Finlay v Kely & anor [2025] QCATA 122

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Finlay v Kely & anor [2025] QCATA 122 PARTIES: CAROL CHRISTINE FINLAY (applicant/appellant) v MICHAEL KELY (First respondent) ROBERT LANGAN (Second respondent) APPLICATION NO: APL038-24 ORIGINATING APPLICATION NO: NDR136-21 MATTER TYPE: Appeals DELIVERED ON: 17 November 2025 HEARING DATE: 31 October 2025 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: The application to adduce fresh evidence is refused. The application for leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – FRESH EVIDENCE – neighbourhood disputes – trees – appeal from decision which ordered respondents to pay compensation to appellant for damage caused to her property by tree roots emanating from their land – whether error in failing to award costs of ‘legal’ repairs – whether failure to consider compliance with the Plumbing and Drainage Act 2018 (Qld) - whether leave to rely on fresh evidence should be given Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46 Plumbing and Drainage Act 2018 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 -- 1 of 9 -- 2 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES & REPRESENTATION: Applicant: Self- represented Respondent: Self-represented REASONS FOR DECISION [1] This is an application for leave to appeal a decision of the Tribunal dated 4 January 2024 in which the Tribunal: 1. dismissed an application by the respondents to strike out the substantive application brought by the applicant; and 2. ordered the respondents to pay the applicant the sum of $3 866.50 on or before 5 April 2024. [2] There was an oral hearing on 31 October 2025. [3] The applicant filed an application to adduce fresh evidence on the leave to appeal application.1 The application to adduce fresh evidence was heard and determined at the commencement of the hearing, so that the parties were clear on what basis the application for leave to appeal was proceeding. The application to adduce fresh evidence was refused for reasons given orally at the hearing. [4] The application for leave was argued on the basis that if leave were granted, the appeal would be determined without the need for a further oral hearing. I made it clear to the applicant at the commencement of the hearing that she should proceed by saying everything she wanted to say about the appeal, as if leave had been granted. This was explained to her on the basis that, in determining whether to grant leave, the Appeal Tribunal considers the grounds of appeal and whether the grounds demonstrate an arguable case of appealable error. The Appeal Tribunal is then in a position to determine the appeal, should leave be granted. [5] The applicant seeks leave to appeal the decision to award her compensation for damage to her property caused by trees on the respondents’ land pursuant to Part 5 of Chapter 3 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’). Leave is required pursuant to s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [6] In Bradlyn Nominees Pty Ltd v Saikovski the Appeal Tribunal held: Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the Applicant would obtain further substantive relief. Another question sometimes 1 Application for miscellaneous matters (leave to rely on fresh evidence) filed by the applicant on 31 July 2024. -- 2 of 9 -- 3 asked is: is leave necessary to correct a substantial injustice to the Applicant, caused by some error?2 [7] It is not part of the role of the Tribunal on an application for leave to conduct a rehearing of the matter. [8] The Application for leave to appeal filed on 2 February 2024 states the applicant’s grounds of appeal in the following terms: Part of the amount awarded was based on Adam Delaney's quote of $2750 to renew a septic rubble pit. As I explained to member Bishop, this quote does not comply with Standards Australia regulations for septic drainage pits – the proposed pit was too small, positioned illegally and without a plumbers plan legally required to go to Townsville City Council for approval. I notified Mr Delaney of this problem, and he withdrew his offer to upgrade the rubble pit. The only plumber' with the necessary qualifications to d raw up a renewed septic rubble pit plan for the remote location of Magnetic Island is Ted Clark and his quote is as I explained $1100.00. The only Plumber available for the remote location of Magnetic Island to renew the rubble pit according to Standards Australia specifications and council requirements is Mr Brian Clark. His quote is $13,212.89. Paul Smith the plumber who did the emergency temporary repair could not work on the repair until the septic tank had been pumped out. As I explained the septic tank failed in August 2022. I have documentation to prove that the septic tank failed in August 4 2022. The first step in assessing problems with failed drainage is to pump out the septic tank as I explained. Draining the septic tank was necessary as first stage as it might have been enough to fix the problem. This did not solve the problem, so the septic tank rubble pit was dug up to find it was not draining. Draining the tank was also necessary for Paul Smith to put in the temporary emergency repair. He could not assess the problem in a pool of sewage. The cost for magnetic waste management to pump out the septic tank was $918.00. The cost of Paul Smith’s emergency and temporary repair was $1,116.50. Please see Appendix A showing that septic rubble pit began to fail in June 2022 and completely failed by August 2022 as explained to Member Bishop. [9] The applicant