Tallon v Proprietors of Metropolitan Towers BUP No 1517
[1996] QCA 106
•19/04/1996
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 166 of 1995.
Brisbane
[Tallon v. Metro Towers BUP 5157]
BETWEEN:
STUART DUDLEY TALLON
(Plaintiff) Appellant
AND:
THE PROPRIETORS OF METROPOLITAN
TOWERS BUILDING UNITS PLAN NO. 5157
(First Defendant) First Respondent
AND:
RONALD JAMES McCULLOUGH and
MARGARET DAWN McCULLOUGH andALBERT SUSAN and ALBA SUSAN
(Second Defendants) Second Respondents
AND:
IAN FRANCIS MURDEN and
CHRISTINE MURDEN
(Third Defendants) Third Defendants
AND:
CAMCREST PTY LTD
(Fourth Defendant) Fourth Respondent
AND:
ARNOLD FREDRIC NATZKE and
PEGGY HILDA RAE NATZKE
(Fifth Defendants) Fifth Respondents
___________________________________________________________________
Pincus J.A. Davies J.A. Ambrose J.
___________________________________________________________________
Judgment delivered 19/04/1996
Joint reasons for judgment of Pincus J.A. and Davies J.A., separate concurring reasons
of Ambrose J.
___________________________________________________________________
ORDERS:
1. APPEAL ALLOWED WITH COSTS.
2. ORDERS BELOW SET ASIDE.
3. APPELLANT TO HAVE LEAVE TO FILE AND SERVE A WRITTEN SUBMISSION, WITHIN 14 DAYS AS TO FURTHER ORDERS TO BE MADE.
4. RESPONDENTS TO HAVE LEAVE TO FILE A WRITTEN SUBMISSION, WITHIN 14 DAYS OF RECEIPT OF THE APPELLANT’S SUBMISSION, AS TO THE FURTHER ORDERS TO BE MADE.
___________________________________________________________________
| CATCHWORDS: | ENCROACHMENT - s. 185(1)(b) of the Property Law Act 1979 - land over which an encroachment extends. Coco (1994) 179 C.L.R. 427 Amatek Ltd v. Googoorewon Pty Ltd (1993) 176 C.L.R. 471 Property Law Act 1974 - s. 182, s. 184, s. 185 Building Units and Group Titles Act 1965 - s. 4, s. 9 |
| Counsel: | Mr C F Wall QC with him Mr F J Toy for the appellant. Mr P L Hanlon with him Mr J W Moore for the respondents (excluding the fourth respondent). |
| Solicitors: | Bevan Andrews for the appellant. Bundeson & Associates for the respondents (excluding the fourth respondent). |
| Hearing date: | 27 March 1996. |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 166 of 1995.
Brisbane
BeforePincus J.A.
Davies J.A. Ambrose J.
[Tallon v. Metro Towers BUP 5157]
BETWEEN:
STUART DUDLEY TALLON
(Plaintiff) Appellant
AND:
THE PROPRIETORS OF METROPOLITAN
TOWERS BUILDING UNITS PLAN NO. 5157
(First Defendant) First Respondent
AND:
RONALD JAMES McCULLOUGH and
MARGARET DAWN McCULLOUGH andALBERT SUSAN and ALBA SUSAN
(Second Defendants) Second Respondents
AND:
IAN FRANCIS MURDEN and
CHRISTINE MURDEN
(Third Defendants) Third Defendants
AND:
CAMCREST PTY LTD
(Fourth Defendant) Fourth Respondent
AND:
ARNOLD FREDRIC NATZKE and
PEGGY HILDA RAE NATZKE
(Fifth Defendants) Fifth Respondents
JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DAVIES J.A.
Judgment delivered 19/04/1996
The main point in this appeal is the extent of the Supreme Court’s power to
move a boundary in order to remedy an encroachment. The diagram which follows
shows one wall built on top of another. The lower part of the wall (below the line AA) was originally built as a wall of a single storey building extending to the right and owned
by the appellant Tallon. The upper part of the wall (above the line AA) was part of a
two-storey building built about 30 years ago so as to encroach on the land beneath it.
