Wardanski v Mawby (No 2)

Case [2023] QSC 237

SUPREME COURT OF QUEENSLAND

CITATION:

Wardanski & Anor v Mawby & Anor (No 2) [2023] QSC 237

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 COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Crowley J

ORDER:

1.   The Defendants are to pay the Plaintiffs an amount of $5,225, together with interest on that amount in the sum of $852.16, for expenses incurred by the Plaintiffs in investigating the encroachment.

2.   Pursuant to r 687(2)(c) of the UCPR, the Plaintiffs are to pay the Defendants’ costs of the proceedings, fixed at $160,000.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – GENERALLY – where the plaintiffs brought a claim seeking relief under s 184 of the Property Law Act 1974 (Qld) in respect of an encroachment upon their land by several of the Defendants’ structures – where the Court declined to order the removal of the encroaching structures – where the Court instead ordered the defendants pay the plaintiffs compensation and take the necessary steps to transfer the land burdened by the encroachment to the defendants and to realign the property boundary – whether the defendants should be ordered to pay interest on the compensation ordered

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where each party submits the other should pay their costs – whether the plaintiffs were the successful party in the litigation – whether the defendants should pay the plaintiffs’ costs

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – RELEVANT CONSIDERATIONS GENERALLY – where the parties exchanged various offers and counter-offers prior to the trial – where each party seek for their costs to be paid, either wholly or in part, on the indemnity basis – whether r 360 displaces s 194 of the Property Law Act 1974 (Qld) – whether costs should be ordered to be paid on the indemnity basis

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – REGULATED COSTS: GROSS OR FIXED COSTS, LUMP SUM ORDERS OR CAPPING ORDERS AND LIKE MATTERS – POWER TO ORDER – where the defendants seek an order that their costs be fixed in the amount of $160,000 – whether a fixed costs order should be made

Civil Proceedings Act 2001 (Qld), s 15, s 58
Property Law Act 1974 (Qld), s 184, s 194

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 360, r 681, r 687

Australian Securities and Investments Commission v Atlantic 3-Financial (Aust) Pty Ltd (No 3) [2008] 2 Qd R 298; [2008] QSC 009, cited
Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd…

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Details
AGLC
Wardanski v Mawby (No 2) [2023] QSC 237
Case
[2023] QSC 237
Decision Date

CaseChat Overview and Summary

The Wardanski v Mawby case concerned a dispute over an encroachment on the plaintiffs' property by several structures owned by the defendants. The plaintiffs sought relief under section 184 of the Property Law Act 1974 (Qld) and, after a trial, the court ruled against ordering the removal of the structures. Instead, the court ordered the defendants to pay compensation and take steps to transfer the encroached land to them and realign the property boundary. The plaintiffs sought interest on the compensation awarded and the defendants' costs of the litigation. The defendants sought indemnity costs and argued for a fixed costs order, while the plaintiffs sought their costs on the standard basis.

The primary legal issues in this case were whether the defendants should be ordered to pay interest on the compensation awarded, whether the plaintiffs were the successful party in the litigation, and whether costs should be awarded on the indemnity basis. Additionally, the court had to consider whether rule 360 of the Uniform Civil Procedure Rules 1999 (Qld) displaced section 194 of the Property Law Act 1974 (Qld) in relation to indemnity costs, and whether a fixed costs order should be made.

The court held that the defendants should pay interest on the compensation ordered, in the sum of $852.16. It found that the plaintiffs were not the successful party in the litigation, and therefore, the defendants were not liable to pay the plaintiffs' costs. The court rejected the defendants' claim for indemnity costs, stating that the property law act did not allow for indemnity costs in the circumstances of this case. The court also dismissed the defendants' application for a fixed costs order, instead ordering the plaintiffs to pay the defendants' costs, fixed at $160,000.

The final orders of the court were that the defendants were to pay the plaintiffs $5,225, together with interest of $852.16 for expenses incurred by the plaintiffs in investigating the encroachment. The plaintiffs were to pay the defendants' costs of the proceedings, fixed at $160,000.

Orders

Orders of the court

1. The Defendants are to pay the Plaintiffs an amount of $5,225, together with interest on that amount in the sum of $852.16, for expenses incurred by the Plaintiffs in investigating the encroachment.

2. Pursuant to r 687(2)(c) of the UCPR, the Plaintiffs are to pay the Defendants’ costs of the proceedings, fixed at $160,000.

Background

Background to the litigation

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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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