Wood v Kenyon: - [2020] QCAT 119

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wood v Kenyon [2020] QCAT 119

PARTIES:

JERRY WOOD

CATHY WOOD
(applicants)

v

ROBERT KENYON

KERRY KENYON

(respondents)

APPLICATION NO/S:

RWL003-19

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

21 April 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The application is dismissed.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – RENEWAL – where problem in implementing or enforcing orders – where Tribunal can only make the same final decision or any other appropriate decision ‘when the proceeding was originally decided’ – where final decision in Compulsory Conference can only be by agreement – where Tribunal did not have jurisdiction to make orders under Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – where Tribunal’s jurisdiction to make Consent Orders arose in its appellate jurisdiction from the Office of the Commissioner for Body Corporate and Community Management – where Tribunal cannot set aside original Consent Orders or make final decision without parties’ agreement

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 94

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 84, s 88, s 132, s 133, Schedule 3

Barry-O’Neill v Masters [2018] QCAT 415
Bielby v Beilby & McGrath [2010] QCAT 649
Bool v Constable [2019] QCAT 99
DJL v Central Authority (2000) 201 CLR 226
Hayman Views Estate [2016] QBCCMCmr 529
Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326
Urquhart v Body Corporate for Circle on Cavill CTS 39918 [2013] QCAT 241
Wood v Kenyon [2015] QCAT 335

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

REASONS FOR DECISION
What is this Application about?

This proceeding is preceded by an unnecessarily protracted history. Unfortunately, it does not seem likely to end here.
Some five years ago on 14 May 2015, Jerry and Cathy Wood filed an application in the Tribunal to remove palm trees blocking their views. On 2 September 2015, a Senior Member of the Tribunal dismissed the application for lack of jurisdiction.[1]
[1]Wood v Kenyon [2015] QCAT 335.
Mr and Mrs Wood then filed an application in the Office of the Commissioner for Body Corporate and Community Management. On 18 November 2016, an Adjudicator in that office relevantly ordered that Robert and Kerry Kenyon remove the palm trees and not replant any tree without body corporate consent.[2]
[2]Hayman Views Estate [2016] QBCCMCmr 529.
On 15 December 2016, Mr and Mrs Kenyon applied to the Tribunal for leave to appeal the Adjudicator’s decision. On 29 March 2017, another Senior Member of the Tribunal made directions that included listing the matter for a compulsory conference.[3] The matter did not settle at the conference,…

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 Wood v Kenyon:

Details

AGLC: Wood v Kenyon: [2020] QCAT 119
Case: [2020] QCAT 119
Decision Date: 21 April 2020

CaseChat Overview and Summary

The case of Wood v Kenyon involved Mr and Mrs Wood applying to the Queensland Civil and Administrative Tribunal to renew Consent Orders that had been made in a dispute over vegetation height on a neighbouring property. The Tribunal had previously dismissed an appeal from the Office of the Commissioner for Body Corporate and Community Management, and the parties had entered into Consent Orders regarding the maintenance of the vegetation. However, the Woods claimed that the Kenyons had not complied with the Consent Orders and sought to have them enforced. The Tribunal considered whether it had the jurisdiction to renew the Consent Orders or make any other orders regarding the enforcement of the Consent Orders.

The Tribunal held that it did not have the jurisdiction to renew the Consent Orders or make any other orders regarding their enforcement. The Tribunal noted that the Consent Orders were clear and unambiguous, and there was no evidence of any difficulty in interpreting them. The Tribunal also noted that the Woods had not provided any orders or reasons given by the Supreme Court, where they had sought enforcement of the Consent Orders. The Tribunal held that its powers to renew or vary orders were limited by statute and that it could not conduct a fresh hearing on the merits.