That encroachment was partially remedied in 1981 when the original boundary was
moved from line B to line C by an order of this Court. Then in 1995 the boundary was
moved further to line D, by a further order, so that the respondents became owners of
original 1981 1995 boundary boundary boundary
The appellant Tallon who is thereby deprived of one wall of his building, says that the
movement of the boundary to line D was unlawful because it moved the boundary
beyond the encroachment; it will be seen that the upper encroaching wall goes only to
point E, and not as far as line D. Tallon challenges the 1995 order moving the
boundary, on the ground that s. 185(1)(b) of the Property Law Act 1974 allowed the
Court only to require the transfer of "land over which an encroachment extends" and
that the Court shifted the boundary beyond that land.
The present respondents are not the persons who erected the encroaching
building, in about 1966; they are their successors in title, but it is convenient to use the
expression "the respondents" as referring without distinction to the present owners of
the encroaching building and to their predecessors in title. Another simplification weshall make is that there was on the evidence some rendering applied to the wall
which we have drawn; that rendering does not appear to bear upon the question of the
proper disposition of the appeal and we shall not refer to it further.
The wall depicted in diagrammatic fashion consist of three elements. The lower
wall consists, starting from the left, of a "skin" - to use the expression adopted by the
witnesses - of brick, 110mm in thickness, followed by a 50mm gap (wholly or partially
filled with rubble), and then a further 230mm of brick. The upper wall has, again starting
from the left, 110mm of brick, a 50mm gap and a further 110mm of brick. It will be seen
that the difference between the upper and lower wall is that the right-hand element of
the lower wall is thicker; it is in fact made up of two layers of brick, whereas the upper
part of the wall has only one layer of brick.
The land on which the upper and lower wall stands, together with the land to the
right and to the left, was, when the wall and the buildings of which they form part were
constructed, in single ownership. But in 1979 ownership was divided and Tallon
became the owner of the building on the right, of which the lower part of the wall forms
part, the rest being transferred to other ownership. Not long after this division of
ownership a dispute arose about the encroachment, and its source was that the
respondents desired to obtain separate titles for portions of their building. They could
not do so without a surveyor’s certificate that the building shown on the building units
plan was "within the external surface boundaries of the parcel the subject of the building
units plan": see s. 4(6)(a) of the Building Units Titles Act of 1965 as well as the
provision which replaced it, s. 9(8)(a) of the Building Units and Group Titles Act 1980.
There have followed five proceedings:-
1. The respondents applied in 1980 under part XI of the Property Law Act 1974 for
an order having the effect of moving the boundary line from position B and
succeeded in 1981 in obtaining an order that Tallon transfer to them the land
between B and C, so that the boundary between the Tallon land and the
respondent’s land became the middle of the gap or cavity (wholly or partly filled
with rubble) in the wall. No appeal was brought, although it was later held in this
Court that the 1981 order was based on a misapprehension as to the facts.
2. Tallon applied to the Supreme Court by summons in 1992 for an order that the
respondents remove that part of the wall above the line AA and re-transfer to him
the land between the original boundary and the 1981 boundary - i.e. between
lines B and C. The application was dismissed, the judge holding that he had no
power to hear the application because, in substance, the order sought would, if
granted, be inconsistent with that made in 1981.
3. An appeal was brought to this Court from the dismissal of Tallon’s application;
that appeal was allowed, the order dismissing Tallon’s application was set aside
and the matter remitted to the Trial Division. In the principal set of reasons, that
of the President and McPherson JA, it is explained that the applicant had not
been able to convert his shops to strata title because a certificate that the shops
were within the external surface boundaries of the land could not be obtained.
