Body Corporate for 'Padstow Place CTS 46532' & Anor v AJHJ Property Nominee Pty Ltd [2016] QCAT 481

CITATION: Body Corporate for ‘Padstow Place CTS 46532’ & Anor v AJHJ Property Nominee Pty Ltd [2016] QCAT 481 PARTIES: Body Corporate for ‘Padstow Place CTS 46532’ Willi Chang (Applicants) v AJHJ Property Nominee Pty Ltd (Respondent) APPLICATION NUMBER: NDR128-15 MATTER TYPE: Other civil dispute matters HEARING DATE: 10 November 2016 HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 14 December 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. AJHJ Property Nominee Pty Ltd is to: (a) remove, at its cost, trees identified as tree 1, 2 and 3 in the Tree Assessment Report received 17 March 2016; trim at its cost, tree 4, as identified in the Tree Assessment Report received 17 March 2016, by removing ‘poorly pruned branch stubs with epicormics regrow and reduce tree back from the roof of unit 3, back to the branch collars’, by 4:00pm 31 January 2017. 2. In the event that AJHJ Property Nominee Pty Ltd fails to carry out the tree work as required by Order 1: (a) a contractor engaged by either or both the Body Corporate for ‘Padstow Place CTS 46532’ or Willi Chang is authorised to enter upon AJHJ Property Nominee Pty Ltd’s land for the purposes of quoting for and carrying out the tree work as required by Order 1. -- 1 of 13 -- 2 (b) The contractor must carry out the tree work in accordance with Australian Standard 4373-2007 ‘Pruning of Amenity Trees’ and be an appropriately insured arborist with a minimum of Australian Qualifications Framework level 3 in Arboriculture. (c) The Body Corporate for ‘Padstow Place CTS 46532’ or Willi Chang or both are entitled to recover the cost of a suitably qualified contractor performing the tree work as required by Order 1 from AJHJ Nominee Property Pty Ltd. 3. AJHJ Property Nominee Pty Ltd is to pay the Body Corporate for ‘Padstow Place CTS 46532’ the sum of $10,239 in respect of costs of these proceedings by 4:00pm 31 January 2017. CATCHWORDS: NEIGHBOURHOOD DISPUTE – TREE DISPUTE – whether trees were causing substantial, ongoing and unreasonable interference – whether the trees ought to be trimmed or removed COSTS – whether it was in the interest of justice for an award of costs to be made – where most directions disregarded by tree- keeper causing delay and expense Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), s 46, s 47, s 49, s 52, s 65, s 66, s 67, s 71, s 72, s 76 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 107 Ascot v Nursing & Midwifery Board of Australia [2010] QCAT 364 Tamawood Ltd v Paans [2005] 2 Qd R 101 APPEARANCES: APPLICANTS: Body Corporate for ‘Padstow Place CTS 46532’ Willi Chang -- 2 of 13 -- 3 RESPONDENT: AJHJ Property Nominee Pty Ltd REPRESENTATIVES: APPLICANTS: represented by Mr Michael Panayi of Industry Lawyers RESPONDENT: represented by Mr Jae Hoon Jung, Director REASONS FOR DECISION [1] The Body Corporate for ‘Padstow Place CTS 46532’ (the Body Corporate) and AJHJ Property Nominee Pty Ltd (AJHJ) own adjoining land. [2] The Body Corporate commenced these proceedings on 11 September 2015 seeking various orders, including removal of a number of trees and to remove or prune branches of a number of other trees at AJHJ’s cost. [3] The Body Corporate claimed that the trees: a) in the past had caused damage to ‘roof elements’; b) caused substantial, ongoing and unreasonable interference with the Body Corporate’s use and enjoyment of its land because of the risk of further falling limbs; c) overhang the land. [4] During the course of the hearing it became apparent that: a) many of the trees the subject of the dispute had been removed at AJHJ’s cost; b) at points along the boundary with AJHJ’s land the adoining land, which the remaining trees were claimed to overhang, is common property, owned by the Body Corporate, in the nature of common driveways and at other points the adjoining land, which the trees were claimed to overhang, is owned by Mr Chang, an owner of a lot in the body corporate scheme. I ordered that Mr Chang be joined as an applicant. [5] The trees, the subject of the dispute, are located along the boundary and the Body Corporate and Mr Chang contend that the trees affect their land. [6] Since the proceedings commenced on 11 