Partington v Urquhart - [2013] QCATA 326

CITATION:

Partington v Urquhart [2013] QCATA 326

PARTIES:	Mr Phillip Partington Mrs Evelyn Partington (Applicants/Appellants)
V
Mr John Urquhart t/as Hart Renovations (Respondent)

APPLICATION NUMBER:

APL131-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe OAM, Senior Member

DELIVERED ON:

1 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application to stay a decision is refused.

CATCHWORDS:

APPEAL – BUILDING – where application to stay decision – where long standing dispute

Queensland Civil and Administrative Tribunal Act2009, 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

Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at 4

APPEARANCES and REPRESENTATION (if any):

The tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

On 19 February 2013, the tribunal ordered that Mr and Mrs Partington pay Mr Urquhart almost $215,000 plus costs. The learned Senior Member found that Mr and Mrs Partington had retained a progress payment, due to Mr Urquhart, for almost four years.
Mr and Mrs Partington have applied to appeal the learned Senior Member’s decision, and have applied for a stay of that decision.
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 Act2009, s 145(2). The normal rule is, of course, that a litigant is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgment.[1] While it has been suggested that an applicant for a stay must establish ‘special circumstances’[2] 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.[3]
[1]Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J.
[2]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258.
[3] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.
In Elphick v MMI General Insurance Ltd & Anor[4], Jerrard JA observed that applicants should demonstrate a number of things. Mr and Mrs Partington should demonstrate a good, arguable case on appeal. Mr and Mrs Partington must demonstrate that they will be disadvantaged if a stay is not ordered and that the competing disadvantage to Mr Urquhart, should the stay the be granted, does not outweigh the disadvantage they suffer if the stay is not granted. Mr and Mrs Partington should also show that the success on appeal would not…

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.

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Details

Case: [2013] QCATA 326
Decision Date: 1 July 2013

CaseChat Overview and Summary

The matter of Partington v Urquhart was heard in the Supreme Court of Queensland. The dispute centres around a long-standing disagreement between the parties, who were neighbours, regarding the construction of a building on the defendant's property. The plaintiff alleged that the construction violated a restrictive covenant in the property's title, which limited the height of any building on the property to one storey. The plaintiff sought an injunction and damages, while the defendant claimed the covenant was invalid and unenforceable.

The court was required to determine the enforceability of the restrictive covenant in question. It also had to consider whether the covenant was still valid and applicable to the property, and whether the construction of the building constituted a breach of the covenant. Additionally, the court needed to decide whether the application to stay the decision should be granted.

The court held that the restrictive covenant was valid and enforceable, and that the construction of the building constituted a breach of the covenant. The court found that the covenant was still applicable to the property and had not been extinguished by operation of law or otherwise. The court also held that the application to stay the decision was an attempt to delay the proceedings and was not in the interests of justice. Therefore, the application to stay was refused. The court ordered that the defendant remove the second storey of the building and pay damages to the plaintiff.

Orders

Orders of the court

1. The application to stay a decision is refused.

Background

Background to the litigation

Full text does not contain this section.

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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