Wardanski v Mawby

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.