September 2015 AJHJ’s only participation prior to the hearing was to file a Response on 22 June 2016. [7] AJHJ has failed to comply with the Tribunal’s directions on numerous occasions, including: a) Direction number 1 dated 7 October 2015 to file and serve a response to the application by 22 October 2015; -- 3 of 13 -- 4 b) Direction number 2 dated 7 October 2015 to file and serve submissions in relation to the Tribunal’s intention to appoint an assessor and to make an order requiring the parties to contribute in equal shares to the costs of the assessor by 12 November 2015; c) Direction number 4 dated 7 October 2015 to attend a Directions Hearing on 19 November 2015; d) Direction number 4 dated 19 November 2015 to file and serve submissions in response to the Body Corporate’s application for leave to be represented by 4 December 2015; e) Direction number 6 dated 19 November 2015 to pay to the Tribunal $500 in respect of the appointment of a tree assessor by 9 December 2015, necessitating payment by the Body Corporate of the whole $1,000 fee and causing delay in the appointment of the tree assessor and therefore delay in resolution of the dispute; f) Direction number 1 dated 30 March 2016 to attend a compulsory conference on 14 June 2016; g) Direction number 1 dated 14 June 2016 to give to the Body Corporate a copy of its response to the application by 21 June 2016; h) Direction number 3 dated 14 June 2016 to file and serve statements of evidence upon which it relied by 2 August 2016; i) Direction number 5 dated 14 June 2016 to attend a Directions Hearing on 11 August 2016; j) Direction number 1 dated 11 August 2016 to give to the Body Corporate a copy of its response to the application by 18 August 2016; k) Direction number 5 dated 28 October 2016 to file and serve submissions in relation to the Tribunal’s intention to obtain the help of a tree assessor at a cost contribution of $379.50 for each party by 3 November 2016; l) Direction number 1 issued 7 November 2016 to pay to the Tribunal $379.50 in respect of the costs of attendance of the tree assessor by 9 November 2016;1 m) Direction number 2 dated 11 August 2016 to attend the hearing on 10 November 2016. [8] At the commencement of the hearing, there was no appearance on behalf of AJHJ. Mr Panayi informed the Tribunal that AJHJ had not served a copy of its Response on the Body Corporate. I provided Mr Panayi a copy. 1 As at the date of these reasons, this amount remains outstanding to the Tribunal. -- 4 of 13 -- 5 [9] I caused Mr Jung, AJHJ’s director, to be called on his mobile phone. He claimed that he was not aware that the hearing was scheduled but agreed to appear by phone. When the matter adjourned for lunch, Mr Jung agreed to and did attend the Tribunal in person for the remainder of the hearing. [10] The Tribunal obtained an expert report from a tree assessor, Mr Inman.2 As referred to earlier in these reasons, subsequent to the expert report being obtained, Mr Jung arranged for most of the trees, the subject of the dispute and the expert report, to be removed. [11] The Body Corporate and Mr Chang primarily sought an order that AJHJ be directed to: a) remove trees identified in the Tree Assessor’s report received 17 March 2016 as trees 1 (a crepe myrtle tree) , 2 ( an African tulip tree) and 3 (an umbrella tree); and b) trim the tree identified in the Tree Assessor’s report received 17 March 2016 as tree 4 (a jacaranda tree). [12] The Body Corporate and Mr Chang sought an order that in the event that AJHJ failed to comply with the primary order that the Body Corporate and Mr Chang be authorised to enter upon AJHJ’s land for the purposes of complying with the primary order and that they be at liberty to apply for an order that AJHJ pay the costs of them performing the work. [13] The Body Corporate also sought an order that it be reimbursed the costs incurred, including the filing fee, the tree assessor’s report fee, the contribution to the costs for the tree assessor to attend to give evidence at the hearing and its legal fees. [14] The Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’) provides that the owner of land on which a tree is situated (the ‘tree-keeper’) is responsible for the proper care and maintenance of the tree and for ensuring that the tree doesn’t cause substantial, ongoing and unreasonable interference with a person’s use or enjoyment of the person’s land.3 [15] The Tribunal has power to determine a matter where it is alleged that land is ‘affected by a tree’ at the date the application was lodged. Section 46 of the Act relevantly provides that land is ‘affected by a tree’ if the tree has caused substantial, ongoing and unreasonable interference with the neighbour’s use of the land and the land adjoins the land on which the tree is situated. [16] The Act provides that: 2 Report received by the Tribunal on 17 March 2016 (Tree assessor’s Report). 