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

1. 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”.

2. 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.

3. 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.

4. Ms Low filed an Application for leave to appeal or appeal on 25 August 2014 in respect of the decision.

5. 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.

6. 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).

1. 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.

1. 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 said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties.[4]

   [2]Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J.

   [3]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258.

   [4]Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.

2. In her application Ms Low says in Part C that she wants a stay of the decision because:

   An appeal of the decision has been made – Form 39 – with this application. The decision has been made without proper negotiation nor agreement as to the particulars of the case.

1. The “grounds of appeal” in her application for leave to appeal are as follows:

The upgrade to existing fence bordering the properties was initiated by other party. Current fencing is secure and operational. The other party wishes to upgrade for aesthetic purposes and in addition, charge for the removal of our existing fence ($65 ph). This is not reasonable nor practicable for our business to substantiate. Negotiations need to be entered to ascertain more reasonable solutions or agreements which suit both parties.

1. Ms Low filed submissions on 29 August 2014, but they do not specifically address the application for a stay

1. Neither the Part C of Ms Low’s application for a stay, or her submissions, canvass any hardship caused to her by the Order, or raise any specific justification for a stay. She has not produced any evidence or argument in support of the suggestion that she is caused hardship by the order to pay $4,886.75, other than merely asserting that it is “not practicable” for her business “to substantiate”.

1. A stay will not be granted unless the applicant has an arguable case on appeal and the balance of convenience favours the grant of a stay.[5]

   [5]Jennings v Design and Procure Pty Ltd [2010] QCATA 36 at para 4.

1. It is not necessary to assess the strength of the case of Ms Low, as no need for, or justification for, a stay has been shown by her.

1. The balance of convenience is therefore clearly with Mr Mync who is entitled to the monetary order in his favour.

1. The application by Ms Low for a stay is refused.