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Shadbolt v Wise

Shadbolt v Wise

Case [2002] QSC 348 31 October 2002

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SUPREME COURT OF QUEENSLAND

CITATION:

Shadbolt v Wise [2002] QSC 348

PARTIES:

NORMAN WILLIAM SHADBOLT and NOELE SHADBOLT
(applicants)
v
FRANK WISE
(respondent)

FILE NO:

S2751 of 2001

DIVISION:

Trial Division

DELIVERED ON:

31 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

16-17 May, 1 August 2002

JUDGE:

Mullins J

ORDERS:

1.    The applicants forthwith pay to the respondent compensation of $15,000 for the encroachment of the pool and pool enclosure onto Lot 46 on Crown Plan C31729 in the County of Canning and Parish of Mooloolah (“Lot 46”) as shown on the identification survey done by John Reader & Associates Pty Ltd dated 9 December 1998 (Ex 13) (“the encroachment”).

2.    Subject to all necessary consents from Maroochy Shire Council and Greatwood Community Titles Scheme 19855 being obtained within 6 months of the date of this order, the respondent transfer to the applicants the fee simple interest in the land over which the encroachment extends (“subject land”).

3.    The applicants must pay to the respondent all costs and expenses reasonably incurred by the respondent in order to give effect to the preceding order including, without limiting the generality of the foregoing, the costs of the preparation of the survey plan required to subdivide the subject land from Lot 46, obtaining the consent of the Maroochy Shire Council to the subdivision of the subject land from Lot 46 and all legal costs incurred by the respondent in respect of the transfer of the subject land to the applicants.

4.    Liberty to either party to apply on 3 days’ notice in writing to the other.

CATCHWORDS:

TORRENS SYSTEM – ENCROACHMENT – application for relief in respect of encroachment under s184 Property Law Act 1974 (Q) – pool and pool enclosure constructed on lot in community titles scheme encroached on adjoining property –whether relief should be granted under s185 Property Law Act 1974 (Q) – where encroachment arose as a result of recklessness of encroaching owner as to the location of the relevant boundary – where encroachment is significant in terms of location but not area having regard to the total area of the adjoining property and the potential uses of that property – adjoining owner’s concern to maintain integrity of boundaries is a consideration to which significant weight cannot be given – where demolishing pool and enclosure would cause significant loss to the encroaching owner – transfer of land on which encroachment is situated ordered subject to necessary consents from body corporate and local authority

TORRENS SYSTEM – ENCROACHMENT – COMPENSATION – unimproved capital value of the land upon which encroachment is situated is its market value – relevant to take into account the premium which the adjoining owner would pay to acquire the land and an encroaching owner would seek for purpose of enabling construction of pool and enclosure in that location – encroachment arose from negligence of encroaching owner – compensation to be 3 times unimproved value of the subject land plus all costs to be…

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 [2002] QSC 348
Case: [2002] QSC 348
Decision Date: 31 October 2002

CaseChat Overview and Summary

In the case of Shadbolt v Wise, the respondents sought relief from the Supreme Court of Queensland for an encroachment on their property caused by the construction of a pool and pool enclosure by the applicants on their adjoining land. The encroachment was found to have occurred as a result of the applicants' negligence in determining the exact location of the property boundary. The applicants argued that the encroachment was not significant, considering the total area of the adjoining property and its potential uses. However, the court held that the adjoining owner’s concern to maintain the integrity of boundaries could not be given significant weight, especially since demolishing the pool and enclosure would cause substantial loss to the applicants.

The court was required to decide whether relief should be granted under the Property Law Act 1974 (Q) and if so, the appropriate form of relief. The court also needed to determine the compensation to be paid by the applicants to the respondents for the encroachment. The court held that the unimproved capital value of the land upon which the encroachment was situated was its market value and considered the premium the adjoining owner would pay to acquire the land and the encroaching owner would seek to enable the construction of the pool and enclosure in that location. Given the negligence of the encroaching owner, the court ordered compensation to be three times the unimproved value of the subject land plus all costs to be incurred by the adjoining owner associated with the subdivision and transfer of the subject land.

The court ordered that the applicants pay to the respondents compensation of $15,000 for the encroachment and transfer to the applicants the fee simple interest in the land over which the encroachment extends, subject to obtaining necessary consents from Maroochy Shire Council and Greatwood Community Titles Scheme. The applicants were also ordered to pay all costs and expenses reasonably incurred by the respondents in order to give effect to the preceding order, including the costs of the preparation of the survey plan required to subdivide the subject land from Lot 46, obtaining the consent of the Maroochy Shire Council to the subdivision of the subject land from Lot 46, and all legal costs incurred by the respondents in respect of the transfer of the subject land to the applicants.