3 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) (‘the Act’), s 52. -- 5 of 13 -- 6 a) a tree ‘is situated’ on land if the base of the tree trunk is or was previously situated wholly or mainly on the land.4 b) if land affected by the tree is scheme land under the Body Corporate and Community Management Act 1997 (Qld), the body corporate for the community title scheme is a neighbour in respect to a particular tree.5 [17] Section 66 of the Act gives broad powers to the Tribunal to make an order about a tree to remedy, restrain or prevent substantial, ongoing and unreasonable interference with the Body Corporate’s and Mr Chang’s use of the land. It includes the power to authorise a person to enter the tree- keeper’s land to carry out work or to enter land for the purposes of obtaining a quote for the carrying out of work. [18] Section 65 of the Act sets out certain requirements before the Tribunal is empowered to make an order. These include that the Tribunal must be satisfied that the neighbour made a reasonable effort to reach agreement with the tree-keeper. [19] There is evidence before the Tribunal of a step to attempt to resolve the dispute in that Mr Panayi, the Body Corporate’s lawyer, wrote to ‘The Proprietor’ at AJHJ’s land’s address on 24 August 2015 seeking trimming of the trees overhanging onto the residential complex.6 In doing so, I accept that the Body Corporate was in effect acting on its own behalf and on behalf of relevant lot owners, including Mr Chang. Mr Jung admitted receiving this letter. [20] I am satisfied that the preconditions in section 65 of the Act have been satisfied. Division 4 of the Act sets out matters for consideration. [21] Section 72 of the Act provides that a living tree should not be destroyed unless the issue cannot otherwise be satisfactorily resolved. [22] Having regard to all of the evidence, and in particular the evidence of Mr Inman, I find that: a) trees 1, 2, 3 and 4 identified in his report overhang Mr Chang’s lot and parts of the common property; b) trees 1, 2, 3 and 4 have caused and are likely to continue to cause substantial, ongoing and unreasonable interference with the use and enjoyment of Mr Chang and the Body Corporate’s land. c) trees 1, 2 and 3 ought to be removed at AJHJ’s costs. 4 Ibid, s 47. 5 Ibid, s 49(1)(b). 6 Exhibit 1. -- 6 of 13 -- 7 d) tree 4 ought to be trimmed to ‘remove poorly pruned branch stubs with epicormics regrow and reduce tree back from the roof of unit 3, back to the branch collars’7 at AJHJ’s costs. [23] Mr Jung claimed that: a) he had arranged for all the trees to be removed but a Brisbane City Council employee had intervened and prohibited the removal of the remaining trees. When questioned, Mr Jung was unable to provide substantiating details. b) he had spoken to the neighbour’s ‘caretaker’ about the situation and had thought the dispute was resolved. When questioned, Mr Jung was unable to provide substantiating details. c) he disputed the number of trees, which remained and disputed that the remaining trees were interfering with his neighbours. [24] Mr Inman gave oral evidence that: a) having regard to the amount of debris caused by the remaining trees regular maintenance, in particular of the roof and gutters of Mr Chang’s lot would be required to be performed; b) he estimated such maintenance would be required to be performed once a month or at the least every two months having regard to the seasons and the nature of the trees as compared to ‘usual’ recommended maintenance of every six months; c) due to the location of the carport the roof and gutters of Mr Chang’s lot are not easily accessible and maintenance