Wardanski v Mawby[2023] QSC 136

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The Plaintiffs, Agnieszka and Pawel Wardanski, and the Defendants, Karen Mawby and Scott Marks, own adjoining residential properties in Cynthia Crescent, Springwood. The Plaintiffs bought their home at 10 Cynthia Crescent in 2003. The Defendants bought their home at 12 Cynthia Crescent in 2014. 
2. [2]
   Neither of the parties obtained a survey to confirm the boundary line between the properties when they acquired their respective lots.
3. [3]
   The adjoining properties are separated by a shared fence. No one knows who built the fence. It was there when the Plaintiffs bought their property.
4. [4]
   For several years, the parties lived happily next door to each other, each believing the existing fence accurately marked the boundary between their adjoining properties. 
5. [5]
   They were wrong. 
6. [6]
   In fact, the Plaintiffs’ property extends beyond the fence line and covers part of the land that each of the parties had previously believed was the Defendants’ property. It is now apparent to the parties that structures (the ‘Encroaching Structures’) once believed to be standing wholly on the Defendants’ land have actually been built across the true boundary line between the properties and encroach on the Plaintiffs’ land (the ‘Encroachment’).
7. [7]
   The parties only became aware of the Encroachment as a result of renovation and modification works undertaken by the Defendants on their property in 2017 and 2018. 
8. [8]
   The parties initially attempted to resolve the encroachment issue between themselves. Unfortunately, the encroachment issue soon turned into an encroachment dispute. 
9. [9]
   The parties have been unable to reach a mutually acceptable resolution of their dispute. Each considers the position taken by the other to be unfair and accuses the other of acting unreasonably. Neighbours who were once on friendly terms have become embroiled in an intractable feud. 
10. [10]
    The Plaintiffs want the use and enjoyment of the entirety of their land and have demanded the Defendants remove the Encroaching Structures. They say they intend to build a garage of their own (the ‘Plaintiffs’ Garage’) and they need the land the subject of the Encroachment to enable them to construct a garage of the size and style they want and need. 
11. [11]
    The Defendants have refused to remove the Encroaching Structures. They have proposed a boundary realignment, which would allow them to retain the Encroaching Structures, in return for which they would compensate the Plaintiffs for the land that they would acquire.
12. [12]
    It is in those circumstances that the Plaintiffs now seek relief under pt 11, div 1 of the Property Law Act 1974 (Qld) (the ‘PLA’). 
13. [13]
    The Plaintiffs, as ‘adjacent owners’, have commenced this proceeding. The primary relief they seek is an order for removal of the Encroachment and the Encroaching Structures, pursuant to s 185(1)(c) of the PLA.  If such an order is made, the Plaintiffs also seek an order that the Defendants pay the following amounts by way of compensation, pursuant to s 185(1)(a) of the PLA:

    1. $13,777.50, being the total costs incurred by the Plaintiffs in obtaining urban planning and surveying advice, obtaining an identification survey and professional and legal fees associated with identifying and attempting to resolve the encroachment issue with the Defendants prior to the commencement of this proceeding; and
    2. $194.14, being the costs of local government rates paid by the Plaintiffs in respect of the area of 19m² of which they have not had the use and enjoyment.
14. [14]
    Alternatively, if an order is made for transfer of the Plaintiffs’ land burdened by the Encroachment to the Defendants, the Plaintiffs seek an order for compensation in respect of:

    1. the value of the Plaintiffs’ property that is burdened by the Encroachment;
    2. if the area of land transferred is less than 19m², $5,000, being for the diminution in value to the Plaintiffs’ property as a result of the crooked boundary line;
    3. $165,000 (inclusive of GST), being the costs that will be incurred by the Plaintiffs to make modifications to the design and construction of the Plaintiffs’ Garage to accommodate the Encroachment;
    4. $13,777.50, being the total costs incurred by the Plaintiffs in obtaining urban planning and surveying advice, obtaining an identification survey and professional and legal fees associated with identifying and attempting to resolve the encroachment issue with the Defendants prior to the commencement of this proceeding; and
    5. $194.14, being the costs of local government rates paid by the Plaintiffs in respect of the area of 19m² of which they have not had the use and enjoyment.
15. [15]
    Depending on the particular relief, if any, which is granted, the Plaintiffs also seek various other consequential orders necessary to give effect to the orders made.
16. [16]
    The Defendants contend that the appropriate relief is an order for the conveyance of the land the subject of the Encroachment from the Plaintiffs to the Defendants, with the costs of the conveyance to be paid by the Defendants. The Defendants further contend the Court should order the Defendants pay compensation to the Plaintiffs, calculated under s 186 of the PLA, in the amount of the unimproved capital value of the land the subject of the Encroachment.

Relevant law and legislation 

17. [17]
    Under the common law, an unauthorised encroachment by a structure situated on one property upon the land of a neighbouring property is a trespass, for which the adjacent owner may sue the encroacher for damages or seek an injunction for its removal. In the case of an inherited encroachment, if the original placement of the encroachment by the encroaching owner’s predecessor in title was trespassory, then the encroaching owner could later be held liable for a continuing trespass if they continued or adopted it, for example by maintaining it after it was drawn to their attention.^[1] Furthermore, in the event of damage or an ongoing interference with the adjacent owner’s use or enjoyment of their land due to the encroachment, an action for nuisance might be brought by the adjacent owner. 

18. [18]
    Encroachment disputes may also be determined by the Court under the provisions of pt 11, div 1 of the PLA, which is titled ‘Encroachment of buildings’. For present purposes, the relevant provisions are ss 182, 184, 185, 186 and 194.
19. [19]
    Section 182 defines the following terms for the purposes of div 1:

adjacent owner means the owner of land over which an encroachment extends.

boundary means the boundary line between contiguous parcels of land.

building means a substantial building of a permanent character, and includes a wall.

encroaching owner means the owner of land contiguous to the boundary beyond which an encroachment extends.

encroachment means encroachment by a building, including encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil.

    …

subject land means that part of the land over which an encroachment extends.

20. [20]
    Section 184 permits either an adjacent owner or an encroaching owner to apply to the Court for relief in respect of any encroachment.
21. [21]
    Section 185 provides:

185  Powers of court on application for relief in respect of encroachment

(1) On an application under section 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.

(2) The court may grant or refuse the relief or any part of the relief as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider, amongst other matters— 

1. the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be; and
2. the situation and value of the subject land, and the nature and extent of the encroachment; and
3. the character of the encroaching building, and the purposes for which it may be used; and
4. the loss and damage which has been or will be incurred by the adjacent owner; and
5. the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment; and
6. the circumstances in which the encroachment was made.

22. [22]
    Section 186 provides:

 186  Compensation

1. The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant under section 185 to the encroaching owner shall, if the encroaching owner satisfies the court that the encroachment was not intentional and did not arise from negligence, be the unimproved capital value of the subject land, and in any other case 3 times such unimproved capital value.
2. In determining whether the compensation shall exceed the minimum and if so by what amount, the court shall have regard to—
   1. the value, whether improved or unimproved, of the subject land to the adjacent owner; and
   2. the loss and damage which has been or will be incurred by the adjacent owner through the encroachment and through the orders proposed to be made in favour of the encroaching owner; and
   3. the circumstances in which the encroachment was made.

23. [23]
    Section 194 provides:

 194  Costs

In any application under this division the court may make such order as to payment of costs (to be taxed as between solicitor and client or otherwise), charges, and expenses as it may deem just in the circumstances and may take into consideration any offer of settlement made by either party.

24. [24]
    There is no issue in this case that for the purposes of pt 11, div 1, there is an ‘encroachment’ on the Plaintiffs’ property, that the Defendants are ‘encroaching owners’ and that the Plaintiffs are ‘adjacent owners’.

25. [25]
    The purpose and operation of pt 11, div 1 of the PLA were considered by Bowskill J (as the Chief Justice then was) in HS South Brisbane Pty Ltd v United Voice.^[2] After a detailed analysis of the legislative history of antecedent legislation in Queensland and analogous legislation in other jurisdictions, her Honour relevantly concluded:^[3]

Having regard to the text of the provisions, and the legislative history discussed above, the purpose of Pt 11, Div 1 of the Property Law Act 1974 is aptly described as providing a means of resolving questions or disputes as between owners of contiguous parcels of land in relation to encroachment (or potential encroachment) of buildings across the boundary between those parcels, either:

by a determination of the true boundary, where a question arises about whether a building encroaches or will encroach (under s 191); or

by providing a fair and efficient process by which a dispute about an encroachment can be resolved by the court, by the adjustment of the boundary to take account of the encroachment, with payment of compensation to the adjoining owner if considered appropriate, calculated in accordance with the legislation, or for removal of the encroachment (under ss 185 and 186).

26. [26]
    The legislation is remedial in character and ought to be construed and applied accordingly.
27. [27]
    Sections 185(1)(a)–(c) provide for the types of orders that the Court may make, in the exercise of its discretion, upon an application for relief being made under s 184 of the PLA.
28. [28]
    Under s 185(2), the Court may grant or refuse the relief sought or any part of it ‘as it deems proper in the circumstances of the case’. In the exercise of this discretion, the Court may consider, amongst other matters, the matters set out in ss 185(2)(a)–(f). Section 185(2) does not provide an exhaustive list of the relevant matters that may be taken into account in determining what relief, if any, is to be granted in any particular case.
29. [29]
    Section 185 of the PLA thus confers a wide discretion upon the Court. In Paridaen v Mahaside Pty Ltd,^[4] by reference to various authorities, Bowskill CJ relevantly stated:^[5]

The discretion conferred by s 185 is a very wide one, with the relevant factors not limited to those set out in s 185(2).  Other factors which have been identified as relevant include whether the applicants (the adjoining owner) obtained a survey at an early stage; and the conduct of the parties, particularly conduct giving rise to  the encroachment, and whether the encroaching owner was aware of the fact of the encroachment at the time it was constructed. 

30. [30]
    In HS South Brisbane, Bowskill J considered the interaction between ss 185(1)(a) and 186 and concluded that, on its proper construction, the reference to an order for ‘the payment of compensation to the adjacent owner’ in s 185(1)(a) was compensation calculated in accordance with s 186.^[6] In reaching this conclusion, her Honour rejected a contrary interpretation that s 185(1)(a) was to be construed as providing for a separate head of compensation, distinct from the compensation that may be awarded under s 186, relevantly stating:^[7]

What is abundantly clear, however, is that if the court exercises its discretion under s 185(1), to make an order under sub-s (b) for the conveyance, transfer, or lease or grant of the subject land, or some interest in it, to the encroaching owner, and to make an order under sub-s (a) to order payment of compensation to the adjacent owner [which is not necessarily a given, as discussed below], that compensation is to be determined in accordance with s 186. As discussed at the outset of this section of the reasons, I do not accept that the provisions are properly construed as leaving the determination of compensation in those circumstances to the discretion of the court, unbound by the parameters of s 186. Such a construction, as pressed for by the plaintiff, is inconsistent with the clear words of the statute.

31. [31]
    As her Honour alluded to in this passage, where an order is made for the conveyance or transfer of the subject land, the Court may nevertheless decline to exercise its discretion to make an order for compensation under s 186 of the PLA.^[8]
32. [32]
    In Re Melden Homes No 2 Pty Ltd’s Land,^[9] Dunn J considered the appropriate relief to be granted under similar provisions of the now repealed Encroachment of Buildings Act 1955 (Qld). Section 3 of that legislation was in the same terms as s 185 of the PLA. With respect to matters relevant to the exercise of the Court’s discretion under that provision, his Honour relevantly stated:^[10]

When an application for a determination of compensation is made, the first question (which arises under s. 3) is whether compensation should be ordered to be paid at all. Ordinarily there will be such an order, particularly in a case in which the adjoining owner is required to transfer land to the encroaching owner. But even in such a case it may on occasions be appropriate not to make an order for compensation, having regard to the conduct of the parties… 

The Act does not define “compensation”, nor specify how it is to be calculated. The ordinary meaning of the word is “recompense” or “amends”. As the legislation is remedial in character, the Court should not in my opinion be unduly critical or restrictive when an applicant for compensation specifies any head of loss or damage, so long as that head of loss or damage has arisen by reason of the encroachment, and  not by reason of for instance a combination of the encroachment and unreasonable conduct.

33. [33]
    Similarly, despite Bowskill J’s conclusion in HS Brisbane South with respect to the proper construction of s 185(1)(a), her Honour nevertheless accepted that the amount of compensation payable to an adjacent owner, calculated in accordance with s 186, could include ‘consequential loss or damage’, stating:^[11]

…In order for loss and damage to appropriately be factored into any increase in the minimum compensation to be paid, it must be loss and damage which has been or will be incurred by the adjacent owner “through the encroachment” and [or] “through the orders proposed to be made in favour of the encroaching owner”.  The ordinary meaning of the word “compensation” ought not be relied upon as expanding what is otherwise properly captured within the meaning of the words used in the section itself.

…

…as a matter of the construction of s 186, in my view the compensation which may be ordered to be paid to an adjacent owner is not limited to the value of the subject land, or the loss caused to the adjacent owner’s title to their land, but could include other consequential losses which have been or will be incurred by the adjacent owner “through the encroachment” and [or] “through the orders proposed to be made in favour of the encroaching owner”.

34. [34]
    Whether an order for compensation will exceed the minimum amount payable under s 186(1), on account of loss or damage that has been or will be incurred by the adjacent owner ‘through the encroachment’ or ‘through the orders proposed to be made in favour of the encroaching owner’, will depend upon the circumstances of the case.
35. [35]
    With respect to the onus imposed by s 186(1), requiring an encroaching owner to prove that the encroachment was not intentional and did not arise from negligence, different views have been expressed as to how the onus is to be applied in the case of a successor in title who was not responsible for the original encroachment.^[12] I note that in Gladwell, Debelle J considered that it is open to the Court in the exercise of its broad discretion to award either that no compensation be paid, or that only the unimproved capital value be paid, or that three times the unimproved capital value be paid for the transfer of the land the subject of the encroachment, and that whichever alternative is appropriate will depend upon the circumstances of each individual case.
36. [36]
    Whilst it is well established that no order for compensation may be made even where an order is made for the transfer of the land the subject of an encroachment, I do not consider the Court may ignore the express terms of s 186(1) and the onus that must be discharged by the encroaching owner. In my view, if the Court determines that it is appropriate to make an order for compensation, then s 186(1) must be applied. The ‘minimum amount’ of compensation to be paid to the adjacent owner in respect of the transfer of their land that is the subject of encroachment is therefore to be determined in accordance with the terms of s 186(1). 

37. [37]
    Section 186(1) provides no exception for successors in title who were not responsible for the original encroachment. Accordingly, regardless of whether the encroaching owner was responsible for the original encroachment, unless the encroaching owner satisfies the Court that the encroachment was not intentional and did not arise from negligence, the minimum amount of compensation to be paid is three times the unimproved capital value of the subject land. 
38. [38]
    It may be accepted that an encroaching owner who inherits an encroaching structure that was constructed by a predecessor in title may well encounter difficulties in discharging the onus cast upon them. However, that is no reason to depart from the clear language used in s 186(1).  Neither is a perception of unfairness. In my view, the legislation is clear and unambiguous. No resort can be had to the broad discretion in s 185(1) to circumvent s 186(1).

Issues for resolution 

39. [39]
    The parties have identified the following issues to be resolved in this proceeding:

    1. Is the area of the encroachment 9.25m² or not more than 8m²?
    2. Can the Court take into account settlement offers in considering relief under s 185?
    3. What relief, if any, should be granted? In particular:
       1. Should the Court order removal of the Encroachment under s 185(1)(c)?
       2. If the Court does not order removal of the Encroachment:
          1. Should the Court order the transfer of land to the Defendants under s 185(1)(b)? If so, what area of land should the Court order be transferred?
          2. Should the Court order the Defendants pay compensation to the Plaintiffs under s 185(1)(a)? If so, what should the amount of compensation be? Should the amount exceed the ‘minimum compensation’ to be paid under s 186?

4. Can the Court can order compensation be paid to the Plaintiffs under s 185(1)(a) if no order is made under s 185(1)(b) for transfer of the subject land?

40. [40]
    With the exception of settlement offers, the parties are agreed as to the relevant circumstances in this case which are to be taken into account in determining what relief, if any, is to be granted. In addition to the non-exhaustive list of circumstances set out in ss 185(2)(a)-(f) of the PLA, the parties each submit that the relevant circumstances include their conduct in respect of the encroachment issue before the commencement of the proceeding.
41. [41]
    Although they generally agree on the relevance of the circumstances to be considered, the parties disagree on whether, or the extent to which, some of the circumstances are established on the evidence adduced at trial.
42. [42]
    It is to be noted that the parties are not agreed as to what particular land may be transferred if an order is made under s 185(1)(b). The Plaintiffs contend that the entire portion of the 19m² of their land that is located on the Defendants’ side of the fence may be transferred because the entire portion is ‘burdened by the Encroachment’. The Defendants contend that this is not permissible and only ‘the subject land’, being that part of the land over which the Encroachment extends, may be transferred. I will return to this issue in due course.

Details of the adjoining properties and the Encroachment

43. [43]
    The Plaintiffs’ property at 10 Cynthia Crescent, Springwood, Queensland, is properly described as lot 17 on registered plan 123574 in the local government area of Logan with title reference 14447089. Their property is 855m² in area. 
44. [44]
    The Plaintiffs have been the registered owners of their property since 30 May 2003. [45] The unimproved capital value of the Plaintiffs’ property is $555,000, reflecting a value of $650.00 per square metre.

