Landorf v Wyndham - [2017] QSC 198

SUPREME COURT OF QUEENSLAND

CITATION:

Landorf v Wyndham & Anor [2017] QSC 198

PARTIES:

CHRISTINE MYFANWY LANDORF

(applicant)

v

DAVID BRUCE WYNDHAM

(first respondent)

GUAT CHENG WYNDHAM

(second respondent)

FILE NO/S:

BS 5466 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

13 September 2017

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2017

JUDGE:

Brown J

ORDER:

The order of the court is that:

1. The parties are to make further submissions within fourteen days as to the proposed order and costs

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – ENCROACHMENT OF BUILDINGS AND PARTY WALLS – POWER TO GRANT RELIEF – application for relief in respect of encroachment under s 184 Property Law Act 1974 (Qld) – where applicant seeks orders for the removal of the encroachment – where the encroachment is a block retaining wall and subterranean drainage system on a residential block – whether the encroachment is significant – where encroachment not intentional and does not arise from negligence – what terms of just order would require – whether relief should be granted under s 185 Property Law Act 1974 (Qld) – consideration of compensation under s 186 Property Law Act 1974 (Qld)

Property Law Act 1974 (Qld), ss 184, 185, 186

Ex parte Van Achterberg [1984] 1 Qd R 160
MacDonald & Anor v Clark & Anor [2012] QSC 418
Re Assumpsit No.32 (QSC Williams J, No 673/86, 10 October 1986)
Re De Luca [1985] Q Con R 54-175
Shadbolt v Wise [2002] QSC 348

Shadbolt v Wise [2003] QCA 241

COUNSEL:

P van Eps for the applicant

The first and second respondents appeared on their own behalf

SOLICITORS:

Purcell Fox Lawyers for the applicant

The first and second respondents appeared on their own behalf

BROWN J: This is an application by Christine Myfanwy Landorf (“the applicant”) seeking relief under s 184 of the Property Law Act 1974 (“the Act”). The alleged encroachment is a block retaining wall and subterranean drainage system that encroach upon the applicant’s land from the neighbouring property which is owned by David Bruce Wyndham and Guat Cheng Wyndham (“the respondents”). The applicant seeks orders that the encroaching block retaining wall and drainage system be repositioned onto the respondents’ land such that it no longer encroaches onto her land.

As with all neighbourhood disputes, it is unfortunate that this matter has resulted in an application to this Court. That is even more so given the time and cost involved and the relatively small value of the subject matter of the application.

Background

The respondents live at 34 Merthyr Road, New Farm (“no 34”). The applicant lives at 32 Merthyr Road, New Farm (“no 32”). The respondents have owned no 34 for a considerable length of time, having purchased the property in 1990.[1] In 2006, they carried out works to their property which resulted in the construction of the encroaching block retaining wall. That work was certified by a building certifier on 20 April 2007.[2] Plans for that work prepared…

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.

Continue reading Landorf v Wyndham

Details

AGLC: Landorf v Wyndham [2017] QSC 198
Case: [2017] QSC 198
Decision Date: 13 September 2017

CaseChat Overview and Summary

The case of Landorf v Wyndham involved a dispute over an encroachment on property boundaries. The applicant, Landorf, sought an order under section 184 of the Property Law Act 1974 (Qld) for the removal of an encroachment, which included a block retaining wall and a subterranean drainage system. The respondent, Wyndham, argued that the encroachment was not significant and that the relief requested was inappropriate. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT), with the primary concern being whether the encroachment was substantial enough to warrant the orders sought by Landorf.

The legal issues before the Tribunal included whether the encroachment was significant and whether the relief requested by Landorf was appropriate. Additionally, the Tribunal considered whether compensation should be ordered under section 186 of the Act. The primary focus was on whether the encroachment was significant enough to merit the requested orders and whether the relief sought by Landorf was justified. The Tribunal also examined whether any compensation should be paid by Landorf to Wyndham in lieu of the requested relief.

The Tribunal concluded that the encroachment was significant, but not to the extent that it warranted the removal of the structures involved. The Tribunal found that the encroachment was not intentional and did not arise from negligence. The Tribunal considered the terms of a just order under section 185 of the Act and determined that the relief requested by Landorf should not be granted. However, the Tribunal ordered that the parties make further submissions within fourteen days as to the proposed order and costs. The Tribunal's decision balanced the interests of both parties, acknowledging the significance of the encroachment while also considering the impracticality of the requested relief.

Orders

Orders of the court

The order of the court is that:

1. The parties are to make further submissions within fourteen days as to the proposed order and costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Landorf v Wyndham & Anor [2017] QSC 198
PARTIES:	CHRISTINE MYFANWY LANDORF (applicant) v DAVID BRUCE WYNDHAM (first respondent) GUAT CHENG WYNDHAM (second respondent)
FILE NO/S:	BS 5466 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	13 September 2017
DELIVERED AT:	Brisbane
HEARING DATE:	15 June 2017
JUDGE:	Brown J
ORDER:	The order of the court is that: 1. The parties are to make further submissions within fourteen days as to the proposed order and costs
CATCHWORDS:	REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – ENCROACHMENT OF BUILDINGS AND PARTY WALLS – POWER TO GRANT RELIEF – application for relief in respect of encroachment under s 184 Property Law Act 1974 (Qld) – where applicant seeks orders for the removal of the encroachment – where the encroachment is a block retaining wall and subterranean drainage system on a residential block – whether the encroachment is significant – where encroachment not intentional and does not arise from negligence – what terms of just order would require – whether relief should be granted under s 185 Property Law Act 1974 (Qld) – consideration of compensation under s 186 Property Law Act 1974 (Qld) Property Law Act 1974 (Qld), ss 184, 185, 186 Ex parte Van Achterberg [1984] 1 Qd R 160 MacDonald & Anor v Clark & Anor [2012] QSC 418 Re Assumpsit No.32 (QSC Williams J, No 673/86, 10 October 1986) Re De Luca [1985] Q Con R 54-175 Shadbolt v Wise [2002] QSC 348 Shadbolt v Wise [2003] QCA 241
COUNSEL:	P van Eps for the applicant The first and second respondents appeared on their own behalf
SOLICITORS:	Purcell Fox Lawyers for the applicant The first and second respondents appeared on their own behalf