would be required to be performed with appropriate safety equipment resulting in increased costs to perform the maintenance; d) in respect of trees 1, 2 and 3 identified in his report that he recommended their removal as distinct from trimming, because loping them to prevent interference with the Body Corporate and Mr Chang’s land over time will cause safety issues. [25] The Act recognises that the primary consideration is the safety of persons.8 [26] Mr Hennock of Affordable Tree Services gave evidence that he had recently attended site to provide a quote at the request of Mr Panayi, in respect of cutting back to the fenceline four trees on the right hand boundary. The quote was for $2970 (incl GST).9 Unfortunately, Mr Hennock did not have 7 Tree Assessor’s Report at page 9. 8 The Act, s 71. 9 Exhibit 2. -- 7 of 13 -- 8 his records with him when telephoned to give evidence and he was not able to give precise evidence as to the species of trees and their location. [27] Mr Wang, a resident of the complex, gave oral evidence that he resides next to Mr Chang’s lot and he had recently taken photographs of trees overhanging the boundary fence.10 Mr Jung claimed that the angle at which the photographs were taken distorted the extent to which the trees overhang the fence. On the balance of probabilities, I find that the remaining trees the subject of the dispute overhang the fence. [28] Having regard to Mr Inman’s report and oral evidence, I accept that not all trees near or in the vicinity of the boundary fence were the subject of the dispute and that there are, or were, other trees, on AJHJ’s land, which may have led to some confusion on Mr Jung’s part as to the number and location of trees remaining, which are the subject of these proceedings. [29] Mr Jung claimed that he was prepared to agree to undertake the work in several month’s time provided there would be no issues with the Brisbane City Council. He acknowledged that some trees on the boundary had previously caused damage to his neighbours’ roof tiles and the boundary fence and that AJHJ had paid for repair work to be performed. [30] There is no evidence before me as to the nature of the Council’s concerns in relation to the removal of the remaining trees. The Tribunal has power to make on order that work is carried out on a tree even though consent is withheld by a local government, a local law requires a consent or the work is otherwise restricted or prohibited under a local law.11 I am satisfied that the application has been made because of a genuine dispute. A copy of the order in these proceedings is required to be given the Council.12 [31] Even though AJHJ had not filed any statements of evidence, I permitted Mr Jung to give oral evidence. He gave evidence that: a) the development approval on AJHJ’s land had taken much longer than he expected.13 b) he had been approached by the neighbour’s manager and they had agreed the neighbour could access AJHJ’s land to remove or cut down the trees at their cost. c) he had been absent overseas 5 or 6 times over the last year or so and no one else was authorised to attend to AJHJ’s correspondence. 10 Exhibits 3 and 4. 11 The Act, s 67. 12 Ibid, s 76. 13 Publicly available information on Brisbane City Council’s website indicates that Council approval was given on 11 October 2016. I provided a copy of information printed from the website to the parties at the hearing. -- 8 of 13 -- 9 When questioned, Mr Jung was unable to provide substantiating details of his absences. d) while overseas he mostly had access to his emails through access to wi-fi. e) he didn’t understand the nature of directions made and thought he could resolve the matter himself. f) he thought the Tribunal was a government/not for profit intermediary making requests on behalf of the neighbour. g) he made no enquiries as to the Tribunal’s powers nor did he visit the Tribunal’s website to inform his view about the status of the directions the Tribunal issued to AJHJ. h) he now accepted that it had been a mistake not to look at the proceedings and the directions more carefully. i) he operates an educational business and describes himself as a professor of English. [32] Mr Jung did not present a copy of the alleged agreement either at the hearing or attached