46. [46]
    Mr Thomas Walton, a property valuer, provided a report in which he expressed his expert opinion that the unimproved capital value of the Plaintiffs’ land burdened by the Encroachment was:

    1. $12,350, if the area of the land was 19m²; or
    2. $6,000, if the area of the land was 9.25m².
47. [47]
    As to any decrease in the value of the Plaintiffs’ land if the land burdened by the Encroachment were transferred to the Defendants, Mr Walton’s opinion was that the decrease would be:

    1. $12,350, if the area of the land was 19m²; or
    2. $11,000, if the area of the land was 9.25m² (comprised of the unimproved capital value figure of $6,000 plus a further allowance of $5,000 to reflect the diminution in value due to a resultant crooked boundary line).
48. [48]
    Mr Walton also determined that the value of the Plaintiffs’ land burdened by the Encroachment to the Defendants was $72,000. In his opinion, this value was best assessed by reference to the costs which the Defendants would face if the Encroachment were removed, being a combination of the costs of rectification works and the diminution in value. Mr Walton used a figure of $65,000 for the costs savings, which was about the midpoint between the costs estimates of $42,302 and $80,000 respectively provided by the Plaintiffs’ builder and the Defendants’ builder for removal of the Encroachment. He then added $25,000, which in his view was a reasonable estimate of the loss in the value of the Defendants’ property, based on the assumption that upon removal of the Defendants’ Garage, the Defendants would only then be left with space to build a single car garage. Finally, Mr Walton applied a 20 per cent discount to arrive at the figure of $72,000.
49. [49]
    In his evidence-in-chief, Mr Walton was asked whether his opinion would change if he assumed that the costs saving figure was $221,013, excluding GST. He agreed that his opinion would change, and the value would be higher than $72,000. 
50. [50]
    The Plaintiffs used their property as their residence and family home from November 2003 until around September 2019. They then moved to another residence because of the feud with the Defendants which arose from the encroachment dispute.
51. [51]
    The Defendants’ property at 12 Cynthia Crescent, Springwood, Queensland is properly described as lot 18 on registered plan 123574 in the local government area of Logan with title reference 14447090. Their property is 706m² in area.
52. [52]
    The Defendants have been the registered owners of their property since 22 October 2014. The Defendants have used their property as their residence and family home since 2017.
53. [53]
    The two properties are suburban residential properties, located next to each other in a cul-de-sac. The eastern boundary of the Plaintiffs’ property adjoins the western boundary of the Defendants’ property. The adjoining properties are separated by a fence. The fence line does not reflect the true boundary between the properties.
54. [54]
    The parties agree that several of the Defendants’ structures encroach, wholly or in part, upon the Plaintiffs’ land. The parties have identified the following Encroaching Structures in their joint ‘List of Issues Not in Dispute’:

    1. stormwater drainage and infrastructure including pipes and grate (the ‘Stormwater Structures’); 
    2. concrete slabs and a concrete wall (the ‘Concrete Wall’);
    3. a garage with concrete footings, guttering and driveway (the ‘Defendants’ Garage’);
    4. a garden shed (the ‘New Garden Shed’); and
    5. a retaining wall extending out from the front of the Defendants’ Garage (the ‘Retaining Wall’).
55. [55]
    In addition to these structures, the List of Issues Not in Dispute notes:

…for the avoidance of doubt, the parties are agreed that the ‘Retaining Wall’, the ‘Sleeper Retaining Wall (Low)’, the ‘Sleeper Retaining Wall(s)’ and the ‘Block Wall’ encroach on the Plaintiffs’ Property (as those terms are defined or identified in Sheets 1, 2 and 3 of Drawing Number 2430_CD_07 (Rev 1) of Exhibit PJR-12 to the Affidavit of Paul James Riley sworn 27 February 2022) (the ‘Encroachment Plans’).^[13]

56. [56]
    The existing fence does not meet the definition of a ‘building’ in s 182 of the PLA and therefore is not an Encroaching Structure and does not constitute any part of the Encroachment.
57. [57]
    The Encroachment Plans show the Encroachment and each of the identified Encroaching Structures.  They are reproduced on the following pages:

58. [58]
    The Encroachment Plans show the divergence between the existing fence and the true property boundary covers a thin, long, wedge-shaped area of land which runs the entire length of the two adjoining properties.^[14] The widest section of divergence is 940mm, which commences at the front of the properties. The width of the divergence narrows from the front to the rear of the properties, ultimately terminating at a point where both the existing fence and the true boundary intersect with the property boundary of another rear neighbouring lot. At the final point of intersection there is no divergence. At a point near the Block Wall, the divergence is 620mm, and at a point near the New Garden Shed, the divergence measures 400mm. The total area of the land between the fence and the true boundary of the Plaintiffs’ and Defendants’ properties is 19m². The Encroaching Structures are situated within that section of land.
59. [59]
    The Encroaching Structures are located at various points along and adjacent to the existing fence, on the Defendants’ side. The parts of the Encroaching Structures that extend onto the Plaintiffs’ land vary in shape, size and construction. Some of the Encroaching Structures encroach by a very small margin.
60. [60]
    The Encroachment Plans show that the total area of the Encroachment is 9.25m².^[15] The Defendants dispute this figure.
61. [61]
    The Retaining Wall at the front of the Defendants’ Garage is a rendered block or brick-type construction. It adjoins the front of the western wall of the Defendants’ Garage and extends all the way out to the front of the Defendants’ property, which is the southern boundary. It borders the length of the driveway entrance on the Defendants’ property. Its primary purposes appear to be both functional and decorative, as a landscaping retaining wall and as a feature wall at the front entry of the Defendants’ property.
62. [62]
    The Retaining Wall’s precise dimensions are not apparent. It appears to be approximately 4m long and about half the height of the existing fence. The Encroachment Plans show that the Retaining Wall and the associated section of the driveway maximally encroach upon the Plaintiffs’ property by 650mm.
63. [63]
    The Defendants’ Garage comprises a garage with concrete footings, guttering and a driveway. The garage and the associated driveway are the most significant of the Encroaching Structures. The garage is a double car garage with a panel lift door, used to house the Defendants’ vehicles. The garage walls and floor are built of solid stone/concrete material. The roof is steel. The driveway is a large, paved entranceway providing vehicle access from the street to the garage. 
64. [64]
    The Encroachment Plans show that the Defendants’ Garage encroaches upon the Plaintiffs’ property by 440mm at the front and by 20mm at the rear. The garage gutter extends further beyond the western wall of the garage, encroaching by 600mm at the front of the garage and by 200mm at the rear.
65. [65]
    The various sleeper retaining walls running perpendicular from the retaining Wall and the Defendants’ Garage are small wooden items, partly embedded into the ground. They appear to be entirely functional in nature, designed to hold back soil, landscaping or other works. The same may be said of the Sleeper Retaining Wall  (Low) and the longer sleeper retaining wall that runs from the Block Wall into the Defendants’ garden, parallel to the existing fence. It does not appear to me that any of the various sleeper retaining walls would constitute a ‘substantial building of a permanent character’^[16] but I proceed on the basis that the parties are agreed that these structures do encroach on the Plaintiffs’ property. 

66. [66]
    The Stormwater Structures include stormwater pipes, which are wholly encroaching on the Plaintiffs’ land, and a stormwater grate, which partly encroaches, with approximately half of that structure situated on the Defendants’ land and the other half on the Plaintiffs’ land.  The Stormwater Structures are functional structures attached, or adjacent, to the Defendants’ Garage. Their purpose appears to be to channel and drain water run-off from the roof guttering around the Defendants’ Garage.
67. [67]
    The Block Wall is a small, rendered block construction situated in the garden behind the Defendants’ Garage. It also appears to have a partly functional purpose, as a retaining wall, and a partly decorative purpose. The Block Wall marginally encroaches upon the Plaintiffs’ property by 60mm.
68. [68]
    The New Garden Shed is a small utility shed situated at the rear of the Defendants’ property. It appears to be a light pre-fabricated sheet metal structure that sits atop a concrete footing base. According to the Encroachment Plans, it encroaches upon the Plaintiffs’ property by 350mm.
69. [69]
    Apart from the New Garden Shed, the Sleeper Retaining Wall (Low) and the Block Wall, each of the Encroaching Structures had been built and was present in its current position before the Defendants became the owners of their property.  This includes the Defendants’ Garage, although the Defendants made modifications to their garage in 2019, including by installing a new roof.
70. [70]
    The Defendants’ Garage and Retaining Wall were constructed in 2008 by the previous owners of the Defendants’ property, the Kimazewskis. As part of the relevant development application, the Kimazewskis sought and obtained the Plaintiffs’ consent to a relaxation of setback building restrictions to enable them to build the garage closer to the front boundary of their property. No formal survey of the shared property boundary was undertaken at the time.
71. [71]
    Although the Defendants erected the New Garden Shed sometime in 2017, it simply replaced an old existing shed that had been built many years earlier by the previous owners of the property. The New Garden Shed is slightly higher than the previous garden shed but is otherwise of a similar length and width and has not increased the footprint of the Encroachment.
72. [72]
    The Sleeper Retaining Wall (Low) and the Block Wall are the only entirely new structures built by the Defendants.
73. [73]
    Thus, aside from the construction of the Sleeper Retaining Wall (Low) and the Block Wall, the Defendants were not responsible for the creation of the Encroachment. They largely inherited an existing problem that was created by the previous owners and unknowingly suffered by the Plaintiffs for many years. 

The area of the Encroachment

Submissions

74. [74]
    The parties do not agree on the total area of the Encroachment.
75. [75]
    The Plaintiffs’ case is that the area of the Encroachment has been accurately calculated by Paul James Riley, a licensed consulting surveyor authorised to carry out cadastral surveying, to be 9.25m².
76. [76]
    The Defendants contend that Mr Riley’s calculation is wrong, and that the actual area of the Encroachment is less than 9.25m².  Before trial, the Defendants’ position was that the total area of Encroachment was not more than 8m². 

Evidence 

77. [77]
    In 2019, Mr Riley’s firm, P.J. Riley Surveyors (‘PJ Riley’), performed an identification survey (the ‘Identification Survey’) for the Plaintiffs to determine the true boundary and the extent of the Encroachment.
78. [78]
    For the purpose of this proceeding, Mr Riley was asked by the Plaintiffs’ solicitors to prepare a plan identifying the Encroaching Structures and to calculate the total area of the Encroachment. Mr Riley calculated the total area of the Encroachment as 9.25m², comprising three separate measurements. The largest area of encroachment was 7m², covering the encroaching areas of the Defendants’ Garage, the Retaining Wall, the Concrete Wall and the Stormwater Structures. A further small area of 0.25m² was calculated in respect of the ‘approximate footings’ of the Retaining Wall. The final area of encroachment was in respect of the New Garden Shed, calculated as 2m². The encroaching areas of the Sleeper Retaining Wall (Low) and the Block Wall do not appear to have been included.

79. [79]
    The Defendants accept the accuracy of the first two measurements but dispute the calculation in respect of the New Garden Shed’s area of encroachment.
80. [80]
    In cross-examination, Mr Riley agreed that the 2m² figure in respect of the New Garden Shed encroachment was in fact a calculation of the entire area of the yellow highlighted triangle section at the top of the plan. He agreed that the area he measured extended from the identified southern edge of the New Garden Shed, indicated by a line marking designated ‘shed’, all the way to the northern boundary line shown at the top of the plan. He further agreed that he had not identified the northern edge of the shed when making his calculation and therefore what he had measured was the area of the entire triangle rather than the footprint of the shed within that section.
81. [81]
    In cross-examination, Mr Riley was shown a satellite photograph of the adjoining properties, which depicted the New Garden Shed in the top right-hand corner. By reference to that photograph, Mr Riley agreed that the New Garden Shed did not extend all the way to the boundary line. He further agreed that the length of the New Garden Shed would not be more than 3m. As he had identified the extent of the New Garden Shed’s encroachment onto the Plaintiffs’ land as 0.35m, he agreed that the total area of the Garden Shed’s encroachment could be calculated as 3m x 0.35m, or approximately 1m². 
82. [82]
    In re-examination, Mr Riley stated that in order to conduct the calculation of the New Garden Shed’s area of encroachment, he would need a precise measurement of the length of the shed. 

Consideration

83. [83]
    Given the evidence of Mr Riley, I find that the total area of the Encroachment is less than 9.25m², and likely to be about 8.25m². However, the exact area cannot presently be determined. Precise measurements of the dimensions of the New Garden Shed would be required to calculate the exact area of the New Garden Shed’s encroachment and thus the total area of the Encroachment. For present purposes, however, I will proceed on the basis of Mr Riley’s evidence that the best estimate of the total area of the Encroachment is 8.25m².

Conduct of the parties

84. [84]
    Much of the evidence adduced at trial focused upon this aspect of the case.
85. [85]
    The primary evidence was contained in an agreed tender bundle, which contained several affidavits sworn by each of the Plaintiffs and the Defendants and the reports of three experts. All deponents of affidavits and the expert witnesses were crossexamined. In addition, the Defendants’ builder, Mr John Bicanic, was subpoenaed and gave evidence in the Plaintiffs’ case.
86. [86]
    Each party says that I would conclude from the whole of the evidence that they have acted reasonably and that the other party has acted unreasonably.
87. [87]
    Before descending into a detailed consideration of the evidence, I should record that as a general observation it was readily apparent to me that Mrs Wardanksi and Mr Marks were, and remain, the principal protagonists in this dispute. 
88. [88]
    Mrs Wardanski is an accountant and employed by a firm in the role of Senior Business Services Accounts. Mr Marks is a civil engineer and employed by the Logan City Council as a Civil Engineering Designer.
89. [89]
    Although Mrs Wardanski discussed matters with her husband, it was she who made decisions and progressed the Plaintiffs’ position in dealing with the Defendants and others about the Encroachment. It is pertinent to note that English is not Mr Wardanski’s first language. It was evident to me that at times during his crossexamination he gave answers which appeared on their face to agree to a proposition but were in fact simply an acknowledgment of what had been put to him. 
90. [90]
    For the Defendants, it was Mr Marks who chiefly handled all aspects of the Defendants’ renovations to their property and dealt with the Plaintiffs and others concerning the Encroachment. Whilst Ms Mawby had some involvement and input into matters, it was Mr Marks who was across the pertinent details and information and who made decisions for the Defendants.
91. [91]
    In order to sensibly assess the positions of the parties, it will be necessary to chronicle the relevant events and interactions between them, from the initial discovery of the Encroachment through until the commencement of the proceeding. However, it is helpful to first summarise the substance of the submissions of the parties.

Submissions

92. [92]
    The Plaintiffs submit that after learning of the Encroachment, they acted honestly, transparently and on advice they received from independent, third parties.
93. [93]
    In contrast, the Plaintiffs submit that the conduct of the Defendants has been less than transparent, not proactive and not focused upon fixing the Encroachment in a timely and cost-effective way and with respect to the Plaintiffs’ property rights.  In particular, the Plaintiffs submit that Mr Marks delayed providing a draft identification survey that he had obtained and that he did not obtain a finalised identification survey. The Plaintiffs contend this was because Mr Marks did not want formal notice of the Encroachment to be given to the Plaintiffs and did not want the survey lodged with the Department of Natural Resources and Mines, as those actions would have adverse consequences for the Defendants’ renovations. 
94. [94]
    The Plaintiffs further submit that the Defendants are not an ‘innocent encroacher’ because, after discovery of the Encroachment, they built the New Garden Shed and the Block Wall, installed some of the Sleeper Retaining Walls in the garden and replaced and extended the roof on the Defendants’ Garage, even after receiving a ‘cease and desist’ letter from the Plaintiffs’ lawyers.
95. [95]
    The Plaintiffs submit that this conduct of the Defendants is relevant to the question of what relief, if any, should be granted in the exercise of the Court’s discretion under s 185 of the PLA. The Plaintiffs submit that, in all the circumstances, the unreasonable conduct of the Defendants supports their argument that the Court should order removal of the Encroachment.
96. [96]
    The Defendants submit that they are an ‘innocent encroacher’. They further submit that during 2017 and 2018, after the discovery of the Encroachment, each of the parties genuinely sought to resolve the encroachment issue and neither can be said to have acted unreasonably. 
97. [97]
    However, the Defendants assert that from January 2019 onwards, the Plaintiffs’ conduct was unreasonable. The Defendants point, in particular, to the Plaintiffs’ apparent change in willingness to consider a boundary realignment and their associated refusal to consider Mr Marks’ suggestion that they could build an adequately sized garage on their property without requiring the removal of the Defendants’ Garage. The Defendants submit that the Plaintiffs’ supposed unreasonable conduct is a circumstance relevant to the exercise of the discretion conferred by s 185 of the PLA. The Defendants submit that the unreasonable conduct of the Plaintiffs militates against an order for removal of the Encroachment.

The Defendants’ initial discovery of an encroachment issue

98. [98]
    The Defendants entered into a contract to purchase their property at 12 Cynthia Crescent on 15 September 2014. Before settlement, the Defendants were advised by their conveyancing solicitor, by a letter dated 30 September 2014: 

Under the terms of the contract you are entitled to have a licensed surveyor carry out a survey at your cost. This will be relevant if you have any doubts as to the boundaries of the land, particularly if there are structures near the boundary, or if you think that the fences may not be on the boundary.

99. [99]
    The Defendants did not obtain a survey before settlement.
100. [100]
     The Defendants rented out their property for several years before deciding to use it as their principal residence. They eventually moved into 12 Cynthia Crescent in around February or March 2017. At that stage, they planned to undertake substantial renovations to the property. 
101. [101]
     On or around 5 July 2017, the Defendants obtained a ‘detail survey’ from Richardson Surveys which showed that the Retaining Wall, the Defendants’ Garage and the New Garden Shed encroached on the Plaintiffs’ Property (the ‘Detail Survey’).

102. [102]
     The accompanying email from Richardson Surveys relevantly stated:

There is something wrong with the alignments of the fencing and garage at your property. While we have not carried out a comprehensive boundary survey, from what we have found in the street there is something not aligning. This may be a problem with those surveys, but we can’t be sure until we carry our further survey [sic] to define the real property boundaries.

We strongly recommend that you engage a surveyor to reinstate and mark your property boundaries before you proceed further with any construction on the property…

103. [103]
     There is no dispute that before the Defendants received the Detail Survey, they were not aware of the Encroachment. 
104. [104]
     There is also no dispute that the Defendants did not, at this time, obtain an identification survey as recommended. The Defendants did not give any real explanation for not doing so. In his affidavit evidence, Mr Marks simply said that, in July 2017, he and his wife were focused on renovations to the main house, which were in advanced planning stages, and they were not planning any modifications to the garage. Ms Mawby gave similar evidence.
105. [105]
     In any event, the Defendants did not obtain an identification survey and did not notify the Plaintiffs of the Encroachment at this time. The Defendants thereafter continued with their plans to renovate their property. 
106. [106]
     Sometime in or about July 2017, the Defendants approached a licenced builder, Mr John Bicanic of Jux Developments Pty Ltd, to discuss their proposed renovations. At around the same time, the Defendants also engaged Sandra A Smedley Building Design to prepare concept design plans for their proposed renovations (the ‘Concept Design Plans’).
107. [107]
     The Defendants thereafter continued to liaise with Mr Bicanic about their proposed renovations. On 8 September 2017, Mr Marks provided Mr Bicanic with a copy of the Concept Design Plans. Those plans showed the Retaining Wall, the Defendants’ Garage and the New Garden Shed each encroached on the Plaintiffs’ property.
108. [108]
     On 26 September 2017, Mr Marks sent an email to Mr Bicanic, thanking him for attending the Defendants’ property the previous day and outlining the general scope of works required for the proposed renovations. Mr Marks attached various photographs and sketches to his email to assist Mr Bicanic to get a ‘better feel’ for what the Defendants’ were hoping to achieve. The description of the scope of works included ‘External retaining walls and hard surfaces as per the plan I gave you yesterday’.
109. [109]
     The plan that Mr Marks had given Mr Bicanic was one which he had created himself, dated February 2016 and titled ‘Proposed Site Plan – Option A’. It showed proposed retaining walls, highlighted in yellow on the plan, which were to be constructed behind the Defendants’ Garage. On my review, the plan also appears to show the existing fence, but does not show the true property boundary, nor any area of encroachment.
110. [110]
     In about early 2018, the Defendants formally engaged Mr Bicanic to carry out the renovations. 
111. [111]
     Final renovation plans were drawn up by Sandra A Smedley Building Design on 7 March 2018 (‘the ‘Smedley Plans’). The Smedley Plans again showed that the Retaining Wall, the Defendants’ Garage and the New Garden Shed each encroached on the Plaintiffs’ property.

