Wang v State of Queensland

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SUPREME COURT OF QUEENSLAND

CITATION:

Wang v State of Queensland & Anor [2024] QSC 156

PARTIES:

YIQING WANG

(applicant)

v
STATE OF QUEENSLAND

(first respondent)

REGISTRAR OF TITLES

(second respondent)

FILE NO/S:

SC No 6625 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 July 2024

DELIVERED AT:

Brisbane

HEARING DATES:

20 July 2023, 15 December 2023 and 5 March 2024.

JUDGE:

Kelly J

ORDERS:

1. It is declared that Part 11, Division 1 of the Property Law Act 1974 is not capable of applying to approximately 46m2 of canal (forming part of land formerly described as Lot 386 RP 88417) adjoining Lot 41 RP 88417 and more particularly identified at page 5 of Exhibit ‘RR-1’ to the Affidavit of Robert Rameka filed 31 May 2023.

2.   The answer to the separate question is no.

3.   I will hear the parties as to costs.

CATCHWORDS:

REAL PROPERTY – CROWN LANDS – QUEENSLAND –OTHER MATTERS – where the applicant purchased a property in which part of that property encroaches upon adjoining land being “46m2 of canal” – where the applicant seeks final relief that the State convey to her the fee simple in the land over which the encroachment extends on the basis that she pays compensation in an amount to be determined by the Court – where the applicant applied for the determination of a separate question – where the applicant contends that the State is an “adjacent owner” of the land over which the encroachment extends – whether the State is an “adjacent owner” within the definition of that term as provided by s 182 of the Property Law Act 1974 (Qld) of the land over which the encroachment extends – whether the land over which the encroachment extends is “unallocated State land” within the definition of that term provided by Sch 6 of the Land Act 1994 (Qld)

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – ENCROACHMENT OF BUILDINGS AND PARTY WALLS – OTHER MATTERS – where the applicant purchased a property in which part of that property encroaches upon adjoining land being “46m2 of canal” – where the applicant seeks final relief that the State convey to her the fee simple in the land over which the encroachment extends on the basis that she pays compensation in an amount to be determined by the Court – where the applicant applied for the determination of a separate question – whether Division 1, Part 11 of the Property Law Act 1974 (Qld) applies to unallocated State land

Canals Act 1958 (Qld), s 13
Constitution Act 1867 (Qld), s 30, s 40
Constitution of Queensland 2001 (Qld), s 69
Land Act 1910 (Qld)
Land Act 1994 (Qld), s 4, s 9, s 14, s 16, s 17, Sch 6
Land Tax Assessment Act 1910 (Cth), s 3
Property Law Act 1974 (Qld), Part 11 Division 1, s 182, s 183, s 184, s 185, s 186, s 188, s 189

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Details
Case
[2024] QSC 156
Decision Date

CaseChat Overview and Summary

In Wang v State of Queensland, the applicant, Ms Wang, purchased a property which encroached on land adjacent to hers by approximately 46 square metres. Ms Wang sought relief from the Queensland Land Court, contending that the State of Queensland should convey the fee simple of the encroached land to her in exchange for compensation. The court was required to determine whether the State of Queensland was an "adjacent owner" of the encroached land and whether the land in question was "unallocated State land". The State argued that it was not an adjacent owner, as it did not hold an estate in fee simple or for life in the land over which the encroachment extended. The court considered the definitions of "owner" and "adjacent owner" in the Property Law Act 1974 (Qld) and determined that the State did not meet the criteria for an adjacent owner as it did not hold a freehold estate in the encroached land. Consequently, the court held that Division 1 of Part 11 of the Property Law Act 1974 (Qld) did not apply to the unallocated State land in question. The court further held that the land in question was not unallocated State land as it was part of a Deed of Grant issued in 1869 and had passed through various owners before becoming State land. The court ordered that Division 1 of Part 11 of the Property Law Act 1974 (Qld) was not applicable to the encroached land and that the State was not an adjacent owner. The court will hear submissions on costs from both parties.

Orders

Orders of the court

1. It is declared that Part 11, Division 1 of the Property Law Act 1974 is not capable of applying to approximately 46m2 of canal (forming part of land formerly described as Lot 386 RP 88417) adjoining Lot 41 RP 88417 and more particularly identified at page 5 of Exhibit ‘RR-1’ to the Affidavit of Robert Rameka filed 31 May 2023.

