Waddell v Nethercott

[2025] QCATA 50

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: 

WADDELL V NETHERCOTT [2025] QCATA 50

PARTIES:

GARY ALLAN WADDELL

(first appellant)

And

BELINDA LEE WADDELL
(second appellant)

v

PETER ASHLEY NETHERCOTT

(first respondent)

And

EILEEN MARY NETHERCOTT

(second respondent)

APPLICATION NO/S:

APL143-24

ORIGINATING APPLICATION NO/S:

NDR164-22

MATTER TYPE:

Appeals

DECISION MADE:

14 May 2025

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Lember
Member Kent

ORDERS:

1.     The application for leave to rely on fresh evidence filed by the respondents on 17 December 2024 is refused.

2. Compliance with section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is waived with respect to the requirement of filing a formal application by the appellants for leave to rely on fresh evidence.

3.     Leave is granted to the appellants to rely on their 12 July 2022 letter to the respondents as fresh evidence in the appeal.

4.     The appeal filed 15 May 2024 is dismissed.  

CATCHWORDS: 

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – neighbourhood disputes – trees – appeal from decision that tree be removed – compensation in a tree dispute – whether appeal is attempt to relitigate

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) s 42, s 46, s 52, s 65, s 66, s 72, s 74, s 75

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 61, s 146

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
JM v QFG and KG [1998] QCA 228
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611

Nethercott v Waddell [2024] QCAT 190

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld).

REASONS FOR DECISION

What is this application about?

1. The Waddells and the Nethercotts are parties to a neighbourhood dispute described by the Tribunal below as a “long and difficult one”.[1]

   [1]Nethercott v Waddell [2024] QCAT 190 at [35]; for example, the parties had litigated a dividing fence dispute and a building dispute in 2018.

2. By a decision made 7 May 2024 the Tribunal decided their tree dispute by ordering removal of some of the offending trees and by requiring the Waddells, as the tree-keepers, to compensate the Nethercotts $1,817.00 for costs incurred in relation to pipe damage caused by tree roots.

3. The Waddells appeal that decision,[2] arguing that:

   Ground 1: Costs for clearing the drain should not have been awarded as no contact was made prior to the Nethercotts undertaking the work (the jurisdiction ground).

   Ground 2: No evidence of significant damage was provided to the Tribunal to cause reason for the trees to be removed and, they say, a faulty drainage system is the cause of the issue (the evidence ground).

   Ground 3: The Tribunal…