SUPREME COURT OF QUEENSLAND
CITATION:
Shadbolt & Anor v Wise & Ors [2005] QCA 443
PARTIES:
NORMAN WILLIAM SHADBOLT and NOELE SHADBOLT
(applicants/respondents)
v
FRANK WISE
(respondent)
PETER FRANK WISE and DAVID MITCHELL WISE
(respondents/appellants)FILE NO/S:
Appeal No 5477 of 2005
SC No 2751 of 2001DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
2 December 2005
DELIVERED AT:
Brisbane
HEARING DATE:
17 November 2005
JUDGES:
McPherson, Williams and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDER:
1. Appeal dismissed
2. The appellants are to pay the respondents' costs of the appeal to be assessed on the standard basis
CATCHWORDS:
REAL PROPERTY - FENCING AND BOUNDARIES OF LAND - ENCROACHMENT OF BUILDINGS AND PARTY WALLS - OTHER MATTERS - where the respondents constructed a swimming pool that encroached onto land owned by the appellants - where the respondents applied for relief pursuant to s 184 Property Law Act 1974 (Qld) - where an order of the Supreme Court was obtained in 2002 that provided for the transfer of the land that had been encroached upon so long as compensation was paid and all necessary consents were obtained from the relevant local government - where it was necessary to obtain a relaxation of the setback requirements for the encroaching structure before the local government would give its consent to the registration of the transfer of the land - where the appellants refused to co-sign the application for this relaxation - where the respondents applied to the Supreme Court for an order that the Registrar be authorised to sign the application - where the learned primary judge ordered that the appellants must "do all acts and things necessary on their part to procure such consent" - whether such an order was "with respect to" the conveyance, transfer or lease of the land that had been encroached upon pursuant to s 185 Property Law Act 1974 (Qld)
PROCEDURE - COSTS - APPEALS AS TO COSTS - JURISDICTION TO ENTERTAIN - where an order for costs had been made against the appellants by the learned primary judge - where the appellants desired to appeal against this costs order regardless as to whether or not they were successful on any substantive ground of appeal - where the appellants complained that the learned primary judge had made a vesting order that was not sought by the respondents before the learned primary judge suggested it - where the appellants also complained about the characterisation of their conduct by the learned primary judge as "reprehensible" - whether the appeal on the issue of costs alone was incompetent by reason of s 253 Supreme Court Act 1995 (Qld)
Commonwealth of Australia Constitution Act (Cth), s 51
Building Act 1975 (Qld)
Land Title Act 1994 (Qld)
Property Law Act 1974 (Qld), s 184, s 185, s 186, s 190, s 194
Supreme Court Act 1995 (Qld), s 253
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- AGLC
- Shadbolt v Wise [2005] QCA 443
- Case
- [2005] QCA 443
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the order requiring the appellants to "do all acts and things necessary on their part to procure such consent" was "with respect to" the conveyance, transfer, or lease of the encroached land, as per section 185 of the Property Law Act 1974 (Qld). The court had to determine the scope and applicability of the appellants' obligations under the Act. Additionally, the appeal included a challenge to the costs order against the appellants by the learned primary judge. The appellants argued that the costs order was made without proper basis, and that the judge had made certain characterizations of their conduct that they deemed inappropriate.
The court found that the order for the appellants to procure consent for the transfer was indeed "with respect to" the conveyance, transfer, or lease of the encroached land, as it was integral to the transfer process mandated by the Act. The court also dismissed the appeal regarding the costs order, finding that the appeal was incompetent under section 253 of the Supreme Court Act 1995 (Qld), as it was not tied to the substantive grounds of the appeal. The appeal was ultimately dismissed, and the appellants were ordered to pay the respondents' costs of the appeal.
Orders
Orders of the court
1. Appeal dismissed
2. The appellants are to pay the respondents' costs of the appeal to be assessed on the standard basis
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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