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  • Unreported Judgment

Stainley v Harris & Anor

 

[2020] QCAT 382

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Stainley v Harris & Anor [2020] QCAT 382

PARTIES:

SARAH STAINLEY

(applicant)

 

v

 

Ben Harris

Lisa Harris

(respondents)

APPLICATION NO/S:

MCDO81-20

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

6 October 2020

HEARD AT:

Ipswich

DECISION OF:

Adjudicator Gaffney

ORDERS:

The application for an interim order is refused.

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – ADJOINING LAND – where applicant applied for an interim order for removal of timber screens attached to fence between the applicant’s and respondents’ land given the respondents’ proposed sale of their land – whether appropriate in the interests of justice to make the order

Neighbourhood Disputes (Dividing Fences and Trees) Act 2011(Qld), s 27.

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

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

Background

  1. [1]
    The Applicant is the registered owner of property in Springfield Lakes, which shares a common boundary with property owned by the Respondents.
  2. [2]
    The Applicant filed in the Registry an Application for minor civil dispute – dividing fences in Form 53 (‘the Application’) on 28 July 2020 for relief under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (‘the Fences Act’).
  1. [3]
    The Application and the attached submissions reveal that part of the relief sought in the Application is the removal of timber screens which the Respondents have attached to the fence which currently exists between the two properties (‘the timber screens’).
  2. [4]
    On 31 August 2020, the Applicant filed an Application for interim order (‘the interim order application’). At Part C of the interim order application (‘Explain the interim order you want’), the Applicant states:

For the [Respondents] …to remove the timber screens they have attached to the dividing fence between our two properties …that was never discussed with myself, nor did I agree upon. And for the timber screens attached to the dividing fence be removed before the sale of their house becomes “unconditional” and they move out.

  1. [5]
    On 1 September 2020 I refused that order. I give the following reasons for that refusal.

Jurisdiction

  1. [6]
    Section 27 of the Fences Act is the section under which final relief for the removal of the timber screens may be granted. It provides:
  1. (1)
    An owner, or a person who has entered the owner’s land with the owner’s express consent, must not, without the consent of the adjoining owner, attach a thing to a dividing fence that unreasonably and materially alters or damages the dividing fence.

Examples of an attachment—

carport, shade sails, lattice work, canvas, signs

  1. (2)
    If an owner does not comply with subsection (1), the adjoining owner may apply to QCAT for an order requiring the owner to remove the thing attached and restore the dividing fence to a reasonable standard, having regard to its state before the thing was attached.
  1. [7]
    Section 58 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) confers the power to make interim orders. It provides:
  1. (1)
    Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, for example—
  1. (a)
    to protect a party’s position for the duration of the proceeding; or
  1. (b)
    to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.

Note—

See also section 22(3) for the tribunal’s power to stay the operation of a reviewable decision while it is being reviewed by the tribunal.

  1. (2)
    The tribunal may make an interim order on the application of a party to the proceeding or on its own initiative.
  1. (3)
    In making an interim order, the tribunal—
  1. (a)
    may require an undertaking, including an undertaking as to costs or damages, it considers appropriate; or
  1. (b)
    may provide for the lifting of the order if stated conditions are met.
  1. (4)
    The tribunal may assess damages for subsection (3)(a).
  1. (5)
    The tribunal’s power to assess damages under subsection (4) is exercisable only by a legally qualified member.
  1. (6)
    In this section—

interim order means an order that has effect for the duration of a proceeding or a shorter period.

  1. [8]
    Although the Tribunal’s power to assess damages under section 58(4) is only exercisable by a legally qualified member, I consider that I otherwise have power to make an interim order under section 58(1) of the QCAT Act before making a final decision as to whether I should make an order under section 27 of the Fences Act.[1]
  2. [9]
    The question for consideration then is whether it is ‘appropriate in the interests of justice’ to make an interim order for the removal of the timber screens.
  3. [10]
    In Webb v Sunshine Coast Hospital and Health Service & Anor [2014] QCAT 40, Senior Member Endicott observed, in relation to the power under section 58, that:

The making of an interim order is discretionary although the QCAT Act gives examples of circumstances when such an order may be appropriate. Those examples suggest that the tribunal should consider making an interim order when there is a need to take action to ensure that the final hearing can address fairly the issues in dispute and not be frustrated due to intervening actions by the parties or by some factors impacting on the tribunal process.[2]

  1. [11]
    In my view, the grant of an interim order requiring the Respondents to remove the timber screens may produce the opposite effect to what is intended by section 58. If, by an interim order, the screens are removed and then the Respondents’ property is sold before the hearing, the Applicant will have, for practical purposes, obtained final relief without the burden and scrutiny of a hearing: a final order would not be able to be made in favour or against the Respondents as they would no longer be ‘owners’ for the purpose of section 27 of the Fences Act. The Tribunal’s process would be frustrated.
  2. [12]
    On the other hand if the interim order is refused, and the Respondents sell their property, the Applicant would still have the opportunity to make her case for removal of the timber screens under section 27 against the new owners.
  3. [13]
    Accordingly, I do not consider that it is in the interests of justice to make the interim order.

Footnotes

[1] I am influenced in that finding by obiter dicta of Deputy President Kingham in King v King [2010] QCATA 84, [30] and of Member Gordon in Right v Burrett [2020] QCATA 71, [57].

[2] Webb v Sunshine Coast Hospital and Health Service & Anor [2014] QCAT 40, [5].

Close

Editorial Notes

  • Published Case Name:

    Stainley v Harris & Anor

  • Shortened Case Name:

    Stainley v Harris & Anor

  • MNC:

    [2020] QCAT 382

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Gaffney

  • Date:

    06 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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