Legal Matters: QCAT & Neighbourhood Disputes

Andrew Bell from Bell & Senior Lawyers joins Colin on 4CRB’s Legal Matters to unpack the Queensland Civil and Administrative Tribunal (QCAT) — explaining what it is, what cases it handles, and whether it’s truly a faster option than court. They also take talkback calls covering neighbour disputes about fences and trees, contesting a will via a Family Provision Claim, and who is entitled to receive a copy of a will.

Key Topics

• Understanding QCAT: What the tribunal is and what it handles for everyday Gold Coast residents.
• QCAT Timelines and Costs: The current waiting times for QCAT decisions and the “own costs” rule.
• Neighbourhood Fences and Trees: Who is liable when a tree falls on a shared fence or roof. (Link: Fence Disputes , Tree Liability )
• Family Provision Claims: What happens when an eligible person is excluded from a will. (Link: Family Provision Claim )
• Access to Wills: Who has the legal right to request a copy of a will. (Link: Right to Copy of Will )
• Negligence and the “But For” Test: Understanding liability for property damage.

Listener FAQ Highlighted In This Episode

• What happens if a neighbour’s tree damages my fence?
• How do I make a Family Provision Claim in Queensland?
• Who can get a copy of a will in Queensland?
• What is QCAT and how do I apply on the Gold Coast?

Listen to the full discussion above.

[!WARNING] Don’t Let a Dispute Escalate Whether it is a neighbourhood dispute over a damaged fence or you have been unfairly left out of a will, taking early legal action is the most cost-effective strategy.

Contact our Gold Coast civil litigation team today to assess your claim and determine whether QCAT or the courts are your best option.

Key Takeaways

1. QCAT is meant for self-representation. It handles matters under $25,000, tenancy, and building disputes where parties usually represent themselves.
2. Each party pays their own costs at QCAT. Win or lose, you generally won’t get your legal fees back, so you must weigh the financial reality before proceeding.
3. You are liable for your trees if you are negligent. If your tree is dead, diseased, or dropping limbs, and it damages a neighbour’s fence in a storm, you are legally responsible. However, an “Act of God” defence may apply if the tree was perfectly healthy before the storm.
4. Wills can be contested. If you are an eligible person (like a child) who has been left out, you can bring a Family Provision Claim if the decision was unfair or if there are capacity concerns.
5. Don’t ignore QCAT documents. If you are sued in QCAT and fail to reply within 28 days, the other party can obtain a default judgement against you.

Annotated Transcript

Introduction & What is QCAT

Topic: QCAT – Queensland Civil and Administrative Tribunal

[Colin] Well, welcome to the microphone. Welcome to the studio, Andrew Bell from Bell and Senior Lawyers.

[Andrew] Thanks for having me back, Colin. Talking QCAT today. It’s going to be interesting.

[Colin] We are talking QCAT today. So, we’ll kick this one off. QCAT is the topic of the day. And Andrew, most of our listeners have probably never heard of QCAT. What is it?

[Andrew] Yeah, if you’ve ever heard of things like the small claims court, etc. — these all used to be individual tribunals, and in 2009, Queensland combined them together and formed the Queensland Civil and Administrative Tribunal. And because that’s a mouthful, everyone refers to it as QCAT.

[Colin] It is. And every state has one?

[Andrew] They do. It started in Victoria with VCAT, there’s NCAT, there’s ACAT, obviously. And the interesting thing is that they’re not a court, and you can only sue people in them who are actually from that state. So, if you do want to sue someone from New South Wales in QCAT, you might have some issues.

[Colin] So probably a good question to ask, is it the issue that’s in the state, or the person resides in the state?

[Andrew] It’s the ordinary residence of the people in the state.

[Colin] There you go. So, what sort of things can we deal with in QCAT?

