DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff and the defendants are neighbours in a particular street where the land slopes downhill from the plaintiff’s land to the defendants’ land, and to some extent downhill from the back of the plaintiff’s land to the street frontage.

History of the proceeding

2. [2]
   On 8 December 2011 the plaintiff filed a claim and statement of claim in this court seeking a declaration that, as a result of the defendants’ demolition of a boulder wall between their properties, the defendants had withdrawn the natural support of the plaintiff’s land by that wall, part of the plaintiff’s land had subsided, and there was the prospect of further adverse consequences to the plaintiff’s property, a mandatory injunction requiring the defendants to undertake certain rectification work, damages for breach of the Property Law Act 1974 s 179, or in the alternative damages for nuisance.  With the claim was filed an application seeking an interlocutory, mandatory injunction requiring certain steps to be taken by the defendants.  That application came before me on 9 December 2011;^[1] I made an order restraining certain conduct, and adjourned the application to 14 December 2011, when I made an order requiring the defendants to undertake certain work, and certain investigations, and obtain certain engineering certification.^[2]  That order was made after discussion between the defendants’ engineer and the plaintiff’s engineer.

3. [3]
   A further application was filed by the plaintiff on 29 August 2012; that came before a different Judge on 3 September 2012, who stayed the orders that I made on 14 December 2011, gave leave to amend the claim and statement of claim, restrained the defendant from undertaking any construction works in respect of the retaining wall or within 2.5 metres of the property boundary, gave directions for pleadings and listed the matter for trial before me on 4 October 2012. There was also a direction to file and serve affidavits of evidence-in-chief, and some other matters to which I need not refer. The parties participated in a mediation but the matter was not resolved.^[3]  The parties came before me again on 2 October 2012 in relation to some interlocutory matters, but I said that the trial would proceed the following day. 

4. [4]
   On that day counsel for the plaintiff sought an adjournment with a view to exploring the prospect of the works along the boundary having been undertaken illegally: p 3.  In addition, the plaintiff wanted the opportunity to investigate further the question of the extent to which the plaintiff’s land had been filled inside the boundary above its natural state:  p 6.  After some discussion of the position, I decided that the most efficient course was to press on so as to hear such evidence as was then available, and then adjourn to enable the plaintiff to consider what additional evidence he wanted to lead from expert witnesses. 

5. [5]
   After a further adjournment and dealing with a question of admissibility of evidence, I took evidence from the plaintiff, his wife, the former owner of the plaintiff’s property and the first defendant. The trial was then adjourned to enable the plaintiff to investigate the question of what additional expert evidence was to be called, and whether any relevant authority was proposing to require the demolition of the wall which had already been constructed, so that any relief which I ultimately was to award could be formulated realistically. It then seemed to take a long time before the parties were ready to proceed, but eventually, after a couple of interlocutory hearings, the trial was resumed on 28 March 2013, when a number of expert witnesses were cross-examined. There was then some discussion, it appeared that there was some possibility that the parties might reach some agreement, and I allowed them a period within which to attempt to resolve the matter by agreement, but gave directions for the exchange of submissions in writing if it was not resolved. The submissions in writing were subsequently received, the last on 24 May 2013.

Background

6. [6]
   The house now owned by the plaintiff was built first, by Mr and Mrs Cutlack who purchased the land as vacant land in July 1975.^[4]  There are in evidence a number of photographs taken between 1976 and 1979 showing the house on the land, mostly taken from the road frontage or further away; these show that the house to some extent followed the slope of the land, with the garage which was on the downhill side closer to what became the defendants’ land having a lower floor level than that part of the house which was built to its left; there was also a second storey above the garage.^[5]  At some point after construction a low brick retaining wall was constructed between the edge of the garage and the footpath, and some fill was placed behind this to build up above the car tracks an area of lawn which still sloped but not as steeply.  The natural slope of the land seems to run further downhill onto what became the defendants’ land.

7. [7]
   At a later stage the then owner of the defendants’ land constructed a house on that land.^[6]  Some photographs of the house or yard were exhibited to an affidavit by that owner, showing a boulder wall which was constructed he said wholly on his land near the boundary with the neighbouring land by placing boulders on the ground up the slope.  He said that he did not cut away or fill any ground to do this,^[7] though I find this difficult to accept because the photographs appear to show an area of lawn in front of that part of the house which became the defendants’ property closer to the common boundary which is essentially flat, and it is apparent from the photographs exhibited to the affidavit of the former owners of the plaintiff’s property that prior to the house construction there was some distinct slope on this land.  It looks to me very much as though there was some cutting into the previous slope of the land for the purpose of constructing what became the defendants’ house, and to allow a relatively flat area of lawn in front of it.  The evidence of the former owner of the plaintiff’s house also suggests that the other land was dug out, which created the need for the wall.^[8]

8. [8]
   The affidavit of the former owner of the defendants’ house refers to there having been previously a steep ramp between the two houses so that it was necessary to stabilise the ground which was being easily eroded by rain.^[9]  That is not visible in the photographs of the land taken before what became the defendants’ house was constructed,^[10] and that also suggests there was some excavation on what became the defendants’ land.  The boulder wall was said to be about 1 metre high.  It is difficult to tell, but my impression is that the boulder wall shown in the photographs exhibited to his affidavit is somewhat higher than that.  They show that at some stage there was a metal frame chain link fence running along the top of the wall up to the line of the front of the two houses, apparently more or less on the boundary, and a wooden paling fence in two sections linking the front corners of the two houses.^[11] 

9. [9]
   Mr Cutlack gave evidence by telephone, and said that the carport now beside the plaintiff’s house was apparently the one he built on the property in about 2000, and the driveway seemed to be as he had left it:  p 58-9.  The boulder wall was built by the then owner of the adjoining property, and they did not really have anything to do with it.  He agreed that from the building of their house there was some cut and fill so there would have been a small amount of fill on that boundary, and they may have levelled the ground to some extent when the fence was erected:  p 58-9.  When they built on the property they required particularly long concrete piers in the foundations because there was a large amount of fill on the site anyway:  p 60. 

10. [10]
    The plaintiff purchased the house by a contract in writing dated 20 November 2006: Exhibit 1. There was a special condition that he acknowledged that the rear deck, carport and downstairs toilet did not have appropriate Council approvals. Settlement was due on 18 December 2006, and I was told that it occurred then and that a memorandum of transfer was registered on 3 January 2007: p 59.  Prior to purchasing the property, the plaintiff had it inspected on 23 November 2006.^[12]  The plaintiff and his wife have since lived in his house.  There is no evidence from the defendants as to when they moved in.  There appears to have been little interaction between the parties prior to this incident. 

The first defendant’s works

11. [11]
    In 2011 or earlier the first defendant began to undertake fairly extensive renovations to their property. The plaintiff said that he was unaware of anything being done in relation to the boundary fence until 6 October 2010, when his son told him something and the first defendant then asked him to have a look at something as he had a water problem on his land.^[13]  At that stage the boulder wall had been removed, and the defendants’ property excavated, from the front street boundary for some distance back.  The plaintiff said the defendant told him that there was apparently water leaking on his property, that he had problems with rising damp in his house and he needed to replace the retaining wall because there was no proper drainage from the existing wall.^[14]  The plaintiff could not see any water.  He asked the defendant to stop digging until the matter had been investigated.

12. [12]
    The next day there was further excavation, and when he went onto the property at the invitation of the first defendant he saw that the concrete footings of the fencepost nearest the carport had been exposed.^[15]  He said that the first defendant told him that his land was completely unstable, and he again asked the first defendant to stop the excavations until the matter had been resolved.  Again there was a pause in undertaking excavation work but it resumed the following Monday, and continued to a length of about 30 metres from the street.  When the plaintiff saw it again he saw what he identified as some subsidence of the soil across where he thought the boundary line was.  He complained to the first defendant and he said that the first defendant’s response was that he had to rebuild the wall, and the subsidence was the plaintiff’s fault because the plaintiff had a water problem. 

13. [13]
    The plaintiff contacted the Brisbane City Council on 10 October 2011 and sought an urgent inspection.^[16]  The following day he took some photographs of the situation, and then, after he saw a section of concrete which had been placed close to the boundary collapsed into the excavation, he took some further photographs.  There was a further conversation in which he asked the first defendant to stop work and complained about the damage to his property, which developed into a fairly hostile altercation, with his being chased off the property by someone who was working there for the first defendant.  The plaintiff prepared and hand delivered a notice calling on the first defendant to cease construction works, secure his land and restore any damage caused.^[17] 

14. [14]
    On 11 and 13 October officers of the Brisbane City Council attended the property, and on the latter day the plaintiff said that he saw the first defendant putting props under the carport slab.^[18] It appears that in fact the City Council inspectors allowed the first defendant to proceed with the work to the extent of pouring the footings for the wall before they issued a stop work notice.^[19]  The following day the area was inspected by an engineer retained by the plaintiff.^[20]  The plaintiff said that on 14 October there was a further conversation in connection with which he was provided with an A4 copy of the engineering drawing for the wall, and that subsequently the second defendant emailed the drawings to him.^[21] 

15. [15]
    It appears that there was no further work done on the wall until after 1 November 2011, when the plaintiff was told that approval had been given for the construction of a new retaining wall.^[22]  The plaintiff said that that wall was constructed by the first defendant with the assistance of a labourer between 9 and 11 November,^[23] and that it was constructed to a height above his land.  He said that the first defendant told him that the wall was exactly on his land, and drainage was a matter for the plaintiff.  There was a further conversation with the Council, and a further inspection from Council officers on 14 November.  The Council arranged for a meeting of the parties on 24 November 2011, but nothing was actually agreed on that occasion.  At this time he was very concerned about the risk of subsidence, even to the structure of the house.  At one point he saw the first defendant dumping concrete rubble and other debris into the area behind the wall, and when he complained about that received an uncooperative response.  It was after this that the proceedings were commenced. 