112. [112]
     Mr Bicanic subsequently submitted a development application for the proposed renovation works to the Logan City Council. A copy of the Smedley Plans was attached to the application. On 23 April 2018, the Defendants received development approval for their proposed renovations. Thereafter, from about July 2018 onwards, Mr John Bicanic carried out the renovations to the Defendants’ property.
113. [113]
     The relevant development permit issued in respect of the approved works noted it was to be read in conjunction with, inter alia, annexed ‘Standard Building Conditions’. Condition 14 of the Standard Building Conditions stated:

Identification survey to be conducted and site boundaries to be repegged prior to commencement of constructions.

114. [114]
     Mr Marks confirmed in cross-examination that, despite this condition, no identification survey was done before Mr Bicanic started the renovation work. 
115. [115]
     Mr Bicanic explained in his evidence that despite the inclusion of this condition, the permit was a standard form and ‘normally when we’re building within 1500 of a boundary, a structural, like building, then we will do that’ but otherwise they were not made to obtain an identification survey and it was not expected. He further stated that he relied on his building certifier and he would not have an identification survey done unless the building certifier requested it.
116. [116]
     On 12 July 2018, Mr Marks sent an email to Mr Bicanic, attaching ‘the revised site plan as discussed’. The attached plan appears to be the same ‘Proposed Site Plan – Option A’ document that Mr Marks had provided to Mr Bicanic in September 2017. The ‘revised plan’ did not note any different specifications or locations for the proposed retaining walls to be constructed behind the Defendants’ Garage.

117. [117]
     In around early July 2018, Mr Bicanic discovered an issue of concern to him with respect to the proposed build location for one of the retaining walls that was to be installed at the rear of the Defendants’ Garage.  In his affidavit evidence, Mr Marks stated that Mr Bicanic told him that he and his crew were about to start construction on a retaining wall, when he had noticed that the Smedley Plans showed the garage and fence were partially constructed within the neighbours’ property. He stated Mr Bicanic advised him that they should alter the location of the retaining wall so that they would be away from the fence line and that it would not be constructed over the property boundary. He further stated Mr Bicanic advised him to arrange a meeting to talk to the neighbours and let them know about the Encroachment. 
118. [118]
     Mr Marks stated that he agreed with Mr Bicanic’s suggestion to alter the location of the retaining wall and that he subsequently contacted Mrs Wardanski and arranged to meet with her to tell her about the encroachment issue.
119. [119]
     In his evidence, Mr Bicanic identified the small retaining wall that he was concerned about as the Block Wall. He stated that when he raised the issue, Mr Marks responded by saying that he did not want Mr Bicanic to do anything wrong. He further stated that he suggested that they get an identification survey done and have a discussion with the neighbours.
120. [120]
     Mr Bicanic confirmed he ultimately built the Block Wall at a location which he believed was on the boundary, by reference to other dimensions on the plan and the location of the back of the Defendants’ Garage, which he (wrongly) thought was in the correct position and not encroaching.
121. [121]
     At about this same time, on 19 July 2018, Mr Bicanic sent an email to Mr Marks, forwarding an email he had received from Axis Surveys, whom he had contacted for advice on the issue. Mr Bicanic gave evidence that he had sought this advice as he knew there was an encroachment by the Defendants’ Garage and he did not want to build anything over the boundary himself. 
122. [122]
     The email from Axis Surveys stated:

The first thing you need to understand is that there is no such thing as a simple boundary re-alignment.

It then set out approximate costs for such an application and queried whether Mr Bicanic had considered alternatives such as an ‘Easement of Support over the encroachment’. The email included the following advice:

Regardless of the above, I think the first step is to establish a definite understanding of the extent of the encroachment. I suggest we do an Identification Survey to measure the actual amounts involved…

123. [123]
     Mr Marks responded to Mr Bicanic by email later that day, relevantly stating:

Sounds like this has the potential to be very complex and costly – neither of which I want.

I’ve attached the certified plans (refer page 14) for when the garage was built in 2007. Surely this must have been an issue then and would have required some proof that construction was contained within the boundary of my place.

I’ve been given some advice from the surveyors I work with and they seem to think that if the neighbour doesn’t have a problem with it, it can be resolved quite simply.

If it gets complicated – I’ll re-align the new retaining walls so they are contained within my boundary.

124. [124]
     In a further email sent later on 19 July 2018, Mr Marks informed Mr Bicanic that he had:

…checked the survey using Autocad…and can confirm that the dimension from the front left corner perpendicular to the rp boundary is 1.8693m…This would indicate we are outside the 1.5m limit.

125. [125]
     The email attached .jpeg files of extracts of a survey plan, which showed that the distance referred to in the email was the distance from the front left corner of the Defendants’ house to the western boundary of their property. 
126. [126]
     Mr Marks confirmed in cross-examination that he had used AutoCAD software at his workplace at the Logan City Council to check the survey. He further confirmed that the attached extracts showed encroachments over the boundary onto the Plaintiffs’ property.
127. [127]
     I infer that the ‘1.5m limit’ referred to by Mr Marks was the same ‘within 1500 of a boundary’^[17] distance Mr Bicanic referred to in his evidence, which would, in his view, have then required an identification survey be undertaken before commencing structural building works. I further infer that Mr Marks used the AutoCAD software at his workplace to measure the distance between his house and the true boundary as he wanted to determine whether the structural works would come within the ‘limit’ under which an identification survey would be required, as per Item 14 of the building development permit, and that he subsequently sent the email and attachments to Mr Bicanic to assure him that such an identification survey was not required.

Consideration 

128. [128]
     I am satisfied that on or about 5 July 2017, upon receipt of the Detail Survey, the Defendants had knowledge for the first time that the existing fence did not properly mark the true boundary on the western side of their property and that the Retaining Wall, the Defendants’ Garage and the New Garden Shed encroached upon the Plaintiffs’ property.

129. [129]
     I do not consider the Defendants can be criticised for not obtaining a survey of their property before this time. There was no reason for the Defendants to believe or suspect that there might be a problem with the property boundary at any earlier time.
130. [130]
     However, in my view, in light of the obvious issues shown by the Detail Survey and the strong recommendation by Richardson Surveys in their accompanying email that the Defendants should obtain an identification survey, their failure to do so was imprudent, at best. Such a characterisation is even more apt in light of the subsequent plans and information received by the Defendants, culminating in the further advice given by Axis Surveys to Mr Bicanic recommending an identification survey be carried out.
131. [131]
     Further, in my view, the Defendants’ failure to bring the Encroachment to the attention of the Plaintiffs at an earlier stage has not been adequately explained. I do not consider it sufficient to simply say, as the Defendants did in their evidence, that no works were to be carried out with respect to the Defendants’ Garage, that they assumed there was no issue as the Defendants’ Garage had been approved in the past, or that the Richardson Survey email did not advise that the neighbours should be told of the issue. Common sense and courtesy dictated that the Defendants should have done so without delay.
132. [132]
     Despite their evidence to the contrary, in my view, the Defendants must surely have appreciated from the start that the apparent existence of structures on their land encroaching on the Plaintiffs’ land was a potentially serious matter. Each of the Defendants were long-term employees of the Logan City Council, where they had held roles where they worked with maps and surveys. Mr Marks is a Civil Engineering Designer, responsible for designing roads and drainage systems. Ms Mawby had previously been a geographic information systems officer, responsible for inputting information about stormwater pipes into the Council’s stormwater information system.
133. [133]
     Nevertheless, I accept that the failure to inform the Plaintiffs of the Encroachment at that time, or at any time before 21 July 2018, did not create any real prejudice to the Plaintiffs. It is pertinent to note in that regard that no significant works, if any, were done to any of the Encroaching Structures between 5 July 2017 and 21 July 2018, and the Plaintiffs have not identified anything that they may have done, or refrained from doing, had they known of the Encroachment any sooner.

The 21 July Meeting

134. [134]
     On 21 July 2018, the Defendants met with Mrs Wardanski (the ‘21 July Meeting’) and told her about the Encroachment. 

The Plaintiffs’ evidence

135. [135]
     In her affidavit evidence, Mrs Wardanski stated that the Defendants told her that the purpose of the meeting was to seek her and her husband’s consent to build a retaining wall at the back of the Defendants’ property, near the side of the Plaintiffs’ house, and that they needed the Plaintiffs’ consent because the retaining wall would be on their property and the builder would not proceed without the Plaintiffs’ consent. 
136. [136]
     The Defendants showed her a plan of where the retaining wall was to be built.  Mrs Wardanski saw the plan had a line running across the Defendants’ Garage. When she asked Mr Marks about it, he told her that it was the property boundary and that the builder who built the garage for the previous owners did not check where the boundary was or do a survey report. 
137. [137]
     When they discussed what could be done about it, Mr Marks said that it could either be fixed or left as it was, but that fixing it would cost a lot of money. Mrs Wardanski told Mr Marks that she did not need the stress and that she did not see a problem leaving it as it was. She asked the Defendants to send through a form giving the Defendants permission to build the retaining wall.
138. [138]
     In cross-examination, Mrs Wardanski denied that Mr Marks had told her that because of the encroachment issue, he would build the retaining wall along the true boundary.

The Defendants’ evidence

139. [139]
     In his affidavit evidence, Mr Marks stated that he showed Mrs Wardanski a basic plan which highlighted the Encroachment. When Mrs Wardanski asked what he thought could be done about the situation, he said they could either resolve it or leave it, given that the fence had been there for 30 or 40 years. He told Mrs Wandanski it would be a very expensive process to remove the Encroachment. 
140. [140]
     Mr Marks told Mrs Wardanski that he and his wife had amended their original design to relocate the small retaining wall they were planning to build, so that it would not encroach onto the Plaintiffs’ property and that existing structures would not encroach further. He denied asking the Plaintiffs for permission to build the retaining wall on their land. In cross-examination, he said he did not ask for consent because ‘we pulled the walls back withinside the boundary’. He stated that he did this by reference to the ‘Draft Survey’. 
141. [141]
     Mr Marks’ recollection was that Mrs Wardanski had said that she did not have a problem with the Encroachment but would need to speak to her husband. 
142. [142]
     In her affidavit evidence, Ms Mawby stated that Mr Marks told Mrs Wardanski that there may be an issue with where their garage was built and that it might be encroaching on the Plaintiffs’ land. She further stated that Mr Marks said they would investigate it to see what could be done and that they would get a proper survey done. She did not remember any discussions about the potential costs of remedying the problem or who was responsible for it, or any discussions about the retaining wall or asking the Plaintiffs for permission to build it on their property. 
143. [143]
     In cross-examination, Ms Mawby accepted that in a text message she had sent to Mrs Wardanski to arrange the 21 July Meeting she had stated: 

Scoot and I need to chat to you about the works on the side boundary.^[18]

144. [144]
     Nevertheless, she denied that ‘the works’ she referred to were about building the retaining wall behind the Defendants’ Garage.

Consideration

145. [145]
     To the extent that there are differences in the parties’ respective recollections of what was said at the 21 July Meeting, I favour Mrs Wardanski’s account. In particular, I am satisfied that Mr Marks sought the Plaintiffs’ permission to build the Block Wall because it appeared from the Defendants’ plans that it would, or might, encroach upon the Plaintiffs’ property.
146. [146]
     I have reached these conclusions for the following reasons.
147. [147]
     First, Mrs Wardanski’s account is consistent with notes she made about the meeting a few weeks later. Those notes record that the Defendants came to discuss a ‘South Boundary Issue’ and that Mr Marks had sought the Plaintiffs’ permission to build the retaining wall, as it appeared it would be on the Plaintiffs’ property. 

148. [148]
     Second, Mrs Wardanski’s account is also consistent with the concerns expressed by Mr Bicanic and his suggestion that the neighbours be told. There would be no need for the neighbours to be told about the retaining wall if there were no concerns that it might encroach on the neighbours’ property.
149. [149]
     Third, in my opinion, Mr Marks’ evidence is contrary to the statements he made in his second 19 July 2018 email to Mr Bicanic, in which he stated he had been given advice from surveyors that he worked with that if the neighbour doesn’t have a problem with it, it can be resolved quite simply and that if it became complicated, he would re-align the new retaining walls so that they would be within his property boundary.
150. [150]
     Fourth, Ms Mawby’s reference to ‘the works on the side boundary’ in her text message to Mrs Wardanski is consistent with an intention to discuss the apparent potential encroachment issue posed by the planned location of the retaining wall.
151. [151]
     Fifth, following the meeting, on 23 July 2018, Ms Mawby sent a further text message to Mrs Wardanski in which she asked:

Is Pawel concerned about where the garage has been built or the retaining walls within our property?

I consider this further message to also be consistent with Mrs Wardanski’s evidence that the Defendants asked for permission to build the retaining wall.

152. [152]
     I am satisfied that the Defendants built the Block Wall and the Sleeper Retaining Walls in their garden at some point in time around or after the 21 July Meeting. I am further satisfied that Mr Marks instructed Mr Bicanic where those retaining walls were to be built and that he did so by estimating, wrongly, where he thought the true boundary was located.

The Urbicus Advice

153. [153]
     Following the 21 July Meeting, Mrs Wardanski spoke to her husband. She stated in her affidavit evidence that he did not agree to give the Defendants permission to build their retaining wall and suggested they look into the matter further.
154. [154]
     The Plaintiffs subsequently engaged an urban planner, Urbicus Pty Ltd (‘Urbicus’), to provide them with advice. Mrs Wardanski provided Urbicus with a copy of the basic plan Mr Marks had given Mrs Wardanski during the 21 July Meeting.
155. [155]
     It is apparent that the basic plan provided by Mr Marks was not a copy of the Detail Survey. Rather, it was a document titled ‘Scott Marks Original Survey and Site Layout’, dated February 2018. The purpose and origin of this document are not apparent from the evidence. 
156. [156]
     Urbicus provided written advice to the Plaintiffs on or about 27 July 2018 (the ‘Urbicus Advice’). In that advice, Urbicus noted that the plan they were provided identified three encroachments, being ‘the Garage Structure’, ‘the Garden Shed’ and the ‘Blockwork Retaining walls’.  Urbicus advised that the existing boundary fence significantly deviated from the boundary alignment and noted that there may be other areas of encroachment. 
157. [157]
     Urbicus further advised that there were essentially three solutions to the problem, being:

     1. Realignment of boundaries;
     2. Easement over the Encroaching Structures; and 
     3. Rectification works to remove the Encroachment.
158. [158]
     Urbicus recommended rectification was ‘probably the best option’ because, from a ‘pragmatic, practical and cost effective outcome’, it was the most rational solution. Urbicus advised the Plaintiffs to obtain an identification survey to accurately ‘ground truth’ the encroachments, so that the Plaintiffs would know the full nature and extent of the Encroachment, before undertaking any of the recommended solutions. 
159. [159]
     The Plaintiffs paid $2,090.00 for the Urbicus Advice. 
160. [160]
     The Plaintiffs provided a copy of the Urbicus Advice to the Defendants on 27 July 2018. Later that day, Mr Marks requested quotes from Richardson Surveys for providing an identification survey, obtaining realignment of the property boundary and gaining an easement.
161. [161]
     On 31 July 2018, Mr Marks sent an email to Mrs Wardanski, responding to her email attaching the Urbicus Advice. Mr Mark attached a satellite photograph of the adjoining properties that he had obtained from his workplace. The photograph was overlayed with some boundary markings. Mr Marks wrote:

Thankyou for sending through that information - it aligns very well with the advice I received from my surveyor, which I touched on with you during our chat the other day.

I have since checked with Council's database, and it subsequently shows that everything may be ok with respect to the location of the property boundary. (refer attatched [sic] plan) 

Given that it needs to be accurately identified so there is no confusion, I will organise for a surveyor to prepare an IDENT SURVEY as soon as possible to establish the true location of the property boundary and then we can see where we stand. 

If it is found that there is an encroachment onto your property, we accept that even though it was not our fault that it has occured - it is ultimately Kaz and my responsibility to find a suitable resolution in the most timely and economical way.^[19]

I will let you know when we have completed the survey and if you need another chat please let us know…

162. [162]
     On 8 August 2018, Richardson Surveys emailed Mr Marks, advising that an identification survey would cost $1,500 plus GST. They further advised: ‘In most instances a boundary realignment is the only way to go’. They provided a total estimate of about $10,000 for boundary realignment. 
163. [163]
     With respect to an easement over the Encroachment, Richardson Surveys advised that the cost would be about $5,000 plus GST, but that the problem with that option would be ‘burdening your neighbours [sic] property and that may hinder a future sale.’ 
164. [164]
     On 9 August 2018, Mr Marks instructed Richardson Surveys to undertake the identification survey ‘to establish for certain whether we have an encroachment issue’.
165. [165]
     On 12 September 2018, Mrs Wardanski sent an email to Mr Marks following up on the status of the identification survey. On 13 September 2018, Mr Marks responded by email stating:

So sorry about the delay with the ident survey stuff – at least there is no hurry for this.

166. [166]
     Mrs Wardanski further consulted Urbicus about the delay in obtaining an identification survey. On 17 September 2018, Urbicus provided a letter stating they disagreed with the suggestion provided by Mr Marks that there was ‘no hurry’. Mrs Wardanski sent a copy of the letter to Mr Marks that day. 
167. [167]
     In response, Mr Marks emailed Mrs Wardanski later that day, stating that he considered Urbicus’ ‘demand for urgency is a little over-reactive in my opinion’. He advised that the issue would get sorted in a timely manner but that there was not a lot he could do about his surveyor’s workload. He confirmed that no new building work was being undertaken within the possible encroachment area and that the design for the works had been modified to ensure this. Mr Marks concluded his email by asking Mrs Wardanski what her preferred option was with respect to Urbicus’ solutions to the Encroachment.