The Tribunal dismissed the application to renew the Consent Orders. The Tribunal held that it did not have the jurisdiction to make any orders regarding the enforcement of the Consent Orders and that the parties would need to seek enforcement through other means, such as the courts. The Tribunal also noted that the parties had made considerable efforts to reach an agreement to end their dispute, and it was unfortunate that they were unable to do so. However, the Tribunal was bound by statute and could not exercise its powers beyond what was permitted by law.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Despite the parties’ considerable and commendable efforts to reach an agreement to end their dispute and having ostensibly ended it, on 4 June 2019 Mr and Mrs Wood applied to the Tribunal to renew its Consent Orders on the basis that Mr and Mrs Kenyon “have not kept their side of the agreement or complied with the order at this time”.[9][9]Application for reopening, correction, renewal or amendment dated 4 June 2019.Can the Tribunal renew the Decision? A party to a proceeding may apply to the Tribunal to renew a decision if there are problems with interpreting, implementing or enforcing the Tribunal’s final decision.[10] The final decision was the dismissal of the appeal from the Office of the Commissioner for Body Corporate and Community Management.[11] It cannot be suggested that it is not possible for that decision to be complied with, nor any problem with interpreting, implementing or enforcing it.[12] It is clear on its face. This alone is sufficient to dismiss the application for renewal.[13][10]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 133(1).[11]Decision dated 28 September 2018.[12]Barry-O’Neill v Masters [2018] QCAT 415, [18].[13]Ibid; Bool v Constable [2019] QCAT 99, [24]. Notwithstanding this, Mr and Mrs Wood’s grievance is about implementing or enforcing the Consent Orders preceding the dismissal of the appeal. The relevant Order by Consent for which they seek enforcement reads:Robert Kenyon and Kerry Kenyon, co-owners of Lot 14, will arrange to have the works carried out in the U Plan specifications dated 2 May 2018 and otherwise maintain all their vegetation so that none of it is higher than the sightline that intersects with the northern roof gutter of Lot 13 and referred to in the Landscape Cross Section in the U Plan specifications dated 2 May 2018.[14] [14]Decision dated 12 June 2018, Order 3(a). The Tribunal notes the parties do not dispute the terms of this Consent Order to which they agreed, nor is there evidence of difficulty with its interpretation. Again, the Consent Order is clear on its face. The parties agreed to its wording. The Tribunal is not satisfied of any problems with interpreting the Consent Orders. Mr and Mrs Wood seek enforcement. They submitted that the vegetation has not been removed to the agreed sightline. Mr and Mrs Kenyon deny this. Mr and Mrs Wood claimed that upon receiving legal advice, a hearing in the Supreme Court proceeded on 7 May 2019 where they say they were told to come back to the Tribunal to have the order enforced. Unfortunately, Mr and Mrs Wood did not file with the Tribunal any orders or reasons given by the honourable Court, nor did they file any transcript of the proceeding to guide the Tribunal in its determination of their current application to renew. Regardless, the superior courts are very limited in their ability to vary Orders once made.[15] The Tribunal’s exercise of powers is even more limited – by statute.[16] The legislature’s desire for finality in Tribunal’s Orders that are difficult to implement or enforce is reflected by the term ‘renewal’ to distinguish it from ‘reopen’.[17] The Tribunal therefore cannot conduct a fresh hearing on the merits as it can for a reopening. [15]Urquhart v Body Corporate for Circle on Cavill CTS 39918 [2013] QCAT 241, citing with approval DJL v Central Authority (2000) 201 CLR 226, [34] – [38].[16]Unlike superior courts with inherent powers: Urquhart v Body Corporate for Circle on Cavill CTS 39918 [2013] QCAT 241, [8]; Bool v Constable [2019] QCAT 99, [23].[17]Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326, [22].

Ratio Decidendi

Legal Principle Established

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CITATION:	Wood v Kenyon [2020] QCAT 119
PARTIES:	JERRY WOOD CATHY WOOD (applicants)
v
ROBERT KENYON KERRY KENYON (respondents)
APPLICATION NO/S:	RWL003-19
MATTER TYPE:	Other civil dispute matters
DELIVERED ON:	21 April 2020
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	The application is dismissed.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – RENEWAL – where problem in implementing or enforcing orders – where Tribunal can only make the same final decision or any other appropriate decision ‘when the proceeding was originally decided’ – where final decision in Compulsory Conference can only be by agreement – where Tribunal did not have jurisdiction to make orders under Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) – where Tribunal’s jurisdiction to make Consent Orders arose in its appellate jurisdiction from the Office of the Commissioner for Body Corporate and Community Management – where Tribunal cannot set aside original Consent Orders or make final decision without parties’ agreement Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 94 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 84, s 88, s 132, s 133, Schedule 3 Barry-O’Neill v Masters [2018] QCAT 415 Bielby v Beilby & McGrath [2010] QCAT 649 Bool v Constable [2019] QCAT 99 DJL v Central Authority (2000) 201 CLR 226 Hayman Views Estate [2016] QBCCMCmr 529 Tasmanian Seafoods Pty Ltd v Chief Executive, Department of Primary Industries & Fisheries [2010] QCAT 326 Urquhart v Body Corporate for Circle on Cavill CTS 39918 [2013] QCAT 241 Wood v Kenyon [2015] QCAT 335
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).