Paridaen v Mahaside Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Paridaen & Anor v Mahaside Pty Ltd [2022] QSC 109

PARTIES:

THEO ANDRE GERMAINE PARIDAEN and MARIA ALOUISA PARIDAEN

(Applicants)

v

MAHASIDE PTY LTD (ACN 010 959 672)

(Respondent)

FILE NO/S:

BS 905 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

2 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2022

JUDGE:

Bowskill CJ

ORDERS:

The application for removal of the encroachment is allowed.  The Court will hear from the parties as to the appropriate form of order, including as to the time frame for the works to be carried out and any other consequential orders that may be required, and also as to the costs of the proceeding.

CATCHWORDS:

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – ENCROACHMENT OF BUILDINGS AND PARTY WALLS – POWER TO GRANT RELIEF – where a rock retaining wall constructed between the applicants’ and the respondent’s land encroaches onto the applicants’ land – where, prior to the development works being undertaken on the respondent’s land, the applicants obtained a survey as they were concerned about the property development impacting their boundary – where the development approval required the retaining wall to be wholly contained within the respondent’s lot – where the parties entered into a Construction Works Deed which provided, by reference to attached plans, for the retaining wall to be constructed to the boundary – whether the discretion conferred by s 185 of the Property Law Act 1974 (Qld) ought to be exercised in favour of ordering removal of the encroachment

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

COUNSEL:

M J McDermott, for the applicants

S K Long, for the respondent

SOLICITORS:

Simpson Quinn Lawyers, for the applicants

Butler McDermott Lawyers, for the respondent

Introduction

1. The applicants and the respondent own adjoining land on Somerset Drive in Buderim.  The applicants have owned their land since 1997.  The respondent is a property developer, which purchased the adjoining land in 2019 with the intention of subdividing it.  The applicants’ land is a “battleaxe block”, meaning that it is accessed down a long driveway from the road.  The applicants share that driveway with the owners of the adjoining land on the other side, with their respective use of it governed by easements.  The respondent’s subdivision development is now completed.  The subdivision works included a retaining wall between the respondent’s land and the applicants’ land, along the side of the driveway.  It is not disputed that, as constructed, the retaining wall encroaches onto the applicants’ land.   The extent of the encroachment varies, along the 70 metre length of the driveway, but is as much as 10 or 13 cm over the boundary at some points. 

2. The applicants want the encroachment removed. By their originating application filed 21 January 2022, the applicants seek orders pursuant to s 184 of the Property Law Act 1974 (Qld):

   (a)that within a specified period of time, and at its own cost, the respondent remove entirely that part of the retaining wall (including footings)…