Shadbolt v Wise - [2003] QCA 241

SUPREME COURT OF QUEENSLAND

CITATION:

Shadbolt & Anor v Wise & Anor [2003] QCA 241

PARTIES:

NORMAN WILLIAM SHADBOLT and
NOELE SHADBOLT
(applicants/respondents)
v
FRANK WISE (deceased)
(respondent)
PETER FRANK WISE and
DAVID MITCHELL WISE
(executors and trustees of the will of Frank Wise)
(appellants)

FILE NO/S:

Appeal No 10829 of 2002
SC No 2751 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 June 2003

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2003

JUDGES:

McMurdo P, Davies and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed
2. The appellants pay the respondents' costs of the appeal to be assessed

CATCHWORDS:

REAL PROPERTY - FENCING AND BOUNDARIES OF LAND - ENCROACHMENT OF BUILDINGS AND PARTY WALLS - OTHER MATTERS - where appellants and respondents owners of adjoining lots - where respondents constructed swimming pool which partly encroached neighbouring lot - where respondents did not obtain survey of boundaries of land - where respondents left construction of pool in the hands of pool contractor - where encroachment made no significant difference to use by appellants of their lot - where trial judge weighed up relevant factors for and against grant of relief - where trial judge held that respondents' recklessness fell short of full knowledge of encroachment and granted relief pursuant to s 185 of the Property Law Act 1974 (Qld) - whether trial judge misdirected herself as to the law to be applied to question of whether relief should be granted

REAL PROPERTY - FENCING AND BOUNDARIES OF LAND - ENCROACHMENT OF BUILDINGS AND PARTY WALLS - OTHER MATTERS - where body corporate was a party interested within the meaning of s 193 Property Law Act 1974 (Qld) - where body corporate did not pass resolution consenting to recording of new community management statements - where trial judge did not require body corporate to be made a party to the application - whether trial judge erred in making this decision

Property Law Act 1974 (Qld), s 184, s 185, s 193

Haddens Pty Ltd v Nesbitt [1962] QWN 44, applied

COUNSEL:

S J Keim for the appellants
A McLean Williams for the respondents

SOLICITORS:

Justin Crosby (Maroochydore) for the appellants
Murray Lyons (Cairns) for the respondents

McMURDO P: I agree that the appeal should be dismissed with costs for the reasons given by Davies JA.

DAVIES JA:

1.The appeal

This is an appeal from orders made in the Supreme Court on 31 October 2002 that:

1. the respondents forthwith pay to the appellant compensation of $15,000 for the encroachment of a pool enclosure onto lot 46 on Crown Plan C31729 in the County of Canning and Parish of Mooloolah as shown on an identification survey done by John Reader & Associates Pty Ltd dated 9 December 1998;

2. subject to all necessary consents from Maroochy Shire Council and Greatwood Community Titles Scheme 19855 being obtained…

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 [2003] QCA 241
Case: [2003] QCA 241
Decision Date: 6 June 2003

CaseChat Overview and Summary

The case of Shadbolt v Wise involved a dispute between adjoining property owners over an encroachment of a swimming pool constructed by the respondents, Wise, onto the appellants', Shadbolt, land. The matter was heard and determined by the Queensland Court of Appeal. The primary legal issue before the court was whether the trial judge had correctly applied the law in granting relief to the appellants under section 185 of the Property Law Act 1974 (Qld). Additionally, the court considered whether the trial judge had erred in not requiring the body corporate to be made a party to the application, given its status as a party interested under section 193 of the Property Law Act 1974 (Qld).

The court found that the trial judge had not misdirected herself in the application of the law to the question of whether relief should be granted. The court held that the respondents' actions, though reckless, did not amount to full knowledge of the encroachment, which was a factor the trial judge appropriately weighed in her decision. The court further found that the trial judge had not erred in deciding not to require the body corporate to be made a party to the application. The court reasoned that the body corporate had not demonstrated a sufficient interest in the proceedings to warrant its inclusion as a party.

As a result of these findings, the appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal. The decision underscores the importance of property owners taking reasonable steps to ensure their constructions do not encroach on neighbouring properties, and the nuanced approach taken by the court in balancing the rights and interests of adjoining property owners.

Orders

Orders of the court

1. Appeal dismissed

2. The appellants pay the respondents' costs of the appeal to be assessed

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.

CITATION:	Shadbolt & Anor v Wise & Anor [2003] QCA 241
PARTIES:	NORMAN WILLIAM SHADBOLT and NOELE SHADBOLT (applicants/respondents) v FRANK WISE (deceased) (respondent) PETER FRANK WISE and DAVID MITCHELL WISE (executors and trustees of the will of Frank Wise) (appellants)
FILE NO/S:	Appeal No 10829 of 2002 SC No 2751 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 June 2003
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2003
JUDGES:	McMurdo P, Davies and Jerrard JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed 2. The appellants pay the respondents' costs of the appeal to be assessed
CATCHWORDS:	REAL PROPERTY - FENCING AND BOUNDARIES OF LAND - ENCROACHMENT OF BUILDINGS AND PARTY WALLS - OTHER MATTERS - where appellants and respondents owners of adjoining lots - where respondents constructed swimming pool which partly encroached neighbouring lot - where respondents did not obtain survey of boundaries of land - where respondents left construction of pool in the hands of pool contractor - where encroachment made no significant difference to use by appellants of their lot - where trial judge weighed up relevant factors for and against grant of relief - where trial judge held that respondents' recklessness fell short of full knowledge of encroachment and granted relief pursuant to s 185 of the Property Law Act 1974 (Qld) - whether trial judge misdirected herself as to the law to be applied to question of whether relief should be granted REAL PROPERTY - FENCING AND BOUNDARIES OF LAND - ENCROACHMENT OF BUILDINGS AND PARTY WALLS - OTHER MATTERS - where body corporate was a party interested within the meaning of s 193 Property Law Act 1974 (Qld) - where body corporate did not pass resolution consenting to recording of new community management statements - where trial judge did not require body corporate to be made a party to the application - whether trial judge erred in making this decision Property Law Act 1974 (Qld), s 184, s 185, s 193 Haddens Pty Ltd v Nesbitt [1962] QWN 44, applied
COUNSEL:	S J Keim for the appellants A McLean Williams for the respondents
SOLICITORS:	Justin Crosby (Maroochydore) for the appellants Murray Lyons (Cairns) for the respondents