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[2013] QCAT 728
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2013-12-06
Original judgment source is linked above.
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
[1] Disputes can sometimes unnecessarily escalate. Resources are expended disproportionately to the actual issues in dispute. This application is an example.
[2] Richard Hoy wants Tyrone Fox and Kathleen Fox to pay for the rectification of the fence dividing their properties. This is because a tree on Mr and Mrs Fox's property fell and damaged the fence. Mr Hoy's most recent quote claims the costs of rectification are $1,193.50.[1]
[3] Mr and Mrs Fox claim they should only be responsible for half the costs of rectification because it is not their fault that the tree fell. They claim the costs of rectification are $850.
[4] As early as three months before filing his application, Mr Hoy informed Mr and Mrs Fox that he was willing to accept 50 percent of his (initial) quote.[3] This equated to $600. Just over one month later, Mr and Mrs Fox informed Mr and Mrs Hoy they were willing to contribute $200.[4] The parties were only $400 apart. Despite this, Mr Hoy withdrew his offer and sought all his repair costs.[5]
[5] One month later, Mr and Mrs Fox increased their offer to 50 percent of their quote.[6] This equated to $425. This means that the difference between Mr Hoy's best offer and Mr and Mrs Fox's best offer was only $175.
[6] Despite the small dichotomy, the parties chose to protract their dispute. This culminated in Mr Hoy filing an application in the Tribunal on 28 June 2013. To do this, Mr Hoy claims he has incurred filing fees of $275 plus fuel and travel costs of $118.[7]
[7] Mr and Mrs Fox filed a Response on 24 July 2013. To do this, they claim they have incurred travel costs of $118 (coincidentally, the same amount as Mr Hoy).
[8] The Tribunal appointed an arborist to assist the Tribunal determine the application. The arborist recommended[8]:
...the failure of the subject tree could not have been forecast in predicted, typical climatic conditions. It is therefore reasonable, that both parties share the repair costs of the dividing fence.
[9] Mr and Mrs Fox accepted this recommendation. Mr Hoy did not. He wishes to proceed:
We are purely making the decision to proceed with this issue because Mr and Mrs Fox failed to agree to pay 50% until we had already commenced proceedings with QCat (sic) and incurred costs, which was 3 months after having sent out our first letter in which we asked them for a 50% contribution.
It was only after we had incurred costs with the QCAT filing, that, Mr and Mrs Fox finally (his emphasis) agreed to pay 50% of the repair costs, on the basis that the repair work be undertaken by a person of their choice, Mr Jolly.[9]
[10] Having considered section 42 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Act), the Tribunal is satisfied that chapter 3 applies to the tree.
[11] The Tribunal is precluded from making any orders in relation to a tree under chapter 3 of the Act unless the requirements of section 65 of the Act are met. As a precondition to the Tribunal's jurisdiction, Mr Hoy has corresponded (extensively) with Mr and Mrs Fox to resolve the issue, before applying to the Tribunal.
[12] The Tribunal therefore has the power to make an order under section 66 of the Act. This includes an order requiring the tree-keeper to pay compensation to a neighbour for damage to the neighbour's land or property on the neighbour's land.[10]
[13] Section 73 of the Act requires the Tribunal to consider various matters. Those matters do not apply here because the tree is uprooted and the only order sought is for compensation.
[14] The Tribunal may also consider sections 74 and 75 of the Act if serious damage or unreasonable interference is alleged.
Did the tree cause serious damage or substantial, ongoing and unreasonable interference?
[15] The damage is at most to five slats of wood and two 'U' channels.[11] The quotes range from $850 to $1,200.
[16] I do not consider this is sufficient to be "serious damage". A claim for this amount would normally fall within the minor civil disputes jurisdiction of the Tribunal. It could be more properly categorised as minor to moderate damage. That is not sufficient to meet the threshold of "serious".
[17] Even if the damage is considered "serious", the Tribunal may also consider anything other than the tree that has contributed to the damage. The tree fell during the 2013 Australia Day weekend storms. The arborist notes[12]:
The respondent's (sic) have asserted... that the failure of the subject tree was not, and could not have been, reasonably predicted, due to the extreme climatic event that took place on the day of the failure. This Tree Assessor agrees with that assertion, as the significant amount of damage throughout S-E Queensland following that storm, was well known and documented.
