Shadbolt v. Wise

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.