[Andrew] So QCAT, the idea was that it was going to be a faster and cheaper way to resolve disputes without having to use lawyers, that people could have an informal location to have their disputes heard. So, it’s tenancy disputes, building defects, body corporate arguments, fence and tree line disputes, minor debt recovery, and then there’s some other things thrown in, including professional bodies like lawyers get regulated through QCAT if they have to appeal, or guardianship for people like elderly parents.

[Colin] So, you mentioned that it’s not like a real court, but the decisions are binding.

[Andrew] The decisions are binding. So it’s called a tribunal, and the difference between a court and a tribunal is a tribunal can’t make orders, and the people making them aren’t judges. So, if you get awarded money in QCAT, you then have to go to the Magistrate’s Court, and they will register the order in the court, and it has the power of any other court order.

QCAT Gold Coast Examples & Timelines

Topic: QCAT Process and Wait Times

[Colin] All right, give me a real Gold Coast example. What kind of problems end up at QCAT?

[Andrew] So, if you’re a renter and your landlord won’t return your bond, then you can go to QCAT. If you’re a homeowner and you’ve paid money for a kitchen renovation and the work was defective, again, you can go to QCAT. If you’re in a high rise and the body corporate’s blocking you from doing something, you may have a claim in QCAT. If someone backed into your car and you’re not insured and they’re not insured, again, it might be a minor claim in QCAT. If you have a tree that’s dropping branches or a fence that’s falling down, again, you’re going to QCAT.

[Colin] So it’s a great little opportunity to get things done. Is it easily done or is there a process involved?

[Andrew] So it is a process. It’s less involved than a court process, and they’re able to be more flexible in terms of rules around evidence, etc. So it’s designed for people who don’t know what they’re doing and don’t do this every day. You fill in a form, you make sure that it gets to the other side. They’ve now moved that online, so you don’t even need to go into the registry to file the paperwork. They may give you a hearing for a mediation where you can talk about your problems with a professional problem solver to try and have it solved, otherwise you can have a hearing.

[Colin] All right. Is it actually faster than court, because everything with the legal system seems to be forever?

[Andrew] It does. And unfortunately, when QCAT came out, it was very fast. According to their own website that I checked this week, tenancy disputes are running at about 28 weeks, consumer disputes about a year, and building disputes can be nearly two years. So it’s not in for the short time. However, if you are using the Magistrate’s Court, you’re going to be looking at similar or longer times.

Caller 1 – George | Fence & Tree Damage

Topic: Neighbourhood Disputes | Legislation: Neighbourhood Disputes (Dividing Fences and Trees) Act 2011

[Colin] We’ve got our first caller. Very good morning to George. George, ask your question of Andrew.

[George] Hello Andrew. My question is to do with a fence. Not so long ago, my neighbour put up a very long and quite expensive fence, and he paid for the whole lot, which I appreciated. Now, about eight months after that, a tree on my property fell during a storm and demolished a good part of the fence. And now he came to me and said, because he paid for this fence outright, your tree caused it and you need to pay for it. Well, I would have anyway, regardless of whether I was in the right or wrong, because he did pay for the fence. But now, did I have to do that? Because I’m worried about this happening again. I’m not going to keep doing it. But he said, you have to fix it. And I said, well, whether I have to or not, I’m going to, because that’s the neighbourly thing to do. I paid for it, had it repaired and it’s as good as gold. But my question is, did I have to, or would I have to do that again?

[Andrew] So, there’s two questions here. One is the question of liability about who’s responsible for the fence being damaged. If fences are just falling down, Queensland has something called the Neighbourhood Dividing Fences Act. And under that, neighbours must be able to have what’s called a sufficient fence. So if it was elaborate and made out of brick, you may have been able to replace it with a wooden fence as being sufficient, and you would only be liable for the costs to put up that sufficient fence. However, if your tree did cause damage to the fence and the fence required replacing, then you probably would have been found liable at least to the extent that you’re required to fix the fence. So yeah, I think you did the right thing. I think you probably would have been found that you needed to repair the fence.