The Draft Identification Survey

168. [168]
     On 18 and 26 September 2018, Mr Marks emailed Richardson Surveys following up on the identification survey.
169. [169]
     On 10 October 2018, Richardson Surveys provided the Defendants with a draft of the requested identification survey (‘the ‘Draft Identification Survey’). The accompanying email stated: ‘We can confirm that the garage and walls at the property are over the boundary’.
170. [170]
     The Draft Identification Survey did not fully identify or describe in sufficient detail the full nature and extent of the Encroachment as it is currently understood for the purpose of this proceeding.
171. [171]
     Further, the Draft Identification Survey did not meet the formal requirements of a cadastral survey as prescribed by the Survey and Mapping Infrastructure Act 2003 (Qld), the Survey and Mapping Infrastructure Regulation 2014 (Qld) and the Cadastral Survey Requirements (SIG/2021/5792), which set out the relevant standards and guidelines for an identification survey under the legislation. In particular, it was unsigned, undated and did not bear an identification survey number.
172. [172]
     Mr Marks never sought to obtain a finalised, formal identification survey. 

The parties’ preferred options for resolution 

173. [173]
     On 10 October 2018, Mr Marks sent Mrs Wardanski an email in which he wrote:

So sorry for the delay in getting this ID survey sorted.  As mentioned, our surveyor had an extremely busy work schedule.

We have now been advised that the front of the garage and side wall are all over the boundary as originally thought, which now means we can move forward to a resolution.

174. [174]
     Mr Marks asked Mrs Wardanski again to advise what her preferred option was with respect to Urbicus’ recommendations. He further stated:

....we are very much hoping that you would consider the “Easement” option as it would be [the] simplest and most cost effective solution as well as providing minimal disruption to both parties.  We have been advised this is [a] common resolution to an issue such as this.

175. [175]
     On 11 October 2018, Mrs Wardanski responded to Mr Marks’ email, stating that the Plaintiffs’ preferred option was removal of the Encroachment. She further stated:

…we have been advised that the “Easement option” is not recommended in our particular circumstance as it will considerably devalue our property.

176. [176]
     It is to be noted that whilst Mr Marks told Mrs Wardanski of the advice he had received from Richardson Surveys, he did not at this time provide the Plaintiffs with a copy of the Draft Identification Survey, nor did he inform Mrs Wardanski that he had obtained the Draft Identification Survey.
177. [177]
     Between 31 October and 7 November 2018, Mr Marks and Mrs Wardanski exchanged several emails regarding the Plaintiffs’ preferred option for resolution of the encroachment issue.  
178. [178]
     During that exchange of emails, Mr Marks stated that he had been advised that removal of the Defendants’ Garage would not be simple or cost-effective ‘when there is a better solution to suit both parties’. He further advised that he was waiting on some independent advice and for the Defendants’ builder to provide an estimate of probable costs for removal and reinstatement of the Defendants’ Garage. Mr Marks proposed that the only two reasonable options available, from the Defendants’ point of view, involved either the easement option or realignment of the boundary, with compensation being payable by the Defendants in either instance. 
179. [179]
     In response, Mrs Wardanski maintained that the Plaintiffs would not agree to an easement and that if removal of the structures over the boundary was not financially viable then the only possibility remaining was realignment of the boundaries, with compensation to be paid at fair market value.  
180. [180]
     Mrs Wardanski sought a copy of the advice that had been provided to the Defendants.   The Defendants did not provide a copy of any advice they had received about the potential removal and reinstatement of the Defendants’ Garage.
181. [181]
     The parties agreed to meet again on 17 November 2018 to discuss the matter further.

Defendants’ evidence

182. [182]
     In his affidavit evidence, Mr Marks stated that after he read Mrs Wardanski’s 11 October email, he spoke to Mr Bicanic who told him that it would cost in the region of $60,000 to remove and reinstate the encroaching left-hand side wall of the Defendants’ Garage. Mr Marks did not ask Mr Bicanic for a formal quote to undertake such works at that time.
183. [183]
     In cross-examination, Mr Marks stated that he assumed from what he had written in his 10 October email that Mrs Wardanski would have understood that the Defendants’ surveyors had confirmed the Encroachment. He confirmed he did not provide a copy of the Draft Identification Survey but added that Mrs Wardanski never asked for it. He denied that he was being misleading. He further denied that the reason he did not obtain an identification survey was because he knew that it would have to be lodged with the Department of Natural Resources and Mines and that would have consequences for the Defendants’ renovations. He rejected suggestions that he was hoping he could convince Mrs Wardanski to agree to an easement without her ever knowing the true extent of the Encroachment.  

Consideration

184. [184]
     In my view, it is clear that Mr Marks was attempting to convince the Plaintiffs to agree to an easement as that was the Defendants’ preferred option.
185. [185]
     I am satisfied that Mr Marks deliberately refrained from providing the Plaintiffs with a copy of the Draft Identification Survey as he was concerned that doing so would jeopardise his prospects of getting the Plaintiffs to agree to an easement. In my opinion, that is the clear and obvious inference to be drawn from the evidence. I do not accept Mr Marks’ evidence to the contrary.

The Plaintiffs’ Garage 

186. [186]
     A substantial area of dispute in this matter concerns the Plaintiffs’ supposed plans to build their own garage and deck extension.
187. [187]
     The Plaintiffs say that they had long intended to build a double car garage on their property. They say they had told the Defendants of their plans in the past, before the discovery of the Encroachment. They further say that if the Defendants’ Garage remainsm they will not be able to construct the garage that they planned to build. They say they need that part of their land to enable them to build their garage. In the event that an order for removal is not made, the Plaintiffs claim they will be forced to change their plans significantly and this will entail substantial costs.
188. [188]
     The Defendants contend that, before the discovery of the Encroachment, the Plaintiffs did not really have any intention to build a garage of the size they now propose. They submit that the Plaintiffs’ plans for their proposed garage and deck extension are a contrivance, designed simply to provide a basis upon which the Plaintiffs can claim they have a need to use the full extent of their land, as it is now known to be, and therefore to justify an order for removal of the Encroaching Structures. Irrespective, the Defendants say that the Plaintiffs are able to construct an adequate garage on their property even if the Encroachment remains, and there is no need to demolish or modify the Defendants’ Garage.

Plaintiffs’ evidence

189. [189]
     In her affidavit evidence, Mrs Wardanski stated that in and around February to September 2014, the Plaintiffs undertook a major internal renovation to the downstairs area of their house. During the renovation, their driveway was damaged, so they decided to replace it and to establish a parking area on their property. 
190. [190]
     Mrs Wardanski explained that the parking area was created by installing a concrete slab and erecting a shade cloth connected to supports to provide for an open, but covered, ‘carport’, next to the front entry of their house. They expected the carport would accommodate their two large vehicles. 
191. [191]
     The driveway work was completed in around October 2014 and the carport was completed in February 2017. The carport is directly adjacent to the Defendants’ Garage. The Plaintiffs wish to build their garage in the same location as the carport.
192. [192]
     Mrs Wardanski stated that they had designed and installed the undercover parking area and driveway at the front of their house because they eventually wanted to construct a double garage there. They wanted to use the land in the front of their house to be able to park their cars close to the front door in an enclosed garage that would accommodate parking for two cars and storage. They also planned to extend the upper level of their home so that a large deck could be built on top of the enclosed garage. 
193. [193]
     Mrs Wardanski stated that she and her husband had intended that the transformation of the parking area into an enclosed garage and deck would be completed in the future when they had available resources.
194. [194]
     Mrs Wardanski stated that after completion of the carport, it was apparent that it was not long enough to fit their two cars and there was no option to have any storage facility in the available space. She further stated that because the carport had been situated so that it did not extend past the front doors of their house, the only way that they could get the carport to be long enough to park their two cars within it would be to build it further back towards the existing fence and the neighbouring property of the Defendants.
195. [195]
     Mrs Wardanski stated that at this time she and her husband discussed that they would need to obtain a reputable, qualified builder to design and build a garage before they undertook any further work with respect to their proposed extensions. They agreed that it would be a number of years before they would have the money to build a garage in the way that they intended.
196. [196]
     Mr Wardanski’s affidavit evidence was consistent with Mrs Wardanski’s affidavit evidence. In cross-examination, he agreed that in 2017, before he knew of the Encroachment, he was ‘picturing and planning’ a garage and deck that would be built on his side of the fence.
197. [197]
     The Plaintiffs did not prepare or progress any plans with respect to the construction of a garage and deck extension on their property until December 2018, when Mr Kent Jenner was engaged as their builder through his business, KJ Constructions Pty Ltd (‘KJ Constructions’).

Defendants’ evidence 

198. [198]
     In cross-examination, both Mr Marks and Ms Mawby denied that the Plaintiffs had previously told them of any plans they had to build a garage.

Consideration 

199. [199]
     I accept the Plaintiffs’ evidence that when they constructed their existing carport, they had plans to one day build a garage and deck extension.  However, I do not accept that the Plaintiffs had mentioned their future plans to the Defendants at some stage before the discovery of the Encroachment.  In any event, even if they had, it would likely have been no more than a brief mention of their general intentions, which would not have contemplated the construction of a garage all the way up to the true boundary of the adjoining properties. 
200. [200]
     Before discovery of the Encroachment, the Plaintiffs were oblivious to the fact that they owned additional land that could potentially be used to build a garage.

The 17 November Meeting

201. [201]
     On 17 November 2018, the Plaintiffs and the Defendants met on the Defendants’ driveway (the ‘17 November Meeting’).

Plaintiffs’ evidence 

202. [202]
     In her affidavit evidence, Mrs Wardanski stated that during the meeting she informed the Defendants that she and her husband would need to consider the impact of the Encroachment on their property before making a decision, but regardless, they did not agree to an easement. 
203. [203]
     In cross-examination, Mrs Wardanski said that Mr Marks spent the first fifteen minutes of the meeting attempting to persuade the Plaintiffs to agree to an easement option. She confirmed that she and her husband ‘categorically’ did not want an easement. She agreed that Mr Marks had said that would only leave two options, either removing the encroachment or realignment of the boundary, and that he suggested realignment, with the Defendants to pay compensation to the Plaintiffs. 
204. [204]
     Mrs Wardanski accepted that she had not said anything during the meeting about any plans she had to build a garage. However, she added that her husband had. She stated that Mr Wardanski had said that they needed to consider if they could agree to the realignment of the boundary because they wanted to build a garage, so they did not want to make any decisions without knowing how that would impact them. 
205. [205]
     As to the offer of compensation, Mrs Wardanski rejected the proposition that Mr Marks was offering reimbursement based on ‘current market value’. She instead stated that Mr Marks only offered ‘unimproved land value, which meant the rates value’, but that she kept stressing it would have to be ‘unimproved market value’. 

206. [206]
     In his affidavit evidence, Mr Wardanski stated that he and his wife informed the Defendants that they still could not make a decision because they did not have enough information to properly consider the impact of the Encroachment. He stated that they told the Defendants that they did not consent to them building the retaining wall as was requested during the 21 July Meeting.^[20]
207. [207]
     Mr Wardanski further stated he and his wife spoke about their existing carport and that he advised the Defendants on two separate occasions that he intended to build a garage where the Plaintiffs’ existing carport was on their property.
208. [208]
     In cross-examination, Mr Wardanski maintained that he had told the Defendants that he and his wife wanted to build a garage on their land. He rejected the suggestion that this only came up later in December 2018.
209. [209]
     Mr Wardanski agreed that when he found out about the Encroachment, it was his view that he wanted his land back. When asked whether he was concerned that Mr Marks may have to spend a lot of money to remove the Encroachment, Mr Wardanski said, ‘I didn’t think of that’. He agreed that he did not ever consider the possibility of transferring the land to Mr Marks.

Defendants’ evidence 

210. [210]
     In his affidavit evidence, Mr Marks stated that during the meeting, he showed the Plaintiffs the approximate locations and measurements of where the existing property boundary was in relation to the Defendants’ Garage and the fence. He stated that he explained that he did not think removing the Encroachment was a viable option. He further stated that he pointed out that the Urbicus Advice showed there were two other options available to resolve the issue, being realignment of the boundary or an easement. He recalled that the Plaintiffs repeated that they were not in favour an easement. He further recalled saying that they could negotiate compensation to suit.
211. [211]
     In cross-examination, Mr Marks denied that the Plaintiffs had said at this meeting that they wanted to build a garage on their property. Mr Marks further denied that the Plaintiffs had told the Defendants of their plans for a garage on any previous occasions.
212. [212]
     In her affidavit evidence, Ms Mawby stated that Mr Marks said that the Defendants’ preferred option was to buy the land or an easement and that they would pay for everything. She further stated that she had said that removing the Encroachment was expensive and it would ‘cripple’ them. She recalled that Mrs Wardanski had said that the Plaintiffs did not want an easement as it would devalue their property.

Consideration 

213. [213]
     Apart from the Plaintiffs’ evidence that they discussed their existing carport and that Mr Wardanski had said the Plaintiffs planned to build a garage, there is essentially no material difference between the parties’ evidence of what transpired at the 17 November Meeting. None of the witnesses was challenged to any real extent about their recollection of what was said at the meeting. 
214. [214]
     For reasons that I will further elaborate upon below, I do not accept the Plaintiffs’ evidence that Mr Wardanski told the Defendants that they wanted to build a garage during the 17 November Meeting. 
215. [215]
     I am otherwise satisfied that each of the matters recounted by the various witnesses was discussed at this meeting.

The Defendants give the Draft Identification Survey to the Plaintiffs 

216. [216]
     On 21 November 2018, Mr Marks sent an email to Mrs Wardanski attaching a copy of the Draft Identification Survey. Mr Marks wrote that he attached ‘the Ident Survey we had done, so that you can see the exact extent of the encroachment’. He then set out various measurements with respect to the extent of the Encroachment by the Defendants’ Garage and the distance that the fence line at the front of the properties was ‘off the correct RP alignment’. 
217. [217]
     Mr Marks concluded the email by again urging the Plaintiffs to consider the easement option, stating that it would be:

…a much quicker solution for both and a much less expensive solution for us that effectively achieves the same result and any perceived devaluing of property can be negotiated with compensation.

Plaintiffs’ evidence 

218. [218]
     In her affidavit evidence, Mrs Wardanski stated that she noted the Draft Identification Survey was not dated or signed and did not have an identification survey number. She further stated that was concerned as she did not see any markers placed on the correct boundary line by the surveyor, which she understood were required to be placed as part of any identification survey, and she had not received any formal notice about the Encroachment from the surveyor, which she further understood was required when any identification survey involving an encroachment was prepared.
219. [219]
     In cross-examination, Mrs Wardanski said she could not rely on the Draft Identification Survey and that she considered it was ‘just a piece of paper’.

Defendants’ evidence 

220. [220]
     In his affidavit evidence, Mr Marks stated that he did not ask Richardson Surveys to finalise the Draft Identification Survey because he and Ms Mawby had not yet decided with the Wardanskis what to do about the Encroachment. 
221. [221]
     In cross-examination, Mr Marks agreed that it did not actually matter what the Wardanskis wanted to do, as an identification survey would be required to determine the precise extent of the Encroachment regardless of which option for resolution was chosen.

Consideration 

222. [222]
     This was the first time that Mr Marks had provided the Plaintiffs with the Draft Identification Survey. 
223. [223]
     In my opinion, the position taken by the Plaintiffs to refuse to rely on the Draft Identification Survey cannot be criticised. Whilst it might well have been generally accurate, the Draft Identification Survey was not a formal identification survey. It did not clearly and definitively identify the full nature and extent of the Encroachment and it did not provide either party with certainty with respect to the Encroachment. 
224. [224]
     In that respect, it is pertinent to note that the measurements Mr Marks cited in his email are close to, but not exactly, the measurements later confirmed by the Identification Survey prepared by PJ Riley. Further, it is to be noted that Mr Marks wrongly stated in his email that the total area of the Encroachment was 14.2m².
225. [225]
     Conversely, I consider the Defendants’ delay in providing a copy of the Draft Identification Survey to the Plaintiffs, or to even confirm that they had obtained it, to be inexplicable and inconsistent with a genuine desire to resolve the encroachment issue in a fair and transparent manner. Rather, I find that it was consistent with Mr Marks’ desire for the Plaintiffs to agree to an easement as soon as possible and before they were able to fully and definitively confirm and comprehend the extent of the Encroachment

An ‘agreement’ to re-align the boundary?

226. [226]
     On 24 November 2018, Mrs Wardanski sent an email to Mr Marks, relevantly stating:

Thank you for the opportunity to meet the other day.

As discussed we are genuinely open to the resolution of this matter in a fair and reasonable manner.

The meeting was useful in that it clarified two things:

1. Removal of encroachment is not financially viable for you, and we understand that.
2. The Easement option is your most preferred option however, we simply do not want an easement on our property and we kindly ask that you respect our position on this.

With this in mind and further clarification of the issues, we are open to the re‐alignment option on the following grounds.

1. That any loss of land to our site is financially reimbursed based on the current market land value; 
2. All costs associated with the re‐alignment of boundaries is absorbed by yourselves;
3. Nomination of the new boundary alignment is indicatively pegged on site for us to view and endorse;
4. Works to be undertaken and completed within 6 months of the agreement.

We understand that this matter is stressful on both parties and all we ask is that this is resolved in a fair and equitable manner.

227. [227]
     In response to that email, Mr Marks sent an email to Mrs Wardanski on 29 November 2018, relevantly stating:

Thats [sic] unfortunate, however, we will work with the solution of Re-aligning the RP Boundary and as this has significantly increased the cost for us, we cannot guarantee this will be completed within 6 months.

You have my word that we want a quick resolution also, and will try to meet your timeframe.

With respect to the new boundary alignment – it will follow the existing fenceline alignment from the point of encroachment at the rear (3.372m from the back fence), in one line, all the way to the front. So essentially, it is already pegged and there is no need to vary from this.

In order to determine a reimbursement figure, it might be a good idea to obtain a valuation from an accredited land valuer OR we can negotiate a figure between ourselves and save some money. Let us know in due course and in the meantime we will instigate this process.

