Body Corporate 6 Yuulong Road v Howard [2013] QCAT 466

CITATION: Body Corporate 6 Yuulong Road v Howard [2013] QCAT 466 PARTIES: Body Corporate 6 Yuulong Road (Applicant) V Mr Warwick J. Howard (Respondent) APPLICATION NUMBER: NDR143-13 MATTER TYPE: Other civil dispute matters HEARING DATE: 24 July 2013 HEARD AT: On the papers DECISION OF: Jim Allen, Member DELIVERED ON: 2 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Mrs Lynette Howard’s application to be joined to these proceedings is refused CATCHWORDS: JOINDER OF PARTY – tree dispute – spouse of tree-keeper seeking to be joined – whether parties interests may be affected Queensland Civil and Administrative Tribunal Act 2009 s 42 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 46, 47, 48, 49, 60, 63, 64, 66 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mrs Lynette Howard has applied to be joined to an application made by the Body Corporate in respect of trees located on property owned by Mr Howard. Mrs Howard’s grounds are that she has married to her husband -- 1 of 3 -- 2 Mr Howard for sixteen years and she also lives at the property. Her application is supported by Mr Howard. [2] The Body Corporate submitted that Mr Howard being the sole owner of the land is the only person they wish to deal with in the settlement of this dispute. [3] In the case of tree disputes the applications are about trees which are situated on particular land1 affecting the adjoining land2. The parties to a tree dispute are the Neighbour3 and the Tree-keeper4. The Tree-keeper is the registered owner of the land on which a tree is situated and the neighbour is the owner of the adjoining land. In this case Mr Howard is the Tree-keeper as the registered owner of the lot and the proper respondent. [4] The Tribunal may join a person as a party to a proceeding if it considers that the person should be bound by or have the benefit of a decision of the Tribunal in the proceedings5. In the case of tree disputes the Tribunal may make the orders it considers appropriate in relation to a tree affecting the neighbours land6. The types of orders are considered further in ss 66(5) and they relate to work to be done on the tree and other matters to do with the land. There are also possible financial burdens requiring the tree- keeper or neighbour to pay for work associated with carrying out an order or requiring the tree-keeper to pay compensation. [5] The Tree-keeper, Mr Howard is the owner of the land on which the tree is situated and if any order were made in respect of the tree then it would be for him to carry out or consent to the carrying out of that order. There is no-one else who is required to be bound by the order before it could be carried out. The Body Corporate has indicated that it does not wish Mrs Howard to be joined and so it is not concerned that Mr Howard will bear sole liability for any monetary order. [6] The Tribunal may also join a person as a party if the person’s interests may be affected by the proceeding7. The Tribunal notes that a neighbour must give a copy of the application to any person, including an occupier of the Tree-keepers land, that the neighbour has reason to believe, would be affected by the order8. While it is clear that Mrs Howard is an occupier of the land and may be affected by the order does the protection of her interests require that she be joined as party? The outcome of this would be that she would be able to file her own material and appear at a hearing of the application separate to her husband the tree-keeper. [7] There has been no other reason put before the Tribunal as to why Mrs Howard should be joined as a party to the proceeding9. 1 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 47. 2 Ibid s 46. 3 Ibid s 49. 4 Ibid s 48. 5 Queensland Civil and Administrative Tribunal Act 2009 ss 42(1)(a). 6 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 ss 66(2). 7 Queensland Civil and Administrative Tribunal Act 2009 ss 42(1)(b). 8 Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 s 63. 9 Queensland Civil and Administrative Tribunal Act 2009 ss 42 (1)(c). -- 2 of 3 -- 3 [8] The Tribunal considers that to ensure the Tribunal proceedings are fair, just, economical, informal and quick10 there is no need to join Mrs Howard as a party and that her interests are to be dealt between Mr and Mrs Howard within their marriage relationship. [9] The application for leave to be joined as a party is dismissed. 10 Purpose of the Queensland Civil and Administrative Tribunal Act 2009 s 3. -- 3 of 3 --