Alleged agreement

16. [16]
    The first defendant said that on 9 October 2011 before building the wall he spoke to the plaintiff and his wife and said that he would like to build a new retaining wall at his cost.^[24]  He said the plaintiff’s response was to waive his hand in the direction of his wife and walk away, and that he and the plaintiff’s wife then went out to the backyard.  There was a discussion about cutting down a tree, the wife said that she would have to talk to her husband, and the first defendant then said to her that his engineer had told him that the wall should be half on his property and half on the plaintiff’s.  He alleges that the plaintiff’s wife replied, “I can’t see a problem with that.  That sounds fine.  Do what you have to do.”  The two of them went into the house and the plaintiff expressly agreed to the removal of the tree. 

17. [17]
    The first defendant said he gave the plaintiff a copy of the engineers’ drawings for the retaining wall, Exhibit MWI2, which shows the design of the wall and provision for an agricultural pipe at the bottom of gravel behind the wall, and a spoon drain or impervious layer where the ground slopes toward the top.^[25]  That diagram so far as I can see made no reference to the location of the boundary.  The first defendant said that the plaintiff asked for a full copy of the plan and that he emailed a copy to the plaintiff’s wife on 14 October 2011:  Exhibit MWI3.  He said he made a contemporaneous note of the conversation in his diary:  Exhibit MWI1. 

18. [18]
    Both the plaintiff and his wife denied that any such conversation took place. According to the plaintiff, the first defendant began to undertake excavation work on 6 October 2011, and removed a large part of the boulder wall that day.^[26]  There was subsequently some discussion about the work that the first defendant was doing, during which the plaintiff expressed concern about it.  He said that on 9 October, which in fact was a Sunday, there was a garage sale at his place in the morning, but that after the sale they noticed that there had been apparently some subsidence into the excavation.  In the afternoon the first defendant asked to cut down two gumtrees in the backyard because the roots were causing problems with the retaining walls; the plaintiff told his wife to tell him that they would think about it and get back to him.^[27]  On the following day he said he spoke to the first defendant when he came over to ask about cutting down the trees and agreed to it provided the work was not done before Thursday.^[28]  The plaintiff’s wife also gave evidence in similar terms about the conversation on 9 October about the trees, and denied there was any conversation about locating a new retaining wall on the boundary.^[29]  When cross-examined, both the plaintiff (p 26) and Mrs Greene (p 24, 25) denied the first defendant’s version. 

The defendants’ plans

19. [19]
    It appears that the plans prepared for the first defendant initially included possible provision for a carport to be constructed in what had previously been the front lawn of the defendants’ property, incorporating a retaining wall to be built inside the boundary, with vehicles entering the carport from the existing driveway.^[30]  It is obvious that the closer the retaining wall is constructed to the property boundary, and the closer the carport is constructed to the retaining wall, the more room there will be for the carport in the front yard and the more space there will be between the carport and the corner of the entry to the defendants’ house, which to some extent overlaps what would be the front of the carport.  The architects’ plans which were ultimately approved^[31] show the back of the carport essentially abutting the common boundary, and a 7 metre wide carport which appears to overlap the entry area by a distance of about 1.6 metres. 

20. [20]
    The first defendant said that he received the engineers’ drawing for the wall by email on 6 October 2011.^[32]  The drawing that he said he received was the one that said nothing about the location of the boundary.  He said he did not know that the wall had to be approved by the Council.  I find that very hard to believe.  He maintained that he was only told this on 11 October 2011, when Council officers came to the property in response to the plaintiff’s concern about the subsidence.^[33] 

21. [21]
    The conversation that he says he had on 9 October referred to a statement from his engineer, but there was no evidence in his affidavit of having been told that by the engineer, and on the face of it all that had occurred was a conversation with his architect and his being sent the engineering drawing. He gave oral evidence that he was told this, if the plaintiff had filled and his block had been cut: p 13.  The defendants filed an affidavit by Mr Mackay, a civil engineer, who was principal of the company which provided engineering services for this work.^[34]  There was no reference in that affidavit to the first defendant’s having been told anything that would match his description of what he said he was told by Mr Mackay.  Mr Mackay did not give oral evidence, and there was neither affidavit nor oral evidence from the architect. 

22. [22]
    Mr Mackay said that on 5 October he received from the architect an email enclosing drawings for the front carport and requesting information in regard to a retaining wall.^[35]  One drawing shows the existing boulder retaining wall and the carport to be constructed in what was the front lawn, with a note at the back of the carport for a concrete block retaining wall approximately 1.2 to 1.5 metres high,^[36] which as I read the plan appears to be constructed in front of the existing boulder retaining wall.  The concrete block retaining wall appears to run only along the back of the carport.  The covering email refers to a “relaxation for encroachment into front boundary”, and the inquiry was in relation to the width of the footings for a retaining wall up to 1.5 metres high. 

23. [23]
    The engineer said that he issued a compliance certificate for these drawings on 31 October 2011, which included a design for the retaining wall section which was obtained from a drawing which had been prepared for an earlier proposal.^[37]  The plans and drawings attached to that certificate made no reference to the location of the boundary, and show a retaining wall only at the back of the proposed carport.

24. [24]
    The Brisbane Certification Group issued building approval documentation on 26 October 2011.^[38]  These contained conditions which required that the initial set-out be certified by a surveyor, to ensure the work was in accordance with the approved building plans, and that the boundaries be identified by a surveyor prior to commencement of the work:  specific conditions 2, 6.  The approved plan gave approval by reference to the architect’s plans which seem to show the boulder retaining wall remaining in place, with a section of concrete block retaining wall being constructed in front of it only at the back of the carport:  Exhibit 11.^[39]

25. [25]
    Standard condition 29 said: “Retaining walls – if applicable, all components of the retaining walls including blockwork, boulders, sleepers, drainage pipes and granular backfill, etc., are to be wholly located within the subject property and not encroach onto the neighbouring property.” This was reinforced by the certifier’s having drawn on the detail drawing for the retaining wall a red line identified as “boundary line – no building or associated works to encroachment (sic) into the adjoining allotment”. The line runs well back from the wall, so that not only the wall itself but the agricultural pipe near the base on the low side of the wall, the gravel infill, and the spoon drain or impervious layer at the surface all lie on the defendants’ side of the boundary.^[40] 

26. [26]
    The certifier confirmed that this requirement is a standard condition for anything like this: p 25.  He also confirmed that the plans gave approval only for the construction of that part of the retaining wall which lay behind the then proposed carport, though the plans did not approve the construction of the carport:  p 21, p 25 where it was pointed out that the carport has been subsequently approved.  It has not as yet been built.^[41]  Of course by the time the certified plan was received the footings for the wall had already been constructed.  The first defendant obtained from a licensed surveyor the identification of the boundary, while the wall was under construction^[42], but the surveyor did not check the set-out of the works before the work was undertaken as required by the standard conditions. 

Expert evidence

27. [27]
    The plaintiff retained a civil engineer specialising in structural design, Mr Pandit, who attended the site on 14 October, 7 November and 29 November 2011.^[43]  Mr Pandit was of the opinion as a result of his inspections that the ground supporting the carport and the paved area to the rear of it had collapsed due to inadequate precautionary measures during the earthworks by the persons responsible for the earthworks and constructions of the new wall.  As a result the paved area behind the carport had subsided substantially, and at the time of the last inspection was in danger of collapsing further due to lack of adequate structural shoring of the supporting earth.  In an affidavit sworn 8 December 2011 Mr Pandit expressed the view that there was an imminent danger of further land subsidence particularly under the carport slab unless further steps were taken, and that the collapse of the carport slab would pull down the roof over the carport which, since it was attached to the wall of the house, could damage the wall which might render that side of the residence unstable.  He also noted that the existing timber boundary fence had been damaged.

28. [28]
    Mr Pandit said he had on 14 October 2011 a conversation with an engineer retained by the defendants about what works ought to be undertaken, but said that as at 29 November 2011 those works had not been undertaken.^[44]  Part of the solution recommended by Mr Pandit was the grouting of the void under the carport slab and paved area with no fines quick setting concrete with plasticises in accordance with engineering specifications.  In a further affidavit filed 14 December 2011 he provided further justification for the necessity for that work, which was ultimately undertaken at the expense of the defendants. 

29. [29]
    Mr Pandit was of the opinion that the excavation works had not been done properly because the earthworks should have been continuously shored and the carport slab adequately supported neither of which had occurred at the time of this first inspection. He also noted that no safety precautions had been taken to prevent a danger to residents or visitors from the excavated area and unstable areas nearby.

30. [30]
    Mr Pandit said that on 7 November 2011 when he visited the site to conduct a level survey he noted that the defendants had built a new retaining wall which was constructed a considerable height above the level of the plaintiff’s land.^[45]  As a result, without a spoon drain and due to the height of the new wall there was no capacity for surface water to flow and it was likely that any reasonable rain fall would cause water to pond on the plaintiff’s property along almost the entire 30 metre length of the wall.  He inspected the site again on 23 February 2012 and prepared a report dated 2 March 2012.^[46]  The effect of that report was that in a number of respects steps required in an order I made on 14 December 2011 had not been carried out. 

31. [31]
    Mr Pandit also suggested that the presence of the no fines concrete grouting which is in an area over 1 metre wide back from the wall will interfere with the capacity of the owners for the time being of the plaintiff’s land to use that area other than for the existing carport.^[47]  That is true, but in view of the evidence that the carport adds significant value to that property^[48], I do not regard this as a significant consideration.