The Plaintiffs’ evidence 

228. [228]
     In her affidavit evidence, Mrs Wardanski stated that Mr Marks’ email correspondence indicated to her that the Defendants considered the Plaintiffs had enough information to determine how much land could be transferred to the Defendants if the boundary was realigned. She did not agree with that position, however, as without having a formal identification survey and the true boundary pegged, she and her husband could not accurately calculate or see the extent of the Encroachment or how much property they would have to transfer to the Defendants upon realignment. In those circumstances, she and her husband were unable to calculate the amount of compensation they would be entitled to if they decided to transfer the land to the Defendants. Accordingly, she was not comfortable going ahead with the boundary realignment plan at that stage. 
229. [229]
     In cross-examination, Mrs Wardanski rejected the suggestion that her 24 November email was an ‘offer to resolve the issue of the encroachment’. She characterised it as ‘agreeing to consider the option of realignment’.
230. [230]
     Mrs Wardanski accepted that she had not mentioned any plans to build a garage in her email.  However, she rejected the suggestion that she would have mentioned it had it been a concern at the time. She stated that her words in the email, ‘…and further clarification of the issues…’, meant ‘subject to clarification of issues’ and those issues were ‘how will realigning the boundary impact on our desire to build our garage’.

The Defendants’ evidence 

231. [231]
     In both his affidavit evidence and during cross-examination, Mr Marks stated that he took this exchange of emails as the Plaintiffs’ agreement to realign the boundary. He and Ms Mawby therefore proceeded to have Richardson Surveys prepare the required boundary realignment documentation for the necessary application to be submitted to the  Council.

Consideration

232. [232]
     In my view, a fair reading of the email exchange in context shows that there was no concluded agreement for realignment of the boundary at this time. I accept Mrs Wardanski’s evidence that the proper characterisation of the email exchange is that the Plaintiffs were open to consider the option of realignment.
233. [233]
     However, I do not accept Mrs Wardanski’s evidence that when she wrote the words in her email, ‘…and further clarification of the issues’, that she had in mind at that time her and her husband’s plans to build their own garage or that any agreement to realign the boundary was subject to that issue. In my view, that evidence is inconsistent with the wording of the email when read in context and is implausible in the circumstances. If Mrs Wardanski had such concerns at the time, then I consider she would have clearly and precisely referred to her and her husband’s plans to build a garage on their property and expressed any agreement as being conditional upon those plans. At various times during her evidence, Mrs Wardanski was at pains to insist upon accuracy and precision in dealing with the Encroachment. Had this actually been a concern for the Plaintiffs at the time, I have no doubt she would have precisely articulated it in her email to Mr Marks.
234. [234]
     Further, as foreshadowed, I do not accept the Plaintiffs’ evidence that Mr Wardanski told the Defendants that they wanted to build a garage during the 17 November Meeting. That matter was not referred to in the email sent by Mrs Wardanski on 24 November. In my view, given the apparent significance of these plans to the Plaintiffs and their concerns about the Encroachment and options for resolution, I consider it inherently implausible that Mrs Wardanski would not have referred to such plans in her email when she sought to document the basis upon which the Plaintiffs were prepared to consider realignment of the boundary. Further, Mr Marks made no reference to any such plans in his 21 November email. Had such a significant issue been raised at the 17 November Meeting, I would have expected Mr Marks would also have noted it in his correspondence a few days later.

The Plaintiffs’ first meeting with Mr Jenner

235. [235]
     On 8 December 2018, the Plaintiffs met with Mr Jenner at their home to discuss the construction of the proposed garage and deck extension at their property.

Plaintiffs’ evidence

236. [236]
     In cross-examination, Mrs Wardanski accepted that she wrote an email to Mr Jenner on 10 December, thanking him for his ‘advice’ during a meeting on 8 December. She agreed that she had written that Mr Jenner’s advice had given her some ‘peace of mind’ in terms of what they needed to do to ensure that they did not end up with the ‘short end of the stick’. She said the words ‘short end of the stick’ were used by Mr Jenner, adding that it was not terminology she would use. She accepted that she had told Mr Jenner about the proposal to realign the boundary, but rejected the suggestion that it was Mr Jenner’s advice that this would result in the Plaintiffs getting the ‘short end of the stick’. She instead said that Mr Jenner’s advice was that if the Plaintiffs wanted to build their garage, they needed to make sure that they did not end up with the ‘short end of the stick’.
237. [237]
     Mrs Wardanski accepted that she had been introduced to Mr Jenner through his inlaws, who were friends with the Plaintiffs. She further accepted that when she met with Mr Jenner, he told her that he had been involved in similar cases before and that in his experience, the Plaintiffs had a right to get their land back.
238. [238]
     Mrs Wardanski rejected the suggestion that she never really intended to build a garage and extension and that it was just a device she had come up with to justify forcing the Defendants to remove the Encroachment.  She also rejected the suggestion that, since December 2018, she had decided that she wanted the Encroachment removed no matter what and that she wanted to seize the opportunity to take the land on the other side of the fence to build the largest garage possible. 
239. [239]
     Mrs Wardanski further rejected suggestions that, after she became aware of the Encroachment, she realised that the Plaintiffs might have even more space available to build their own garage if the Defendants’ Garage was removed. She accepted that would be an ‘unexpected bonus’ and that the only way to get her land back would be for the Defendants to remove the Encroachment.
240. [240]
     Mr Wardanski agreed in cross-examination that at this first meeting, Mr Jenner had said that the Plaintiffs had a right to their land. In response to the suggestion that Mr Jenner had said the Plaintiffs would be getting the ‘short end of the stick’ in the discussions with Mr Marks, Mr Wardanski said, ‘That I can’t recall. I can’t remember that.’
241. [241]
     When it was put to Mr Wardanski that Mr Jenner had said that the Plaintiffs needed to prepare some plans for their garage so that they could show those to Mr Marks to explain why they needed their land on the other side of the fence, he responded, ‘I suppose, yes.’ When it was further put to him that Mr Jenner had said that he would go away and prepare those plans so the Plaintiffs could claim the land from Mr Marks, he replied, ‘Yes.’

242. [242]
     Despite these answers, Mr Wardanski later gave somewhat contrary evidence during further cross-examination, denying that the Plaintiffs had a draft sketch of their garage done as they needed something to show to Mr Marks to explain why he had to remove the Encroachment. 
243. [243]
     In his affidavit evidence, Mr Jenner stated that in around December 2018, the Plaintiffs engaged KJ Constructions to design the construction of a proposed garage and deck extension at their property. At the time he was engaged, he was informed by the Plaintiffs that they had previously constructed a driveway and carport at their property, but that after its construction, they realised the carport was not suitable for their needs as it was not enclosed, it was not long enough to fit their vehicles and there was no room for any storage. The Plaintiffs told him they wanted to replace the carport with an enclosed garage which would also provide the foundation for a deck connected to the second storey of their house.
244. [244]
     Mr Jenner further stated that he was aware that the Plaintiffs had been informed by their neighbours that there was a potential encroachment onto their property and that they wanted to understand if the Encroachment would have any impact on their proposed garage and extension project.
245. [245]
     In cross-examination, Mr Jenner also agreed that he knew the Plaintiffs through his father-in-law and that was how he came to be engaged by them. He denied the suggestion that he was acting as their advocate in dealings with the Defendants. He agreed that he had some past experience dealing with encroachments and that his experience generally had been that the landowner had the right to claim their land back.
246. [246]
     Mr Jenner confirmed that Mrs Wardanski had told him that the neighbours wanted a realignment of the boundary. He denied that Mrs Wardanski had told him she was open to a realignment. His evidence was that she asked him, ‘What do I do?’  He denied that he had told Mrs Wardanski that she had to ensure that she did not end up with the ‘short end of the stick’. 
247. [247]
     He did not recall whether he had told the Plaintiffs that the land in question was theirs by right and they had a right to claim it back. His evidence was that he had recommended the Plaintiffs get a survey so they could understand the problem.  He agreed with the proposition that if the survey showed encroachment, the Plaintiffs would have the right to the land. He could not recall whether Mrs Wardanski provided him with a copy of the Draft Identification Survey at this first meeting. 
248. [248]
     Mr Jenner gave evidence that he recommended that the Plaintiffs do preliminary drawings to understand what could and could not be done with respect to their proposed garage. He denied the suggestion that the plans were to be drawn up on the basis that the Plaintiffs would be using all the land to which they had a right.

Consideration 

249. [249]
     I do not accept the suggestions that the Plaintiffs never held any intentions to build a garage or deck extension and that it was simply a ‘device’ the Plaintiffs were using to justify removal of the Encroachment. There is, in my view, no basis to draw such inferences. I am satisfied that the Plaintiffs had intentions to one day build a garage and deck extension on their property and that they held this intention before discovery of the Encroachment.
250. [250]
     I am satisfied that during his first meeting with the Plaintiffs, Mr Jenner gave the Plaintiffs advice about the Encroachment and the options available to them. I am further satisfied that advice was to the effect that the Plaintiffs had a right to the land that was encroached upon by the Defendants’ Garage as they were the owners of the land and they had a right to get it back.
251. [251]
     I find that Mr Jenner used the words ‘short end of the stick’ when giving his advice to the Plaintiffs and that he used that phrase when giving advice to the Plaintiffs about the boundary realignment proposal and the Plaintiffs’ plans to build a garage. I infer that by using that phrase, Mr Jenner intended to, and did, convey to the Plaintiffs that they would not be getting a fair outcome if they were to agree to the proposed boundary realignment.
252. [252]
     In my opinion, it is clear that it was the advice given by Mr Jenner that instigated a change in the Plaintiffs’ attitude to the proposed boundary alignment. I am satisfied that from this point onwards the Plaintiffs primarily wanted their land back and wanted the Encroachment removed. However, I am not satisfied that the Plaintiffs were completely closed off to a potential realignment of the boundary at this time. It seems to me that the Plaintiffs still wanted to further investigate the Encroachment and how it may affect their plans for their garage before making a final decision.
253. [253]
     Despite Mr Wardanski’s apparent acceptance of the propositions put to him in crossexamination, I am not satisfied that Mr Jenner had told the Plaintiffs that they needed to prepare some plans for their garage so that they could show those to Mr Marks to explain why the Plaintiffs needed their land on the other side of the fence.  I am also not satisfied that Mr Jenner had said that he would prepare those plans so the Plaintiffs could claim the land from Mr Marks. I do not accept that Mr Wardanski’s answers were given with a full understanding and appreciation of what he was being asked. Noting the later contrary answer given by Mr Wardanski to a similarly phrased question put in further cross-examination and the fact that Mr Wardanski does not speak English as a first language, I do not consider Mr Wardanski’s initial acceptance of these propositions to be reliable evidence of what Mr Jenner said during the meeting.
254. [254]
     I am, however, satisfied that Mr Jenner told the Plaintiffs that he would prepare some plans for the Plaintiffs’ Garage on the assumption that the Encroachment would be removed and the Plaintiffs would have access to all of their land to build their garage.

The Plaintiffs engage PJ Riley & KJ Constructions

255. [255]
     On 12 December 2018, Mrs Wardanski sent an email in response to Mr Marks’ email of 29 November 2018, which relevantly stated:

Notwithstanding all previous discussions, we do not fully know the effect of your encroachment into our land.

(We note, that to date the pegging has not been done.)

Therefore, in order to gain full understanding of the encroachment we have engaged a building company to undertake a cadastral survey & the installation of boundary pegs so that the extent of the encroachment can be visually comprehended.

In addition the building company will also prepare a contour survey of our property so that we can complete the preliminary design of our modifications & updates to our home. (garage/carport) . We have been advised that this may take some time to complete (Christmas is around the corner) but we will be happy to discuss options to remedy the encroachment once we have this information.

256. [256]
     Mr Marks replied by email the same day, relevantly stating:

There is no need to peg the new alignment – it is going to follow the existing fence line as that is the most practical approach.

You are wasting your money engaging a building company to show you something that is already in place. My Ident Survey tells you everything you need to know and I have already engaged our surveyor to prepare that plan.

What alignment do you propose for the new boundary ?

257. [257]
     Mrs Wardanski responded with a further email to Mr Marks, relevantly stating:

The pegging is not for new alignment, it’s to determine the current boundary. We need to know what the current boundary is & how much of our land is affected by the encroachment. We can’t go by a piece of paper (that’s what caused this huge mess in the first place .... people did not follow proper procedures & consequently you & I are now stuck with this nightmare).

Plaintiffs’ evidence

258. [258]
     In her affidavit evidence, Mrs Wardanski stated that by December 2018, almost five months had passed since the Defendants first advised that they would obtain a formal identification survey, yet it had not been provided. Therefore, around January 2019, she engaged PJ Riley to conduct a formal identification survey of their property (the ‘Identification Survey’) and to peg the true boundary. She also engaged KJ Constructions to design a garage and deck extension for their property. 
259. [259]
     In further cross-examination, Mrs Wardanski agreed that before sending her 12 December email to Mr Marks, she had not said anything to the Defendants about needing to prepare designs for their proposed garage. However, she rejected the suggestion that she had never said anything to the Defendants about wanting to build a new garage at all. She reiterated that Mr Wardanski had said this on two occasions during the 17 November Meeting.

Defendants’ evidence

260. [260]
     In both his affidavit evidence and in cross-examination, Mr Marks stated that the 12 December email from Mrs Wardanski was the first occasion that he had been informed that the Plaintiffs had any plans for a new garage.  

Consideration 

261. [261]
     In my view, it was entirely reasonable in the circumstances for the Plaintiffs to engage PJ Riley to complete the Identification Survey. Despite initially agreeing that an identification survey was necessary in order for the parties to understand the true extent of the Encroachment and assuring the Plaintiffs that they would arrange for this to be done, the Defendants never did so. The Plaintiffs were rightly concerned to have accurate details of the position of the true boundary and the extent of the Encroachment. Both of those matters would be confirmed by an identification survey. Simply knowing the position of the existing fence did not confirm either.

262. [262]
     As I have already noted, I do not accept the Plaintiffs’ evidence that Mr Wardanski had previously mentioned the Plaintiffs’ plans to build a garage during the 17 November Meeting with the Defendants. In my view, the fact that Mrs Wardanski did not refer to any such plans in her emails before 12 December again suggests to me that no such statement was previously made by Mr Wardanski.
263. [263]
     I find the 12 December email was the first occasion since discovery of the Encroachment that the Plaintiffs informed the Defendants of their plans to build a garage.

The application for boundary re-alignment

264. [264]
     On 19 February 2019, Richardson Surveys sent the Defendants a copy of the development application form and owners consent form to be submitted to the Council in respect of the proposed boundary realignment. 
265. [265]
     On 20 February 2019, Mr Marks sent an email to Mrs Wardanski, advising that he had left the documentation in the Plaintiffs’ letterbox. Mr Marks requested the Plaintiffs sign the documents so they could progress the boundary realignment. The documents in question included a development application for the boundary realignment; a consent form for the making of the development application, which had been signed by the Defendants; copies of current title searches and the registered plan for the adjoining properties; and a copy of a plan prepared by Richardson Surveys, dated 11 December 2018 and titled ‘Proposed Reconfiguration of Lots 17 & 18 on RP 123754. Cynthia Crescent, Springwood’ (‘Reconfiguration Plan’).
266. [266]
     The Reconfiguration Plan bore the following endorsement:

All Areas & dimensions shown are approximate only and subject to Survey & Council Approval.

…

No reliance should be placed on the information on this plan for any financial dealings involving the land…

267. [267]
     In response to that request, Mrs Wardanski sent an email to Mr Marks on 20 February 2019 in which she stated:

Thank you [for] dropping of [sic] the paperwork for realignment of [the] boundary. We are still waiting for the surveyor to complete the pegging & then the builder to advise us if the realignment is going to have any impact on our future garage . I will get in touch with them this week as it has been over a month since the surveyor & builder visited our site [in] early January 2019 but has not supplied us with any paperwork. (everyone seems to be very busy). In the mean time [sic] if it’s ok with you, I will hold on to [sic] the paperwork & if we get the all clear that the realignment will not have [an] adverse affect on our future garage then we will sign the form.

268. [268]
     The parties subsequently arranged for a further meeting to be held on 26 February 2019 to further discuss the potential resolution of the matter.
269. [269]
     Ultimately, the Plaintiffs did not sign the documents left in their letterbox. 

Plaintiffs’ evidence 

270. [270]
     Mrs Wardanski confirmed in her affidavit evidence that she did not sign the realignment documentation because she had not yet been provided with a formal identification survey or formal notice of the Encroachment and she was still awaiting advice from PJ Riley and KJ Constructions. In addition, she stated that the Defendants had not yet obtained a valuation of the land or made any offer for compensation in respect of the proposed transfer.

Defendants’ evidence 

271. [271]
     In cross-examination, Mr Marks agreed that he had wanted the Plaintiffs to sign the documentation for the boundary realignment despite knowing that Urbicus had recommended removal of the Encroachment; that Mrs Wardanski was still getting further information, including a finalised identification survey; and that the Defendants had not obtained any valuation for the land, nor had they offered an amount for compensation for the realignment.

Consideration 

271. [272]
     In my view, it was not unreasonable for the Plaintiffs to refuse to sign the documents or to agree to a boundary realignment at this time. The Plaintiffs had arranged for a formal identification survey to be carried out by PJ Riley but had not yet received the results of that survey. In my opinion, it was obvious, and an entirely reasonable position to take, that the Plaintiffs could not make a decision about how to deal with the Encroachment until they received the identification survey.
272. [273]
     Further, although the Plaintiffs had requested Mr Jenner prepare plans for their proposed garage, they had not yet received any such plans.

The 26 February Meeting

274. [274]
     On 26 February 2019, the Plaintiffs met with Mr Jenner at their home to discuss their garage and extension project. Following that meeting, the Plaintiffs and Mr Jenner met with Mr Marks at the Plaintiffs’ home (the ‘26 February Meeting’). Ms Mawby did not attend the meeting. 

Plaintiffs’ evidence 

275. [275]
     According to Mrs Wardanski’s affidavit evidence, the Plaintiffs met with Mr Jenner first to discuss the ‘draft survey report’ he had been provided with for their proposed extensions. Mrs Wardanski stated that Mr Jenner advised that, based on his review of the report, the Plaintiffs needed every bit of land they owned to build their garage and deck extension in the way that they wanted. Mrs Wardanski further stated that Mr Jenner told them that if they agreed to realign the property boundary, as proposed by the Defendants, they would then need to ‘rip up the entire front entry to [their] house’ to build a suitable enclosed garage to park their cars.
276. [276]
     With respect to the subsequent meeting with Mr Marks, Mrs Wardanski recalled that Mr Jenner explained to Mr Marks that, due to the Encroachment, a full-size garage could not be built on the Plaintiffs’ property without destroying existing structures and incurring additional costs of about $50,000. She further recalled that she told Mr Marks that she and her husband could not agree to the boundary alignment and that they were determined to build the garage as they had always intended.
277. [277]
     In cross-examination, Mrs Wardanski denied the suggestion put to her that Mr Jenner had insisted to Mr Marks that he had to remove the Encroachment. Her evidence was that Mr Jenner had said that in order for the Plaintiffs to proceed with their build, they could not give their land to the Defendants. 