seeks the following orders: That Michael Kely and Robert Langan pay Carol Christine for temporary emergency repairs and a renewed septic rubble pit in compliance with Townsville City Council requirements and Standards Australia requirements for a septic tank rubble pit at [applicant’s address]. That QCAT expedite this payment as the temporary emergency repair is likely to fail. Furthermore, the temporary emergency repair diverted sewage under a vegetable garden, rendering some of its contents hazardous for consumption due to soil infestation from seeping sewage and so a renewed septic rubble is urgently needed as soon as possible in case the temporary repair fails and in case infection from e coli occurs. The sum sought includes the $918 necessary to pump out the septic tank as this might have solved the problem. However this did not restore drainage and so it was necessary to pay Paul Smith for a temporary repair until tree roots were removed. It was then necessary to get quotes that were legal from contractors who undertake this type of work on the remote location of Nelly Bay, Magnetic Island. 2 [2012] QCATA 39, [7]. -- 3 of 9 -- 4 $13,212.89 – Brian Clark quote, renewed septic drainage pit, complaint with Standards Australia and council $1116.50. – Paul Smith cost for temporary repair $1100.00 – Ted Clark quote for plumber’s plan as required by council and Standards Australia $918.00 – cost for pumping out septic tank Magnetic Waste Management $16,347.39 – total amount sought and with some urgency due to the temporary nature of the repair and the risk of e coli infection [10] On 19 April 2024 the applicant filed an Appeal Book. [11] The Appeal Book, Appendix B, under the heading “Why leave to appeal is sought” re-frames the proposed appeal grounds as follows: 1. Sections 64 and 65 of the Plumbing and Drainage Act 2018 (Qld) impose up to 1 000 penalty units or $154 800 for breaches of plumbing rules, codes and legislation by carrying out or directing others to perform non-compliant septic tank repairs. Under this legislation, it is a defence to prove that it had never been explained that septic tank work must meet plumbing law and Standards Australia guidelines. 2. In the QCAT Reasons for Decisions, on page 6 [30] Member x gave me entitlement to $2 750 – the cost of Mr Smith’s temporary repair of $1116.50 (on page 6 of the following pages) and a $2 750 quote from Adam Delaney, which as I explained did not comply with legal requirements of Standards Australia and other plumbing law. Sections 64 and 65 of the Plumbing and Drainage Act 2018 (Qld) impose heavy penalties for non compliance with plumbing law. On site sewerage treatment plants must be constructed to ensure safety that compliance with plumbing law ensures. Legal requirements define setback distances from boundaries and constructions according to topography, near surface groundwater, local climatic conditions and soil type. 3. Adam Delaney’s quote of $2 750 inadequately addressed such complexities. The quote lacked a plan from a council registered designer to lodge with council for approval. Mr Delaney is a young plumber and was unaware of the legal requirements for septic tank modifications repairs. I was also unaware of legal compliance requirements when I submitted his quote to QCAT in NDR136-21. Subsequent inquiries (sic) showed that Mr Delaney quoted for an inadequate trench in size, construction and location. Laws have changed since my property’s construction in 1965 when there were no neighbours in the adjoining allotments. Penalties totalling 1 000 penalty units now apply to breaches of the Plumbing and Drainage Act 2018 under s 64 and s 65. 4. Modifications of the septic tank drainage pit must comply with a number of codes, regulations, statutes and codes including Standards Australia AS/NZS 1547, AS/NZS 3500.2 and Townsville City Council requirements. As I explained, once I told Mr Delaney of the complexities, he withdrew his quote so the award of $2 750.00 for Mr Delaney’s work is for an illegal renewal of the septic drainage pit that can no longer be done because Mr Delaney withdrew his offer to do this work. -- 4 of 9 -- 5 5. I also wish to add a further expense: council approval of the renewal of the drainage pit. According to senior plumbing inspectors, fees will rise after 1 July, 2024. Amanda Black a Senior Plumbing Inspector at Townsville City Council stated charges for this proposed pit renewal total $1350.00 until July 1 (see table next page, for council charges up until July 1. The applicable fees for my proposed work are highlighted in yellow). This fee includes a plumbing inspector travelling from the mainland to Magnetic Island to inspect the work and sign off on it. 6. [It is unclear from the Appeal Book3 whether this is intended to be an additional ground of appeal but I will consider it in any event]. I reported the bathroom drainage malfunctioning on July 29, July 30, August 1, August 4 2022 to Mr Smith and Mr Rob Allan …. Mr Allan is the owner of Magnetic Waste Management and advised that I should firstly have him pump out the tank to see if this would restore bathroom function. The pump out was necessary because the tank had become compacted because it was not draining. Mr Allan, who is licensed to pump out septic tanks, then pumped out the septic tank. Mr Smith is not licensed to pump out septic tanks and did not pump out the septic tank for $600 as Member x states in [27] on page 5 of the Reasons. Further excavations showed that the drainage pit connected to the septic tank overflow was not draining (see diagram below, the