32. [32]
    On 12 December 2011 a geotechnical engineer, Mr Buttling, who had been engaged by the defendants inspected the site.^[49]  He was informed of the recommendations made by Mr Pandit which he considered inappropriate, and negotiated alternative remedial works which were said to form the basis of the court orders made on 14 December 2011, though there were said by him to have been some additions made by the plaintiff’s lawyer.  He visited the site briefly again for particular purposes on 23 December 2011 and 8 September 2012.  Mr Buttling saw the photographs which are exhibited to the affidavits of Mr Cutlack and Mr Norbido and emphasised what he said was the presence of fill on what is now the plaintiff’s land near the common boundary.  In particular he referred to Exhibit 6 to Mr Cutlack’s affidavit as suggesting that boulders were placed to the benefit of both neighbours such that there was lack of concern about the exact line; some of the boulders were placed on the plaintiff’s side of the string line, extra boulders were used to raise the height of the wall, and fill was then placed behind the extra boulders to raise the level of the land on the plaintiff’s side of the boundary.  I do not consider that the interpretation of this photograph involves geotechnical expertise, and I consider that these conclusions are not obvious from the photograph, though it may be said that what appears in the photograph would not be obviously inconsistent with them.  I do not accept this evidence. 

33. [33]
    Mr Buttling referred to some photographs which are in appendix D of his report. One of these, referred to him as plate 3 and said to have been taken on 24 September 2011, was said to show the irregular surface of the boulder retaining wall, that the fence line is situated within the width of the wall, and evidence of dampness and seepage through the wall. The wall has an irregular surface, and it is apparent that the fence has been constructed above some of the boulders at the top of the wall, from the irregular base of the fence which appears to follow the tops of the boulders. I can see no evidence of dampness or seepage through the wall, and do not accept that that is apparent in that photograph. He appears to be just repeating what he was told by the first defendant.

34. [34]
    The following three photos, plates 4, 5 and 6, were said to be taken by a Brisbane City Council inspector on 11 October 2011, and are said to show two large voids where tree stumps were found, one of which was said by the first defendant to have been surrounded by a lot of water. This was put forward as suggesting that there had not been subsidence or collapse as a result of the conduct of the excavation work. It is however apparent from the photographs taken by the plaintiff on 11 October 2011, before and after some further collapse and subsidence which occurred that day, that that later collapse had nothing to do with the exposure and removal of a tree stump. There was also no indication in the plaintiff’s photographs that any part of the soil there was wet. The photographs taken by the City Council inspectors, apparently later that day, do not show the soil clearly and I do not consider it to be possible by examination of them to determine whether or not the soil was wet.

35. [35]
    Mr Buttling expressed the view from the photographs that the fill cut at a steep angle by the defendants’ excavations remained basically stable from 11 October to about 15 December with only minor slippage during times of rainfall: report p 13.  That does not seem to me to be consistent with the evidence before me, particularly the evidence of the plaintiff.  Mr Buttling went on to say that there was evidence that the height of the boulder retaining wall was increased both by the addition of boulders and by concrete edge works to the carport slab and paved area increasing the filling of the plaintiff’s land.  It is certainly apparent that the construction of concrete edge works exposed by the defendants’ excavations and visible in photographs was on top of the boulders and therefore had the effect of raising the level of the plaintiff’s land, but there is no evidence before me that the height of the boulder retaining wall was increased after it was constructed. 

36. [36]
    Mr Buttling commented on the groundwater situation, but only on the basis of what had been told to him, presumably by the first defendant. He had however previously noted that in November 2010 a soil investigation was carried out on the defendants’ land which was said to have shown that that land was filled by about 4 metres, with a clayey gravel with silt and organics, described as moist and uncontrolled, that is to say not placed in layers and specifically compacted. It was suggested by Mr Buttling that this occurred as a result of earthworks being carried out over a large area to create the subdivision, and I suspect that that was the situation. This was in an area where land had in the past been worked as a clay pit, and in these circumstances it is unsurprising that the groundwater situation was described as complex. Mr Buttling was of the opinion that the wall as constructed provided all necessary structural support to the soil of the plaintiff’s property, a proposition which is now uncontentious.

37. [37]
    Mr Buttling also commented on the reports of Mr Pandit. He expressed the view that as at 6 December 2011 there had been no collapse of the soil and there was no risk of the slab or footings collapsing and hence no risk of the carport roof collapsing. He further expressed the opinion that it was inconceivable that any collapse of the carport roof would result in the wall of the plaintiff’s house being pulled down. This seems to me to be plainly outside the area of expertise of a geotechnical engineer, and to be a gratuitous comment on the part of Mr Buttling, which I consider is relevant to the weight to be attributed to his other evidence.

38. [38]
    Mr Buttling went on to criticise the idea of using no fines concrete under the carport slab in order to support it (p 9), but the defendants’ engineer Mr Mackay in his affidavit filed 26 September 2012 confirmed that when he inspected the carport slab on 12 December 2011 there was a significant void under the carport on the plaintiff’s property^[50], and he did not in his affidavit criticise the use of no fines concrete grouting for the purpose of filling this.  Mr Mackay expressed the view that the concrete slab had not at that time settled and he subsequently inspected the back fill and the grouting under the carport slab, and then issued a Form 16 certificate that he had inspected this work and that it complied with certain specified Australian standards.^[51]  It appears therefore that there was no discussion with Mr Mackay on 14 October, and indeed Mr Pandit does not claim to have had one with Mr Mackay.  In his affidavit filed 26 February 2013, Mr Pandit identified that the other party of the conversation, which occurred by telephone, as Mr Kitcher:  para 9.  There was no evidence from Mr Kitcher to contradict the version of the conversation in paragraph 10 of Mr Pandit’s affidavit. 

39. [39]
    Mr Buttling also went on to criticise in some detail the opinions expressed by Mr Pandit in paragraph 10 of his affidavit of 8 December 2011.  Apart from the fact that it is not obvious that these opinions are within the area of expertise of a geotechnical engineer, I think it is significant that none of them appear to be supported by the civil engineer Mr Mackay in his affidavit filed 26 September 2012.  There was some further criticism by Mr Buttling in his report of things said by Mr Pandit, and Mr Pandit replied in the latter part of his affidavit filed 26 February 2013.  Without going into these in great detail, for the reasons that I have given I was not particularly impressed with the evidence of Mr Buttling, who appeared to be partisan in favour of the defendants, and where there is a difference between him and Mr Pandit I prefer the evidence of Mr Pandit. 

40. [40]
    In oral evidence Mr Pandit said that there were no concrete footings in place at the time of his inspection on 14 October: p 62.  This was a mistake on his part; it is clear enough that the concrete for the footings was poured on 13 October 2011, and it was after this had occurred that the Brisbane City Council ordered that work cease until the necessary approval had been obtained.^[52]  I do not think this is in itself of great significance, because Mr Pandit said himself that his focus then was on the structural integrity of the carport and that area. 

41. [41]
    I have referred elsewhere to the evidence of Mr Mackay, which to some extent dealt with the history of his involvement in the construction of the wall. He expressed the view that when he inspected the area on 12 December 2011 the carport slab had not itself sunk at all, and that a join in the driveway from the carport to the main driveway had a gap which was attributable to something which had occurred a considerable time previously.^[53]  He confirmed that the debris which had been sitting on top of the existing drainage layer had been removed before the dry mix concrete and the grout were installed, and that he issued a certification for those works on 23 December.  He said that the design of the wall referred to a spoon drain or impermeable layer with a view to controlling overland water flow and to prevent surface water flooding the drainage gravel: para 23. 

42. [42]
    Evidence was given by a surveyor from Landmark Consulting, the firm that had originally been retained by the defendant, who verified a diagram which identified the location of the boundary and the retaining wall the defendant had built: Exhibit 10. He said that he was initially retained in about October and his firm placed survey marks on the boundary line and prepared a plan of identification survey: p 13.^[54]  He did not attend the site personally on the first occasion, but his understanding was that the wall was partly constructed at that stage:  p 14.  The first visit was simply to reinstate the pegs and mark the location of the boundary:  p 17.  A diagram was prepared, but not the diagram showing the wall which became Exhibit 10.   The survey plan locating the face of the wall was not prepared until January 2012:  p 15.  It shows the face of wall that encroaches over the property boundary.

43. [43]
    The defendants had another firm of surveyors undertake a check survey in November 2012, which agreed with the outcome of the survey made by Landmark Consulting.^[55]  The diagram in this report shows essentially the same thing as the other diagram Exhibit 10, that the face of the retaining wall on the plaintiff’s side starts at the street end .02 of a metre over the common boundary, and extends further over the common boundary so that at the other end of the wall it is .17 of a metre over it.  The remains of the previous boulder wall continue between there and the rear boundary, and the diagram shows that the top of the bank is generally on the defendants’ side of the common boundary, though this wall swings back across the boundary to a small extent near the rear boundary: p 64.  The fence line seems to run along that boundary for most of its length, though at the rear boundary it is .11 of a metre inside the boundary, that is on the defendants’ side:  p 64. 

Fill on the plaintiff’s land

44. [44]
    One of the matters that was raised on behalf of the defendants was the question of the extent to which the land along the boundary line between the two properties consisted of fill which had been added to the natural surface of the land by the plaintiff or the plaintiff’s predecessor in title. Talking about the natural surface of the land in relation to this land is quite artificial, in circumstances where I accept that both the plaintiff’s land and the defendants’ land have been heavily filled in the past before the time when the subdivision was created as a subdivision. The defendants’ case was that there was about 450 millimetres of fill shown in the top of the cut into the land, as appeared from the photographs^[56], because of the change in appearance between the fill above and the fill below aligned about that height.  But as Mr Pandit pointed out^[57] there is a similar division within the fill running along the cut which was made by the defendant’s excavation between his land and the street frontage, which appears to follow the surface of the land down the footpath.^[58]  Accordingly this distinction, if it means anything at all, is simply a reflection of an aspect of the original process in which fill was placed over this general area. 