[George] Well, the fence was a Colorbond fence and it couldn’t have been patched up. We had to replace the section that was damaged so it could be consistent. But because the tree was on my property —

[Andrew] Yeah, you’re typically responsible for the trees that are on your side of the fence. So if it fell down, then typically you’d be responsible for the damage that they caused.

[George] Okay. Even if the tree came down by natural disaster like a storm?

[Andrew] Typically that’s the case. There may be some other evidence that might change things, but typically if it’s your tree doing the damage, you’re deemed to have done the damage. Same if the roots of your tree are damaging their pool or other bits and pieces, those have also been found to hold people liable.

[George] So if it happens again, if he pushed the matter, I would be responsible for that?

[Andrew] That’s likely to be the case, George.

[George] Yeah, okay. I appreciate your help. Thank you very much.

📎 See also: Tree Damage Liability

Caller 2 – Diane | Will & Family Provision Claim

Topic: Will Disputes | Legislation: Succession Act 1981

[Colin] Good on you, George. Thank you for your call. All right, we’re moving on to Diane. Diane, ask your question of Andrew.

[Diane] Yes, hello Andrew. Thank you very much for taking my call. My daughter-in-law’s mother, she’s still alive, has told me that she has excluded my daughter-in-law and her son from her will. The daughter-in-law was in a previous will. The mother is still alive. What are the chances of appeal? Because she said, “I have sewn it up so tight that they’ll have to go to court in front of a judge to get anything.” There was some previous money given — $100,000 to both daughters, nothing for the son. The estate is around $4 million.

[Andrew] So Diane, in Queensland, people need to be adequately provided for under a will, and if you’re part of a relevant relationship, such as the son or daughter of someone, then you’re entitled to make a claim called a family provision claim under the will. Now, it is correct that you would have to do that through court. You don’t have automatic rights to siphon a portion of money off without all the beneficiaries agreeing or without a court order. However, it all depends on the personal circumstances of both the person who says they weren’t adequately provided for, and the circumstances of everyone else who received a gift. So in those circumstances, I would recommend that you get legal advice. There’s nothing you can do until she has passed. However, the other things to consider may be her capacity to make these decisions, that’s often how these things get appealed. The person making the will may not have been of their right mind when they made that decision, and any earlier terms of earlier wills may be taken into consideration. But that’s a question of evidence that would have to go before the court.

[Diane] Thank you so much for your help.

[Andrew] No worries, thank you, Diane. 📎 See also: Family Provision Claim QLD

Caller 3 – Sue | Right to a Copy of a Will

Topic: Estate Administration | Legislation: Succession Act 1981 (Section 33Z)

[Colin] Thank you, Diane. All right, we are now moving on to Sue. Sue, good morning to you. Ask your question of Andrew.

[Sue] Good morning, Andrew. It’s Sue here. I’m just inquiring as to whether a next of kin is entitled to a copy of the will. The person has died, and I’m the oldest surviving sibling. He has no wife and no children, so I am deemed to be the next of kin.

[Andrew] Okay. And there is a will in place?

[Sue] There is a will, yes.

[Andrew] Who is the executor of the will?

[Sue] His niece.

[Andrew] Okay, so typically, the people who are able to get a will, if it’s in probate in the court, you can apply to the court to get a copy. Normally you would contact the executor, and normally it would be provided to anyone who’s a beneficiary, anyone who was named in an earlier will, anyone who’s an executor or administrator, typically family members or people who might have a right to claim under the will. So being next of kin, I would think that you have a strong case to be able to ask the executor for a copy of the will.

[Sue] Okay, thank you so much.

[Andrew] No worries.

📎 See also: Right to Copy of Will

QCAT Users & Costs

Topic: QCAT Procedures

[Colin] We’ll go back to our topic of the day. We’ve been talking QCAT, and who is a typical user, business or everyday people?