The reasons also pointed out that the effect of the adjustment made in 1981
had been to create an encroachment, by that part of the wall of the Tallon
building between line B and line C, upon the respondents’ land and that the brick
"skin" between line B and line C was an integral part of the Tallon building.The President and McPherson JA expressed the view, as part of their reasons,
that the structural unity of the wall of the Tallon building (between line B and
line D) was a fact which was only discovered after the 1981 order was made and
that had it been known in 1981, it was inconceivable that the boundary
adjustment of that year would have been ordered.
4. The 1992 application accordingly came on for hearing again and the boundary
was ordered to be shifted further onto the Tallon land, to line D, as shown on the
diagram above. After considering various possible solutions, the judge decided
to move the boundary in that way; the alternative his Honour rejected was, in
substance, to reverse the effect of the 1981 order. The judge was satisfied that
the solution he adopted was "by far the easiest and cheapest to implement".
5. As argued in this Court, on a second appeal - the one now being considered -
the question became whether the order made below should stand or whether
the boundary should be shifted back to its original position; neither side
contended for any intermediate solution.
It is our view that, as was contended for Tallon in this Court and below, it was
beyond the power of the primary judge to move the boundary to line D because that
gave the encroaching owner (the respondents) title to land beyond the area of the
encroachment. No question arises in the present case about the possibility that it
might, for example because of the irregularity of its shape, be impossible to transfer the
precise area of an encroachment.
The most immediately relevant provisions of part XI of the Property Law Act
1974 are the following:
S. 182
"encroaching owner" means the owner of land contiguous to the
boundary beyond which an encroachment extends.
"encroachment" means encroachment by a building, including
encroachment by overhang of any part as well as encroachment by
intrusion of any part in or upon the soil.
"subject land" means that part of the land over which an encroachmentextends.
S. 184 (1)
Either an adjacent owner or an encroaching owner may apply to the court for relief under this division in respect of any encroachment.
S. 185 (1)
On an application under section 184 the court may make such order as it may deem just with respect to -
(a) the payment of compensation to the adjacent owner; and
(b) the conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest in the land or of any easement, right, or privilege in relation to the land; and
(c) the removal of the encroachment.
The question is whether the order requiring conveyance of the Tallon land up till
line D is an order within the description in s. 185(1), as being "with respect to...the
conveyance...of the subject land to the encroaching owner". The simple answer made
on behalf of the appellant Tallon is that the conveyance of the land up to line D would
convey not only land over which an encroachment extends, but land (being that beyond
point E) over which no encroachment extends. That appears to us to be correct. We
were referred to various other provisions of the Act, but none of them is capable of extending the power given by s. 185(1)(b) in such a way as to enable the Court to order
transfer of land other than that over which an encroachment extends. It may be that in
many circumstances the Court might think it convenient to require transfer to the
encroaching owner of additional land, for one purpose or another, but the statutory
power to require transfer is confined as we have indicated; we think the confinement
to be unambiguous.
But if there were an ambiguity, the Court would lean in favour of that construction
which permits a lesser interference with the rights of the property owner, rather than
that which permits greater interference: cf., as to trespass, Coco (1994) 179 C.L.R. 427
at 436 to 438. The principle is perhaps illustrated by Amatek Ltd v. Googoorewon Pty
Ltd (1993) 176 C.L.R. 471, where the question arose whether the corresponding New
South Wales statute applied so as to enable the grant of relief to "encroachment"
consisting in buildings standing wholly on the land of the encroacher’s neighbour.
Reversing the New South Wales Court of Appeal, the High Court held that the terms
of the statute, the relevant provisions of which are in substance identical with those
quoted above, did not support the wide meaning of "encroachment" contended for. The
Court recognised (p. 478) the remedial character of the statute, but declined to extend
its operation beyond what was held to be the proper meaning of the relevant provisions.
The consequence is that the solution adopted by the learned primary judge,
however convenient it may have seemed, was not one which was available under the
statute and the appeal must be allowed. It is necessary to grant the relief the appellant
sought in 1992, subject to what is discussed below.