278. [278]
     Mrs Wardanski accepted that at this time, the Plaintiffs had not received any plans for their proposed garage, but she maintained that Mr Jenner had shown them ‘draft plans’. When pressed about the nature of those plans, Mrs Wardanski said:

I cannot be certain what type of documents Mr Jenner presented to me at the time…It may have been the…draft surveying plans. 

279. [279]
     She ultimately accepted she could not be certain whether Mr Jenner had any draft plans for the garage.
280. [280]
     Mrs Wardanski disagreed with the suggestion that Mr Marks was not ‘manipulating’ her.  She explained that Mr Marks had dropped off the paperwork for the realignment of the boundary and had requested the Plaintiffs sign it, even though she did not yet know the extent of the Encroachment. She further explained that she had requested the 26 February Meeting because she wanted Mr Jenner to explain to Mr Marks that this was not a simple case of just agreeing to realignment, as it would impact on the Plaintiffs, and that when she received the documentation for the realignment application she ‘hit the panic button’ as the pegging had not yet been done and she was not sure what they would be realigning.
281. [281]
     Mrs Wardanski rejected the suggestion put to her that she had no interest at this point in negotiating realignment of the boundary. 
282. [282]
     Mr Jenner’s affidavit evidence with respect to the events of 26 February was consistent with the affidavit evidence of Mrs Wardanski. As to Mrs Wardanski’s evidence that Mr Jenner had received and reviewed a ‘draft survey report’ before the 26 February Meeting, Mr Jenner stated in his affidavit evidence that on or around 13 February 2019, he was provided with a draft copy of a ‘survey plan’ from PJ Riley, which identified the Encroachment. The relevant document was a contour and detail survey prepared by ML Surveys, who did the work for PJ Riley (the ‘Contour Survey’). The Contour Survey showed the Encroachment upon the Plaintiffs property by the Defendants’ Garage and the Retaining Wall.
283. [283]
     In addition, Mr Jenner stated that during the 26 February Meeting with Mr Marks, he had outlined an alternative option for the Defendants’ Garage that would avoid the Defendants incurring significant removal costs. Mr Jenner’s proposal was that the Defendants temporarily prop up the roof of their garage, remove the garage door, demolish the encroaching left-hand side wall of their garage and reinstate it 600mm to the right, could demolish the non-encroaching right-hand side internal wall of the garage and reinstall the roof and garage door, instead using an external wall 900mm further to the right as the right-hand side wall of the garage.
284. [284]
     In cross-examination, Mr Jenner denied that during the meeting with Mr Marks he had insisted that the Defendants had to remove the Encroachment. He accepted that, at some point, he may have said that in order for the Plaintiffs to be able to build their garage the Encroachment would need to be removed, but he denied that he would have said this at the 26 February Meeting, as he did not then know the extent of the Encroachment.  He agreed that at the time of the 26 February Meeting, he had not yet received any plans for the Plaintiffs’ Garage. 
285. [285]
     Mr Jenner did not recall if Mr Marks had said that he would not move the Encroachment, but he conceded that he did not recall the specifics of the meeting as he took no notes. He denied saying that if the matter went to court it would be a ‘lay down misère’ and that Mr Marks would be forced to remove the Encroachment. He could not recall if Mr Marks disagreed with that statement and added that he did not recall the conversation ‘getting that in-depth’.

286. [286]
     Mr Wardanski’s affidavit evidence was consistent with Mrs Wardanski’s affidavit evidence. In addition, he stated that he did not recall Mr Jenner discussing the outcome of the matter if it proceeded to court during the 26 February Meeting.
287. [287]
     In cross-examination, Mr Wardanski agreed with the suggestion that during the 26 February Meeting, Mr Jenner had insisted that the Defendants remove the Encroachment. He agreed that he had said to Mr Marks, ‘I just want my land back.’  

Defendants’ evidence 

288. [288]
     In his affidavit evidence, Mr Marks stated that Mr Jenner did most of the talking during the meeting. His evidence was that Mr Jenner advised that the Plaintiffs were unable to agree to the realignment option and that if the Defendants did not remove the Encroachment, the Plaintiffs would incur additional costs of over $50,000. Mr Marks stated that Mr Jenner’s statements came as a complete shock to him as he considered they were a ‘total backflip’ on the ‘agreement’ that he and Mrs Wardanski had reached on 24 November 2018. 
289. [289]
     Mr Marks stated that he told Mr Jenner and the Plaintiffs that removal of the Encroachment was not financially viable for the Defendants and appeared to be unnecessary. He stated that Mr Jenner advised that based on his previous dealings with encroachment issues, if the matter went to court, it would be a ‘lay down misère’ that a judge would rule in favour of removal of the Encroachment. Mr Marks stated that he replied that based on the research he had done it was not as simple as that. 
290. [290]
     He stated that Mr Jenner kept repeating that the Defendants had to remove the Encroachment and asked when they were going to have it completed. Mr Marks stated that in response he said that he ‘would do everything in [his] power to not remove the encroachment’. He further stated that at that point, he was getting agitated by Mr Jenner’s statements and as he did not have anything further to say, he got up and walked out of the meeting.
291. [291]
     In cross-examination, Mr Marks agreed that Mr Jenner had spoken to him about his alternative option for modifying the Defendants’ Garage by demolishing the left-hand wall on the encroaching side and reinstating it further to the right. Mr Marks maintained that Mr Jenner’s proposal would not be possible.
292. [292]
     Mr Marks was not otherwise challenged about his evidence of what was said during the 26 February Meeting.

Consideration 

293. [293]
     I accept the evidence of the Plaintiffs and Mr Jenner about what was said during their initial meeting before they met with Mr Marks. It is clear that Mrs Wardanski arranged the meeting with Mr Marks as she was concerned about the realignment documentation that the Defendants had prepared and she wanted Mr Jenner to tell Mr Marks that the Plaintiffs did not agree with that option.  It is also clear, in my view, that before the meeting with Mr Marks, Mr Jenner gave further advice to the Plaintiffs about their proposed garage and the Encroachment, following Mr Jenner’s review of the Contour Survey. I am satisfied that the effect of the advice given by Mr Jenner to the Plaintiffs was that they would need all their land to be able to build their proposed garage, that they could not agree to a boundary realignment and they needed the Encroachment removed if they wanted to build their proposed garage. 
294. [294]
     In my opinion, it is apparent that the Plaintiffs accepted this advice. I am satisfied that from this time onwards, on the basis of the advice they had received from Mr Jenner, the Plaintiffs were determined to use all of their land to build the double car garage with storage space that they wanted. Consequently, they were unwilling to further consider a boundary realignment and were adamant the only suitable resolution was the removal of the Encroachment. 
295. [295]
     As to what was said during the subsequent 26 February Meeting, I prefer and accept the evidence of Mr Marks. I note that the affidavit evidence of both Mr and Mrs Wardanski about what was discussed with Mr Marks was quite brief and did not contain the same level of detail as Mr Marks’ evidence, which was largely unchallenged. In particular, I am satisfied that Mr Jenner did tell Mr Marks that the Encroachment would need to be removed and that if the matter went to court it would be a ‘lay down misère’ that a judge would rule in favour of removal of the Encroachment. In my view, those statements are consistent with what the Plaintiffs had earlier discussed with Mr Jenner and the evident purpose for Mrs Wardanski calling the meeting and arranging for Mr Jenner’s attendance.
296. [296]
     I do not accept Mr Jenner’s evidence to the contrary. Where his evidence differed to that of Mr Marks, I do not consider Mr Jenner’s evidence to be reliable. His recollection of the conversations lacked detail and was inconsistent with the evidence given by other witnesses. He also conceded that he could not remember or recall certain things that were said, or may have been said, in any detail.

The Identification Survey

297. [297]
     On or about 25 April 2019, PJ Riley completed the Identification Survey the Plaintiffs had commissioned in or around January that year. It confirmed the nature and extent of the Encroachment. PJ Riley gave the Defendants notice of the Encroachment, in accordance with reg 18 of the Survey and Mapping Infrastructure Regulation 2014 (Qld) and provided them with a copy of the Identification Survey. The notice advised the Defendants that the Identification Survey would be lodged with the Department of Natural Resources and Mines.
298. [298]
     The Plaintiffs paid $3,135, including GST, for the Identification Survey. 
299. [299]
     Later, as a result of matters raised by Mr Marks during a further meeting between the parties on 3 August 2019, Mr Jenner requested PJ Riley check the accuracy of the Identification Survey. Upon review, PJ Riley discovered certain drafting errors in its original plan due to scaling issues. On around 10 September 2019, PJ Riley issued an amended Identification Survey (‘Amended Identification Survey’). PJ Riley lodged a copy of the Amended Identification Survey with the Department of Natural Resources and Mines.
300. [300]
     The discrepancies that were detected in the original Identification Survey appear to have been with the dimensions of the overall Encroachment and not the area of the encroachment by the Defendants’ Garage. 

Preparation of plans for the Plaintiffs’ Garage

301. [301]
     In about March 2019, Mr Jenner briefed Ms Nathalie Knight of The Outside Perspective to assist with designing the Plaintiffs’ proposed garage and extension project. 
302. [302]
     On 5 April 2019, The Outside Perspective emailed a first draft of preliminary plans and designs to Mr Jenner. On or about 15 April 2019, The Outside Perspective completed preliminary plans and designs ‘for client approval’. Those plans were sent to the Plaintiffs for their consideration. On or about 7 June 2019, after receiving input from the Plaintiffs, The Outside Perspective completed the plans and designs ‘for pricing’. 
303. [303]
     Each of various plans completed by The Outside Perspective showed the Plaintiffs’ Garage extending all the way to the true boundary and an ‘amended footprint’ for the Defendants’ Garage, which assumed removal of the Encroachment.

Plaintiffs’ evidence

304. [304]
     Each of the Plaintiffs stated in their affidavit evidence that in around June 2019, KJ Constructions completed the design documents for the proposed garage and extension project. Mrs Wardanski paid KJ Constructions $2,640, including GST, for the preparation of the design documents.
305. [305]
     In cross-examination, Mrs Wardanski agreed that The Outside Perspective had prepared plans for the Plaintiffs’ Garage that assumed that the Encroachment would be removed and did not prepare any plans on the basis that the Encroachment would remain. She agreed that she had not asked Mr Jenner or The Outside Perspective to prepare any such plans of that kind, but she denied that was because she never seriously considered allowing the Encroachment to remain. She added that she was ‘open to consider all possibilities’.
306. [306]
     In his affidavit evidence, Mr Jenner stated that once he had received and reviewed The Outside Perspective’s final plans, it was apparent to him that the garage and extension project could not be completed within the current carport area at the Plaintiffs’ property and that the Encroachment would need to be removed to allow the Plaintiffs to access additional land for the construction of their proposed garage. 
307. [307]
     Mr Jenner further stated that this was evident to him because the current carport only provided for a depth of less than 4.5m before any vehicle parked in the carport encroached upon the entry to the Plaintiffs’ house. Accordingly, in Mr Jenner’s view, with the Encroachment left in place the maximum depth of the garage would be 5.32m, but with the Encroachment removed the maximum depth of the garage would be 6.54m. 
308. [308]
     Mr Jenner stated that the standard minimum depth of a garage constructed by KJ Constructions was 6.2m, but where a client had a large vehicle the minimum depth was 6.6m. Mr Jenner considered there was not enough space to park a large car, open the boot of a car, or provide any storage, if a garage was built within the confines of the current carport area. In Mr Jenner’s opinion, as there was no available room at the front of the carport area, the only option was to extend the Plaintiffs’ Garage backwards towards the Defendants’ property. 
309. [309]
     In cross-examination, Mr Jenner agreed that each of the plans that he received from The Outside Perspective assumed that the Encroachment would be removed and showed an amended footprint for the Defendants’ Garage and the Plaintiffs’ Garage extending all the way to the boundary line. He did not recall asking Ms Knight to prepare any plans with the Encroachment remaining in place or whether the specific words he used in his instructions to Ms Knight were to prepare the plans on the basis that the Encroachment was removed.  
310. [310]
     He agreed that the Plaintiffs had asked him to prepare plans assuming that the Encroachment would be removed. However, he denied the suggestion that Mrs Wardanski had never asked him to try to design a garage for the Plaintiffs that would fit in the space available and also accommodate the Encroachment.
311. [311]
     Mr Jenner also agreed that final plans for the Plaintiffs’ Garage were prepared after the Plaintiffs had provided their input. He emphasised, however, that the plans remained marked ‘preliminary’ and that they never actually formally finalised any design. Mr Jenner further agreed that the plans prepared by The Outside Perspective were for an open carport and that they had never done drawings for an enclosed, lockup garage. Mr Jenner further explained that the plans did not show garage doors as it was a ‘staged project’ that would not be completed at that time. 
312. [312]
     Mr Jenner denied the suggestion that the Plaintiffs had told him that they wanted the designs for the Plaintiffs’ Garage prepared so that they could show them to the Defendants and insist on removal of the Encroachment. 
313. [313]
     Mr Jenner agreed that when Mrs Wardanski had sent him her 4 March email, in which she had stated she did not want to ‘beat around the bush’ with the Defendants anymore, there had been no investigation by The Outside Perspective of what could be built in the available space, as they had only just been engaged. However, he added that he had investigated the matter with the clients and that he had done some measurements and basic drawings, using the dimensions from the Contour Survey, and he had concluded the available space would not be serviceable as a garage.

Consideration

314. [314]
     In my view, the various iterations of the design plans prepared by The Outside Perspective are consistent with the Plaintiffs having already definitively decided, from the time of the 26 February Meeting, that they wanted the Encroachment removed. I am satisfied that after the 26 February Meeting, the Plaintiffs instructed Mr Jenner to have plans prepared for the Plaintiffs’ Garage on the assumption that the Defendants’ Garage would be removed. I am further satisfied that the Plaintiffs sought these plans to confirm their view and the advice they had received that they could not build their proposed garage unless the Defendants’ Garage was removed, and to justify their position that the Encroachment had to be removed. 

Further communications 

315. [315]
     On 19 July 2019, Mrs Wardanski sent an email to Mr Marks which relevantly stated:

Further to our meeting on 26th Feb 2019 at 5.30pm, at which you and I , Pawel & Kent our builder was [sic] present, we were advised by Kent that in order for us to build a normal size garage without totally destroying our existing structures and incurring additional costs of $50K upwards, we are unable to sell our land & consequently unable to agree to the realignment of the boundary option as a solution to the encroachment matter.

This means that the final solution to resolving this encroachment matter is removal of the actual encroachment.

We have had the last 5 months to process this information which I am sure You have as well & we are ready to move forward to resolve the matter in a neighbourly & reasonable matter.

We would like to arrange a meeting with you and our builder to discuss the next step in the removal of the actual encroachment so that we can commence the building of our garage.

We & the builder are available any time tomorrow ie. Saturday 20/7/19. Please advise when would be a good time for you & Kaz to meet with us.

316. [316]
     On 24 July 2019, Mrs Wardanski placed a letter addressed to the Defendants in their letterbox. The letter read:

Dear Neighbour,

Despite our attempts over the past 12 months in trying to help you solve your encroachment problem on to our property, we note your reluctance to do the right thing by us & remove the encroachments (after all other reasonable options have been exhausted.)

As a last gesture of goodwill can you please agree to meet with us & our builder this Saturday 27^th of  July 2019, to discuss  the issue.

If you don’t respond to this letter by Friday 26th of July 2019, we will be left with no other option but to have our lawyers contact you directly.

317. [317]
     In response to that letter, on 26 July 2019, Mr Marks sent an email to Mrs Wardanski which relevantly stated:

In reference to your letter dated 24th July, 2019 (refer attached), I don’t see the need for you to be sending aggressive emails to us in relation to this matter. Karen and I have been respectful and courteous to you and Pawel with all our correspondence.

Please let me clarify several points and also mention that last weekend you gave us less than 24hrs notice to agree to a meeting, after having no contact since our on-site meeting nearly 5 months ago on 26^th February, 2019. We feel this was a little unreasonable and were unable to attend irrespective.

At our on-site meeting you advised that your intention was to now have us remove the encroachment totally in order for you to have a new garage built, which had never been discussed previously at all until this point.

Firstly, as per your email dated 24th November, 2018, you agreed that removing the encroachment was not a financially viable option for us and that you were open to re-aligning the boundary based on certain grounds which we agreed to meet and have been trying to do so. We engaged our surveyor in the following week to prepare the relevant documentation and submit it to Council once it was signed by all parties. There was a slight delay due to the closedown of businesses over the christmas period, however, we were still on track to meet your 6 month timeframe (point 4) when we delivered the documents to you to be signed on 20^th February, 2019. Therefore, the delay in resolving this issue has been created by yourself.

Secondly, point 3 on your email dated 24th November, 2018, stipulates that the NEW BOUNDARY ALIGNMENT (not current boundary alignment) is to be indicatively pegged on site for you to view and endorse. The attachment to your letter dated 24th July, 2019, has indicated that this was not done (refer attached Caroline email 24.11.18). I have mentioned several times in my previous emails dated 29^th November, 2018 and 12^th December, 2018 that the NEW BOUNDARY ALIGNMENT is to follow the existing fence line which means it is essentially already “indicatively” pegged (refer attached Email 2 and Email 3). This is what we agreed upon and therefore, your condition was met long ago.

Also, you have contradicted yourself in your reply to me, dated 12^th December, 2018 (refer attached Email 3) in that you have stated “The pegging is not for new alignment,^[21] it’s to determine the current boundary”. No wonder there is confusion with that point and as a response to that, I sent you a text message on 17^th December, 2018 advising you that I had marked out that boundary also with a screw in the concrete, which you replied to, stating that you would “check it out” – thereby satisfying your request.

In summary, based on what I have outlined above, I can’t see that you have attempted to help solve anything. All you have done is create uncertainty, confusion and unnecessary stress for us.

