Abbatangelo v Whittlesea City Council - [2007] VSC 529

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9571 of 2004

LAURICE ABBATANGELO	Plaintiff
v
WHITTLESEA CITY COUNCIL	Defendant

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JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2007 – 5 December 2007
DATE OF JUDGMENT:	13 December 2007
CASE MAY BE CITED AS:	Abbatangelo v Whittlesea City Council
MEDIUM NEUTRAL CITATION:	[2007] VSC 529

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LIMITATION OF ACTIONS – Land – Adverse possession – Rural land – Acts amounting to exclusive possession – Continuous possession – Intention to possess exclusively – Acts amounting to resumption of possession – Limitations of Actions Act 1958 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G D Bloch	Tisher Liner & Co
For the Defendant	Mr M J Colbran QC with Ms J G Tooher	Maddocks

HIS HONOUR:

The plaintiff, Mrs Laurice Abbatangelo, claims title to a parcel of general law land situated at 581 Bridge Inn Road, Mernda (“the disputed land”) by adverse possession against the defendant, the Whittlesea City Council. The Council, in turn, denies the plaintiff’s claim and by counterclaim asserts its ownership by documentary title. The disputed land has a southern frontage on Bridge Inn Road but is otherwise surrounded by land purchased by Mrs Laurice Abbatangelo and her late husband, Mr Abbatangelo, on or about 17 November 1958 (“the Abbatangelo property”). The disputed land was given to the Council in July 1908 as a gift made by Catherine Poole for the construction of a shire hall. The shire hall was never built but the land was retained by the Council for municipal purposes.

A squatter may acquire title to another’s land by possessing it exclusively for a continuous period of 15 years. The essence of an adverse possession claim was summarised by Ormiston JA in Traykof v Chanco Holdings Pty Ltd[1] as an enquiry into whether the party claiming adverse possession “had obtained and exercised such exclusive occupation and physical control of the disputed [land], with the intention to exclude all others, including the registered proprietors and persons claiming through them, in an unequivocal way for a continuous period of 15 years or more, so as to amount to the acquiring of adverse possession of the [land]”.[2]
[1][2001] VSCA 56 (unreported, Winneke P, Ormiston and Callaway JJA, 3 May 2001).
[2]Ibid, 7.

Adverse possession was described by the defendant’s counsel as “a very old doctrine which promotes a fundamental anomaly by turning a wrong into a right.” The existence of the doctrine has been justified in the past, however, by reference to notions of “public utility”. In Marquis Cholmondeley v Lord Clinto,[3] Sir Thomas Plummer said of the doctrine:[4]

It stands upon the general principle of public utility. … The public have a great interest, in having a known limited fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period, after which the possessor may know that his title and right cannot be called into…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 529
Decision Date: 13 December 2007

CaseChat Overview and Summary

The case of Abbatangelo v Whittlesea City Council involved the plaintiff, Abbatangelo, and the defendant, Whittlesea City Council, in a dispute concerning adverse possession of rural land. The plaintiff sought a declaration of ownership over a parcel of land, which was previously owned by the defendant council, claiming that he had been in adverse possession of the land for over 12 years. The court was required to determine whether the plaintiff had fulfilled the necessary conditions for adverse possession under the Limitations of Actions Act 1958 (Vic), including acts amounting to exclusive possession, continuous possession, intention to possess exclusively, and acts amounting to resumption of possession.

The primary legal issue before the court was whether the plaintiff's actions constituted adverse possession of the land, thereby extinguishing the defendant's title. The court had to examine whether the plaintiff had demonstrated exclusive possession, which meant that the plaintiff's use of the land was to the exclusion of the owner and inconsistent with their rights. Furthermore, the court had to consider if the plaintiff's possession was continuous and uninterrupted for the statutory period, and whether there was an intention to possess the land as one's own, effectively excluding the true owner.

In its decision, the court found that the plaintiff had not established the necessary conditions for adverse possession. While the plaintiff had demonstrated exclusive use of the land, there was insufficient evidence to show that this use was continuous and uninterrupted for the statutory period. Additionally, the court determined that the plaintiff's actions did not amount to a resumption of possession after any potential lapse in adverse possession. As a result, the plaintiff's claim for adverse possession was dismissed.

The court ordered that the plaintiff's claim for adverse possession be dismissed, and that the Whittlesea City Council retain ownership of the disputed land. The court found that the plaintiff had not met the necessary legal requirements to establish adverse possession under the Limitations of Actions Act 1958 (Vic).

Orders