Wardanski v Mawby

Case [2023] QSC 136

SUPREME COURT OF QUEENSLAND

CITATION:  Wardanski & Anor v Mawby & Anor [2023] QSC 136
PARTIES:  Agnieszka Wardanski
(First Plaintiff)
Pawel Grzegorz Wardanski
(Second Plaintiff)
v
Karen Mary Mawby
(First Defendant)
Scott Cameron Marks
(Second Defendant)
FILE NO/S:  BS 4153 of 2020
DIVISION:  Trial Division
PROCEEDING:  Trial
ORIGINATING  Supreme Court at Brisbane
COURT: 
DELIVERED ON:  18 August 2023
DELIVERED AT:  Brisbane
HEARING DATE:  12, 13 and 14 June 2023
JUDGE:  Crowley J

ORDER: 

1. 

Pursuant to ss 185(1)(a) and 186 of the Property Law Act, the Defendants pay compensation to the Plaintiffs, comprising:

a. $16,087.50, being three times the unimproved

capital value of the subject land burdened by the Encroachment that is to be transferred to the Defendants (an area of approximately 8.25m[2]); and

[2] (2019) 2 QR 556 (‘HS South Brisbane’).

b. $5,000, for the resulting diminution in the value

of the Plaintiffs’ property.

2. Pursuant to s 185(1)(b) of the Property Law Act, within six months of these orders being made:

a. subject to all necessary consents from Logan

City Council being obtained, the Plaintiffs transfer to the Defendants the fee simple interest in the subject land burdened by the Encroachment (an area of approximately 8.25m2);

b. the parties take all required and necessary steps

to realign the boundary between the Plaintiffs’

property and the Defendants’ property, so as to

reflect the true boundary between the properties, having regard to the transfer of land referred to in order 2(a) above; and

c.

all costs and expenses incurred by the Plaintiffs and the Defendants in order to give effect to orders 2(a) and (b) above, including legal costs, be paid by the Defendants.

CATCHWORDS: 

REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – ENCROACHMENT OF BUILDINGS AND PARTY WALLS – POWER TO GRANT RELIEF – where the

plaintiffs and the defendants own adjourning residential

properties – where the fence separating the properties does not reflect the true boundary between the properties – where several structures on the defendants’ side of the fence partially

or fully encroach onto the plaintiffs’ property – where the

parties did not become aware of the encroachment and the misalignment of the fence until after they purchased and began

occupying the properties – where the plaintiffs seek orders for
the removal of the encroachment and the encroaching

structures – where the plaintiffs allege they need the subject land to build a garage – where the defendants seek orders for

the conveyance of the subject land from the plaintiffs to the
defendants – whether the Court should order the removal of
the encroachment under s 185(1)(c) of the Property Law Act
1974 (Qld) – whether, if the Court does not order removal of
the encroachment, the Court should order the transfer of the
land to the defendants under s 185(1)(c) – whether the Court
can take into account settlement offers in considering the
appropriate relief under s 185(1)(c)

Property Law Act 1974 (Qld), s 182, s 184, s 185, s 186, s…

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Wardanski v Mawby [2023] QSC 136
Case
[2023] QSC 136
Decision Date

CaseChat Overview and Summary

The case of Wardanski v Mawby involved a dispute over the encroachment of buildings and structures on the property of the Plaintiffs, Mrs Wardanski and Mr Wardanski, by their neighbours, the Defendants, Mr and Mrs Mawby. The matter was heard in the District Court of Queensland, where the key issue was the extent of the encroachment and the appropriate remedy. The Plaintiffs claimed that several structures, including a garage, a retaining wall, and a garden shed, encroached upon their property, and sought compensation for the encroachment and an order for the removal of the structures.

The court was required to determine the precise area of encroachment and the appropriate compensation payable by the Defendants to the Plaintiffs. The Plaintiffs relied on the evidence of a surveyor, Mr Riley, who calculated the total area of encroachment to be 9.25 square meters. The Defendants disputed this calculation, particularly in relation to the area of encroachment by the New Garden Shed, and contended that the total area of encroachment was less than 8 square meters. The court found that the total area of encroachment was likely to be about 8.25 square meters, but the exact area could not be determined without precise measurements of the dimensions of the New Garden Shed.

The court considered the conduct of both parties in the context of the dispute. It was noted that the Plaintiffs acted on advice from independent third parties and had been transparent in their dealings with the Defendants. In contrast, the Defendants were found to have delayed in providing a draft identification survey and did not obtain a finalised survey, as they did not want formal notice of the encroachment to be given to the Plaintiffs or lodged with the Department of Natural Resources and Mines. The court concluded that while both parties had acted reasonably in some respects, the Defendants' conduct had been less than transparent and not focused on resolving the issue in a timely and cost-effective manner.

The court ordered that the Defendants pay compensation to the Plaintiffs for the encroachment, with the exact amount to be determined based on the findings regarding the area of encroachment. Additionally, the court ordered the removal of the structures found to be encroaching on the Plaintiffs' property.

Orders

Orders of the court

1.