2. The answer to the separate question is no.

3. I will hear the parties as to costs.

Background

Background to the litigation

The ultimate dispute concerns whether Division 1 of Part 11 of the Property Law Act 1974 (Qld) (“the Property Law Act”), which provides for conveyance and compensation in circumstances of an encroachment, applies to the land over which the encroachment extends. Division 1 of Part 11 contemplates a conveyance by an adjacent owner, being an owner of land over which an encroachment extends, and relevantly defines an “owner” as a person entitled to “an estate of freehold in possession … whether in fee simple or for life or otherwise”. The State contends that it is not an “owner” of the land over which the encroachment extends and not “an adjacent owner” within the meaning of those expressions as they appear in s 182 of the Property Law Act.Relevant facts There is no dispute about the material facts. Initially, the applicant’s land formed part of 116 acres of land (“the original 116 acres parcel”) which was the subject of Deed of Grant Number 20900 dated 7 September 1869 (No 10153161, Vol 153, Folio 161) in favour of Mr Joseph Isaacs. The grant to Mr Isaacs was a freehold grant by the Crown. In May 1916, the original 116 acres parcel was transferred to Mr Francis Parr. On 27 May 1919, Certificate of Title Vol 1343, Folio 183 was issued under title reference 11343183 in respect of the original 116 acres parcel (“the Certificate of Title for the original 116 acres parcel”). On 7 May 1958, the Canals Act 1958 (Qld) (“the Canals Act”) received assent and commenced as a law of Queensland. The Canals Act relevantly provided:“Existing canals13.(1) In and for the purposes of this section and of section fourteen of this Act, the term ‘existing canal’ means any and every one of those canals provided or proposed to be provided in respect of subdivisions of lands called respectively—(a)Florida Gardens; and(b)Miami Keys; and(c)Rio Vista; and(d)Moana;within the Area of the Shire of Albert in respect whereof permissions for the purposes of section fifty-nine of ‘The Harbours Acts, 1955 to 1956,’ were applied for and granted prior to the passing of this Act:Provided that a canal provided for in any plan of subdivision of any of the lands mentioned hereinbefore mentioned in this section not registered by the Registrar of Titles prior to the passing of this Act shall not be, or be deemed to be, an existing canal for the purposes of this section or of section fourteen of this Act unless and until the Minister makes on that plan the endorsement prescribed by subsection three of this section.(2)When any plan of subdivision of any of the lands mentioned in subsection one of this section which provides for any canal shall have been approved by the Council of the Shire of Albert and registered by the Registrar of Titles prior to the passing of this Act, then that canal shall be presumed to be an existing canal unless and until the contrary is proved.(3)When any plan of subdivision of any of the lands mentioned in subsection one of this section not registered by the Registrar of Titles prior to the passing of this Act provides for any canal which purports to be an existing canal, then the Registrar of Titles shall not register that plan unless and until the Minister endorses thereon a certificate that such canal is an existing canal.The onus shall lie on the applicant for the endorsement referred to in this section to satisfy the Minister that the purported existing canal is in all respects the canal in respect whereof the permission mentioned in subsection one of this section was given and the Minister shall not make the endorsement unless and until the he is so satisfied.The Minister shall not make an endorsement pursuant to this section upon any plan of subdivision which does not comply in all respects with the requirements of paragraph (a) of section nine of this Act.(4)All lands defined in a plan of subdivision as being required for the construction of any existing canal shall by virtue of the registration by the Registrar of Titles of that plan be deemed to be transferred and surrendered to the Crown—(a)In the case of such a plan so registered prior to the date of the passing of this Act, on and from the date of the passing of this Act; and(b)In the case of such a plan so registered on or after the date of the passing of this Act, on and from the date when the plan is so registered:Provided that in the case of a plan mentioned in paragraph (a) of this subsection which does not comply in all respects with the requirements of paragraph (a) of section nine of this Act, the Registrar of Titles shall not register any dealing relating to any subdivision comprised in the plan (other than a transfer surrendering to the Crown) unless and until he is satisfied that a transfer surrendering to the Crown all land in that plan whereon any canal is or is to be constructed is registered in his office.(5)Sections three to nine, both inclusive, of this Act, do not apply to existing canals but, save those sections, all of the provisions of this Act apply to existing canals.”

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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