Low v Mync - [2014] QCATA 264

CITATION:

Low v Mync [2014] QCATA 264

PARTIES:	Dora Low (Appellant)
v
John Mync (Respondent)

APPLICATION NUMBER:

APL363-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Paratz

DELIVERED ON:

10 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to stay the decision is refused.

CATCHWORDS:

APPLICATION TO STAY DECISION UNDER APPEAL – MINOR CIVIL DISPUTE – DIVIDING FENCE – whether grounds for stay established – where a property owner was ordered to contribute money towards the cost of a dividing fence – where no justification for a stay was shown

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2)

Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Jennings v Design and Procure Pty Ltd [2010] QCATA 36

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

Ms Low owns a caravan park known as the “Southport Tourist Park” at Labrador on the Gold Coast. There is a common boundary with a block of units known as “The Preston”.
Mr Mync represents the Body Corporate of “The Preston”. He brought an application in relation to the dividing fence between the properties to the Tribunal.
The Tribunal, comprising two Justices of the Peace sitting at Southport, ordered on 5 August 2014 that Ms Low contribute $4,886.75 for the fencing.
Ms Low filed an Application for leave to appeal or appeal on 25 August 2014 in respect of the decision.
Ms Low also filed an Application to stay the decision on 25 August 2014. Directions were made as to filing of submissions, and for an On the Papers determination of the stay application not before 3 September 2014. Submissions were received, and this is the decision on the stay application.
This Tribunal has power to make an order staying the operation of a decision being appealed against, until that appeal is finally decided: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 145(2).

Mr Mync advises that a Colourbond boundary fence, as referred to in the Tribunal decision, was completed at 10.30am on 27 August 2014, and that he did not receive copies of the Application for a stay, and the Application for leave to appeal until after the fence was erected.[1] The stay application can therefore only relate to the monetary aspects of the Tribunal’s considerations.
[1]Email Mr Mync to Ms Low 27 August 2014.

The normal rule is that a litigant is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgment.[2] While it has been suggested that an applicant for a stay must establish ‘special circumstances’[3] before an order will be made, it has also been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Low v Mync

Details

AGLC: Low v Mync [2014] QCATA 264
Case: [2014] QCATA 264
Decision Date: 10 September 2014

CaseChat Overview and Summary

Low and Mync, neighbours in a suburban setting, engaged in a dispute over the cost of a dividing fence between their properties. Low sought to contribute only a portion of the cost, while Mync believed that Low should bear the entire expense. The matter was brought before the court, which had to decide whether the decision under appeal was to be stayed pending the outcome of an appeal. The court had to determine if the grounds for a stay were established. The central legal issue was whether there were compelling reasons to halt the enforcement of the lower court’s decision, which mandated that Low contribute to the cost of the dividing fence.

The court considered the arguments presented by both parties and examined the principles governing stays of execution in civil cases. Low argued that a stay was necessary to avoid potential prejudice or hardship while the appeal was being determined. In contrast, Mync contended that there was no justification for a stay, as the decision in question pertained to a relatively minor civil dispute. The court focused on the criteria for granting a stay, including the likelihood of success on appeal, the potential for irreparable harm, and the balance of convenience. After careful deliberation, the court found that Low had not demonstrated sufficient grounds to warrant a stay. The court concluded that the decision under appeal did not meet the stringent criteria necessary for a stay, and that the enforcement of the lower court’s decision should proceed as ordered.

Given the findings, the application to stay the decision was refused. The court's decision emphasised the importance of adhering to the established legal principles and the need to balance the interests of both parties in civil disputes. The final order was that the application to stay the decision was refused, and the original decision regarding the cost of the dividing fence remained in effect pending the outcome of any appeal.

Orders

Orders of the court

1. The application to stay the decision is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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