Abbatangelo v Whittlesea City Council
[2007] VSC 529
•13 December 2007
| 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 question.
Such a rationale was said by counsel for the defendant to be highly questionable in a modern context where land title registration schemes exist to create and promote certainty of land titles and where modern technology and aerial photography provide an attractive alternative to the frailties of human memory. They also pointed to the recently enacted Charter for Human Rights and Responsibilities Act 2006 where property rights fall within the ambit of human rights which are said to be respected and valued.[5] These considerations were contended by counsel for the defendant as being inconsistent with what they described as a rationale which actively encourages people deliberately to enter into possession of another’s land knowing that they would be rewarded with an unassailable title as a result of their wrong. This way of putting the matter, however, does not do justice to the competing interests which the law has for many years sought to balance. The doctrine of adverse possession has been long and well established and, whilst at one level may be said to reward a wrongdoing, at another level gives effect to other policy considerations including the provision of a practical means for regularising possessory claims against documentary owners who, for a lengthy period of time, have not asserted a higher title. The public has an interest in ensuring that a person in long term and undisputed possession is able to deal with land as owner. The law has long since accepted that it is “more important that an established and peaceable possession should be protected “than to assist” the agitation of old claims.”[6]
[3](1820) 2 Jac & W 1; 37 ER 527.
[4]Ibid, 139-40; 577.
[5]Although it is not clear whether the legislation is more likely to assist the asserted acquired property right of the adverse possessor or that asserted by the documentary title holder.
[6]Megarry & Wade, The Law of Property (6th ed, 2000) 1303, citing Marquis Cholmondeley v Lord Clinto (1820) 2 Jac & W 1, 140; 37 ER 527; Manby v Berwicke (1857) 3 K & J 342, 352; See also Bradbrook, MacCallum and Moore, Australian Real Property Law (4th ed, 2007) 675-676.
It was common ground that the principles relevant to establish a squatter’s title by adverse possession are to be found in both statute law and the common law. The Limitation of Actions Act 1958 (Vic) (“the Act”) operates to extinguish the title of a person who, within 15 years of becoming entitled to bring an action, does not bring an action to recover possession from a person in adverse possession. Section 8 of the Act provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action accrued. Section 18 of the Act provides that the title of a person to land shall be extinguished at the expiration of the period prescribed by the Act, namely, the 15 years stated in section 8. An effect of section 9(1) is to require that the person in prior possession (in this case the Council) whose title stands to be extinguished, has been dispossessed or has discontinued possession. Section 14(1) provides, in effect, that the land must be in the adverse possession of some person as against the person otherwise entitled to the land.
For Mrs Abbatangelo to succeed in her claim she must show, as Eames J said in Monash City Council v Melville,[7] that for 15 years she had “both factual possession, to the exclusion of others, and the requisite intention to possess the claimed land to the exclusion of others.” To establish actual possession, as his Honour said, the possession “must be actual, open (that is without stealth), continuous and exclusive (and without the licence of the actual owner)”. There are, in other words, two facts which Mrs Abbatangelo must establish for her claim to succeed. The first is her continuous possession of the disputed land for the requisite period; that is, she must show her continuous exclusive physical control of the disputed land with the documentary owner being out of possession for 15 years.[8] The second is an intention, held simultaneously with possession, to exclude the world at large, including the owner with the documentary title, by exercising exclusive control and with such intention being made clear to the world.[9]
[7][2000] VSC 55 (unreported, 28 February 2000) 7.
[8]See Clement v Jones (1909) 8 CLR 133, 139-140 (Griffith CJ).
[9]See Bayport Industries Pty Ltd v Watson & Anor [2002] VSC 206, 10-13 (Ashley J).
The cases to have considered these issues have described the evidence required to establish adverse possession in various ways. In the American context it was said in The Laird Properties New England Land Syndicate v Mad River Corp[10] that the adverse possessor “must unfurl his flag on the land, and keep it flying so that the owner may see, if he will, that an enemy has invaded his dominions and planted his standard of conquest … “. In Beever v Spaceline Engineering Pty Ltd[11] Bryson J stated the requirement of possession as needing to be “actual, open, visible, notorious, continuous and hostile to the title of the true owner.”[12] In McDonnell v Giblin[13] Cooper J noted that in order to dispossess the documentary owner, “the possession which is claimed to be adverse to his rights must be sufficiently obvious to give such owner the means of knowledge that some person has entered into possession adversely to his title and with the intention of making a title against him.”[14] The possession must, as counsel for the defendant state in their submission, be sufficiently open and manifest that someone reasonably careful of his or her own interests, if living in the locality and passing the allotment from time to time, would by his or her observation reasonably have discovered that some person had taken possession of the land.