Pursuant to ss 185(1)(a) and 186 of the Property Law Act, the Defendants pay compensation to the Plaintiffs, comprising:

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Defendants contend that Mr Riley’s calculation is wrong, and that the actual area of the Encroachment is less than 9.25m2. Before trial, the Defendants’ position was that the total area of Encroachment was not more than 8m2. Evidence In 2019, Mr Riley’s firm, P.J. Riley Surveyors (‘PJ Riley’), performed an identification survey (the ‘Identification Survey’) for the Plaintiffs to determine the true boundary and the extent of the Encroachment. For the purpose of this proceeding, Mr Riley was asked by the Plaintiffs’ solicitors to prepare a plan identifying the Encroaching Structures and to calculate the total area of the Encroachment. Mr Riley calculated the total area of the Encroachment as 9.25m2, comprising three separate measurements. The largest area of encroachment was 7m2, covering the encroaching areas of the Defendants’ Garage, the Retaining Wall, the Concrete Wall and the Stormwater Structures. A further small area of 0.25m2 was calculated in respect of the ‘approximate footings’ of the Retaining Wall. The final area of encroachment was in respect of the New Garden Shed, calculated as 2m2. The encroaching areas of the Sleeper Retaining Wall (Low) and the Block Wall do not appear to have been included. The Defendants accept the accuracy of the first two measurements but dispute the calculation in respect of the New Garden Shed’s area of encroachment. In cross-examination, Mr Riley agreed that the 2m2 figure in respect of the New Garden Shed encroachment was in fact a calculation of the entire area of the yellow highlighted triangle section at the top of the plan. He agreed that the area he measured extended from the identified southern edge of the New Garden Shed, indicated by a line marking designated ‘shed’, all the way to the northern boundary line shown at the top of the plan. He further agreed that he had not identified the northern edge of the shed when making his calculation and therefore what he had measured was the area of the entire triangle rather than the footprint of the shed within that section. In cross-examination, Mr Riley was shown a satellite photograph of the adjoining properties, which depicted the New Garden Shed in the top right-hand corner. By reference to that photograph, Mr Riley agreed that the New Garden Shed did not extend all the way to the boundary line. He further agreed that the length of the New Garden Shed would not be more than 3m. As he had identified the extent of the New Garden Shed’s encroachment onto the Plaintiffs’ land as 0.35m, he agreed that the total area of the Garden Shed’s encroachment could be calculated as 3m x 0.35m, or approximately 1m2. In re-examination, Mr Riley stated that in order to conduct the calculation of the New Garden Shed’s area of encroachment, he would need a precise measurement of the length of the shed. Consideration Given the evidence of Mr Riley, I find that the total area of the Encroachment is less than 9.25m2, and likely to be about 8.25m2. However, the exact area cannot presently be determined. Precise measurements of the dimensions of the New Garden Shed would be required to calculate the exact area of the New Garden Shed’s encroachment and thus the total area of the Encroachment. For present purposes, however, I will proceed on the basis of Mr Riley’s evidence that the best estimate of the total area of the Encroachment is 8.25m2. Conduct of the parties

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In re-examination, Mr Riley stated that in order to conduct the calculation of the New Garden Shed’s area of encroachment, he would need a precise measurement of the length of the shed. Consideration Given the evidence of Mr Riley, I find that the total area of the Encroachment is less than 9.25m2, and likely to be about 8.25m2. However, the exact area cannot presently be determined. Precise measurements of the dimensions of the New Garden Shed would be required to calculate the exact area of the New Garden Shed’s encroachment and thus the total area of the Encroachment. For present purposes, however, I will proceed on the basis of Mr Riley’s evidence that the best estimate of the total area of the Encroachment is 8.25m2. Conduct of the parties Much of the evidence adduced at trial focused upon this aspect of the case. The primary evidence was contained in an agreed tender bundle, which contained several affidavits sworn by each of the Plaintiffs and the Defendants and the reports of three experts. All deponents of affidavits and the expert witnesses were cross- Each party says that I would conclude from the whole of the evidence that they have acted reasonably and that the other party has acted unreasonably. Before descending into a detailed consideration of the evidence, I should record that as a general observation it was readily apparent to me that Mrs Wardanksi and Mr Marks were, and remain, the principal protagonists in this dispute. Mrs Wardanski is an accountant and employed by a firm in the role of Senior Business Services Accounts. Mr Marks is a civil engineer and employed by the Logan City Council as a Civil Engineering Designer. Although Mrs Wardanski discussed matters with her husband, it was she who made decisions and progressed the Plaintiffs’ position in dealing with the Defendants and others about the Encroachment. It is pertinent to note that English is not Mr Wardanski’s first language. It was evident to me that at times during his cross- For the Defendants, it was Mr Marks who chiefly handled all aspects of the Defendants’ renovations to their property and dealt with the Plaintiffs and others concerning the Encroachment. Whilst Ms Mawby had some involvement and input into matters, it was Mr Marks who was across the pertinent details and information and who made decisions for the Defendants. In order to sensibly assess the positions of the parties, it will be necessary to chronicle the relevant events and interactions between them, from the initial discovery of the Encroachment through until the commencement of the proceeding. However, it is helpful to first summarise the substance of the submissions of the parties. Submissions The Plaintiffs submit that after learning of the Encroachment, they acted honestly, transparently and on advice they received from independent, third parties. In contrast, the Plaintiffs submit that the conduct of the Defendants has been less than transparent, not proactive and not focused upon fixing the Encroachment in a timely and cost-effective way and with respect to the Plaintiffs’ property rights. In particular, the Plaintiffs submit that Mr Marks delayed providing a draft identification survey that he had obtained and that he did not obtain a finalised identification survey. The Plaintiffs contend this was because Mr Marks did not want formal notice of the Encroachment to be given to the Plaintiffs and did not want the survey lodged with the Department of Natural Resources and Mines, as those actions would have adverse consequences for the Defendants’ renovations.