We have made every attempt to amicably resolve this issue based on your conditions setout [sic] in your email dated 24^th November, 2018. In that, we have agreed to pay for all costs associated with the realignment of the property boundary (some of which we have already incurred) as well as offer you monetary compensation to buy the section of land at current market unimproved land value.

We are unavailable this weekend, but will let you know when we are.

318. [318]
     On 27 July 2019, Mrs Wardanski forwarded Mr Marks’ email to Mr Jenner, stating, ‘All I can do is laugh.  manipulation at its best.’
319. [319]
     A short time later, Mr Jenner sent an email in reply, stating:

Ultimately, the email is just useless diatribe and all they need to do is remove the encroachment. Our meeting 5 months ago was clear, you need your land back, end of storey [sic].

Plaintiffs’ evidence 

320. [320]
     In cross-examination, Mrs Wardanski stated that the sentence written in bold in her 19 July email was based on her assertion that she could not build the garage that she wanted. She agreed that she never investigated building a garage within the existing fence line and that she never asked anyone to prepare any plans to see whether that was possible.
321. [321]
     As to her comments in forwarding Mr Marks’ email to Mr Jenner, Mrs Wardanski denied suggestions that she thought the matter was funny or that putting Mr Marks to significant inconvenience and expense was amusing.
322. [322]
     When cross-examined about the forwarded email, Mr Jenner rejected the suggestion that his comments in reply to Mrs Wardanski’s email showed he did not take Mr Marks’ response seriously.

Consideration 

323. [323]
     Mrs Wardanski’s 19 July email to Mr Marks was sent after the Plaintiffs had received both the Identification Survey and the final design plans from The Outside Perspective. I conclude that, by that stage, the Plaintiffs had what they considered to be ‘confirmation’ that they would require all of their land in order to build the garage that they wanted. Mrs Wardanski’s email to Mr Marks evidences the Plaintiffs’ position that they were insisting upon removal of the Encroachment.
324. [324]
     In my view, the subsequent emails exchanged between Mrs Wardanski and Mr Jenner provide further evidence of the fact that the Plaintiffs had already decided by 26 February that the only acceptable resolution to the issue in their minds was removal of the Encroachment.

Were renovations done with notice of the Encroachment?

325. [325]
     In her affidavit evidence, Mrs Wardanski claimed that between June 2018 and throughout 2019, she observed the Defendants continued to renovate their property, despite the fact that the Encroachment was not resolved. Those apparent renovations included installing the Block Wall, extending the roof of the garage, extending the garage by removing internal walls, adding a new roof to the garage and installing new gutters on the garage.
326. [326]
     As I have already noted, I accept that the Defendants installed the Block Wall and garden Sleeper Retaining Walls after they were aware of the Encroachment and that these renovations added to the Encroachment. 
327. [327]
     Otherwise, I do not accept that any further works done by the Defendants added to the Encroachment. I accept and prefer the evidence of Mr Marks and Mr Bicanic with respect to each of the matters identified by Mrs Wardanski. Their evidence confirmed that no internal wall had been removed within the Defendants’ Garage, that although a new roof had been added to the garage the only extension it created was on the nonencroaching side of the Defendants’ Garage, and that the original gutters on the garage remained and had not been replaced.

The 3 August Meeting 

328. [328]
     The parties met for a final time on 3 August 2019 (the ‘3 August Meeting’),at the Plaintiffs’ home. The Plaintiffs, Mr Jenner and Mr Marks were each present. Ms Mawby did not attend. 

Plaintiffs’ evidence 

329. [329]
     In her affidavit evidence, Mrs Wardanski stated that during that meeting, Mr Marks had said that it was unreasonable for the Plaintiffs to expect him to remove his garage and that the Plaintiffs did not need to build a garage bigger than the industry minimum standards. Mrs Wardanski recalled that in response, Mr Jenner had said that given that she had a 4x4 vehicle, the minimum standard was not practicable or functional for her needs and he would not recommend a garage be built only to minimum standards. 
330. [330]
     Mrs Wardanski stated that she told Mr Marks that because of the Encroachment, it would cost the Plaintiffs extra to carry out their extension project, but that Mr Marks had said that was not his problem. She further recalled that Mr Jenner told Mr Marks that the Plaintiffs had spent some seven months designing and working on possible adjustments to their extension project to see if realignment of the boundary was workable, but they had concluded that it was not a satisfactory option because the size of the garage it would allow for would not be usable, and to otherwise build a garage of an adequate size would require the garage to be built in the middle of the Plaintiffs’ front door entry.
331. [331]
     Mrs Wardanski further stated that Mr Marks questioned the accuracy of the Identification Survey and that Mr Jenner responded that he would contact PJ Riley to verify its accuracy.  
332. [332]
     She also recalled that, at some point, Mr Wardanski stated that all he wanted was his land back. 
333. [333]
     According to Mrs Wardanski, towards the end of the meeting, Mr Jenner stated that the law was clear and that the Plaintiffs had a right to their land, whilst Mr Marks responded that based on the advice he had been given, the law was not ‘black and white’. Mrs Wardanski stated that the meeting concluded with Mr Marks saying that he was not moving his garage as he was not a millionaire and there was nothing further to discuss.
334. [334]
     Following the meeting, Mrs Wardanski made notes of what was discussed. Mrs Wardanski’s affidavit evidence was consistent with her contemporaneous notes. 
335. [335]
     In cross-examination, Mrs Wardanski agreed that Mr Jenner had previously expressed the view to her that his understanding of the law was that, as the owners of the land, the Plaintiffs had a right to it.  She further agreed that during the 3 August Meeting, Mr Marks had said he had a solution that would allow the Plaintiffs to extend their garage and that he wanted to do some measurements on their property. In response to suggestions that she had refused to let Mr Marks take the measurements and that she was not interested in his proposal, Mrs Wardanski said:

Mr Marks is not a surveyor, so whatever measurements he was going to propose, it had no bearing on anything. I will only rely on advice from independent third parties.

336. [336]
     Mr Wardanski’s affidavit evidence was to the same effect as Mrs Wardanski’s affidavit evidence.  
337. [337]
     In cross-examination, Mr Wardanski agreed that Mr Marks had said he had a proposal which would allow the Plaintiffs to extend their garage and for the Defendants to keep their garage.  He accepted that he was not interested in such an option as he just wanted his land back. He could not recall Mr Marks asking to take some measurements at his property but stated that it was probably Mrs Wardanski who refused to let Mr Marks take the requested measurements. He agreed that, regardless of the proposal put forward by Mr Marks, he just wanted his land back.
338. [338]
     Mr Jenner did not refer to the 3 August Meeting in his affidavit evidence.  In crossexamination, he agreed that Mr Marks had outlined a proposal at that meeting that would allow the Plaintiffs to build a garage and for the Defendants to keep their own garage. He rejected the suggestion that he had refused to let Mr Marks take measurements, instead stating that he had told Mr Marks that they were unnecessary because they already had the dimensions on the drawings he had. 
339. [339]
     Mr Jenner did not remember saying to Mr Marks, ‘The law is clear.  The owners have the right to their land.’  However, he confirmed that was certainly the view he held. He agreed that the notes of the meeting prepared by Mrs Wardanski, which recorded Mr Jenner making that statement, were likely to be accurate, but he did not recall saying that and maintained it was not something he would have said.
340. [340]
     He agreed that he had told Mr Marks that he had spent seven months working on designs and adjustments to see if realignment of the boundary was an option, but rejected the suggestion that this statement was not in fact true. He again agreed that he had not asked The Outside Perspective to prepare any designs that involved keeping the Defendants’ Garage but maintained that he had already done his own hand drawn overlay drawings and sketches which showed that this option would not work.  He stated that The Outside Perspective drawings were ‘a clear indication of the instructions I gave them’. When it was put to Mr Jenner that he had not produced any such drawings or sketches in response to a subpoena, he replied that he had only done hand sketches, which he had later discarded. He rejected the suggestion that no such sketches ever existed.
341. [341]
     Mr Jenner accepted that, in November 2019, he did a further sketch of the Plaintiffs’ Garage, superimposed upon the designs prepared by The Outside Perspective. He agreed that his drawing showed the Plaintiffs’ Garage only built to the fence line, rather than all the way up to the Encroachment. He further agreed that he had not investigated Mr Marks’ proposal for the Plaintiffs to build all the way to the edge of the Encroachment.

Defendants’ evidence 

342. [342]
     Mr Marks’ affidavit evidence was largely consistent with Mrs Wardanski’s affidavit evidence. However, in his evidence, Mr Marks stated that when he asked to take some measurements on the Plaintiffs’ land to verify his proposal, Mr Jenner had said that the measurements did not need to be verified and that he was not really interested in his proposal. 

Consideration 

343. [343]
     I accept the evidence of the Plaintiffs and Mr Marks as to what was said during the 3 August Meeting. There is largely no material difference between their accounts and they each accord with Mrs Wardanski’s contemporaneous notes about the meeting.
344. [344]
     In contrast, I do not accept Mr Jenner’s evidence about what was said where his evidence differed from the evidence of other witnesses. Given Mr Jenner’s lack of recall about certain matters and the inconsistencies between his evidence and the evidence of other witnesses, I do not consider Mr Jenner’s evidence to be reliable. In particular, I am satisfied that Mr Jenner said to Mr Marks words to the effect of, ‘The law is clear.  The owners have the right to their land.’
345. [345]
     I consider the Plaintiffs’ refusal or disinterest to allow Mr Marks to take further measurements for his proposal for the Plaintiffs’ Garage to be demonstrative of the entrenched state of mind they had long held by this stage: they wanted to construct a garage on their property that would require the use all of their land, including the land the subject of the Encroachment, and they were not willing to consider any lesser alternative.

Final attempts to resolve the issue

346. [346]
     On 6 August 2019, Mr Marks sent an email to Mrs Wardanski, relevantly stating:

At our meeting on 3^rd August, 2019, it was disappointing that we were not able to come to an agreement to suit both parties, especially since I believe there is a solution that provides each of us with an outcome that is fair and reasonable for both:

• – YOU – a fully enclosed garage for your cars, without incurring substantial cost to remove your existing structures.
• – US – not having to demolish and rebuild the left hand side of our garage etc. which would certainly cost upwards of $60,000

It is agreed that it is not your “desired outcome” whereby you are able to reclaim all the land being encroached upon, however, this is not a situation that lends itself to a simple solution – a compromise needs to be made in this instance given the financial implications of what you require us to do. We simply cannot afford to do this irrespective of anything else and we have stated this previously prior to any discussions regarding your proposed garage.

What is extremely disappointing is that during our meeting, I was declined the opportunity to verify some measurements of the existing carport, which would help substantiate my claim of a solution to suit both of us. Kent advised that there was no need for me to check the existing measurements as he had already modelled his proposal and there was no negotiating on changing the size of his proposed extension to your garage.

Given that I have highlighted some large inaccuracies with the survey plan P J Riley Surveyors provided you, it brings into question the accuracy of Kent’s modelling all together [sic]. It would have been beneficial to both parties to actually check some on-site measurements.

As I was also not given the opportunity to clarify my proposal at our meeting, I will provide you with the details in this email so that hopefully you can fully appreciate it at your leisure without external influences and pressure – bearing in mind that I was not able to verify some measurements.

Please find attached, 2 sketches. One shows the location of your existing carport in relation to my garage and the other shows my proposal to extend your garage to a point 250mm offset from the front left corner of the blockwork to my garage. This critical 250mm offset would allow for the width of my gutter as well as my services (water supply and roofwater) to not be impeded by your garage.

Based on this, you would be able to achieve an internal depth of approximately 6.2m in your proposed garage which is 200mm longer than the current “Typical” internal dimensions stated in the relevant Australian Standards. Current specifications indicate your vehicle has an overall length of 5255mm (5.255m) which means that you would be able to achieve a clear width of nearly 500mm at the front and rear of your car when parked in the garage. This is adequate room to walk around and the advice I have received indicates that this proposal can certainly suit both our needs.

The propsed [sic] RP Boundary could then be aligned so that it follows the existing fence line predominantly and then deviates to follow the back wall of your garage until it reaches the front boundary line – as per the attached sketch.

347. [347]
     The sketches attached to the email purported to show options for accommodating a smaller garage to be constructed on the Plaintiffs’ property, which would supposedly meet their needs and allow the Defendants’ Garage to remain.
348. [348]
     On 10 August 2019, Mrs Wardanski sent an email in reply, relevantly stating:

I agree that it is disappointing that we were not able to come to an agreement to suit both parties.

Thank you for taking the time & providing us with your recommendations/advise on how to build our garage. I appreciate your good intention, however based on the information you are given & based on the information we are given , there is a CONFLICT OF INTEREST.

I am not a builder nor an engineer and I have to rely on independent 3^rd party advice to ensure any action undertaken is in our best interest & that it meets our family [sic] long term needs. Ie. A usable garage not only for cars but also to store other items such as Patryk’s expensive bike collection to say the least. (they are currently being stored in my living room downstairs).

I realise that I have reached my limit of capabilities in trying to find a solution to our difficult situation, hence the reason for independent advice. I do however have some understanding of financial implications to both of us. May I suggest that you get more quotes for the demolition & rebuild of the left hand side of your garage etc… the figure you are quoted of $60K upwards is DAYLIGHT ROBBERY.

Having said that, I believe there is no conflict of interest in discussing the relocation of the back section of the fence to the correct boundary line.

As the building of the fence is a joint expense to be shared between neighbours, may I suggest we have a neighbourly chat (at a convenient time) to discuss our options ie.

Keep the existing timber fence or get colour bond to match your existing colour bond fencing.

Do you have a contact for a reputable fencing company that can build the fence, or would you like me to get some quotes.

When the current fence is dismantled, it will give you good access to our water tank, so that the overspray damage (caused when you spray painted the fence in January 2019 )can be rectified. (At the moment the access is very limited hence why I have not mentioned this before.) I don’t know what is involved in removing the overspray, but I am happy to leave it up to your discretion if you want to get someone to do it or remove the overspray yourself .

In order to facilitate the relocation of the fence, we kindly request that all the landscaping that was done on our land be removed.

349. [349]
     In response to that email, on 16 August 2019, Mr Marks sent an email to Mrs Wardanski, relevantly stating:

With respect to the garage – I’m not trying to give you advice – I’m just trying to find a solution. 

Just so that I have made it clear – the extra length gained by extending your garage all the way to the existing property boundary, instead of adopting my proposed solution is approximately 460mm. It does not seem reasonable to do this to gain an extra 460mm. That width would not even allow for a bike to be stored in that space behind your vehicles. Maybe it would be in your best interest to get some independent advice from a builder that could solve this issue.

In our meeting on 3^rd August, your builder quoted a ballpark figure in the vicinity of 50k and with all projects of this nature, there would be a contingency of at least 10% to cover unforeseen extras as well as other costs to cover Council fees, structural design and certification if required, potential relocation of services if required and driveway works etc. Therefore, costs of $60,000 or more is certainly possible when you are dealing with an existing structure – we know this from recent experience.

As far as the fence is concerned – the alignment of the fence and how it will connect to the back wall of your garage will be determined by the location and extent of the back wall of your garage when it has been built – therefore, it makes no practical sense at all to make any alterations to the existing fence until the garage is completed and that issue is resolved. Then we can discuss details regarding the new fence.

Also - As you know, we have been the victim of several break-ins over the last few years in this street and removing any portion of the existing fence and leaving a section of it unfinished until the garage is complete, compromises the security of my property and the safety of our dog, and this we do not condone. Therefore we have no intention of doing this work until it is necessary and we kindly ask that you refrain from altering the existing fence in any way until this time.

I’m sure you would agree that this is a reasonable request given that the security of our houses and the safety of our families is the highest priority.

Plaintiffs’ evidence 

350. [350]
     In cross-examination, Mrs Wardanski agreed that she had forwarded Mr Marks’ 6 August email onto Mr Jenner, stating in her forwarding email, ‘You had better have a stiff drink before you read this.’ She again denied that she was not taking Mr Marks’ proposal seriously, but accepted that she did not ask Mr Jenner to consider whether Mr Marks’ proposal was possible.
351. [351]
     When asked in cross-examination about the proposal Mr Marks had outlined in his email for the Plaintiffs’ Garage, Mr Jenner stated that he did not know whether the proposed external garage length of 6.6m, as shown in Mr Marks’ sketches, was accurate, but he agreed that if it was, it would be ‘more than enough’ to accommodate the Plaintiffs’ vehicles. 
352. [352]
     In further cross-examination, Mr Jenner agreed that on 7 August, he had sent an email to Mrs Wardanski in which he had commented on Mr Marks’ email and proposal, ‘This is simply a divide and conquer technique, no surprise from a liar.’
353. [353]
     When questioned about what he had written, Mr Jenner rejected propositions that he had no basis for calling Mr Marks a liar and that he did not take Mr Marks’ proposal seriously. 
354. [354]
     In re-examination, Mr Jenner stated that he had investigated the original documentation retained by the Logan City Council concerning the approval for the original construction of the Defendants’ Garage. He stated that his investigations revealed that because of the original builder’s apparent negligence in failing to obtain a cadastral survey, there was a possibility that the Defendants’ might be covered by the QBCC’s ‘home-wide insurance’^[22] in respect of the costs of any rectification works to remove and reinstate the Defendants’ Garage. Mr Jenner stated that he advised Mr Marks of this possibility but that he flatly refused to consider it.

Defendants’ evidence 

355. [355]
     According to Mr Marks’ affidavit evidence, the sketches prepared by him showed that the Plaintiffs could extend the footprint of their garage approximately 1.1m towards the Defendants’ Garage which would leave a 250mm clearance between the front corner of the Defendants’ Garage and the back of the Plaintiffs’ Garage. Further, the 1.1m extension would, in Mr Marks’ opinion, allow an internal dimension within the Plaintiffs’ Garage of approximately 6.2m, which he considered would be more than adequate to accommodate the Plaintiffs’ vehicles. 

Consideration 

356. [356]
     I consider the emails exchanged in August 2019 provide further evidence of a view held by the Plaintiffs since the 26 February Meeting that the only satisfactory solution was removal of the Encroachment. I am also satisfied that the Plaintiffs did not take any steps to seriously investigate Mr Marks’ proposed solution to the construction of their garage at any stage.

Lawyers become involved

357. [357]
     On 20 August 2019, lawyers acting for the Plaintiffs wrote to the Defendants demanding that they ‘cease and desist’ carrying out improvements to the Encroaching Structures and putting them on notice that the Plaintiffs intended to seek orders from the Court for removal of the Encroachment.
358. [358]
     Thereafter, all further correspondence in respect of attempts to resolve the matter was through the respective lawyers acting on behalf of the parties. 