Two further points require mention. One is that the record contains reference
to encroachment, by the respondents’ building on the Tallon land, other than that
constituted by the upper wall depicted in the diagram. In the reasons given for the 1981
order (at p. 2) there is reference to "some windowsills and a wingwall extending a little
further out" from the upper encroaching wall; order no. 3 then made required their
removal "to the extent that they extend out from the said cavity wall... " and it is perhaps
reasonable to assume that this has been done. We mention the matter because the
application presently being dealt with, made by summons filed on 10 December 1992
seeks, among other things, removal from Tallon’s property of "that part of the roof and
appendages which presently encroach...". This aspect of the relief claimed was not
discussed before us. The second point is the more general one that there was no
submission made, by either counsel before us, as to the precise form of relief which
should be granted if the appeal were to succeed, as it does. As has been explained
above, this is the fifth occasion on which this dispute has come before the Supreme
Court and we are anxious to ensure that it will be the last occasion. It seems desirable
to give the parties an opportunity to make further submissions, if they think fit, about the
form of relief.
The orders are:
1. Appeal allowed with costs.
2. Orders made below set aside.
3. Appellant to have leave to file and serve a written submission, within 14 days,
as to the further orders to be made.
4. Respondents to have leave to file and serve a written submission, within 14 days
of receipt of the appellant’s submission, as to the further orders to be made.
REASONS FOR JUDGMENT - AMBROSE J
Judgment delivered: 19/04/1996
I have had the opportunity of reading the joint reasons for judgment of Pincus JA and Davies JA and agree with them and the proposed orders.
It occurs to me that in making an order that in effect restores the boundary between the appellant's and the respondents' lands to its position before the order made in 1981, there will be two consequences:
| (1) | The wall of the respondents' hotel building built on top of the wall of the appellant's building will encroach upon the appellant's land for the distance A - E shown on the diagram in the joint reasons for judgment of Pincus JA and Davies JA - a distance of 270 mm. |
| (2) | There is a likelihood that part of the foundations for the wall of the appellant's building (B - D) shown on that diagram will encroach upon the respondents' land for some distance. The parties might give consideration to the granting of easements to permit the |
preservation of the buildings erected upon their parcels of land without the necessity for either alteration or interference with the fabric or structure of those buildings. The Court would arguably have power to make such orders pursuant to s.185(1)(b) of the Property Law Act 1974.
To my mind if the order proposed is made without the granting of easements of the sort to which I have referred then that each of the appellant's building and the respondents' building will or may encroach upon the land of the other. Neither the appellant nor the respondent appears to be in any way responsible for the problems that have and will inevitably flow from the action of their common predecessor in title in constructing the buildings in the way in which they were constructed. Consideration might also be given to limiting the duration of any easement granted pursuant to s.185(1)(b) of the Property Law Act by reference to the maintenance of the present wall structures separating the appellant's building from the respondents' building. Consideration might be given to what, if any, effect the granting of such easements might have upon the respondents' capacity to comply with the requirements of the Building Units and Group Titles Act 1980 necessary to obtain separate titles for portions of
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 166 of 1995.
Brisbane
[Tallon v. Metro Towers BUP 5157]
BETWEEN:
STUART DUDLEY TALLON
(Plaintiff) Appellant
AND:
THE PROPRIETORS OF METROPOLITAN
TOWERS BUILDING UNITS PLAN NO. 5157
(First Defendant) First Respondent
AND:
RONALD JAMES McCULLOUGH and
MARGARET DAWN McCULLOUGH andALBERT SUSAN and ALBA SUSAN
(Second Defendants) Second Respondents
AND:
IAN FRANCIS MURDEN and
CHRISTINE MURDEN
(Third Defendants) Third Defendants
AND:
CAMCREST PTY LTD
(Fourth Defendant) Fourth Respondent
AND:
ARNOLD FREDRIC NATZKE and
PEGGY HILDA RAE NATZKE
(Fifth Defendants) Fifth Respondents
___________________________________________________________________
Pincus J.A. Davies J.A. Ambrose J.
