McDonald v Steinberg and Steinberg

[2011] QCATA 169

CITATION: McDonald v Steinberg and Steinberg (No 2) [2011] QCATA 169

PARTIES:	Margaret-Ann McDonald (Applicant/Appellant)
v
Jason Steinberg and Leah Steinberg (Respondent)

APPLICATION NUMBER:   APL049-11

MATTER TYPE: Appeal

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 11 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

Application for leave to appeal is refused.

CATCHWORDS: 

APPEAL LEAVE TO APPEAL – MINOR CIVIL DISPUTE – BOUNDARY FENCE – where the parties are neighbours and have been involved in long standing disputes about boundary fencing and retaining walls on the border of their properties – where a Member ordered the construction of a new fence along the property line – where Ms McDonald seeks leave to appeal that decision on the grounds that the Member’s orders were not specific enough, and because the Steinbergs have not complied with the order and have wrongly removed part of a retaining wall– whether leave to appeal should be granted

McDonald v Steinberg [2011] QCATA 052, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Ms McDonald and the Steinbergs are neighbours and these proceedings arise out of a dispute between them about boundary fencing and retaining walls between their properties at Wavell Heights.  The history of their relations about these matters and long standing disputes between them are set out in an earlier decision of this Tribunal, McDonald v Steinberg [2011] QCATA 052, 18 March 2011.

2. In December 2010 a QCAT Member, after hearing the parties, made orders about the construction of a new fence along the property line by the end of January 2011.

3. Later, Ms McDonald filed a number of applications in QCAT for a variety of proceedings.  She brought this application for leave to appeal on 21 February 2011, alleging that the Steinbergs had not complied with the Adjudicator’s order and had wrongly removed part of a retaining wall and fence so that her property was eroding, and at risk of more damage.  She also filed an application for an interim order or injunction which was determined, on the papers, in the Tribunal’s earlier decision of 18 March 2011.

4. In her written submissions in this application Ms McDonald complains that the Adjudicator’s orders are not specific enough and the result has been that the Steinbergs have implemented them in a way which compromises her property.  She now appears to request a variety of orders involving new or different building work than that ordered by the Adjudicator and undertaken by the Steinbergs.

5. Mr and Mrs Steinberg say that they have complied with the Adjudicator’s orders and the new dividing fence has been built.  There was some delay caused by serious adverse weather conditions in Brisbane earlier this year, but that is unsurprising.  In their submission Ms McDonald has no cause for complaint about their performance of their obligations under the Adjudicator’s order, and no grounds for an appeal. 

6. As the respondents point out, Ms McDonald’s request in this appeal for orders that there be a change in land levels between the properties, that the builder of a retaining wall provide a 10 year structural warranty, and that the Steinbergs pay Ms McDonald’s court costs of $345 are not within QCAT’s jurisdiction.  They are not appeal points; they are complaints, or claims for new or different relief from what was originally sought in QCAT.

7. In any event, Ms McDonald requires leave to appeal: QCAT Act, s 142(3). There is nothing in the transcript of the proceedings before the Adjudicator to suggest any error in his decision or any need, now, to correct any substantial injustice.

8. Indeed, the transcript shows that the parties, in effect, agreed to the orders the Adjudicator made.

9. If Ms McDonald has complaints or concerns which might be remedied under the Dividing Fences legislation she is at liberty to bring proceedings about them.  Her application for leave to appeal fails, however, to reveal any basis upon which leave is warranted or necessary, and it is refused.