Stepanko v Miteff & Anor (No 2) [2026] QCAT 172

by Amy Lowry | Apr 20, 2026 | Insights

In this matter, the Queensland Civil and Administrative Tribunal (QCAT) ordered the removal of a Chinese elm tree situated on or near a property boundary following a dispute between neighbouring landowners. The applicant alleged that the tree’s root system was encroaching onto their land and causing damage and interference.

The Tribunal accepted that the tree was responsible for substantial, ongoing, and unreasonable interference with the applicant’s use and enjoyment of their property, particularly due to invasive root growth. The key findings were:

• The evidence before the Tribunal indicated that proposed alternative measures – such as the installation of root barriers or excavation works – were not viable long-term solutions. These options were found to be:
  • potentially unsafe in the circumstances,
  • unlikely to prevent continued root intrusion, and
  • significantly more costly than removing the tree altogether.
• The respondents submitted that surrounding structures, including a swimming pool, would not be adversely affected by the tree’s roots. However, the Tribunal gave little weight to these submissions due to the absence of corroborating expert evidence.
• In applying the relevant considerations under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld), the Tribunal assessed factors including the nature and extent of the interference, the risk of ongoing damage, and the reasonableness of available remedies. It ultimately determined that no practical or reasonable alternative short of removal would adequately address the issue.

Orders Made

• The Chinese elm tree is to be removed by, or under the supervision of, a suitably qualified and insured arborist.
• The removal process must include stump grinding or appropriate treatment of the root system to prevent regrowth or further encroachment.
• The costs of removal are to be shared equally between:
  • the applicant,
  • the adjoining property owners (first respondents), and
  • the second respondent.
• No order was made in relation to legal costs.

Key Takeaways

• QCAT may order complete removal where tree-related interference is ongoing and cannot be effectively mitigated by less invasive measures.
• The Tribunal places significant weight on practical considerations, including cost, safety, and the likely effectiveness of proposed alternatives.
• Assertions regarding the absence of damage or structural risk will carry limited weight without supporting expert evidence.
• Apportionment of costs between parties remains common, even where one or more parties oppose removal.

Case Update: York Property Holdings Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2026] QCA 63

by Amy Lowry | Apr 20, 2026 | Insights

Facts

• York (principal/developer) engaged Tomkins (builder) to construct two residential apartment projects.
• A payment dispute arose under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act), proceeding to adjudication.
• The dispute centred on façade works, including issues of:
  • extent of completion, and
  • alleged defects / non-compliant work.
• Tomkins’ payment claim:
  • Valued façade works at approximately 46% complete;
  • Applied a deduction of ~$4.76 million for “defective work”, said to reflect the estimated cost of rectification.
• York’s position:
  • The façade works were only about 29% complete;
  • The claimed deduction was not properly characterised as “defective work”, but rather an attempt to value incomplete works;
  • The builder had not established actual defects or a proper basis for rectification costs.
• The adjudicator:
  • Rejected that the works were proven to be defective in the strict sense;
  • Accepted that the builder had raised legitimate concerns about compliance (including absence of a Form 15 certification);
  • Found York had not adequately responded to those concerns;
  • Allowed a deduction equal to the estimated rectification cost (~$4.76m) as a proxy for valuing work not in accordance with contract under s 72(1)(b)(iv).
• At first instance, the primary judge found aspects of the adjudicator’s reasoning to be problematic but ultimately upheld the decision, finding no jurisdictional error.

Decision (Court of Appeal)

• The Court of Appeal dismissed York’s appeal with costs.
• Key findings:
  • The central statutory task for the adjudicator is to decide the amount of the progress payment under s 88 of the BIF Act.
  • While parts of the adjudicator’s reasoning were described as “illogical” or internally inconsistent, that alone does not establish jurisdictional error.
  • The adjudicator:
    • Considered the contract, submissions, and payment materials;
    • Grappled with the façade issue (completion vs defects);
    • Ultimately valued the work by reference to rectification cost, which is expressly permitted under s 72 where work is not in accordance with the contract.
  • Even if the adjudicator:
    • conflated defect and valuation concepts, or
    • failed to make a clear finding of “defect”,
      this did not mean he failed to perform the statutory task.
• The Court emphasised that judicial review is limited—errors in reasoning will only invalidate a decision if they demonstrate a failure to exercise jurisdiction (not merely a flawed exercise of it).

Key Takeaways for Industry

1. Very limited scope to challenge adjudication decisions

• This decision reinforces that Security of Payment adjudications are highly resistant to judicial review.
• Even:
  • logical inconsistencies, or
  • imperfect reasoning
    will not suffice unless they show the adjudicator did not actually perform the statutory task.

2. “Illogical” reasoning ≠ jurisdictional error

• The Court accepted the adjudicator’s reasoning was, in parts, difficult to reconcile.
• However, provided the adjudicator:
  • addresses the dispute, and
  • reaches a conclusion on valuation,
    the courts will not intervene.

Practical implication:
Parties should not expect to “fix” an unfavourable adjudication outcome via judicial review.

3. Rectification cost remains a powerful valuation tool

• The case confirms that adjudicators can:
  • value work by reference to the cost of rectification,
    even where:
  • defect findings are not clearly made, or
  • the issue overlaps with incomplete work.
• This reflects the flexibility under s 72(1)(b)(iv) of the BIF Act.

Practical implication:
Respondents can deploy rectification cost arguments strategically, even where defect evidence is contested or incomplete.

4. Failure to respond to defect allegations is risky

• York’s failure to:
  • engage substantively with defect concerns, and
  • provide contractual certification (Form 15),
    was influential in the adjudicator’s reasoning.

Practical implication:
Claimants must:

• directly address alleged defects in payment schedules and adjudication responses;
• ensure contractual certification requirements are strictly complied with.

5. Distinction between “defects” and “valuation” may blur

• The case shows that, in practice:
  • arguments about defective work,
  • non-compliant work, and
  • extent of completion
    may be treated interchangeably in adjudication.

Practical implication:
Submissions should be framed holistically, addressing:

• completion percentages,
• compliance with contract, and
• rectification cost—rather than treating them as siloed issues.

6. “Quick and dirty” regime reaffirmed

• The Court reaffirmed that the BIF Act operates as a rapid, interim payment regime, not a forum for perfect reasoning.

Bottom line:

Adjudication outcomes will stand unless there is a clear failure to exercise jurisdiction—not merely a flawed decision.