45. [45]
    What is apparent in the photograph Exhibit DGC6 to the affidavit of Mr Cutlack is that after the boulder wall between the properties was initially constructed it was built to perhaps a foot or a bit less above the then surface of the land, some fill was put behind the tops of the boulders and turf laid, as is visible at the back of the photograph, on top of this fill so as to create a strip of lawn which was still sloping, but not as steeply. On the whole of the evidence I conclude that it is probable that what happened subsequently was that the concrete edge strip the side of which is clearly visible in the photographs of the excavation was placed inside much of the plaintiff’s side of the boundary, effectively as an extension of the edge strip of the carport slab. That slab was between .25 and .255 of a metre on the plaintiff’s side of the common boundary.^[59]

46. [46]
    As I have indicated I do not accept Mr Norbido’s affidavit evidence that the boulder wall that he built was about 1 metre high. I think it was significantly higher than this, and I do not think that there is any evidence, let alone any convincing evidence, that the boulder wall has ever been extended upwards after it was initially constructed. The wall in Exhibit EN1 looks very like the wall in Exhibit EN2, though there has obviously been substantial time between the two photographs.^[60]  The large black rock high beside the edge of the house in Exhibit EN1 is also visible in the recent photo of the wall,^[61] at both times being at the top of the wall.  The proposition that the wall was constructed entirely on Mr Norbido’s land but close to the boundary is also I think doubtful^[62], and the proposition that he did not cut away any of the ground in his land in order to do this is clearly wrong, unless it is to be interpreted as meaning that he did not cut any ground further than it had already been cut for the purpose of creating the house platform. 

47. [47]
    Under cross-examination the surveyor from Landmark Consulting also said that initially he had thought the amount of fill on the plaintiff’s land was limited to approximately 150 millimetres, but he subsequently had reference to something referred to as a “digital terrain model of the land” and revised that estimate to 450 millimetres.^[63]  This was said to be the amount of fill underneath the carport.  There was no report or affidavit from this witness, and he was not asked any further questions about this matter, so I have no idea about the reliability of the “digital terrain model”, or even what it is, nor do I have any evidence as to how that figure is calculated, and whether it includes the thickness of the slab of the carport.  Leading evidence of an opinion like that, without any evidence of the expertise by which the opinion was arrived at, or even exactly what it means, and on what facts it was based, so that I have really no basis upon which I can consider the reliability of the opinion, is quite unsatisfactory.  This evidence was not objected to by the plaintiff, who was at that time appearing in person, though I doubt whether it was technically properly admissible as expert evidence.^[64] 

48. [48]
    For what it is worth however my own assessment of what appears in the photographs is that it is possible that as at 5 October 2011 the floor of the carport was 450 millimetres above the point at which the boundary nearby would have been located on the surface of the land after it had been prepared and sold for subdivision, although it could well have been less. The defendant’s civil engineer Mr Mackay said that there was some fill evident on the face of the excavated material, but did not give any evidence as to the depth of this fill.^[65]  By the time of his inspect of course the retaining wall had been constructed, so he would have had difficulty in getting a clear view at that time of the face of the cut.

49. [49]
    It was submitted for the defendants that there was no obligation on them to support the plaintiff’s land above the height of 1 metre, which reflected the land and its natural surface, so that there was no obligation to provide support for the carport or for the paved area behind the carport because that had been laid on the fill. It was submitted that it had not been shown that any damage had been suffered by the actual “natural” ground of the plaintiff, and in those circumstances no cause of action had arisen under s 179 of the Property Law Act.  It was submitted that until there was actual damage there was no cause of action under that section.  It is no doubt true that until there is actual damage there is no cause of action for damages under that section.^[66]  Nevertheless, a party who reasonably anticipates that the obligations created by that section are going to be breached is entitled to apply for an injunction to restrain that, as a species of injunction to restrain a nuisance.

50. [50]
    In any case it seems clear that the original boulder wall was built by agreement and I suspect that thereafter the obligations to support imposed by s 179 of the Property Law Act attached to the wall on the land in the state that it came to be in as a result of its construction.  As will be apparent however I do not think that ultimately that is something I have to decide. 

Credibility

51. [51]
    The first issue is as to whether I accept the first defendant’s evidence that there was agreement between the parties as to the construction of the wall on the common boundary. The parties have given different versions as to when the works started; the plaintiff on 6 October and the defendant on 10 October. The proposition that the work was started on 6 October appears in the first affidavit of Mr Greene filed 8 December 2011. It also seems clear that the plaintiff complained to the Brisbane City Council on 10 October, which strikes me as strange conduct if the previous day the parties had already agreed to the wall being constructed on the common boundary. The defendant received the drawing for the wall on 6 October, and it would be plausible that he would start work at once.

52. [52]
    There are aspects of the first defendant’s account which strike me as implausible. Although on his version the plaintiff initially referred the query about the tree to his wife, and his wife inspected the tree, she did not purport to give permission in relation to the removal of the tree but referred that matter back to the plaintiff. Yet on the defendant’s account when she was asked about the construction of a new retaining wall on the boundary she promptly agreed without referring the matter to her husband, and with no enquiry as to the details of what the defendant was proposing. That strikes me as inherently implausible.

53. [53]
    There are some other concerning aspects of the defendant’s evidence. He placed a lot of stress on the presence of groundwater at the site and difficulties associated with that, but it seems to me that there is no convincing independent evidence of the existence of groundwater. None of the material which I can see in any of the photographs of the area of excavation looks conspicuously wet to me. The defendant said that he engaged a surveyor to come and survey the front and side boundary to make sure that he did not encroach (p 22) but by the time he had the surveyor come out the excavation was done and the foundations were laid, the council had been there and the stop work order had been issued and lifted and the wall was at least started.  It was not by that stage a question of making sure that he did not encroach, but finding out whether he had. 

54. [54]
    At one point he complained about being taken to court at all which he attributed to a love of litigation on the part of the plaintiff, though it seems to me that the plaintiff in fact went to some trouble to get the defendant to behave responsibly, by asking him to stop work until the matter had been properly sorted out, and the difficulties arose in this case because the defendant ignored these requests and persisted in his desire to built what he wanted in the way he wanted it.

55. [55]
    One matter which did not impress me about the first defendant was his reaction to the orders that I made on 14 December 2011. It is I think clear from the report of Mr Pandit, Exhibit 13 to the affidavit of Mr Greene filed 26 September 2012, that to a significant extent those orders were not complied with. For example the defendant admitted that he had not complied with that part of the order which required him to remove two courses of the blocks along at least that part of the wall which is near where it meets the road: p 27.^[67]  He said that that day in his eyes it was not an urgent matter, but the order specified times within which the various steps had to be taken.  He also said that there were things added to the draft order which were not agreed by the people who were helping him (p 27) and that subsequently when he saw the court order he was surprised to see the requirement that the blockwork be reduced in height like this: p 29. 

56. [56]
    Mr Buttling in his affidavit also suggested that the order had been modified after he had seen it, but appendix E of his report has notes that he prepared after discussions with Mr Pandit and Mr Mackay on 13 December 2011, and item 2 was “remove at least two block from the top of new wall alongside the carport, to give better access to the slot between the new wall and the cut soil face.”  The only difference between that and paragraph 1(a)(ii) of the order of 14 December 2011 is that the latter goes on to add “so as to permit adequate viewing of cavities to ensure removal of all loose soil and concrete debris.”  Item 6 was “to deal with the surface drainage of Mr Greene’s property, the new wall will be cut down to no higher than the upper ground level.”  Then it went on to refer to the creation of a slope across the top of the wall towards the defendant’s property, to ensure that once water tops the wall it runs off.  There is some difference in paragraph 1(a)(vii) of the order of 14 December 2011, which states:

“To deal with the surface drainage of Mr Greene’s property, the new wall be cut down to 100mm lower than carport slab and level with the existing ground in paved area and similarly in front of the carport of [the plaintiff’s house]…”

57. [57]
    It may be that the carport slab is higher than the ground level in the paved area, but it seems to me that in substance there is very little difference between these two forms, and that on either version the new wall was to be cut down so that it was no higher than the ground level of the plaintiff’s land. If the idea of reducing the height of the block wall came as a surprise to the defendant, it was plainly no surprise to his engineers. It does not seem to me that there is any indication that any substantial modification of the draft order could have been introduced which made it different in substance from what it had been agreed between the engineers. Mr Buttling was contemplating pressure grouting to lift the slab if it had subsided, rather than jacking which was referred to in the draft order, and his note did not refer to the fence being 100 millimetres off the ground, but obviously the fence should not be constructed with the palings sitting on the ground, and this is a matter of no consequence.

58. [58]
    Further when the matter was before me I specifically asked the defendant whether he had any submissions to make in relation to any part of paragraph 1 of the draft order, and I pointed out that it ran to the top of p 3:  Exhibit 8.  He did not indicate, as he seems to be claiming at p 27, that he had not read the order or that he had no idea what it said at that stage.  He made a submission about the need for jacking the carport slab, a matter dealt with in paragraph 1(b)(i) on page two of the draft order, something which was in any event conditional upon the slab being proved to have subsided by more than 15 millimetres from prior levels.  Overall I do not accept that the first defendant was not aware of what was going on in court on 14 December 2011 or the effect of what was presented to him. 