Settlement offers 

359. [359]
     Various settlement offers were exchanged before the commencement of the proceeding. The parties are not entirely agreed on whether I can or should have regard to them as a circumstance relevant to the question of what, if any, relief should be granted under s 185 of the PLA. 

Submissions 

360. [360]
     The Plaintiffs’ case was opened on the basis that it was not appropriate for settlement offers to be considered by the Court, save for on the question of costs, which is a matter specifically referred to in s 194 of the PLA. The Plaintiffs submitted that it was not appropriate to consider such offers until the question of costs was considered, for the following reasons:

     1. the reasonableness of offers and the parties’ conduct in relation to those offers cannot be properly assessed until the outcome of the proceedings is known;
     2. because certain without prejudice save as to costs offers had also been exchanged, the Court should not have regard to any open offers in isolation without the full history and context of all offers made; and
     3. in any event, the Defendants’ open offers made prior to the commencement of the proceeding are of limited significance in the context and circumstances of this case.
361. [361]
     In response to those submissions, the Defendants submitted that any previous attempts to negotiate and resolve the encroachment dispute by way of offers to settle were relevant to the exercise of the Court’s discretion. They submitted that the offers made, and the Plaintiffs’ refusal to accept such offers, could demonstrate unreasonable conduct and would therefore be a relevant factor to consider when determining what, if any, relief ought to be granted under s 185 of the PLA.
362. [362]
     In closing submissions, the Plaintiffs resiled somewhat from the position taken at the commencement of the trial. The Plaintiffs noted that in the unreported decision of Re Assumpsit No. 32 Pty Ltd,^[23] Williams J had considered pre-proceeding offers to be relevant when considering whether to grant relief under s 185 of the PLA. Nevertheless, the Plaintiffs maintain that in the circumstances of the present case, it was not appropriate for the Court to consider offers made after the commencement of proceedings, particularly as ‘without prejudice’ offers had been made. 
363. [363]
     In my opinion, it is appropriate to consider any settlement offers made before the commencement of the proceeding. Quite aside from the terms of s 194 of the PLA, I consider any such offers made by a party, and any response to such an offer by the opposing party, may be relevant to the question of the reasonableness of the conduct of a party, which is a matter relevant to the determination of the appropriate relief, if any, to be granted under s 185 of the PLA. I do not accept the matters raised by the Plaintiffs would make it inappropriate to have regard to the pre-proceeding settlement offers made in this case.
364. [364]
     I do not, however, consider it appropriate to have regard to offers made after the commencement of the proceeding.  Such offers may, of course, be relevant to the issue of costs, but in my opinion they have no bearing upon my assessment of the appropriate relief, if any, to be granted.

Evidence of the offers made

365. [365]
     In their 20 August 2019 letter, the solicitors for the Plaintiffs reiterated that notice had previously been given on 23 April 2019 to the Defendants that certain structures encroached on the Plaintiffs’ land and that subsequently the Plaintiffs had requested the removal of the Encroachment. The letter relevantly continued:

 5.   We are instructed that despite the Notice and the Direction:

 5.1  You have not taken any steps to remediate or remove the encroaching structures; and

 5.2  You have instead carried out further works and expanded the encroaching structures.

6. While it should go without saying, you should immediately cease and desist from carrying out further works on the encroaching structures.
7. We put you on notice that our clients intend to approach the court for orders that you remove the encroaching structures and pay their legal costs.
8. If you have a proposal to put to our client to avert the need for them to approach the court, you should provide that to us within 7 days.

366. [366]
     In response to that letter, on 6 September 2019, the solicitors for the Defendants wrote to the Plaintiffs’ then solicitors. The letter stated that its purpose was ‘to respond to your letter and propose a reasonable resolution to the encroachment issues’. Amongst other things, the Defendants’ solicitors contended that the prejudice to the Defendants in removing the Encroachment greatly outweighed the prejudice to the Plaintiffs if the boundary were realigned. The Defendants’ solicitors claimed that the likely costs for removal of the Defendants’ Garage would exceed $80,000.
367. [367]
     The letter concluded with the following:

Our clients’ proposal

20. For the reasons set out above, your clients’ demand that the encroachments be removed is unreasonable and is unlikely to be granted by the court.
21. Our clients make the following proposal to resolve the encroachment:
    1. The area of land the subject of the encroachment be transferred to our clients.
    2. Our clients will undertake the transfer process at their cost, and your clients will provide reasonable co-operation to effect it, including signing any necessary documents. To that end, your clients should sign and return the documents delivered to their letterbox on 20 February 2019.
    3. Our clients will progress and finalise the transfer as expeditiously as possible.
    4. Upon completion of the transfer, our clients will pay compensation to yours, calculated in accordance with section 186 of the Act.
    5. Each party will otherwise bear their own costs.

22. As to the compensation, there can be no suggestion that the encroachment arose from our clients’ intentional or negligent act. Accordingly, section 186 of the Act provides that the minimum compensation payable is the unimproved capital value of the subject land. We note the enclosed RP Data schedule specifies the unimproved value of your client's property is $370,000, which equates to $432.74 per square metre. Multiplying that figure by the area of encroachment (14.2m²) derives $6,145.02. Our clients offer to pay this by way of compensation, but will entertain any reasonable proposal from your clients as to the compensation a court may award under section 186.
23. Our clients’ offer is reasonable, made in good faith and reflects the likely outcome of any litigated proceeding, but avoids the costs, delays and unpleasantness associated with that process. We expect both parties would spend well in excess of $20,000 each to litigate this matter. Our respective clients have to live side by side, likely for many years. They have enjoyed an amicable relationship, and our clients would like that to continue. That is the basis upon which they have expended considerable resources and effort to engage this firm to provide a comprehensive response to your letter. 
24. In the event our clients’ offer is not accepted, we will take instructions to make an application to the court for orders reflecting the above proposal. This letter, and our clients’ previous efforts to reach a resolution, would be relied upon as to the question of costs, noting that the court can take such offers into account in deciding costs orders. If successful in a proceeding, our clients would seek orders that your clients pay their costs of the proceeding on an indemnity basis, as a penalty for unreasonably refusing the offer above.

This offer is open for 14 days from the date of this letter, after which time it will lapse.

368. [368]
     In response, on 16 January 2020, the former solicitors for the Plaintiffs wrote a further letter to the Defendants’ solicitors. The Plaintiffs’ solicitors contended that the Defendants’ estimate of the costs for removal of the Defendants’ Garage were excessive. The letter attached a copy of a report prepared by KJ Constructions, which set out Mr Jenner’s various costs estimates for building the Plaintiffs’ Garage, with and without the Encroachment, and also for removal and reinstatement of the Defendants’ Garage.  By reference to those estimates, the Plaintiffs’ solicitors asserted that the likely costs for removal of the Defendants’ Garage were about half the $80,000 estimate provided by the Defendants’ solicitors, but that the true loss and damage that the Plaintiffs would suffer if the Encroachment was not removed would include an additional $120,000 in costs to construct the Plaintiffs’ Garage.
369. [369]
     At the conclusion of that correspondence, the Plaintiffs proposed the following:

Settlement

22. Notwithstanding the above matters, and in order to resolve this matter without the need to involve the court, we are instructed that our client would be prepared to resolve this matter on the basis set out in paragraph 21 of your letter dated 6 September 2019, save that:

1. the terms of any settlement be reduced to a mutually acceptable deed of settlement; and
2. the compensation amount be set in the amount of $65,000.00.

23. Your clients should appreciate that our client has significantly compromised her claim and that she will still be substantially out of pocket by agreeing to accept a resolution on these terms.
24. This letter will be relied upon on the question of costs should an application to the court become necessary.
25. We look forward to your response.

370. [370]
     On 19 March 2020, the Defendants’ solicitors wrote to the Plaintiffs’ current solicitors, who had then recently been instructed to act on behalf of the Plaintiffs, advising that the Defendants rejected the Plaintiffs’ offer of 16 January 2020 as being:

…unreasonable in all of the relevant circumstances, because it is based on loss that has not been and will not actually be incurred, and exceeds the limit of compensation a court can award pursuant to the Property Law Act. 

371. [371]
     The letter concluded with a reiteration of the Defendants’ previous offer in the following terms:

10. Although our clients have now incurred substantial costs on account of your clients’ unreasonable position, to resolve the matter, our clients re-open their offer of 6 September 2019 for acceptance for 14 days from the date of this letter. In the event it is not accepted, we expect to be instructed to make an application to the Court for orders under section 184 of the Property Law Act. Our clients will rely on this, and our previous correspondence, to seek orders for their costs.

372. [372]
     The Plaintiffs did not further respond to the Defendants’ last offer of settlement. The Plaintiffs instead commenced the present proceeding on 16 April 2020. 

Consideration 

373. [373]
     Ultimately, the final difference between the settlement offers exchanged concerned the amount of compensation to be paid by the Defendants to the Plaintiffs in return for the Plaintiffs’ agreement to transfer the land the subject of the Encroachment. 
374. [374]
     In my opinion, for reasons that I will further explain below, there was no reasonable basis for the Plaintiffs’ demand for payment of $65,000 in compensation for transfer of the subject land. For the reasons stated in the Defendants’ solicitors 19 March 2020 letter, I consider the Plaintiffs’ settlement offer was not reasonable.

Conclusions about the conduct of the parties 

375. [375]
     Whilst the conduct of the parties is relevant to my consideration of what relief, if any, is to be granted, I bear firmly in mind that this matter is not to be determined, solely or primarily, by deciding whose conduct has been the most virtuous.
376. [376]
     In my view, both parties have acted unreasonably at times.  
377. [377]
     I consider the Defendants unreasonably failed to promptly inform the Plaintiffs of the Encroachment once they became aware of the issue on 5 July 2017. Thereafter, I consider they unreasonably failed to properly investigate the matter by way of a formal identification survey. In my view, it was inadequate for the Defendants to simply obtain the Draft Identification Survey and unreasonable for them to delay providing it to the Plaintiffs whilst attempting to negotiate the option of an easement to resolve the encroachment issue.
378. [378]
     It is apparent from the evidence that, from the time the Defendants notified the Plaintiffs of the Encroachment through until Mr Marks’ 29 November 2018 email, the Defendants sought to convince the Plaintiffs to agree to an easement. In my view, the Defendants did not act entirely transparently and fairly in proposing such a resolution during this time. The Defendants pressed the Plaintiffs to agree to a resolution that would be favourable to them, in circumstances where they knew that the Plaintiffs had obtained contrary advice as to the preferred option for resolution and where they knew the Plaintiffs were proceeding cautiously and wanted to have the nature and extent of the Encroachment properly and fully investigated and confirmed before making a decision. 

379. [379]
     As part of their attempts to persuade the Plaintiffs to agree to an easement, Mr Marks advised the Plaintiffs that an easement would be the simplest and most cost-effective solution and would provide minimal disruption to both parties. He also told them that he had been advised that there were better alternatives to removal of the Encroachment. None of those assertions was entirely consistent with the advice Mr Marks had received from his surveyors and his builder.
380. [380]
     Nevertheless, I consider that after 29 November 2018, the Defendants acted reasonably in attempting to resolve the matter by way of a boundary realignment and an offer to pay reasonable compensation. That continued to be the case through until the final pre-proceeding settlement offers made by the Defendants.
381. [381]
     As for the Plaintiffs, I consider they acted reasonably until the 26 February Meeting. In my view, they were entitled to insist upon a proper investigation of the Encroachment.  It was not unreasonable for them to refuse to agree to either an easement or a boundary realignment until such time as they had confirmation of the nature and extent of the Encroachment and they could then make an informed assessment as to how any option for resolution might affect them and their interests.
382. [382]
     However, as I have found, once the Plaintiffs began receiving advice from Mr Jenner, their attitude to negotiating a resolution of the matter changed. That change first emerged after the initial advice given by Mr Jenner to the Plaintiffs during their first meeting on 8 December 2018 and was cemented by the further advice given by Mr Jenner during their subsequent meeting on 26 February 2019. On my assessment of the evidence, it was from this point in time that the Plaintiffs were no longer open to considering a boundary realignment and were determined to reclaim their land, regardless of the cost and inconvenience that might cause the Defendants.

383. [383]
     Whilst I have not found that the Plaintiffs’ Garage was a device designed simply to justify the Plaintiffs’ desire to reclaim their land by a contrived need for the additional land the subject of the Encroachment, I do consider the Plaintiffs’ insistence on wanting the Encroachment removed so they can build their proposed  garage to be unreasonable. The expert evidence, which I detail further below and which I accept, shows that it would be possible for the Plaintiffs to build a suitable garage on their property without removing the Defendants’ Garage. Whilst I accept that the available space may not allow for construction of a garage with storage of the kind that the Plaintiffs desire, in my view, it is clear that the Plaintiffs can build an adequately sized enclosed double garage that would accommodate their two cars.  
384. [384]
     Although I accept Mrs Wardanski’s evidence that she relied upon independent thirdparty advice in respect of the Encroachment, in my view, the evidence shows that the Plaintiffs were unwilling to seek such advice with respect to potential alternative solutions for their garage that would not involve demolishing or moving the Defendants’ Garage. I have formed the same view in respect of Mr Jenner. 
385. [385]
     I consider the Plaintiffs’ approach to the Defendants’ settlement offers to be a continuation of their unreasonable conduct.
386. [386]
     Whilst I have regard to the foregoing matters, in my opinion, it is more relevant to consider what knowledge the Defendants had of the Encroachment, when they had such knowledge and whether the Defendants caused or contributed to the Encroachment through their conduct. 
387. [387]
     Whilst there is some overlap, I am mindful that these considerations are separate from the question of whether the Encroachment was intentional or negligent for the purposes of considering the minimum amount of compensation payable under s 186 of the PLA. Under s 186 the Defendants bear the onus of proving that the Encroachment was not intentional and did not arise from negligence. 
388. [388]
     With that distinction in mind, I am satisfied on the evidence that:

     1. The Defendants were not aware of the Encroachment before 5 July 2017. From then onwards, they were aware that various structures on their side of the fence encroached upon the Plaintiffs’ property. Before then, they were ‘innocent encroachers’.
     2. The Defendants installed the New Garden Shed on a date before 5 July 2017. The New Garden Shed did not extend the area of the Encroachment. To the extent that the Defendants are responsible for this encroachment by replacing an existing encroaching structure, I do not consider their encroachment was intentional or negligent.
     3. From 5 July 2017 to around 21 July 2018, the Defendants did not build any new encroaching structures. 
     4. Sometime around the 21 July Meeting, the Defendants built the Block Wall and Sleeper Retaining Walls in their garden. To the extent that these structures encroach on the Plaintiffs land, the Defendants’ encroachment was negligent. However, I consider the extent of that encroachment is de minimis.
     5. The Defendants did not extend the Encroachment by replacing the roof of the Defendants’ Garage in August 2019. Any extension to the roof of the Defendants’ Garage created by installing the new roof was wholly confined to the non-encroaching side of the garage. To the extent that the new roof crosses the boundary between the adjoining properties, I accept that it encroaches upon the Plaintiffs’ land. In that respect, I am satisfied that the Defendants’ replacement of the garage roof constitutes an intentional continuation or augmentation of an existing encroachment. However, I bear in mind that the section of the Defendants’ Garage that causes the greatest encroachment is the roof gutter and I am satisfied that the Defendants did not replace the gutter or do any work on it. In those circumstances, it seems to me that the replacement of the roof contributes very minimally, if at all, to the Encroachment

Loss and damage to the Plaintiffs

389. [389]
     The Plaintiffs claim they have already suffered loss and damage as a result of the Encroachment and that they will suffer further loss and damage if the Encroachment is not removed.  These matters are relevant considerations under both ss 185(2)(d) and 186(2)(b) of the PLA.
390. [390]
     As to the loss and damage already suffered, the Plaintiffs claim they have incurred $13,971.64 in costs and expenses, comprised of:

     1. $13,777.50 in total costs for advice in respect of the Encroachment, comprising:
        1. $2,090 for the Urbicus Advice;
        2. $3,135 for the Identification Survey; and
        3. $8552.50 for advice from KJ Constructions; and
     2. $194.14, being the costs of local government rates paid by the Plaintiffs in respect of the area of 19m² of which they have not had the use and enjoyment.
391. [391]
     The Plaintiffs seek an order for compensation in respect of these amounts. I will address those matters further below.
392. [392]
     As to potential or future loss and damage, the Plaintiffs claim that they will incur substantial loss and damage if an order for removal of the Encroachment is not made. Most significantly, they say they will be unable to build the garage that they want within the confines of the available space and the only alternative to accommodate a garage of the size and style they want and need would see them incur substantial costs and inconvenience. They further say that they will suffer the loss of their land and the use of their land and that there will be a $5,000 diminution in the value of their land due to the crooked boundary that will result from any transfer of the subject land.
393. [393]
     The Defendants maintain that the Plaintiffs can build a suitable garage for their two vehicles without removal of the Encroachment and that there would be no need for the Plaintiffs to remodel their front entranceway. 

Plaintiffs’ evidence

394. [394]
     The Defendants’ solicitors 6 September 2019 letter to the Plaintiffs attached a copy of a quotation provided to the Defendants by Mr Bicanic, through his business Jux Developments Pty Ltd, for the removal of the encroachment posed by the Defendants’ Garage (the ‘Jux Quote’). According to the Jux Quote, the cost would be $69,900, including GST. The solicitors’ letter claimed that further costs would be incurred for removing and realigning the boundary fence and other expenses and estimated a total cost in excess of $80,000 for removing the Encroachment and reinstating the Encroaching Structures.

395. [395]
     In response, Mrs Wardanski sought advice from KJ Constructions and asked Mr Jenner to provide a report identifying the costs the Plaintiffs would incur with respect to their proposed renovations as well as the estimated costs that would be incurred by the Defendants for removal of the Encroachment.
396. [396]
     On 15 November 2019, KJ Constructions provided the requested report to the Plaintiffs (the ‘KJ Constructions Report’). The KJ Constructions Report reiterated Mr Jenner’s opinion that a garage suitable to accommodate the Plaintiffs’ two vehicles could not be built within the current available space without significant structural changes to the entranceway of the Plaintiffs’ house and associated works.
397. [397]
     As to potential costs involved, according to the KJ Constructions Report:
     1. the cost of the Plaintiffs’ renovation without the Encroachment would be in the order of $179,049;
     2. the cost of removing the Encroachment to the Defendants would be in the order of $46,302; and
     3. the cost of the Plaintiffs’ renovation with the Encroachment would be in the order of $298,865.