Werndly v Orchard - [2014] QCAT 377

CITATION:

Werndly & Ors v Orchard [2014] QCAT 377

PARTIES:	Mr Brian Werndly Mrs Anne Werndly Mrs Clem Sutherland (Applicants)
v
Mr Timothy Orchard Mrs Christine Orchard (Respondents)

APPLICATION NUMBER:

NDR012-11

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

21 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Mr and Mrs Orchard must pay to Mr and Mrs Werndly and Mrs Sutherland costs in the sum of $8,341.49 within 14 days of the date of this order.

CATCHWORDS:

Costs – where application for the removal of trees due to loss of view – original decision appealed and further directions for filing of material made – tree-keeper had commenced development process which led to the removal of the trees after applicant had filed further material – tree-keeper made offer to settle at time when development application on foot – applicant claimed costs on basis of unnecessary disadvantage

Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102, 105 and 107

McEwen v Barker Builders Pty Ltd [2010] QCATA 49

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 (QCAT Act).

REASONS FOR DECISION

Mr and Mrs Werndly and Mrs Sutherland own properties located behind that of Dr and Mrs Orchard at Buderim. Over the years since the purchase of their respective properties they allege that the trees growing on the Orchards’ property have grown to obstruct their views of the surrounding landscape and as a result made application to the Tribunal for orders to deal with the trees.
A decision was made in the Orchards’ favour by a Tribunal member on 26 November 2012. The Werndlys’ and Mrs Sutherland appealed that decision and Justice Wilson, the then president of the Tribunal allowed the appeal on 16 May 2012 and remitted the matter back to the Tribunal for hearing by a different member or adjudicator. Directions were made by Justice Wilson that before the next hearing an inspection of the applicants’ properties be conducted and an expert’s conclave be conducted by a member of the Tribunal. There was no order as to costs made in regard to the appeal.
The Tribunal made directions on 18 June 2013 for the filing of any further statements by the Werndlys’ and Mrs Sutherland by 12 July 2013 with Dr and Mrs Orchard to file their statements by 26 July 2013. An expert’s conclave was listed for 6 September 2013 and a site inspection and then hearing on 11 October 2013.
Butler McDermott Lawyers, for the applicants, filed their material as required under the directions on 12 July 2013 with some further material on 22 July 2013.
The Tribunal received correspondence from Schultz Toomey O’Brien, lawyers for the Orchards, on 22 July 2013 advising of a very significant change in circumstances which needed to be brought to the attention of the Tribunal and the applicants.
That…

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 Werndly v Orchard

Details

AGLC: Werndly v Orchard [2014] QCAT 377
Case: [2014] QCAT 377
Decision Date

CaseChat Overview and Summary

In Werndly & Ors v Orchard, the applicants, Mr and Mrs Werndly and Mrs Clem Sutherland, sought orders for the removal of trees on the respondents' property, alleging obstruction of their view of the surrounding landscape. The original decision by the Tribunal was in favor of the Orchards, but the applicants appealed, and the matter was remitted back to the Tribunal. The Orchards, Mr and Mrs Orchard, had commenced a development process which led to the removal of the trees after the applicants had filed further material. The Orchards made an offer to settle at the time when the development application was on foot. The applicants claimed costs on the basis of unnecessary disadvantage.

The legal issues involved the determination of costs, particularly whether it was in the interests of justice for the Orchards to pay the applicants' costs due to their failure to notify the applicants and the Tribunal sooner of their development intentions. The Tribunal considered whether the Orchards had unnecessarily disadvantaged the applicants by not disclosing their intentions regarding the development and tree removal.

The Tribunal found that the Orchards had commenced a development process which led to the removal of the trees after the applicants had filed further material. The Tribunal noted that the Orchards had an "as of right" entitlement to build to 10 metres height in the place where the trees were located. However, the Tribunal also found that the Orchards had not notified the applicants and the Tribunal of their intentions sooner, which was necessary due to the development process commencing on 8 March 2013. The Tribunal concluded that the Orchards had unnecessarily disadvantaged the applicants by not disclosing their intentions regarding the development and tree removal.

Accordingly, the Tribunal ordered that Mr and Mrs Orchard must pay to Mr and Mrs Werndly and Mrs Sutherland costs in the sum of $8,341.49 within 14 days of the date of this order. The Tribunal held that it was in the interests of justice to require the Orchards to pay the applicants' costs incurred in regard to this application as from 8 March 2013, the date the development process began. The costs were assessed on the indemnity basis due to the Orchards' failure to advise the Tribunal and the applicants sooner of their intentions.

Orders