section labelled “Treatment” is the drainage pit) Because the pit was clogged with tree roots and not draining, once the septic tank filled, the bathroom would once again increasingly malfunction until it failed to drain waste and could no longer be used. [12] The applicant states she wants the Appeal Tribunal to make an order that the respondents pay her the sum of $13 831.89 ‘with some urgency to comply with plumbing law to renew the septic drainage pit as the current temporary repair is likely to begin malfunctioning due to its inadequate construction. There is also some urgency because the emergency pit is located in an unhygienic location under my vegetable garden and so breaches plumbing law as a permanent solution. Furthermore, costs for construction and council approval continue to rise, and so an early deadline is necessary to ensure that the previous estimate does not become outdated and an underestimate’. [13] The applicant’s grounds of appeal can be summarised as follows: (a) Ground One: The Tribunal should have considered ss 64 and 65 of the Plumbing and Drainage Act 2018 (Qld). (b) Ground Two: The Tribunal erred by awarding the applicant the cost of the temporary repair performed by Mr Smith because the work performed did not comply with the legal requirements imposed by ‘Standards Australia and other plumbing law’. (c) Ground Three: The Tribunal erred by awarding the applicant the amount of Mr Delaney’s quote because the work quoted for did not comply with the legal requirements imposed by ‘Standards Australia and other plumbing law’. Mr 3 Applicant’s Appeal Book filed on 19 April 2024. -- 5 of 9 -- 6 Delaney and the applicant were unaware of those requirements when the quote was submitted to QCAT. (d) Ground Four: The Tribunal erred in relying on Mr Delaney’s quote because he subsequently withdrew his offer to do the work. (e) Ground Five: The applicant wishes to add a further expense being the council approval fee for the proposed pit renewal in the sum of $1350. (f) Ground Six: The Tribunal erred in finding Mr Smith pumped out the septic tank for $600. Leave to appeal [14] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?4 Is there a reasonable prospect that the applicant will obtain substantive relief?5 Is leave necessary to correct a substantial injustice caused by some error?6 Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?7 [15] The issue of why leave should be granted is not separately addressed in respect of any of the appeal grounds. Ground One [16] The applicant submitted that if it was discovered she had gone ahead with the work quoted for by Adam Delaney that she would be liable for a significant fine and some kind of action under the Plumbing and Drainage Act 2018 (Qld). This, it was submitted, was because the work proposed by Adam Delaney did not meet the Australian Standards and was not accompanied by a plumbing design. [17] Section 64(1) of the Plumbing and Drainage Act 2018 (Qld) provides that a person who carries out plumbing or drainage work must ensure the work complies with the code requirements for the work. Section 64(2) provides that a person who prepares a plan for plumbing or drainage work must ensure the plan complies with the code requirements for the work. The maximum penalty for contravention in each case is 100 penalty units. The Code requirements for plumbing or drainage work are set out in s 9(1). [18] Section 65 provides that various things must not be installed as part of plumbing or drainage work unless certain requirements are met. Although the applicant did not point to any specific sub-section, s 65(1)(c) relevantly provides that a person must not install, as part of plumbing or drainage work, all or part of an on-site sewage treatment plant unless it complies with the code requirements for plumbing or drainage work. The maximum penalty for non-compliance is 100 penalty units. [19] The short answer to this appeal ground is that the applicant chose to rely on Mr Delaney’s quote at the hearing. Further, the issue that Mr Delaney’s quote was for work that allegedly did not comply with Code requirements was not raised by the 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Cachia v Grech [2009] NSWCA 232 at 2. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 6 of 9 -- 7 applicant either at the hearing or in the written material before the Member at first instance. [20] When this was put to the applicant, she said she had raised Mr Delaney’s unwillingness to proceed with the quote with the learned Member at a Directions Hearing on 9 August 2023, approximately 3 months prior to the hearing before the same Member. [21] The fact a matter is raised at a Directions Hearing does not mean it becomes part of the record of the proceeding. I note, in any event, that directions were issued at the Directions Hearing providing the applicant another opportunity to file ‘any further material she seeks to rely upon by 23 August 2023’, which she did on 18 August. [22] The material filed by the applicant on 18 August 2023 was from Brian Clark on behalf of BMC Plumbing Services for $13, 212.89. The quote was itemised as follows: (i) Supply and install septic distribution box - $1 065.65. (ii) Install septic tank evaporation trench - $7, 33.83. (iii) Machine excavation – soil and/or soft clay - $1, 800. (iv) Excavation and installation of inground pipework in difficult ground - $1 812.24. [23] There was no accompanying statement of evidence from Brian Clark or anyone else which explained why the work was necessary and whether the work was required due to damage caused by