[Andrew] So QCAT, unlike the court system, which is taken up by lawyers and businesses, QCAT’s overwhelmingly everyday people. So the biggest category is residential tenancy disputes. Gold Coast, where you have a very large rental population, disputes around bonds, damages, and forcing repairs. That reflects our demographics. Second is minor debts, chasing anything up to $25,000. People have very great difficulty getting paid, and QCAT’s a way you can do that. And the third biggest category is consumer disputes. So if you paid for something that wasn’t delivered or was defective, you can actually take a business to QCAT and have your day trying to solve the dispute in a tribunal.

[Colin] All right, if I win at QCAT, do I get my legal costs back?

[Andrew] Okay, so this is one of those distinctions again between the tribunal and the court, Colin. The costs aren’t high, but you don’t get your costs back. So QCAT operates on what they call an own costs rule, each party pays their own legal costs, regardless of who wins. In a court, typically, if you win, you can apply for costs and have some or all of your legal fees paid back. In QCAT, that’s not the case. However, it’s the intention that people are doing QCAT for themselves. There is a filing fee, depending on the matter, it can go from about $60 to about $300 — and if you’re in hardship, like a pensioner, you can even apply to have that waived. But if you do engage someone to help you or you do have costs to go to QCAT, you then need to look at the financial reality. If you’re looking for $5,000 and you’re going to spend $3,000 getting everything prepared, and you’re not guaranteed to win, it may not actually be a sensible decision. 📎 See also: What is QCAT Costs?

Caller 4 – Amanda | Gardener & Car Damage

Topic: Negligence & Liability (“But For” Test)

[Colin] All right, we have our next caller. It is a very good morning to Amanda. Amanda, ask your question of Andrew.

[Amanda] Good morning, Andrew. My question is, I had my bin out on my front yard, and my gardener came and moved the bin and put it on the driveway, but he didn’t tell me he put it on the driveway. I backed my car out and hit the bin, and it cracked my car light. I’m wondering who’s responsible to fix the light.

[Andrew] It’s an interesting question. It depends, this is a tort question and potentially a negligence question. So you would have to look at: if the bin wasn’t left there, would the damage have occurred? And also: should you have seen the bin when you were reversing, and do you have any negligence on your own behalf? My feeling would be to contact them and ask them nicely to pay for the damage on the basis that they shouldn’t have left it there and it was a hazard. But legally, I think you’re probably 50/50 whether you would actually get a decision in your favour, unfortunately.

[Amanda] Right. Yeah, because when I was backing out, he was there beside the driveway, it was very noisy because he had the whipper snipper, and I was making sure I wasn’t hitting him. I didn’t realise the bin was on the driveway.

[Andrew] Well, normally if someone leaves something that’s a hazard, the question is the “but for” test. But for that happening, would the accident have occurred? You can say if the bin wasn’t there, the accident wouldn’t have occurred. However, you then need to say, would an ordinary person have actually been looking for the hazard? Would it have been visible? So as I said, I would be contacting them and asking them kindly to pay for the damage on the basis that they shouldn’t have left it there and they knew it was a busy traffic area. But if you did take it to a tribunal, I’d give you about 50/50 odds.

[Amanda] Okay. And is that something that’s covered by their public liability insurance?

[Andrew] It could be. However, I would bank on the insurance company sending you a letter saying that they don’t deem that they’re covered for this particular incident.

[Amanda] Right. So they wouldn’t normally cover something like that?

[Andrew] Well, insurance companies typically write letters to people saying they don’t believe their insured client was at fault, and I think there’s enough here for them to validly say that.

[Amanda] Okay. All right, thank you very much for your help.

[Andrew] Good luck.

The “But For” Test & Negligence Law

Topic: Negligence Tests

[Colin] Thank you, Amanda. All right. The “but for” rule, Andrew, that was an interesting one. You used it in the last phone call.