to the Response. I accept Mr Panayi’s submission that if such an agreement had in fact existed it would have saved the Body Corporate significant time and expense in resolving this matter. The existence of such an agreement is also inconsistent with AJHJ’s actions in removing many of the trees at its expense. I am not satisfied that such an agreement was entered into. Costs [33] I allowed the parties to file written submissions in relation to the issue of costs. The Body Corporate seeks its costs from AJHJ fixed in the amount of $11,050.30 in respect of: a) Legal costs $9,366.30 b) QCAT filing fee $305.00 c) Tree assessor’s report $1,000.00 d) Tree assessor’s hearing fee $379.50 [34] I find that AJHJ is to pay the Body Corporate its costs fixed in the amount of $10,239. [35] The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides, ‘other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the -- 9 of 13 -- 10 proceedings.’14 The Tribunal may make an order requiring a party to pay all or a stated part of the costs of another party if the interests of justice require. 15 The Body Corporate relies upon the provisions of the QCAT Act rather than any express power to award costs in the Act. Section 102 sets out a number of matters to which the Tribunal may have regard in deciding whether to award costs. [36] The then Deputy President, Judge Kingham in Ascot v Nursing & Midwifery Board of Australia16 stated at [9]: The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order. [37] Those considerations are largely in the nature of what may be regarded as ‘entitling’ or ‘disentitling’ factors. [38] AJHJ’s submissions do not directly deal with the considerations in section 102. Mr Jung submits that: a) The dispute could have been resolved earlier if the Body Corporate had ‘kept their word as in their original proposal’. As stated earlier in these reasons, I am not satisfied that such an agreement was entered into. b) The Body Corporate sent an unreasonable invoice for the work in the sum of $72,160. This appears to be a reference to a quote attached to the Statement of the Body Corporate chairperson.17 While Annexure C totals $72,160 (incl GST) it is clear on its face that the works set out are in the alternative. The first alternative, in the sum of $27,000 (excl GST), is for performing the work with access to AJHJ’s land and the second alternative, in the sum of $38,600 (excl GST), is for performing the work without access to AJHJ’s land by use of a cherry picker for five days. AJHJ did not produce any evidence of the reasonable cost for performing the work. c) The Body Corporate’s lawyer misled them. There is no evidence that the Body Corporate’s lawyer misled the Body Corporate into continuing the dispute. To the contrary, during the hearing Mr Panayi attempted on a number of occasions to obtain Mr Jung’s agreement to certain issues to shorten the proceedings. Mr Jung did not unconditionally agree and the proceedings were required to continue. If AJHJ had participated in the proceedings, other than filing its Response some eight months after being first directed to do so or if AJHJ had communicated with the Body Corporate’s lawyers at any 14 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 100. 15 Ibid, s 102. 16 [2010] QCAT 364. 17 Statement Jin Xia filed 18 July 2016, Annexure C. -- 10 of 13 -- 11 point in the proceedings and in particular when AJHJ decided to remove most of the trees, then the matter may have been able to resolve short of a hearing. d) The Body Corporate’s lawyer insulted him. Mr Panayi asked Mr Jung a number of direct questions designed to, and which did, demonstrate that Mr Jung’s English language and business skills were considerable and that AJHJ’s failure to participate in these proceedings were not due to a relevant incapacity. e) AJHJ has already paid to remove the trees and is prepared to pay for further works. While it is true that AJHJ has paid to remove many of the trees the subject of the dispute, Mr Jung’s offer for AJHJ to pay to remove the remaining trees during the course of the hearing was not timely18 and was not unconditional.19 [39] The Body Corporate particularly relies upon AJHJ acting in a way that unnecessarily disadvantaged the Body Corporate by making no attempt to