the tree roots. Indeed, the learned Member considered the quote provided by Mr Clark and held: …the Tribunal is satisfied the respondents are liable for the costs associated with renewing the applicant’s septic tank rubble drain. However, it is not clear to the Tribunal, and the evidence does not support, how the costs outlined at paragraph 32 [the quote from Brain Clark and an email from Ted Clark dated 31 July 2023 quoting $1, 100 to complete an onsite evaluation and prepare an Onsite Wastewater Design] are attributable to the respondent’s tree roots. To award those costs would overcompensate the applicant and the Tribunal finds these costs are not recoverable.8 [24] It was the applicant’s responsibility, if she believed the quote provided by Mr Delaney was for work that was non-compliant, to obtain a quote for work that was. The applicant relied on both quotes and the learned Member decided to award damages to the applicant based on the quote from Mr Delaney. [25] It is not clear how the provisions in the Plumbing and Drainage Act 2018 (Qld) make the applicant liable for a penalty. Again, these submissions about the application of the Act and the consequences of non-compliance were not made at the hearing. It is too late to consider them for the first time on appeal. [26] Leave is refused in respect of this ground. Grounds Two and Three [27] These grounds are essentially the same and will be considered together. 8 Reasons, [33]. -- 7 of 9 -- 8 [28] The applicant submitted that there were issues with the work quoted for by Mr Delaney: in effect, that his quote lacked a plan from a council registered plumbing designer to lodge with council for approval. Mr Delaney was a young plumber who was unaware of the legal requirements for septic tank modifications repairs. The applicant submitted that she too was unaware of legal compliance requirements when she submitted his quote to QCAT in NDR136-21. The applicant submitted that subsequent enquiries have shown that Mr Delaney quoted for an inadequate trench in terms of size, construction and location. [29] Again, the inadequacies or otherwise of Mr Delaney’s quote was a matter that the applicant should have investigated prior to the hearing. The applicant filed her application for a tree dispute on 2 June 2023 and the hearing was on 13 November 2023. It was the applicant’s responsibility to obtain evidence of the work that was required to be done and to obtain a quote for that work and there was ample time in which to do it. [30] There is no error on the part of the learned Member in relying on the only quote that the applicant provided, particularly in circumstances where the applicant did not file evidence as to what work was required to be done to satisfy Code requirements and, further, which addressed whether the extent of work required was due to damage caused by the respondents’ tree roots. [31] These are not matters that can or should be raised for the first time on appeal. [32] Leave in respect of grounds two and three is refused. Ground Four [33] The applicant submitted that Mr Delaney withdrew his quote relying on the fact he had not responded to her last text messages. [34] If the applicant knew Mr Delaney was not going to do the work, then she should have obtained another quote. There is no error in the learned Member awarding an amount of damages based on the quote in any event, particularly when the applicant chose to rely on the quote in the hearing. [35] The other aspects of this ground raise issues considered by grounds 1 to 3 above. [36] Leave is refused in respect of this ground. Ground Five [37] The applicant submitted that she wants to update the record by adding the new Council fees for the septic tank work. She says that the fee she relied on in the hearing at first instance was incorrect. [38] The learned Member awarded the applicant $1 116.50 being the cost of a tax invoice from Plumb It dated 16 September 2022. The invoice is itemised at [27] of the Reasons and there is no mention of an amount by way of Council fees. The Member also awarded the amount of $ 2750 being the cost of doing the work quoted by Mr Delaney. That quote included: labour ($1 700); materials ($350); rock/aggregate ($300); and freight ($150). Again, there was no mention of Council fees. [39] Accordingly, there is no error by the Member in relying on a different amount. [40] Leave in respect of this ground is refused. -- 8 of 9 -- 9 Ground Six [41] The applicant submitted that the learned Member erred at [29] in finding her septic tank was pumped out for $600. The applicant says this caused her injustice because the Member then did not award her costs for pumping it out later. [42] The learned Member at [30] states that the applicant produced an invoice dated 10 August 2022, indicating it cost $918 to pump out her septic tank on 4 August 2022. The Member then states: The applicant’s septic tank was pumped out some five weeks before it failed. And it is not clear to the Tribunal whether the applicant’s septic tank was scheduled to be pumped out as part of normal septic tank maintenance or for some other reason. Based on the evidence before it, the Tribunal is not satisfied the amount of $918 is recoverable. [43] Even if the Member thought the tank had been pumped out beforehand, the Member was not satisfied the later pump out was just routine or because of the tree damage. Accordingly, no error has been shown. [44] Leave to appeal on this ground is refused. Conclusion [45] The applicant has not shown any errors in the proposed grounds. [46] Leave to appeal is refused. -- 9 of 9 --