Bosch v Smith [2011] QCATA 40

CITATION: Bosch v Smith [2011] QCATA 40 PARTIES: Ms Nola Bosch (Applicant/Appellant) v Ms Lyndel Smith (Respondent) APPLICATION NUMBER: APL322-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 4 March 2011 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: Minor Civil Dispute – where relief sought not within the definition of “Minor Civil Dispute” Queensland Civil and Administrative Tribunal Act 2009, s 142(3) APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The applicant and the respondent own neighbouring houses at Harding Street in Auchenflower. In 2009 Ms Smith decided to undertake renovation work at her property and as a consequence of that, there was, allegedly, some encroachment on Ms Bosch’s land, identification survey pegs were removed, there was installation of pool piping, electrical wiring and a timber retaining wall was constructed. This, according to Ms Bosch was done without her consent. [2] Ms Bosch bought a claim in the minor civil dispute jurisdiction of the Tribunal asking the Tribunal to make the following orders: 1. A current identification survey plan be supplied. -- 1 of 3 -- 2 2. The boundary markers reinstated. 3. The pool pipe removed. 4. Electric wiring removed. 5. The timber retaining wall replaced by brick. 6. $950 for damage to downpipe, loss of soil and excavator impact. 7. An amount deemed as appropriate as compensation for the trespass of the applicant’s property. [3] After hearing the parties, the learned Tribunal Member made orders which included that “AC sheeting be placed above the pipe and that the 12 volt cable be braced to the wall”. He also ordered that the respondent pay to the applicant the $950 claimed. [4] After the hearing, Ms Bosch then appealed to the Appeal Tribunal by an application for leave to appeal or appeal filed on 22 November 2010. As this is an appeal from a minor civil dispute leave is necessary 1 . In her application, Ms Bosch seeks the following order: “1. I want the Tribunal to order that the pipe and wiring be removed from my side of the neighbour’s retaining wall (13 Harding Street Auchenflower) and relocate pipe and wiring on neighbour’s side of retaining wall (Auchenflower). This is to be done with minimal access on my property.” [5] Ms Bosch’s application for leave to appeal must be refused. The basis of this refusal is that the Tribunal does not have jurisdiction to make the order sought in her application for leave to appeal, or that sought in the original minor civil dispute proceeding. [6] The definition of a minor civil dispute is in the dictionary to the QCAT Act and relevantly is as follows: 1. Minor civil dispute means:- (a) A claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; or (b) A claim arising out of a contract between consumer and the trader, or a contract between 2 or more traders … (f) A claim that is the subject of a dispute under the Dividing Fences Act 1953 and is for an amount not more than the prescribed amount.” [7] What Ms Bosch is asking for in this application is in the nature of a direction, in the minor civil dispute jurisdiction, requiring Ms Smith to do certain things. The relief sought does not fall within the definition of a 1 QCAT Act, s 142(3). -- 2 of 3 -- 3 minor civil dispute and cannot be granted. The Tribunal is a creature of statute and can only conduct hearings and grant relief permitted by the QCAT Act or an enabling Act. [8] It is also obvious that the original claim by Ms Bosch for certain orders to be made against Ms Smith was beyond jurisdiction. This does not mean to say that Ms Bosch may not have a remedy elsewhere, but it is not in QCAT. [9] Therefore, leave to appeal is refused. -- 3 of 3 --