Chu v Chen

[2018] QCAT 191

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Chu v Chen & Anor [2018] QCAT 191

PARTIES:

JOANNE YI-CHIEH CHU
(applicant)

v

KATHERINE CHEN
and
KAM W UNG

(respondents)

APPLICATION NO/S:

MCDO635-18 (Brisbane)

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

12 June 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

Interim order is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – interim order – where application for minor civil dispute – dividing fences – where application for interim order that fencing work be done – whether order required to protect party’s position or to secure the effectiveness of the Tribunal’s jurisdiction.

Neighbourhood Dispute (Dividing Fences and Trees) Act 2011 (Qld), s 30(3), s 30(1), s 31

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58

Evans Development Pty Ltd v Artiz Villa Investments Pty Ltd [2010] QCAT 63

REPRESENTATION:

Applicant:

Self-represented

Respondents:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. Ms Chu shares a common boundary with Ms Chen and Mr Ung upon which is separated by a dividing fence. Ms Chu is not satisfied with the state of repair of the current dividing fence and served a notice to contribute for fencing work on Ms Chen and Mr Ung.[1] Ms Chen and Mr Ung responded by agreeing that they would contribute a half share to a fence but wanting to have further discussion in regard to the style of fence as they wanted all three sides of the property fenced. Ms Chu responded by asking that Ms Chen and Mr Ung sign and return the signed notice to fence by

   
   

   10 May 2018, which did not occur. Ms Chu then filed an application for minor civil dispute – dividing fence,[2] and an application for an interim order.[3]

   [1]Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, s 31.

   [2]Ibid s 30(3).

   [3]Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’), s 58.

2. The application for the interim order requested the Tribunal to order for fencing work to be done. The grounds given were:

   (a)the current fence is old and rotting and 30% percent of the fence is missing;

   (b)Ms Chen and Mr Ung have a big dog and her children are only five years old; and

   (c)for safety concerns, she needs the order to help to replace the current fencing in the short term.

3. The Tribunal has power to make an interim order under s 58 of the QCAT Act, if it considers it appropriate in the interests of justice, including for example:

   (a)to protect a party’s position for the duration of the proceeding; or

   (b)to require or permit something to be done to secure the effectiveness of the exercise of the Tribunal’s jurisdiction for the proceeding.

4. The ground raised by Ms Chu in relation to the application for interim order goes to the urgency that she sees for the Tribunal to make its final decision in respect of the application.

5. Senior Member O’Callaghan, as she then was, in Evans Development Pty Ltd v Artiz Villa Investments Pty Ltd,[4] made it clear that:

   …the purpose of an interim order is not to finally determine the substantive claim. Its purpose is usually to maintain the status quo of the parties on a temporary basis until the matter is finally determined, for example protecting the party’s interests, until the proceeding is determined.

   [4][2010] QCAT 63, [7].

6. An interim order of the type requested here would involve a summary determination of the application and that is not the purpose of an interim order. While the Tribunal understands the concern of Ms Chu, ensuring the safety of her children until the Tribunal can finally determine the application can be met by ensuring that they are properly supervised when outdoors and that Ms Chen and Mr Ung properly supervise their pets.

7. An interim of the type requested is not appropriate and the application for interim order is refused.