Orders

Orders of the court

1. The applicants forthwith pay to the respondent compensation of $15,000 for the encroachment of the pool and pool enclosure onto Lot 46 on Crown Plan C31729 in the County of Canning and Parish of Mooloolah (“Lot 46”) as shown on the identification survey done by John Reader & Associates Pty Ltd dated 9 December 1998 (Ex 13) (“the encroachment”).

2. Subject to all necessary consents from Maroochy Shire Council and Greatwood Community Titles Scheme 19855 being obtained within 6 months of the date of this order, the respondent transfer to the applicants the fee simple interest in the land over which the encroachment extends (“subject land”).

3. The applicants must pay to the respondent all costs and expenses reasonably incurred by the respondent in order to give effect to the preceding order including, without limiting the generality of the foregoing, the costs of the preparation of the survey plan required to subdivide the subject land from Lot 46, obtaining the consent of the Maroochy Shire Council to the subdivision of the subject land from Lot 46 and all legal costs incurred by the respondent in respect of the transfer of the subject land to the applicants.

4. Liberty to either party to apply on 3 days’ notice in writing to the other.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Shadbolt v Wise [2002] QSC 348

Most Recent Citation

Johnston v Cutbush [2025] NSWLEC 1482

Cases citing this decision · 9 of 9 shown

Johnston v Cutbush
[2025] NSWLEC 1482 Para 113

…boundaries, the respondents had total disregard to the rights of the adjoining property owner, whether private owner or council (see Shadbolt v Wise [2002] QSC 348 at [51], which was not disturbed on appeal in Shadbolt v Wise (2003) 126 LGERA 59).…
The Uniting Church in Australia Property Trust (NSW) v Crowe
[2024] NSWSC 1387

…adbolt v Wise [2002] QSC 348 Shadbolt v Wise [2003] QCA 241 Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 Sheppard v Smith [2021] NSWSC 1207 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 The Owners – Strata Plan No 61233 v Arcidiacono; The Owners – Strata Plan No 17719 v…
Wardanski v Mawby
[2023] QSC 136

…Williams J, 10 October 1986, unreported); Morris v Thomas (1991) 73 LGRA 164 at 168 and Haddans Pty Ltd v Nesbitt [1962] QWN 44 at 99–100. See also Shadbolt v Wise (2002) Q ConvR 54-577 at 60,837 [50]– [52]. Investments Pty Ltd (1996) 189 LSJS 337, 340-342 (‘ Farrow ’) and subsequently in Gladwell v Steen (2000) 77 SASR…
Bartholomeusz v Body Corporate for 211 Ron Penhaligon Way Offices Community Titles Scheme 25277
[2022] QSC 222 Para 19

…ok to resolve the matter before commencing these proceedings. I do not read Shadbolt v Wise as requiring that. These paragraphs are irrelevant. [15][2002] QSC 348.…
Paridaen v Mahaside Pty Ltd
[2022] QSC 109 Para 6

…, Williams J, 10 October 1986, unreported); Morris v Thomas (1991) 73 LGRA 164 at 168 and Haddans Pty Ltd v Nesbitt [1962] QWN 44 at 99-100. See also Shadbolt v Wise (2002) Q ConvR 54-577 at 60,837 [50]-[52]. Factual circumstances…
HS South Brisbane Pty Ltd v United Voice
[2019] QSC 274 Para 8

…That observation was referred to by Mullins J in Shadbolt v Wise [2002] QSC 348; [2003] ANZ ConvR 161 at [50]. In that case, her Honour was critical of the applicant (encroaching owner) for not having undertaken a survey before constructing their swimming pool, part of which ultimately encroached on the land of t…
Landorf v Wyndham
[2017] QSC 198 Para 1

…higher value of the land of $2472 per m 2 based on comparison sales for the land only: SA1-1 p14, affidavit of SA Iveson, CFI5. In Shadbolt v Wise [2002] QSC 348 at [67] Mullins J followed Debelle J in Bunney v South Australia [2000] SASC 141 that unimproved capital value refers to market value of an unencumbere…
Brisbane City Council v Wang
[2008] QDC 236

