Kerr v Dalziel

CITATION:

Kerr v Dalziel [2013] QCAT 464

PARTIES:	Mr Dennis Kerr Joseph Kercselics (ApplicantS)
v
Mr Rex Dalziel (Respondent)

APPLICATION NUMBER:

MCDO2781/12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

4 & 16 July 2013 – On the papers

HEARD AT:

Brisbane

DECISION OF:

Jeremy Gordon, Member

DELIVERED ON:

22 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application is refused. Currently the order of 4 March 2013 must stand.

CATCHWORDS:

PROCEDURE – Respondent co-owner

Queensland Civil and Administrative Tribunal Act 2009 s 39(b)

APPEARANCES and REPRESENTATION (if any):

The tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

On 26 June 2013 the Applicants applied for a correction of the decision of 4 March 2013 seeking that the name of Robyn Dalziel be added to the decision of 4 March 2013 as a respondent.
On 4 July 2013 I refused this application. On 16 July 2013 the registry issued a decision confirming that the order of 4 March must stand. Subsequently the Applicants have requested reasons for this decision.
Despite being named in a separate sheet attached to the application filed with the Tribunal on 29 October 2013 Robyn Dalziel’s name was unfortunately not recorded in the Tribunal’s case management system.
Robyn Dalziel was also referred to by the Applicants in their affidavit of service.
However because Robyn Dalziel was not recorded in the case management system she was not named as a respondent in any paperwork concerned with the claim. Significantly she did not receive written notice of the Tribunal hearing of 4 March 2013. Nothing was said at that hearing that she might be a co-owner, and when the order was made it was only made against Rex Dalziel.
Assuming that Robyn Dalziel is a co-owner, it would clearly be preferable for her to be named in the order of 4 March 2013, although the fact that she is not so named would not seem to affect the enforceability of the order in the Magistrates Court. This is because there is nothing in Chapter 2 of the Neighbourhood Disputes (Dividing Trees and Fences) Act 2011 (which deals with dividing fences) which requires a fencing order to be made against all co-owners. In contrast, chapter 3 which deals with trees, requires all owners of adjoining land to be served with an application to QCAT.
Technically, Robyn Dalziel was probably always a respondent to the proceedings under section 39(b) of the Queensland Civil and Administrative Tribunal Act 2009. However the important thing is that the order made on 4 March 2013 was not made against her.
Because Robyn Dalziel did not receive any QCAT documents naming her as a Respondent to the claim, giving her notice of the hearing, or naming her as a party to the order of 4 March 2013, it would be problematical to add her as a party to that order now. In fairness this could only be done by holding a hearing at which she could make representations if she wished about the merits of the matter and the form of any order. Bearing in mind the order would appear to be enforceable in the Magistrates Court as it stands, this would not appear to be proportionate.

The matter before the Queensland Civil and Administrative Tribunal (QCAT) involved a dispute between Mr Dennis Kerr and Joseph Kercselics, the applicants, and Mr Rex Dalziel, the respondent. The applicants sought to amend an earlier order made by QCAT to include Robyn Dalziel, who they claimed was a co-owner, as a party to the order. The applicants argued that the original order was incorrect because it did not include Robyn Dalziel as a respondent and that this omission could potentially render the order unenforceable.

The legal issues that the Tribunal had to address were whether Robyn Dalziel was indeed a co-owner and whether it was appropriate to amend the earlier order to include her as a party. The Tribunal considered whether the omission of Robyn Dalziel from the original order affected the enforceability of that order, and whether it was fair and proportionate to add her as a party to the order at this stage.

The Tribunal determined that although it was preferable for Robyn Dalziel to be included in the order, the omission of her name did not affect the enforceability of the order in the Magistrates Court. The Tribunal also found that it would not be fair or proportionate to add her as a party to the order at this stage, given that she had not received notice of the hearing and had not had an opportunity to make representations on the matter. Consequently, the Tribunal refused the application to amend the order and upheld the original order made on 4 March 2013.

The Tribunal’s decision was that the application to amend the order was refused, and the order of 4 March 2013 must stand. The Tribunal provided reasons for its decision, explaining that it would not be fair or proportionate to add Robyn Dalziel as a party to the order at this stage, and that the order was enforceable as it stood.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established