Paridaen & Anor v Mahaside Pty Ltd [2022] QSC 109

David Pearce |  Sam Rafter  |  Yibing Mao

Key takeout

Courts have very wide discretion under the Property Law Act (PLA) to grant or refuse relief for encroachment onto land. Relevant factors courts will take into consideration are not limited to those set out in the PLA. The conduct of the parties, particularly conduct giving rise to the encroachment, can be relevant to the decision making process of the court in granting relief. 

Facts

The applicant, Mr Paridaen (Paridaen) owned land in Buderim. The respondent, Mahaside Pty Ltd (Mahaside), a property developer, owned land adjoining Paridaen’s property.

Mahaside sought approval to develop its land. The approval was obtained and included the condition that all retaining walls and structures be fully contained within Mahaside’s lot. Mahaside and Paridaen entered into a Construction Work Deed (deed) for the construction of a retaining wall between the adjoining lots. Part of the deed provided that the rock wall be constructed on the common boundary of Mahaside’s and Paridaen’s properties. When the retaining wall was constructed, it encroached on Paridaen’s land. In particular, the wall extended into an area in front of Paridaen’s property which was used as a turning circle for cars.

Paridaen applied to the court under section 184 of the PLA seeking orders that the encroachment be removed and the retaining wall to be reinstated entirely within Mahaside’s land. Section 184 of the PLA provides that an adjacent owner may apply to the court for relief in respect of any encroachment onto land. Section 185 of the PLA sets out the powers the court has to grant relief in the event an encroachment is established. According to Mahaside, the encroachment was minor and trifling and had no serious effect on Paridaen’s use and enjoyment of the land. Mahaside submitted that by entering into the deed, Paridaen consented to the wall being constructed partly on his land.

Decision

The powers of the court under section 185 of the PLA are very wide (including the ability to order the removal of the encroachment) and require consideration of a myriad of circumstances resulting in the encroachment. The relevant factors are not limited to those set out in s185(2). Other factors include whether the adjoining owner obtained a survey at an early stage, the conduct of the parties giving rise to the encroachment, and whether the encroaching owner was aware of the encroachment at the time it was constructed.

In this dispute, it was relevant that the approval indicated that the retaining wall will be contained within Mahaside’s property. It was also relevant that Paridaen obtained a survey before any construction and provided that to Mahaside.

As a matter of principle, the court stated that the deed should be construed objectively and by reference to what a reasonable person in the position of each of the parties would have understood it to mean. The court concluded that the following circumstances were known to both parties:

• Mahaside intended to construct a wall adjacent to the existing driveway within its property;
• Paridaen was concerned about the risk of encroachment and obtained a survey to ascertain the property boundaries prior to construction;
• the plans approved by Council contemplated the wall being constructed to the boundary of Mahaside’s property; and
• there was no negotiation or agreement for any compensation, easement or adjustment to the boundary of Paridaen’s land which would be reasonably expected if parties agreed to an encroachment.

The court found that Paridaen had not consented to the encroachment and that he could not have done more to protect his property interest. A reasonable person in the circumstances would interpret the deed meaning that a rock wall was to be constructed on Mahaside’s land, up to, but not beyond the common boundary. An order for the removal of the encroachment was made.