___________________________________________________________________
Judgment delivered 19/04/1996
Further Order delivered 28/05/1996
Further Order of the Court
___________________________________________________________________
ORDERS:
1. APPEAL ALLOWED WITH COSTS.
2. ORDERS MADE BELOW SET ASIDE.
3. THE RESPONDENTS TRANSFER AND CONVEY TO THE APPELLANT FORTHWITH THAT AREA OF LAND WHICH THE APPELLANT CONVEYED PURSUANT TO ORDER NO. 1, MADE BY THE HONOURABLE MR JUSTICE W B CAMPBELL IN O.S. NO. 733 OF 1980, JUDGMENT DELIVERED 25 MARCH 1981.
4. THE RESPONDENTS REMOVE AS SOON AS POSSIBLE ALL THAT PART OF THE RESPONDENTS’ BUILDING WHICH ENCROACHES OVER THE BOUNDARY BETWEEN THE RESPONDENTS’ LAND AND THE APPELLANT’S LAND, BEING THE NEW BOUNDARY RESULTING FROM COMPLIANCE WITH ORDER NO. 3.
5. THE APPELLANT AND THE RESPONDENTS CO-OPERATE REASONABLY WITH ONE ANOTHER TO ENABLE THE EXECUTION OF ORDER NO. 4 AND OF ANY WORKS BY EITHER PARTY RENDERED NECESSARY IN CONSEQUENCE OF THAT ORDER WITH, AS LITTLE DISRUPTION AND INCONVENIENCE TO ONE ANOTHER AS IS PRACTICABLE.
6. THAT EASEMENTS G794786 AND G794787 BE EXTINGUISHED.
7. THAT THE RESPONDENTS PAY THE APPELLANT’S COSTS TO DATE OF THE PROCEEDINGS BELOW, TO BE TAXED.
8. THAT THE RESPONDENTS BE GRANTED AN INDEMNITY CERTIFICATE IN RESPECT OF THE APPEAL UNDER S. 15(3) OF THE APPEAL COSTS FUND ACT 1973.
9. THAT THE MATTER BE REMITTED TO THE TRIAL DIVISION, WITH LIBERTY TO THE PARTIES TO APPLY FOR ANY FURTHER OR OTHER ORDERS WHICH MAY PROVE TO BE NECESSARY OR DESIRABLE.
___________________________________________________________________
| Counsel: | Mr C F Wall QC with him Mr F J Toy for the appellant. Mr P L Hanlon with him Mr J W Moore for the respondents (excluding the fourth respondent). |
| Solicitors: | Bevan Andrews for the appellant. Bundeson & Associates for the respondents (excluding the fourth respondent). |
| Hearing date: | 27 March 1996. |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 166 of 1995.
Brisbane
BeforePincus J.A.
Davies J.A. Ambrose J.
[Tallon v. Metro Towers BUP 5157]
BETWEEN:
STUART DUDLEY TALLON
(Plaintiff) Appellant
AND:
THE PROPRIETORS OF METROPOLITAN
TOWERS BUILDING UNITS PLAN NO. 5157
(First Defendant) First Respondent
AND:
RONALD JAMES McCULLOUGH and
MARGARET DAWN McCULLOUGH andALBERT SUSAN and ALBA SUSAN
(Second Defendants) Second Respondents
AND:
IAN FRANCIS MURDEN and
CHRISTINE MURDEN
(Third Defendants) Third Defendants
AND:
CAMCREST PTY LTD
(Fourth Defendant) Fourth Respondent
AND:
ARNOLD FREDRIC NATZKE and
PEGGY HILDA RAE NATZKE
(Fifth Defendants) Fifth Respondents
REASONS FOR FURTHER ORDERS - THE COURT
Judgment delivered 19/04/1996
Further Order delivered 28/05/1996
The Court gave judgment in this matter on 19 April 1996, since when further
written submissions have been delivered, at the Court’s invitation.
