Shadbolt v. Wise - [2005] QSC 163

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

[2005] QSC 163

FRYBERG J

No S 2751 of 2001

NORMAN WILLIAM SHADBOLT AND NOELE SHADBOLT	Applicants
and
FRANK WISE	Respondent

BRISBANE

..DATE 10/06/2005

ORDER

HIS HONOUR: In October 2002 the Court ordered, among other things, that subject to all necessary consents from Maroochy Shire Council and Greatwood Community Titles Scheme 19855 being obtained within six months of the date of the order, the respondent transfer to the applicants the fee simple interest in the land over which an encroachment extended ("subject land").

The transfer envisaged by that order has not happened. Essentially, the reason that it has not happened has been the non co-operation of the respondents. The order was made at the end of the hearing of an application by the present applicants against the respondents which arose because the applicants had constructed a swimming pool on their land which abuts the subject land and other land owned by the respondents. After a full hearing, Mullins J ordered in the terms which I have already described.

When the applicants came to seek the necessary consent of the Maroochy Shire Council in whose area the land is situated, the council required the applicants to lodge a development application for reconfiguration of land in accordance with the Integrated Planning Act 1997. The form required for that application made provision for the signature of the owner of the land. Whatever the effect of the order might have been in equity, the council apparently took the view that the owners of the land were the respondents. The requirement for their signature apparently was based on the requirement in s.3.2.1(3) of the Integrated Planning Act 1997.
The respondents would not provide that signature. It is, at least, arguable that in refusing to provide it they were in contempt of an implied order that they do all acts and things necessary on their part to procure the consent of the council. However, the applicants did not choose to pursue that rather risky argument and instead sought from the Court an order that the Registrar of the Court be directed to sign the development consent application on behalf of the respondents.

That order was, in due course, made. However all of this took time. The applicants twice sought variations of order 2 to extend the time referred to in that order but by now even the extended time has expired.

When the Registrar signed the application for development consent it was submitted to the council. Unfortunately the application did not include a request for the council to relax the legal requirements in relation to building setbacks. This meant that even if the application were granted, there would still exist on the subject land the superstructure built around the pool at a point within the setback band.

The council approved the application and made it subject to a condition in effect, that the development comply with all setback requirements of the Building Act. That, of course, was a condition which,…

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 Shadbolt v. Wise

Details

AGLC: Shadbolt v Wise [2005] QSC 163
Case: [2005] QSC 163
Decision Date: 10/06/2005

CaseChat Overview and Summary

In the Supreme Court of Queensland, Norman William Shadbolt and Noele Shadbolt, applicants, sought an order for the transfer of land to them from Frank Wise, the respondent. The applicants had previously obtained an order for the transfer of land which had been encroached upon by the applicants' swimming pool. This order was subject to obtaining necessary consents from Maroochy Shire Council and Greatwood Community Titles Scheme 1985. The applicants were unable to obtain these consents due to the non-cooperation of the respondents. The applicants sought an order for the Registrar to sign the development consent application on behalf of the respondents.

The court was required to decide whether an order directing the Registrar to sign the development consent application on behalf of the respondents would be too remote from the power conferred by s.185 of the Property Law Act 1974 and whether discretionary considerations mandated against the making of such an order. The court also needed to decide whether the time for performance of the condition on order number 2 of Mullins J had expired and if so, whether the encroachment should be removed and the order set aside to the extent necessary.

The court found that the conduct of the respondents had been reprehensible and they were doing nothing to cooperate with the applicants in carrying the order of the Court into effect. The court held that the power to make an order under s.185 was limited to the area of the subject land and it would frequently be necessary for a relaxation to be sought. The court did not consider the order to be too remote from the power conferred by s.185. The court also found that the applicants were entitled to such relief as would achieve for them the object of the original Court order. The court varied the order of Mullins J by inserting a new paragraph 2A which ordered that the title to the land set out in diagram A on unregistered plan SP 148485 be vested in the applicants.

The court dismissed the cross-application and made no order as to costs. The costs of various adjournments in relation to the applications before the Court were also reserved.

Orders