…d Community Management Act 1997. Cases Considered Coghill v Le Borgue [1983] 2 Qd R 552 Menitti & Ors v Winn & Anor [2008] QCA 66 Shadbolt v Wise [2002] QSC 348 Shadbolt & Anor v Wise & Anor [2003] QCA 241 Legislation Body Corporate and Community Management Act 1997 s.10, s.30, s.35, s.35(3), s.31, s.36, s.206, s…
Shadbolt v Wise
[2005] QCA 443 Para 1

…costs of the Wise parties of the proceedings to that point on the indemnity basis. Her Honour gave the parties liberty to apply. [2] Shadbolt v Wise [2002] QSC 348; SC No 2751 of 2001, 31 October 2002.…

View all 9 citing cases →

Cases cited in this decision · 2 of 2 shown

Bunney v State of South Australia
[2000] SASC 141

…s186 Body Corporate and Community Management Act 1997 Property Law Act 1974 Bunney v South Australia [2000] SASC 141 Haddans Pty Ltd v Nesbitt [1962] QWN 44 Kostis v Devitt (1979) 1 BPR 9231 re Profke (unreported, SupCt(Q), Cooper J, 19 June 1990) Spencer v The Commonwealth (1907) 5 CLR 418, 432 Tallon v The Prop…
Spencer v The Commonwealth
[1907] HCA 82 Para 1

…ke (unreported, SupCt(Q), Cooper J, 19 June 1990) Cooper J applied the traditional test of market value, as set out in Spencer v The Commonwealth (1907) 5 CLR 418, 432 where the question is asked:…

Legislation cited in this decision · 3

Property Law Act 1974 (Qld)
186 2 mentions (from Para 1)
Body Corporate and Community Management Act 1997 (Qld)
1 mention (from Para 1)
Encroachment of Buildings Act 1955 (Qld)
1 mention (from Para 1)

CITATION:	Shadbolt v Wise [2002] QSC 348
PARTIES:	NORMAN WILLIAM SHADBOLT and NOELE SHADBOLT (applicants) v FRANK WISE (respondent)
FILE NO:	S2751 of 2001
DIVISION:	Trial Division
DELIVERED ON:	31 October 2002
DELIVERED AT:	Brisbane
HEARING DATE:	16-17 May, 1 August 2002
JUDGE:	Mullins J
ORDERS:	1. The applicants forthwith pay to the respondent compensation of $15,000 for the encroachment of the pool and pool enclosure onto Lot 46 on Crown Plan C31729 in the County of Canning and Parish of Mooloolah (“Lot 46”) as shown on the identification survey done by John Reader & Associates Pty Ltd dated 9 December 1998 (Ex 13) (“the encroachment”). 2. Subject to all necessary consents from Maroochy Shire Council and Greatwood Community Titles Scheme 19855 being obtained within 6 months of the date of this order, the respondent transfer to the applicants the fee simple interest in the land over which the encroachment extends (“subject land”). 3. The applicants must pay to the respondent all costs and expenses reasonably incurred by the respondent in order to give effect to the preceding order including, without limiting the generality of the foregoing, the costs of the preparation of the survey plan required to subdivide the subject land from Lot 46, obtaining the consent of the Maroochy Shire Council to the subdivision of the subject land from Lot 46 and all legal costs incurred by the respondent in respect of the transfer of the subject land to the applicants. 4. Liberty to either party to apply on 3 days’ notice in writing to the other.
CATCHWORDS:	TORRENS SYSTEM – ENCROACHMENT – application for relief in respect of encroachment under s184 Property Law Act 1974 (Q) – pool and pool enclosure constructed on lot in community titles scheme encroached on adjoining property –whether relief should be granted under s185 Property Law Act 1974 (Q) – where encroachment arose as a result of recklessness of encroaching owner as to the location of the relevant boundary – where encroachment is significant in terms of location but not area having regard to the total area of the adjoining property and the potential uses of that property – adjoining owner’s concern to maintain integrity of boundaries is a consideration to which significant weight cannot be given – where demolishing pool and enclosure would cause significant loss to the encroaching owner – transfer of land on which encroachment is situated ordered subject to necessary consents from body corporate and local authority TORRENS SYSTEM – ENCROACHMENT – COMPENSATION – unimproved capital value of the land upon which encroachment is situated is its market value – relevant to take into account the premium which the adjoining owner would pay to acquire the land and an encroaching owner would seek for purpose of enabling construction of pool and enclosure in that location – encroachment arose from negligence of encroaching owner – compensation to be 3 times unimproved value of the subject land plus all costs to be…