59. [59]
    Accordingly I reject the notion that in some way the defendant was tricked or trapped into making himself subject to the order of 14 December 2011. He had ample opportunity to make any submissions he wanted to make about the order before it was made, and he did not then contradict the proposition that the order reflected the product of the discussions between the engineers. There was significant noncompliance thereafter with the terms of the draft order, and that I think reflects adversely on the defendant’s credibility. I was also quite unimpressed by his attempts to invent excuses for not complying with the order.^[68]

60. [60]
    I do not regard what the defendant says was a contemporaneous note of the conversation on 9 October^[69] as providing any strong support for the defendant’s version of events.  The note is actually not consistent with the defendant’s evidence of the conversation, since it has the plaintiff’s wife giving permission to cut down the tree, and suggests that the comment “do what I need and that’s fine” was related to that, whereas the defendant said that this was in fact referred back to the plaintiff.  The note “also half wall was okay on boundary” looks very like an afterthought, something that could easily have been added later.  Ultimately the reliability of the note itself depends on the credibility of the defendant, and on the whole I do not think that its presence adds anything.

61. [61]
    It was submitted for the defendants that the evidence indicated that the removal of the wall and the excavation had only started on 10 October, as the defendant said, and this showed that the plaintiff’s version was not true. Reference was made to an invoice for hiring an excavator and operator on 10 and 11 October 2011^[70] but the plaintiff’s evidence was that on 7 October the first defendant was using a bobcat to demolish the wall, rather than the excavator with the operator that was hired on the Monday.^[71] The photographs in batch 5 in the exhibits to the plaintiff’s affidavit, said to have been taken on the morning of 11 October, show that at that time not only had the boulder wall along the boundary up to the defendant’s shed been demolished and removed, but the excavation had occurred for most of the length of the trench for the footings of the retaining wall.  These were the first photographs taken by the plaintiff. 

62. [62]
    The earliest photograph of the works that I have seen is photo 11, Exhibit TS1 to the affidavit of the second defendant filed by leave on 3 October 2012, which is said to have been taken on 10 September 2011, and which seems to me to show parts of the boulder wall in the area towards the street frontage already demolished. This is well in front of the carport, and there was little in the way of excavation involved, and it occurs to me that this is something which might not have excited the attention of the plaintiff or his son. I also have some doubts about the reliability of the dating of this material, since photo 1 which was said to be taken on 31 January 2012 clearly shows the boulder wall in place near the plaintiff’s carport, and on any view of the matter it had gone well before then.

63. [63]
    Some point was made that the plaintiff conceded he had not actually seen the defendant removing the boulders^[72] but he would have been in a position to see the work that had been done.  It does not seem to me that the plaintiff’s photographic evidence supports the first defendant’s version at all.  The plaintiff’s evidence is entirely consistent with the notion that the defendant essentially removed the boulder wall himself with a bobcat mainly on 6 and 7 October, and then had a more substantial machine brought in which dug the foundations for the footings, and no doubt to some extent excavated land over the boundary, on 10 and 11 October.  I do not consider that the plaintiff’s version is inconsistent with anything he said in cross-examination.

64. [64]
    It was submitted that the plaintiff’s evidence that he had telephoned the Brisbane City Council immediately after the demolition of the boulder retaining wall when the earth under the front driveway located on his block subsided was consistent with the demolition having occurred on 10 October, because that is the day on which he telephoned the Council.^[73]  The drafting of his first affidavit does suggest there was a complaint to the Council on 6 October, but this may simply have been an error in the formulation of the affidavit.  That initial affidavit was quite brief, and a much more detailed account given in the plaintiff’s affidavit filed 26 September 2012 makes it clear that the complaint to the Council occurred late on 10 October.  The plaintiff said in cross-examination that he contacted the Council first on 10 October (p 30) and he was not cross-examined on this discrepancy.  I suspect that the explanation is a deficiency in the drafting of the first affidavit by the solicitor.

65. [65]
    No doubt on 10 October there was further excavation, and further cutting back along the boundary alignment, for the purpose of digging the trench for the footings for the new wall, and the area where gravel was to go on the other side of the wall, all of which is in fact on the plaintiff’s property. I expect that this had the effect of moving the excavation closer to the plaintiff’s house, and making it deeper and more pronounced, and that could well have aggravated the plaintiff’s concerns. The plaintiff did not say this in as many words, but he was not cross-examined on any of this, and I do not consider this to be a persuasive basis for rejecting the plaintiff’s evidence.

66. [66]
    It was submitted that the plaintiff’s evidence was to the effect that on 10 October the excavation had occurred for the full length of approximately 30 metres, but there was no evidence from him to that effect; the photographs which showed that the wall has apparently been removed from this full length, and a good deal of the excavation of the footings has occurred, were taken late on the morning of 11 October.

67. [67]
    The defendants’ submissions also relied on a passage in the defendant’s affidavit giving a version of a conversation about 1 February 2012 during which it was said that the plaintiff’s wife, although denying relevant parts of the conversation alleged by the first defendant on 9 October 2011, had admitted to there having been some conversation about the retaining wall prior to his having started to build the wall.^[74]  But the plaintiff’s wife was not cross‑examined about this, no doubt because her evidence, that she had tape recorded this meeting and verifying a transcript of the conversation, was objected to at the trial by counsel for the defendants and not pressed by counsel for the plaintiff.^[75] 

68. [68]
    Overall, I was not impressed by the first defendant as a witness, and I prefer the evidence of the plaintiff and his wife, both as to the sequence of events and as to the absence of any agreement in relation to the construction of the new retaining wall on the boundary. I accordingly reject the defendant’s evidence that there was an agreement as he alleged. In those circumstances it is unnecessary to consider the question of whether the plaintiff’s wife had his authority to enter into such an agreement.

Trespass

69. [69]
    In my view it is ultimately unnecessary to consider the issue of whether what the defendants did on their land amounted to a withdrawal of support from the plaintiff’s land in its natural state, because it is clear that the excavation works undertaken by or on behalf of the defendants extended well beyond the boundary between the plaintiff’s land and the defendants’ land. That is readily apparent from the photographs showing the side of the carport slab, bearing in mind the evidence of the surveyors that the edge of the carport slab was .25 of a metre or more inside the plaintiff’s boundary. Further it is apparent that if the face of the wall which was subsequently constructed encroaches across the boundary it follows that the footings for the wall must also encroach across the plaintiff’s boundary. This is not a case where all of the excavation work undertaken by or on behalf of the defendants occurred on their own land, and the fact that the hole extending across the boundary was simply due to subsidence; I consider that the face of the excavation was cut by the defendant or his operator so as to provide for the drainage space behind the wall in the order of 300 millimetres in accordance with the engineering diagram.^[76]  In circumstances where the face of the wall encroaches over the property boundary, it follows that the excavation for the gravel area behind the wall necessarily also involved excavation across the common boundary.

70. [70]
    The various photographs show basically a vertical face of the excavation,^[77] although in some areas the excavation goes further in.  There was some dispute between the parties before me as to whether this was caused by subsidence of land into the excavation, perhaps while it was in progress, or whether it was caused by the removal of rocks from the retaining wall, or a tree stump which had somehow been buried there, presumably when the subdivision was originally filled.  I do not think it matters at this stage what the explanation was, though some of the spaces certainly looked to me in the photographs to be the result of the face of the excavation having collapsed into the trench.  If that was the explanation, it is clear that it was not just a strip of fill along the top that collapsed, but a good deal of the “natural ground”, that is the older fill, below.  If that was not the case however, it just means that the excavation extended even further into the plaintiff’s property. 

71. [71]
    I reject the idea that this work was undertaken with the consent of the plaintiff (through his wife). It follows that, to the extent that any part of this work involved crossing the common boundary between the properties, it was a trespass on the plaintiff’s land. That is actionable, and the plaintiff is seeking damages for trespass. In my opinion when the excavation undertaken by an owner of land extends beyond the common boundary, the question of what effect works on the other side of the common boundary have on the support of the adjoining owner’s land becomes academic, because the relevant cause of action becomes one of damages for trespass. There was of course further trespass in constructing the wall to the extent that it encroached over the common boundary. The excavation which was undertaken was not just unlawful in the sense that it had not been properly authorised by the relevant authorities under the applicable legislation; it was unlawful in that it involved a wrongful intrusion into the plaintiff’s right to property. That sounds in damages.

72. [72]
    The plaintiff suffered loss in various forms, including having part of the foundations for the carport undermined, and part of the material supporting the paved area, and part of the paved area itself, also undermined. As it happens, and as a result of the plaintiff having taken proceedings and orders having been made by the court, much of the remedial work was in fact done by and at the expense of the defendants rather than the plaintiff, but that does not mean that the original actions were not wrongful. In my opinion however the relevant cause of action is one for damages for trespass, not one for damages for withdrawal of support contrary to s 179 of the Property Law Act, or for that matter in nuisance. 

73. [73]
    It is not to the point to argue that the defendants might have done something else entirely on their own land which could well have caused problems for the plaintiff, and if they had done that the plaintiff might not have had a cause of action under s 179.  That is not what happened.  In any case, the relevant comparison is between what the defendants did do and what they ought to have done if they had complied with their legal obligations.

74. [74]
    It does not matter really in my opinion whether one looks at those obligations in terms of the way in which such walls are permitted if authorised under the relevant legislation, or the question of what was lawful in terms of the first defendant’s owner/builder permit,^[78] or on any other basis, because they really come down to the same issue raised by the law of real property:  the defendants were not entitled to do anything which involved going across the common boundary.  Their obligations based on the plaintiff’s right of property in his land were essentially the same as the obligations which they would have been required to fulfil if they had complied with their legal obligations to obtain the necessary permit before undertaking the works, and constructed the works in accordance with that permit. 

