WNZ Pty Ltd v Fuller

[2018] QCAT 399

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

WNZ Pty Ltd v Fuller [2018] QCAT 399

PARTIES:

WNZ PTY LTD
(applicant)

v

ALAN ROBERT FULLER

(respondent)

APPLICATION NO/S:

NDR085-18

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

29 November 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The application is dismissed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS –– whether applicant is ‘neighbour’ – where no evidence that applicant is registered owner of land affected by a tree –

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PROPER OR NECESSARY PARTY AND STANDING – where proceedings not commenced in name of Body Corporate – where no evidence that applicant authorised to commence proceedings for Body Corporate in any event

Body Corporate and Community Management Act 1997 (Qld), s 100, s 312
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 49, s 62

REPRESENTATION:

Applicants:

Self-represented

Respondents:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

1. WNZ Pty Ltd is the Manager for Whitsunday Reflections, a community titles scheme.

2. It filed an application claiming that trees on lot 42, Stonehaven Court, Airlie Beach are impeding the sea view on units 10, 12 and 13 of Whitsunday Reflections.

   Does the Tribunal have jurisdiction?

3. Only a ‘neighbour’ may apply for an order from the Tribunal.[1] A ‘neighbour’ includes a registered owner of a lot affected by a tree and a body corporate for scheme land affected by a tree.[2]

   [1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 62.

   [2]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 49(1)(a), (b).

4. No evidence has been provided that WNZ is a registered owner of the lots claimed to have been affected by the trees – units 10, 12 or 13.

5. Nor have the proceedings been commenced in the name of the Body Corporate. Moreover, no evidence has been provided that WNZ is authorised to commence these proceedings for the Body Corporate in any event. The Management Agreement[3] is not sufficient evidence of this – a body corporate acts through its committee unless it is a decision on a restricted issue.[4] No evidence has been provided of any special resolution authorising the commencement of these proceedings.[5]

   [3]Deed of Assignment and Consent dated 23 June 2016 and attachments.

   [4]Body Corporate and Community Management Act 1997 (Qld), s 100.

   [5]Body Corporate and Community Management Act 1997 (Qld), s 312(1)(b).

6. The Tribunal does not have jurisdiction. The application is misconceived and lacking in substance. Because of this, the application must be dismissed.