The dispute between the parties concerns an encroachment of the respondents’
wall on the land of the appellant Tallon; the history of the matter is set out in our
reasons of 19 April. The problem might conceivably have been dealt with by the grant
of easements, but the parties concur in submitting that there should be no easements.
The matter has been placed before this Court, as before the primary judge, on the
basis that the only solutions which can be contemplated are, first, removal of the
encroachment, which is expensive, and second, transferring to the respondents part of
Tallon’s land including but not limited to that part over which the encroachment extends,
which is beyond the Court’s power.
In their written submissions the parties agree that the proper form of order, in the
light of the Court’s reasons, would be such as to restore Tallon’s boundary and remove
the encroachment; the parties also agree that certain easements previously granted
should be extinguished.
In addition, the respondents contend that other orders should be made. It is
necessary to mention two only of them. One is to require the construction of a new wall
for the respondents’ building. Assuming that the Court has power to order the
respondents to do that, it is difficult to see any practical reason why we should; it would
be in the respondents’ interests to build a new wall, but that is a matter for them. Then
the respondents ask that Tallon be ordered to pay the cost of work to be done by the
respondents, up to $35,000. The frivolity of this submission perhaps throws light upon
a reason why the parties have reached no agreement about the matters in issue in this
long-standing dispute; a pre-condition of that may be that their lawyers behave sensibly
and encourage their clients to do likewise. The removal of the encroachment and any work the respondents choose to do in consequence of that will no doubt proceed much
better if the parties co-operate rather than adopt mutually aggressive stances. It is, we
should think, a professional obligation on the part of the lawyers to ensure, as far as
they can, that this occurs.
As to costs, it is evident that the respondents must pay them, here and below.
The respondents ask for a certificate under the Appeal Costs Fund Act 1973, s. 15,
and that will be granted; the case falls within the provisions of that section.
It is desirable to mention two other points. One is that, in their written
submission on the orders to be made, but quite irrelevantly to that subject, the
respondents mention the possibility that there is another encroachment, by footings, at
the location which has been the subject of disputation between the parties since 1980.
On none of the five occasions on which the dispute has come before the Court have
the respondents sought any relief in respect of such a supposed encroachment; nor
do they do so now. There is therefore no necessity to discuss the point, other than to
suggest that it is hard to imagine a plainer case for the application of the principle of
Henderson v. Henderson [1843] 3 Hare at 115 (67 E.R. at 319), applied in Port of
Melbourne Authority v. Anshun Pty Ltd (1981) 147 C.L.R. 589. Secondly, it should be
mentioned that the orders set out below are made on the basis that there has been an
encroachment, that being common ground; we refer to Bolton v. Clutterbuck [1955]
S.A.S.R. 253 at 265 and Gesmundo v. Anastasiou [1975] 1 B.P.R. 9297.
The orders are:
1. Appeal allowed with costs.
2. Orders made below set aside.
3. The respondents transfer and convey to the appellant forthwith that area of land
which the appellant conveyed pursuant to Order No. 1, made by the Honourable
Mr Justice W B Campbell in O.S. No. 733 of 1980, judgment delivered 25 March
1981.
4. The respondents remove as soon as possible all that part of the respondents’
building which encroaches over the boundary between the respondents’ land
and the appellant’s land, being the new boundary resulting from compliance with
Order No. 3.
5. The appellant and the respondents co-operate reasonably with one another to
enable the execution of Order No. 4 and of any works by either party rendered
necessary in consequence of that order with, as little disruption and
inconvenience to one another as is practicable.
6. That easements G794786 and G794787 be extinguished.
7. That the respondents pay the appellant’s costs to date of the proceedings below,
to be taxed.
8. That the respondents be granted an indemnity certificate in respect of the appeal
under s. 15(3) of the Appeal Costs Fund Act 1973.
9. That the matter be remitted to the Trial Division, with liberty to the parties to
apply for any further or other orders which may prove to be necessary or
desirable.
the land up to that line.
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