75. [75]
    If that had occurred, not only would the wall have been constructed entirely on their own land, but the drainage works associated with the wall would also have been entirely on their own land. In effect, the retaining wall which the defendants have now built ought to have been built between 450 millimetres and 620 millimetres closer to their house. That is based on the scaled up position of the red line on the engineering drawing. It might have been possible to have constructed the whole wall so that the face of the wall was as close as 300 millimetres to the common boundary. Had that occurred, the wall would have been between 320 and 470 millimetres back towards the defendants’ house.^[79]  The question of just how close to the common boundary the wall could lawfully have been constructed in accordance with the standard conditions imposed by the certifier was not something raised in cross-examination with the certifier.  The point is probably academic. 

76. [76]
    Broadly speaking what has happened is that over the length of the wall the defendants have obtained the benefit of something like, on the average, about half a metre of land compared with the situation that would exist if they had done what they ought to have done. Whether or not the motivating factor in the construction of this wall where it is was a desire to get more room in the front yard to accommodate the carport, the fact is that the defendants find themselves in the position where, by doing the wrong thing they have obtained a significant benefit, of about 15m² additional useable land in their yard.  This is a factor which is relevant to the question of damages, as I will show later. 

Relief under s 185

77. [77]
    Part 11 of the Property Law Act 1974 deals with encroachment of buildings, which is defined to include a wall: s 182.  Either the encroaching owner or an adjacent owner may apply to the court for relief in respect of any encroachment: s 184.  Section 185(1) provides as follows:

“On an application of s 184 the court may make such order as it may deem just with respect to:-

1. The payment of compensation to the adjacent owner; and
2. The conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest in the land or of any easement, right, or privilege in relation to the land; and
3. The removal of the encroachment.”

78. [78]
    Section 185 goes on to provide that the court may grant or refuse relief as it deems proper in the circumstances of the case, and permits the court to take into account amongst other matters who made the encroachment, the situation and value of the subject land, the nature and extent of the encroachment, the character and purpose of the wall, the loss or damage which has been or will be incurred by the adjacent owner, or by the encroaching owner if required to remove the encroachment, and the circumstances in which the encroachment was made. This provision is not exhaustive of the factors which may be taken into account, which extend essentially to everything relevant.

79. [79]
    Section 186 provides that the minimum compensation to be paid in respect of any conveyance transfer lease or grant under s 185 to the encroaching owner shall be three times the unimproved capital value of the subject land, unless that owner satisfies the court that the encroachment was not intentional and did not arise from negligence, in which case the minimum is the unimproved capital value of the subject land. The court may however have regard to the value including the improved value of the subject land to the adjacent owner, and the loss or damage which has been or will be incurred by the adjacent owner through the encroachment and the orders to be made, and the circumstances in which the encroachment was made.

80. [80]
    In written submissions the plaintiff sought an order under para (c), for the removal of the encroachment, or in the alternative an order under para (b) with the payment of compensation. This was advanced on the basis that a boundary realignment or easement under para (b) would present practical difficulties. The submissions for the plaintiff proceeded on the basis that what was encroaching was the entire structure of the wall including the drainage arrangements and gravel behind it, that is effectively everything that was required to be constructed on the defendants side of the boundary under the approved plans, but I do not think that this is the correct approach. The drainage works constructed on the plaintiff’s side of the wall may be structurally part of the wall in the engineering sense, in that they are relevant to the engineering design and are therefore something which needs to be constructed in conjunction with the wall,^[80] but I do not think that it follows that they are part of the wall for the purposes of the definition in s 182 of the Act. 

81. [81]
    In my opinion the wall is limited to the actual retaining wall, and the concrete footings on which it sits, and does not include the gravel or the drainage pipe at the foot of the wall. Accordingly the only relevant encroachment for the purposes of s 184 is the extent to which the actual wall extends across the common boundary. That is a much smaller area than that referred to by the plaintiff. It follows that the disruption to the plaintiff’s land and the use of the land involved in transferring the area of the encroachment to the defendants would be much smaller than that asserted by the plaintiff.

82. [82]
    The plaintiff was concerned about the prospect of further construction work being undertaken by the defendants, particularly the construction of the carport which has apparently already been approved, on the basis that the approved plans would involve some further encroachment onto the plaintiff’s property, since the retaining wall would form one wall of the proposed carport and any overhang of the roofing of the proposed carport could protrude into the plaintiff’s property. I think the short answer is that the court may by injunction restrain any further encroachment, and may restrain the defendants from constructing on their land any structure which in fact encroaches over the common boundary, whether or not it has been approved by the building certifier. It was submitted that if the boundary were realigned in favour of the defendants this would mean that they were benefitting from their trespass. There is some force in this argument, but I do not think that it necessarily leads to the conclusion that the encroachment must be removed; this issue is I think better dealt with in another way, as will appear. The plaintiff was also concerned about the potential for further litigation between the parties if there was some easement granted under para (b).

83. [83]
    One particular difficulty which arises in dealing with the problem under para (b) is that it is clear that the powers of the court under that paragraph are limited to the area of land which is actually the subject of the encroachment: Tallon v Metropolitan Towers BUP5157 [1997] 1 Qd R 102 at 107.  The section has not been subsequently amended to grant to the court additional flexibility in the orders it can make, and accordingly making an order either for the realignment of the boundary to remove the encroachment, or for the grant of an easement to cover that encroachment, would mean that it would effectively only cover a long very thin wedge shaped piece of land extending most of the way, but not all the way, along the common boundary.  That would be at least untidy and inconvenient. 

84. [84]
    There is also the consideration that my conclusion that the drainage works on the plaintiff’s side of the wall are strictly speaking not part of the wall for the purposes of s 182 means that there is no encroachment in respect of them, and accordingly there is no power under s 185 to make an order for an easement for drainage purposes in respect of the land where the drainage pipe is located.  At the time of the trial it seemed to me that that might be the most appropriate solution, but I accept that it is not one that there is power to grant under this section.

85. [85]
    That however is likely to be only a theoretical consideration. The drainpipe which has been put in is one which is not maintained on current practice, and therefore there is in fact no practical reason why the defendants need to be given any rights in respect of the drainpipe. In theory the plaintiff could dig down on his side of the wall and dig out the pipes, but there is no reason for him to do that, and I do not think that there is any likelihood that this plaintiff or any later owner would do such a thing on this land. The defendants are not proposing to remove the wall so that it can be properly reconstructed on their side of the common boundary, which would prevent the plaintiff or a successor in title from doing such a thing, and accordingly they must be prepared to run the risk of this occurring.

86. [86]
    The retaining wall as it is constructed is so far as the evidence before me shows properly designed and constructed, and quite capable of functioning effectively as a retaining wall in the particular situation in which it has been built. There is evidence which I accept that the cost of demolishing it and reconstructing a similar wall in the position where the defendants could lawfully construct it would be in excess of $40,000.^[81]  That is substantially in excess of the damage in fact suffered by the plaintiff as a result of what the defendants have done, however that is assessed. 

87. [87]
    Apart from the fact that it has been constructed in the wrong place, the wall is unsatisfactory in two other respects: The first is that it was initially constructed to a height significantly higher than that of the plaintiff’s land, although the height of part of the wall has subsequently been reduced pursuant to orders of the court. As a result, the wall as it stands has something of an unfinished look. The other deficiency is that no provision has been made in the construction of the wall for the construction of a fence on top of the wall. There is at present apparent in the photographs a fence constructed on the plaintiffs side of the wall, with fence posts located immediately on the plaintiffs side of the wall, but this is obviously unsatisfactory in a number of respects. First, the fence is necessarily inside, and to some extent significantly inside, the common boundary, whereas if the fence were constructed actually above the wall it would be either on or at least not very far away from the common boundary. In addition, the posts must be sunk into the top of the drainage gravel, and their location would interfere with the construction of any spoon drain along the surface of the ground on the plaintiff side of the wall, to drain surface water away from the wall. This is particularly evident in the area of the carport, where it seems to me from the photographs that fence posts would effectively fill up the space between the wall and the edge of the carport slab.

88. [88]
    The plaintiff’s preferred position is that the wall be reduced to a height where water is simply able to flow over it, as was apparently the situation with the previous retaining wall, on to the defendants’ land, though that position is problematic for the plaintiff, because it is clear that the defendants are not obliged to receive the plaintiff’s surface run off, and are entitled to construct works on their own property which prevents such run off from occurring.^[82]  Accordingly had the wall been constructed on the defendants’ land they would have been entitled to construct it to a level above the level of the surface of the plaintiff’s land and in that way prevent the run off of surface water.  There would be nothing the plaintiff could have done about it except to do what needed to be done on his land in order to accommodate that situation.  The fact that the wall has been constructed so that it straddles the common boundary however reduces the defendants’ options in this respect, because constructing the wall in that position can only be lawfully done with the consent of the plaintiff.  Accordingly if the plaintiff will not agree to the wall being raised above his natural ground level, there is nothing the defendants can do.  They complain about plants from the plaintiff’s land growing through the fence into their land,^[83] but in respect of this the common law provides a remedy of self help.^[84]

89. [89]
    It is clear that the parties are still at loggerheads in relation to the question of what fence ultimately is to be constructed along this boundary, or at least as close to it as can in practice be reasonably achieved in the circumstances. It seems to me however that there is nothing I can do about that: by statute jurisdiction in relation to such matters is conferred exclusively on the Queensland Civil and Administrative Tribunal.^[85]  It follows that I do not have to work out what the right answer is in this respect, but it is appropriate for me to take into account the fact that the plaintiff has, as a result of the defendants’ actions, been exposed to the prospect of the trouble and expense of such litigation, and that he may be put to some cost in respect of the fence ultimately ordered by the Tribunal to be constructed.  I have no idea what the Tribunal might do, and what orders it might make, and therefore cannot make precise allowance for these as part of the plaintiff’s damages, though I can properly take into account the fact that the plaintiff has been exposed to the risk of such further litigation as a result of the defendants’ actions: it appears that before this work was undertaken there was a satisfactory fence between the two properties.