[Andrew] Okay, so negligence is an interesting area of law because most other areas relate to something directly happening that you’re responsible for. If I punch a window and break it, I’m directly responsible for it. Negligence law came out of the fact that bad things happen to people that weren’t necessarily intended. So negligence law relates to: if I do something and someone else gets injured or something gets broken, am I liable or not? There is a series of legal tests involved in negligence law to see if you are actually responsible. One of those is the “but for” test. Just because something bad happened doesn’t mean that someone’s liable, no matter how much you want them to be. The “but for” test: if that action from that person didn’t happen, would the negative result still have happened or not? If you can’t make that out, then that person isn’t liable.

[Colin] Got you.

[Andrew] If you can make that out, there are all sorts of other tests. For example, is there a duty of care? So a duty of care is a term we hear a lot. Mechanics and the owner of the vehicle they’re repairing; parent and child; teacher and student, these are all long-established duties of care. So if you fit into one of those duties, it’s all good. Otherwise, you then need to establish whether the person who did that thing ordinarily owes a duty to the kind of person that was injured. Negligence has about five tests. We can go through them on another show.

QCAT Default Judgments & Last Caller

Topic: QCAT Procedures

[Andrew] I might talk about one of the things that comes to me at my community legal centre when we’re giving advice there. This is probably the most common scenario, someone sues someone in QCAT and they just don’t reply. So you fill in the paperwork, pay your application fee, and you have a QCAT case. You then need to serve, get the documents to the person, and then write back to QCAT to say that person’s been served. Once you do that, you’ve got 28 days for the other side to put in a reply. Most of the time, in my experience, people don’t reply to those QCAT documents. Either they don’t know how to, they put it off, or they don’t read the time limit.

[Colin] Bury your head in the sand.

[Andrew] Bury your head in the sand. It is possible after that 28 days to go back to QCAT and file for something called a default judgement. It’s a form, you fill it in, you say here’s how service was done, here’s all the information from my initial claim. It will then get reviewed by a tribunal member who will decide whether it had merit, and if it had enough merit and they hadn’t replied, then they make a decision in your favour automatically. So if you’re going to QCAT, remember, default judgement.

[Colin] Oh, that’s very interesting. All right, we’re moving on. Last phone call just got in by the bell. Good morning to you, Sarah. Sarah, ask your question of Andrew.

[Sarah] Yes, good morning. Good morning, Andrew. My quick query is, a neighbour’s tree branch falls on my roof. Who’s responsible for the damages?

[Andrew] Prima facie, it’s them. If it wasn’t maintained properly and it’s hanging over the boundary and damage resulted from their tree, and that is also something you can take to QCAT. Look at the Neighbouring Fences and Neighbouring Trees legislation.

[Sarah] Okay, that’s great. Now it’s clear for me. Thank you.

[Andrew] Thank you.

Closing Summary

[Colin] Good on you, Sarah. Well, thank you very much for your question. We’ve got a minute and a half left, Andrew. I thought we might wrap it up with a bit of a summary.

[Andrew] Thank you, Colin. So as I said, today we’ve talked QCAT, the Queensland Civil and Administrative Tribunal. It’s potentially online, or there’s one at Southport at the courthouse. It’s for most things under $25,000 and residential tenancy disputes. It’s set up so you can try and handle things yourself, but you can reach out for help if you need it. Don’t be afraid of QCAT. If you’ve got a dispute, do the research online, if you think you’ve got a case, or speak to a community legal centre, and consider QCAT as an option going forward.

[Colin] Great information this morning, Andrew. Thank you very much for your time. Thank you all very much who called into the show and posed your questions, they add to the show and add to the information we provide. Andrew Bell from Bell and Senior Lawyers, thank you very much for your time this morning.

[Andrew] Thank you, Colin. Talk to you next week.

Disclaimer: This transcript provides general legal information only and is not personal legal advice. Every situation is different. Please contact Bell & Senior Lawyers on 07 5532 8777 for independent advice regarding your personal circumstances.