at a height of not more than 3.3 metres and so that no branches of any tree extend past the common boundary. The initial maintenance will occur not later than 31 October 2025, if required.

3. If required, Herbert Thorley must allow Wayne McGee and Kerry Boyle’s elected arborist or contractor with appropriate insurances access to his land to undertake the work set out in order no 1 and 2, subject to the giving of three (3) days’ written notice of that intention to Herbert Thorley or as agreed between the parties.

4. If Wayne McGee and Kerry Boyle fail to comply with order no 1 or 2, then:

(a) Herbert Thorley is entitled to engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to obtain a quote to carry out the work set out in order no 1 or 2 in accordance with AS4373-2007 Pruning of Amenity Trees and to dispose of the branches removed or pruned and such arborist may enter Wayne McGee and Kerry Boyle’s land between 8.00am and 5.00pm for the purposes of formulating the quote subject to the giving of three (3) days’ written notice of that intention to Wayne McGee and Kerry Boyle;

(b) Herbert Thorley is entitled to engage an arborist with a minimum qualification of Australian Qualification Framework level 3 in arboriculture with appropriate insurances to carry out the work set out in order no 1 or 2 in accordance with AS4373-2007 Pruning of Amenity Trees and to dispose of the branches removed or pruned and such arborist may enter Wayne McGee and Kerry Boyle’s land between 8.00am and 5.00pm for the purposes of carrying out such work subject to the giving of fourteen (14) days’ written notice of that intention to Wayne McGee and Kerry Boyle;

(c) If Wayne Mc Gee and Kerry Boyle undertake all of the outstanding work set out in order no 1 or 2 prior to the fourteen (14) days written notice period expiring, Herbert Thorley’s entitlement to engage an arborist to perform the works and enter Wayne McGee and Kerry Boyle’s land is extinguished;

(d) The cost incurred by Herbert Thorley in engaging an arborist to undertake any works in accordance with these orders in default of Wayne McGee and Kerry Boyle shall be recoverable from Wayne McGee and Kerry Boyle as a debt without further notice being required to be given.

5. Any Application for costs of the proceedings by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs, by 4:00pm on 27 September 2024.

6. If any such Application for costs is made:

(a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs, by 4:00pm on 25 October 2024;

(b) the party making the Application for costs may file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party, by 4:00pm on 8 November 2024;

(c) the Application for costs will be determined on the papers based on any documents filed unless a party requests an oral hearing not before 4:00pm on 8 November 2024.

7. If no Application for costs is made in accordance with Order 5 then there shall be no order as to 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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