90. [90]
    The actual encroachment is essentially a wedge shaped strip of land, though it does not come to a point: at the sharp end it is .02 of a metre in width, and at the other end it is .17 of a metre in width. It is 30.335 metres in length, starting .24 of a metre inside the street frontage, and extending to 10.096 metres from the rear boundary.^[86]  It has accordingly an area of about 3 square metres.^[87]  With regard to the value of the land, the evidence of the plaintiff’s valuer, Mr Collins, was that the value of the plaintiff’s land, apart from improvements, as at 26 January 2013 was $300,000:  Exhibit 13. The block has an area of 769m², so the site had on that basis a value of $390 per square metre.  On a pro rata basis therefore the value of the area of the encroachment comes to $1,120. 

91. [91]
    Counsel for the defendants submitted that I should reject the evidence of Mr Collins, and prefer that of Mr Aboud, another valuer whose affidavit was filed on behalf of the defendants, and who was not cross-examined.  He valued the area of the encroachment, on the assumption that it was about 4 square metres, at $1,700, on the basis of a land value of $423 per square metre.  I must reject this generous submission, since I consider that her criticism of Mr Collins’ evidence was unjustified, but I should certainly have regard also to the evidence of Mr Aboud, and on that basis I find a land value of $405 per square metre, giving a value for the 3 square metres of the encroachment of $1,215.

92. [92]
    The purpose for which the wall is used is essentially to accommodate the difference in height between the plaintiff’s land and the defendants’ land, in a way which permits the defendants to have essentially a flat building site over virtually the whole of the land^[88] and in respect of the plaintiff’s land allows that land to be essentially flat in respect of the strip of about three metres or less in between the side of his house and the common boundary.  In my opinion the benefits of the wall accrue much more substantially to the defendants than to the plaintiff, though the plaintiff does obtain some benefit from it.  I have already dealt with the circumstances in which the encroachment was made. 

93. [93]
    Ultimately in my opinion it is not appropriate to make an order under paragraph (c) or paragraph (b): the latter would involve disproportionate cost to the defendants, and the former would I think not achieve anything useful, and produce awkwardness in the definition of the boundary between the two properties which could have adverse implications at some point in the future. In my opinion a better solution is simply to accept the fact that the encroachment has been built, and wrongfully, and to deal with it by way of an award of damages or compensation. Ultimately I would not order a greater sum by way of compensation under s 185(1)(a) than I would assess as damages for trespass, and in those circumstances I think it is unnecessary for me to consider these provisions further. 

Imposing easements:  s 180

94. [94]
    It was submitted for the defendants that I should make an order for an easement burdening the defendants’ land for support of the plaintiff’s land for support of the plaintiff’s land along the common boundary so as to regularise the support which has now been given to the fill above one metre high, which could be ordered under the Property Law Act s 180.  Apart from the fact that I do not accept that the only obligation on the defendants was to support the plaintiff’s land up to the height of one metre, in my opinion there is no need whatever for such an easement.  There is no suggestion that the defendants are proposing to remove the wall that has recently been constructed, and the fact that if they do so any other wall they construct would have to be constructed about half a metre closer to their house provides them with an excellent motive to leave the existing wall in place.  I really do not understand the purpose of this submission.

95. [95]
    It was further submitted for the defendants that I should impose an easement in favour of the defendants on a strip of the plaintiff’s land where the drainage works were constructed behind the new wall, for the purpose of maintaining those drainage works. The short answer is that there is no application for such relief before me, and the matter was not in fact litigated. There is the further complication that I cannot make such an order under s 180(3)(c)(i) in circumstances where the plaintiff has never been asked to accept the imposition of such an obligation, and has therefore not refused to do so.  I raised at the trial the question of the possibility of an easement along the inside of the wall for this purpose, but had in mind (incorrectly) that such an easement could be ordered under s 185, and my impression at the time was that the plaintiff was not averse to the idea.  There was certainly no outright refusal.  Ultimately however I have come to the view that I should simply not make any such order, on the basis that a wall of this nature once it is constructed usually does not require any continuing maintenance, and there is in practice no more likelihood that the plaintiff or a successor in title will dig up the drainage works then that the defendants would demolish the wall. 

Further submissions for the defendants

96. [96]
    It was submitted for the defendants that the plaintiff had brought the proceedings not because the encroachment caused him any difficulty or problems but because of the antagonism and bad relations between the parties, as evidenced by certain conduct set out in the outline.^[89]  I reject this submission.  It seems to me perfectly clear that the proceedings were brought because of persistent unsatisfactory and uncooperative conduct on the part of the first defendant in relation to the construction of the wall.  With the benefit of hindsight it would have been better if proceedings had been brought as soon as the excavation work occurred and before the footings were cast, so that the appropriate injunction could have been granted to prevent the wall from being built in the wrong place. 

97. [97]
    The excavation work created an apprehension, which I find was genuine and consider was entirely reasonable, that features of the plaintiff’s property including his carport and the paved area behind it which had previously been stable and secure were now seriously in danger from the defendant’s work, and that the defendant was displaying a cavalier disregard for the plaintiff’s rights in relation to the way in which he was carrying these through to completion. In those circumstances, I consider the plaintiff was justified in bringing the proceedings when he did. That the proceedings at that stage were focusing on the right of support rather than encroachment and trespass was a function of the true nature of the plaintiff’s concern at that time, and the fact that it was not until later that he discovered that the wall was in fact constructed over the boundary line.^[90]  Because of the view that I take about trespass to land it has ultimately become unnecessary for me to decide issues about withdrawal of support, but I certainly consider the plaintiff was well justified in taking the proceedings on that basis.

98. [98]
    It was submitted that the current situation was superior from the plaintiff’s point of view because the wall was better than the pre-existing boulder wall, but there is no evidence that there was anything unsatisfactory about the pre-existing boulder wall for him, and I cannot see how the plaintiff’s current position can be said to be in any way an improvement over the position before the defendant started his work. I also do not understand the submission that what is there now in some way provides him with drainage for his overlaying water flow that he did not previously have. Rather he has been confronted with a problem of dealing with surface runoff water, which he did not previously have.

99. [99]
    The submissions on behalf of the defendants were long and contained a large number of specific factual points, not all of which require a specific answer. Many were based on, or developed from, propositions which I have rejected, such as that there was an express agreement about the location of the wall with the plaintiff’s wife, or that the boulder wall was originally only one metre high. I have considered the full submissions, and have attempted to respond to the major arguments, but, in so far as I have not expressly dealt with a submission which is inconsistent with my findings, I have rejected it.

Damages

100. [100]
     The plaintiff has claimed damages relevantly for trespass, including aggravated and exemplary damages. These two categories were claimed by amendment to the statement of claim which I allowed on 28 March 2013, but on the basis that any aggravated or exemplary damages would only be in respect of matters which had in fact already been litigated.

101. [101]
     In terms of compensatory damages, there was physical damage to the plaintiff’s land in the form of the collapse of part of the paved area behind the plaintiff’s carport, although most of this has since been reinstated, I assume at the expense of the defendants. The plaintiff alleges that there remains a strip of pavers missing between the existing pavers and the retaining wall. The matter is complicated by the fact that final arrangements have not yet been made in relation to surface drainage of water from the plaintiff’s land. The associated disruption along the boundary of the plaintiff’s land has also created the situation where some additional work needs to be done by way of tidying up the plaintiff’s property, and the plaintiff is exposed to the trouble and expense of potential litigation in relation to the fencing of the boundary between the two properties, a matter which I cannot resolve. On the whole I think it reasonable that the plaintiff receive some allowance of the cost of reinstating, i.e. tidying up, his property, and the trouble and expense associated with a dispute in QCAT about the dividing fence. I expect that the plaintiff will also have to pay some cost associated with the new fence, on the basis that I assume that ordinarily such fence costs are divided equally between the adjoining owners by the Tribunal.

102. [102]
     There is however no evidence about what any of these costs will be. In these circumstances all I can do is make some allowance which should be approached on a suitably modest basis. On the whole I think an allowance of $1,000 for the cost of tidying up the plaintiff’s property is reasonable, and I will allow a further $2,000 for the trouble and expense associated with the proceedings in the tribunal, and $2,000 for the cost of half the fence.

103. [103]
     Apart from that, the plaintiff was put to a certain amount of expense in terms of obtaining engineering advice because of his reasonable concern about the stability of the structures on his property. Again there is no evidence as to what this cost him. All I can say is that I think it was reasonable for him to have consulted an engineer to provide advice in relation to these matters, and to have consulted a surveyor to obtain information about the location of the boundary. The costs of these are strictly speaking damages for trespass, and there would have been some real costs although in the absence of better evidence all I can do is make a modest allowance of $2,000. There is a risk that there will be some overlap between these costs and the amount properly paid to these people in connection with the provision of reports for use in litigation, and affidavit evidence, and in some cases attending court to give oral evidence, all of which are covered by any orders for costs of the proceedings.