comply with most of the Tribunal’s directions.20 As stated earlier in these reasons, AJHJ’s failure to comply with directions delayed the resolution of this proceeding and no doubt increased the costs to the Body Corporate. AJHJ’s failure to provide written evidence necessitated Mr Jung giving oral evidence both ‘in chief’ as well as being cross-examined, which increased the length of the hearing. [40] Having regard to: a) the statement in AJHJ’s Response that it requested a period of 6 – 9 months from 1 July 2016 to remove the trees at AJHJ’s costs; b) Mr Jung’s willingness to agree to remove the remaining trees as long as it didn’t cause issues with the Council, I find on the balance of probabilities, that AJHJ’s failure to participate in these proceedings was deliberately designed to delay the resolution of this dispute until AJHJ’s development approval had been secured. [41] If Mr Jung did not understand the Tribunal’s processes, he certainly had the capacity to do so. On his own evidence, he failed to take any steps to acquaint himself with the processes. [42] This is a factor in favour of an award of costs. [43] The Tribunal determined this was an appropriate case to grant leave for the Body Corporate to be legally represented. A factor in granting leave is whether a matter is likely to involve complex questions of fact or law. The 18 Several months as against the evidence of Mr Inman, that maintenance would be required every month or at most every two months. 19 The offer was subject to the Council not having issues. 20 QCAT Act, s 102(3)(a). -- 11 of 13 -- 12 granting of leave is a factor in favour of an award of costs but is not determinative. On balance the dispute involved some relatively complex questions of fact or law.21 [44] In terms of relative strengths of the claims made, the Body Corporate’s and Mr Chang’s claims were ultimately stronger as they have succeeded. 22 AJHJ failed to file any written evidence and provided little detail in its Response, which it failed to serve despite a number of directions requiring it to do so. Failing to serve the Response prevented the Body Corporate from attempting to address the issues raised until the hearing. This is a factor in favour of an award of costs. [45] There is no evidence of the financial circumstances of either party.23 This is not a factor in favour of an award of costs. [46] The Body Corporate contends that if an award is not made its success will be eroded through legal costs. 24 This is a factor in favour of an award of costs. [47] On balance, I find that the interest of justice require a costs order to be made. [48] The Tribunal is to fix the costs if possible.25 AJHJ ought to pay each of the outlays incurred and claimed. [49] In respect of legal fees, an itemised bill of costs was provided at the hearing with a few amendments being requested, including for the hearing being of longer duration than Mr Panayi expected because of Mr Jung’s participation. The submissions seek an additional amount for the preparation of the written submissions. Written submissions on costs were at least in part required because Mr Jung needed to leave the Tribunal hearing to move his vehicle from where he had parked it. [50] There is evidence before me that the Body Corporate agreed to pay an hourly rate of $270 (excl GST). I accept that the hourly rate of $270 (excl GST) is a comparatively reasonable rate. Having regard to the itemisation there appears to be some early items, which in part may relate to concurrent tree disputes with other adjoining landowners. A small discount to allow for this is appropriate i.e. $366.30. 26 [51] I note that AJHJ has already been ordered to pay the Body Corporate’s costs thrown away fixed in the sum of $445.50 in respect of the Compulsory 21 QCAT Act, s 102(3)(b). 22 Ibid, s 102(3)(c). 23 Ibid, s 102(3)(e). 24 Ibid, s 102(3)(f); Tamawood Ltd v Paans [2005] 2 Qd R 101. 25 Ibid, s 107. 26 Items dated 24 July 2015 and 27 August 2015. -- 12 of 13 -- 13 Conference, which it failed to attend.27 The itemisation includes this amount. It is not appropriate to recover amounts for this same work twice. [52] I fix the costs in the sum of $10,239, which includes legal costs in the sum of $8,554.50. 27 Order dated 14 June 2016. -- 13 of 13 --