[18] This conclusion is supported by the arborist's findings that the tree was 'typical of a mature aged species' and 'showing sufficient vigour as evidenced by normal leaf size, canopy density and general lack of atypical dead wood or crown recession'.[13]
[19] Based on the evidence of the severe weather at the time and the arborist's findings of the normal condition of the tree, I am satisfied that the severe weather is the primary cause of the damage. This was beyond Mr and Mrs Fox's control.
[20] Similarly, I am not satisfied that the tree caused substantial, ongoing and unreasonable interference with the fence. The falling of the tree was an aberrant event due to severe weather. There is no evidence of the tree's condition or location to suggest otherwise.
[21] This means I do not consider it appropriate to make an order for compensation under section 66 of the Act.
[22] However, that does not end the issue.
[23] Mr Hoy and Mr and Mrs Fox have each delivered a separate Notice To Contribute for the damage to the dividing fence. Mr Hoy's notice seeks contribution of 100 percent of $1,193.50[14]. Mr and Mrs Fox's notice seeks contribution of 50 percent of $850[15].
[24] Both notices purport to be a "Notice To Contribute For Urgent Fencing Work" delivered pursuant to sections 28 and 32 of the Act. Both provisions contemplate urgent fencing having been "carried out":
If it is impracticable to give a notice under section 31, an owner may, without giving the notice, carry out the fencing work required to restore the dividing fence to a reasonable standard, having regard to its state before the damage or destruction.[16]
This section applies if an owner carried out fencing work under section 28.[17]
The owner may require the adjoining owner to contribute... to any reasonable cost incurred for the fencing work by giving a notice to the adjoining owner.[18]
[25] There is no evidence of any fencing work being carried out to restore the fence. Each notice attaches a quote only. There are no invoices or receipts to show payment for any work. There is therefore no evidence of any "cost incurred" for any fencing work "carried out".
[26] Because of this, the notices do not comply with sections 28 and 32. This is not a mere procedural deficiency. Each notice purports to claim costs that have not been incurred. The sections require costs to be incurred for the giving of the notice. The costs have not been incurred. The notices cannot therefore be given.
[27] It is a precondition to contribution that notices must be given under division 2 of the Act.[19] The provision is substantive and defines the limits of jurisdiction.[20] The notices here do not comply with division 2. The Tribunal therefore does not have jurisdiction to make the orders for contribution sought by either party.[21]
[28] For these reasons, the Tribunal orders that the application is dismissed.
[1] Quote 16513 of Kerry J. Cunnington, Building Contractor dated 6 May 2013.
[2] Quote of Stuart Jolly Builder Pty Ltd dated 27 May 2013.
[3] Letter Jaz and Rick Hoy to Mr and Mrs Fox dated 1 March 2013 and Quote 3 of Kabooms Garden Care dated 17 February 2013.
[4] Letter Ty and Kathy Fox to Mr and Mrs Hoy dated 14 April 2013.
[5] Letter Rick and Jaz Hoy to Mr and Mrs Fox dated 23 April 2013.
[6] Letter Ty and Kathy Fox to Mr and Mrs Hoy dated 14 June 2013.
[7] Summary of Richard and Jaz Hoy filed 5 November 2013.
[8] Tree Assessment Report of Noel Fitzpatrick dated 6 September 2013 at page 5.
[9] Summary of Richard and Jaz Hoy filed 5 November 2013.
[11] Quote of Stuart Jolly Builder Pty Ltd dated 27 May 2013 and Quote 13392 of Suncoast Fencing dated 16 May 2013, although the applicant's initial Quote 3 of Kabooms Garden Care dated 17 February 2013 refers to only "3 x Knotwood Aluminium slats" and "1 x channel".
[12] Tree Assessment Report of Noel Fitzpatrick dated 6 September 2013 at page 4.
[13] Tree Assessment Report of Noel Fitzpatrick dated 6 September 2013 at page 3.
[14] Notice To Contribute dated 13 May 2013.
[15] Notice To Contribute dated 13 June 2013.
[20] Watkins v. Queensland Building Services Authority [2013] QCAT 535 at [20].
Hoy
Fox & Anor [2013] QCAT 728
Watkins v. Queensland Building Services Authority [2013] QCAT 535