104. [104]
     Apart from that, there is evidence that the plaintiff was stressed, upset and concerned about the situation that existed in relation to the damage to his land, and the worry about further damage occurring particularly if the carport slab had subsided into the excavation, and the defendant’s defiance of his requests to stop work until matters had been sorted out.^[91]

105. [105]
     This is related to another area which is in my opinion properly part of compensatory damages, damages to vindicate the plaintiff’s property rights which have been infringed by the trespass to his land.^[92]  It is part of the recognition by the law of rights, in relation to property in and possession of land, that those rights will be vindicated by the award of substantial damages in respect of any significant intrusion onto them by a wrongdoer, even in circumstances which do not justify the award of exemplary damages.  Here there was an excavation of between 250 millimetres and 450 millimetres, or perhaps more, across the common boundary over a length of about 30 metres, which is a substantial intrusion into the plaintiff’s land.  The defendant asserted that his intention was to build the wall so that it lay entirely upon his land, but by that he meant the actual wall itself, and his claimed intention was that the common boundary would lie immediately on the plaintiff’s side of the wall.^[93]  It necessarily follows that he must have appreciated that there was a significant intrusion onto the plaintiff’s property by way of further excavation beyond that point, and that trespass was deliberate, even if I accept his evidence that the intention was to build the wall on his own land. 

106. [106]
     There is also the consideration that this was not a case where he had clearly defined boundaries, and in my opinion he plainly ought to have investigated further the question of the correct location of the common boundary before embarking on the work that he did undertake. Simply to assume that a measurement on a plan which on its face shows no more than the distance between the wall of the house and the boundary fence can be used to locate correctly the common boundary between the properties does not I think reflect a process of taking reasonable care to ascertain that information with appropriate accuracy. This is a matter to which the defendant ought to have attended, even without the reminder provided by the conditions on the approval, which again he should have obtained before he started work, and in respect of all of the wall. The defendant has acted as though the property rights of the plaintiff were not a matter he should take care about. This involved acting in contumelious disregard of the plaintiff’s rights.

107. [107]
     It was established in Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14 that in a case of trespass causing damage to land upon which there is no building the cost of reinstatement provides the appropriate measure of damages unless that cost is unreasonable or disproportionate when considered in the light of the diminution in value of the land resulting from such damage.  In the latter event, the appropriate measure of damage is such diminution in value.  That was also a case of trespass by unauthorised excavation of part of the plaintiff’s land, a much more substantial part, but in circumstances where the cost of reinstatement was going to be quite high relative to the total value of the land, and very much higher than the diminution of value, the court held though that the latter was recoverable, together with $5,000 as exemplary damages. 

108. [108]
     In the present case, the appearance of the area immediately on the plaintiff’s side of the new wall is unsightly and would require tidying up, and I consider that its present appearance would produce a diminution in value if the property were put on the market of at least as great as the amount I have in mind as reinstatement costs.

109. [109]
     In Pietruszkiewicz v Whitfort [2003] QDC 577 I awarded damages for vindication of property rights of $2,500 in respect of the cutting down of a large number of trees on a rural property, as well as $3,232 for restoration costs and $2,550 for consequential loss.  Because of the total amount of compensatory damages I did not award any additional sum by way of exemplary damages, in circumstances where I found that the defendants did not have a genuine belief that they were entitled to cut down the trees they had cut down, but I was not prepared to find that this was an exercise in gratuitous nastiness towards the plaintiffs.  In that decision I referred to some earlier cases where damages to vindicate property rights had been awarded in cases involving the removal or pruning of trees. 

110. [110]
     In Carver v Hill [2010] QDC 401 Ryrie DCJ awarded $5,000 damage on this basis, in circumstances where the defendants had moved a house across a large area of vacant land the property of the plaintiffs, without their knowledge or consent, in order to move it onto some adjoining land, in the process flattening a large number of small trees.  No additional sum by way of exemplary damages was awarded in that case. 

111. [111]
     In Stereff v Rycen [2010] QDC 117 the defendant excavated across the common boundary of his land and the plaintiff’s land in conjunction with the construction along the common boundary of a particular kind of retaining wall sought by the defendant, without the knowledge or consent of the plaintiff.  In that case Irwin DCJ, although accepting that the plaintiff was entitled to have his right of property vindicated by a substantial award of damages, considered that an amount of $15,314 in compensatory damages already awarded was sufficient for that purpose.  Nevertheless, he also awarded aggravated damages of $15,000 and exemplary damages of $25,000.  It was found that the plaintiff had suffered injury to his feelings, humiliation and an affront to his dignity as a result of the aggressive attitude and language manifested by the defendant in connection with the carrying out of the works, as well as his having ignored requests to stop the works.  The exemplary damages were awarded on the basis that the defendant’s conduct was deserving of punishment.

112. [112]
     Overall in the present case I consider it is appropriate to award compensatory damages for the vindication of the plaintiff’s property rights over and above the amount specifically awarded thus far in respect of reinstatement costs and consequential loss, and I assess that figure at $5,000. Finally, the plaintiff has effectively lost the use of that part of his property which is occupied by the part of the wall that encroaches, which has a value already found of $1,215. I am not prepared to award aggravated damages, since the matters on which such an award might otherwise have been based were the matters excluded by the condition of the leave to amend to add the claim. So compensatory damages come to $13,215.

Exemplary damages

113. [113]
     Exemplary damages are imposed in order to punish a defendant for conduct deserving of punishment, in order to serve one or more of the objects of punishment – moral retribution or deterrence.^[94]  They are an exceptional remedy in the sense that they are to be awarded in cases of conscious wrongdoing in contumelious disregard of the plaintiff’s rights.^[95]  In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 Brennan J at 471 noted that the social purpose to be served an award of exemplary damages was “to teach a wrongdoer that tort does not pay.”^[96]  This aspect of the matter is said to be particularly significant in a situation where the economic advantage to the defendant of having engaged in the wrongful conduct is or may well be substantially greater than the harm actually suffered by the plaintiff as a result of it, and hence the amount awarded as compensatory damages. 

114. [114]
     In that context, I think it is significant in the present case that the practical effect of the defendants having built the wall where they did instead of where it would be if they had done the right thing and first obtained the appropriate permission, and then constructed the wall in accordance with the approved plans, has been that they have obtained the benefit of about 15m² of extra useable land in their property.  If one values the defendants’ land at the same value per m² as the plaintiff’s land, about $400, that produces an enhanced land value for the defendants of about $6,000.  That in my opinion is a relevant consideration, and provides some support for an award of exemplary damages.

115. [115]
     Trespass to land is an intentional tort, and I have found that the trespass of the defendants, in the sense of carrying the excavation significantly across the common boundary, was deliberate, as least so far as the first defendant was concerned; there was no evidence as to the attitude of the second defendant, but no case was run on the basis that the second defendant was not responsible for whatever damages were awarded along with the first defendant. As will be apparent from the cases that I have cited, in circumstances where there has been a deliberate trespass upon the plaintiff’s land it is not uncommon for exemplary damages to be awarded.

116. [116]
     In Pietruszkiewicz (supra) I said that I would have awarded exemplary damages had I considered that the amount already assessed by way of compensatory damages was not sufficient properly to perform the function of exemplary damages.  In WAQ v Di Pino [2012] QCA 283 the Court of Appeal confirmed that the correct approach in relation to the assessment of exemplary damages was that the court would consider whether the sum otherwise to be awarded as compensation was inadequate to punish the defendant for his outrageous conduct, and can award an additional sum if but only if that is not sufficient for that purpose.

117. [117]
     In the present case I would award damages otherwise of $13,215. Bearing in mind the fact that the defendants deliberately excavated across the plaintiff’s boundary for a not insignificant distance, notwithstanding requests from the plaintiff to cease the work until the proposed works had been properly investigated, and that this occurred without consent of the plaintiff, to the knowledge of the defendants,^[97] I consider that the defendants did act in contumelious disregard of the plaintiff’s rights in doing so, even though the act was not malicious in the sense that it was not deliberately carried out in order to inflict harm and distress upon the plaintiff.  Another factor which I regard as relevant is the defendants’ effective refusal to comply with part of the order of 14 December 2012.

118. [118]
     In those circumstances I consider that the defendants are deserving of punishment, and that, in order properly to satisfy the purposes of exemplary damages, the amount should be significantly in excess of the value of the benefit accruing to them otherwise from their wrong. I consider that the sum of $13,215 is inadequate to punish the defendants’ outrageous conduct and to mark the disapproval of such conduct and to deter persons such as them from such conduct in the future, and a larger sum should be awarded. The affidavits describe the first defendant as a toolmaker and the second as a restaurateur, and I assume they are of moderately comfortable means. They appear to have spent a lot of money on these renovations. For that reason I would add an award of exemplary damages of $11,785 to bring the total award of damages up to $25,000. The amount of $13,215 carries interest for two years at 10%, $2,643. There will be judgment for $27,643.

119. [119]
     I should add that in making this assessment I am not taking into account the plaintiff’s allegation of rude and aggressive behaviour towards him by the first defendant, and by the excavator operator in the presence of the first defendant. This was a matter in respect of which the plaintiff was not cross-examined, reasonably enough because at the time he gave evidence there was no claim for aggravated or exemplary damages. The matter is therefore caught by the limitation that I imposed when the statement of claim was amended. These matters have not been taken into account. On the other hand, the question of whether there was an agreement as to the location of the wall was certainly litigated, and the other matters taken into account, the extent of the excavation across the common boundary and the conclusion that the defendant must have been aware that the excavation had been taken across the common boundary so that this was deliberate, and that the order of 14 December 2011 had not been fully complied with, were clearly litigated, and indeed it seemed to me were not really in dispute.

120. [120]
     With regard to the question of continuing injunctions, in my opinion the order about reducing the height of the wall ought to have been complied with, and I propose to order that the height of the wall be reduced by removing any blocks which are wholly above the surface of the land on the plaintiff’s side of the wall. I also propose to grant a permanent injunction restraining the defendants from erecting any addition to the wall, or any structure on or above the wall, which extends across the common boundary onto the plaintiff’s land, without the prior consent in writing of the plaintiff, unless authorised by an order of the Queensland Civil and Administrative Tribunal, or by leave of this court When these reasons are delivered I will invite further submissions as to what should happen to the balance of the orders made in December 2011, and as to the question of costs.