Shadbolt v Wise

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.