[10]305 A (2d) 562, 567 (1973) (quoted in Shaw v Garbutt (1996) 7 BPR 14,816, 14,832 (Young J)).
[11](1993) 6 BPR 13,270.
[12]Ibid, 13,283.
[13](1904) 23 NZLR 660.
[14]Ibid, 662.
The person claiming title by adverse possession must also show that the possession was with an intention to possess the land to the exclusion of others. A person will not establish the requisite intention merely by proving entry and possession as a trespasser.[15] It is not a necessary ingredient of the requisite intention that the possession be knowingly unlawful as against the true owner.[16] It is also not necessary that the person claiming as adverse possessor show a specific conscious intention to exclude the true owner.[17] What, however, is essential is that the intention be one to exclude others.[18] In short, the person claiming title by adverse possession must show that the possession was held with an intention to assert the fundamental rights of ownership: possession and exclusion.
[15]Powell v McFarlane (1977) 38 P & CR 452, 476 (Slade J).
[16]J.A. Pye (Oxford) Ltd v Graham [2003] 1 AC 419, 436 (Lord Browne-Wilkinson); Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314 (unreported, Bongiorno J, 28 August 2006) 14.
[17]Ocean Estates v Pinder [1969] 2 AC 19; Bayport Industries Pty Ltd v Watson [2002] VSC 206 (unreported, Ashley J, 12 June 2002) 12.
[18]Littledale v Liverpool College [1900] 1 Ch 19, 23 ( Lindley MR); Powell v McFarlane (1977) 38 P & CR 452, 471 (Slade J).
It was submitted for Mrs Laurice Abbatangelo that she began to satisfy the conditions of adverse possession as from late 1959 or early 1960 when it was contended that her late husband constructed a gate in the north‑western corner of the disputed property. I do not accept, however, that the evidence establishes reliably that either she or her late husband had the necessary intention as early as that in their enjoyment of their property and of the disputed land. Her evidence was that she was well aware of the Council’s ownership of the disputed land when she and her husband purchased the Abbatangelo property which surrounded the disputed land on three boundaries. There was insufficient evidence of a subjective intention on her part, or on her husband’s part, to take possession of the disputed land in the requisite sense as at 1958, 1959 or 1960: she certainly did not assert such an intention in her evidence. It may be accepted that the late Mr Abbatangelo constructed a gate on the north‑western corner of the disputed land with an entry into that land only from their own property, but that of itself does not amount to an intention both to possess and to exclude others: it is, rather, on its own, an equivocal act consistent with providing ease of personal access to otherwise vacant rural land with trees.
The evidence of Mrs Laurice Abbatangelo on the question of her subjective intention was best encapsulated when she said that the family used the disputed land over time “as if it was one of [their] own” [lots]. A great deal of evidence was given about the use by the Abbatangelo family of the disputed land over the nearly 50 years since the late Mr and Mrs Laurice Abbatangelo purchased the Abbatangelo property surrounding the disputed land. The evidence was often not precise as to the dates when events occurred, although some general conclusions may safely be drawn about the nature of the use of the disputed land and the broad time periods of that use. The difficulty of precision was in part due to the time which has passed since the events occurred, the fact that Mrs Abbatangelo’s first language was not English (although it was sufficient for her to give evidence‑in‑chief and to be cross‑examined in detail), and the fact that the adult children of the late Mr Abbatangelo and Mrs Laurice Abbatangelo who gave evidence were all born after the Abbatangelo property was acquired and, therefore, that some of the evidence which they gave related to periods of time when they were young and may have had interests other than the facts which became central to this case.
The disputed land is a rectangular vacant treed allotment. It is approximately 2,017 square metres (or about half an acre) in area with dimensions of approximately 40.23 metres (or 132 feet) along its northern and southern boundaries and approximately 50.13 metres (or 164 feet) along its western and eastern boundaries. The southern boundary of the disputed land lies along Bridge Inn Road in Mernda. The western, northern and eastern boundaries are surrounded by the Abbatangelo property. The Abbatangelo property itself, not taking account of the disputed land, is just under five acres in all. The title to the Abbatangelo property initially included a parcel on the east of their property which was subsequently subdivided and sold. That parcel of land was originally where the Abbatangelos had their house and lived in Mernda. They subsequently built a house to the west of that parcel leaving the bulk of their land as essentially rural. The disputed land sits slightly to the west of the centre of the Abbatangelo property when looked at from Bridge Inn Road. In other words, that when looking at the properties from Bridge Inn Road an observer would be looking at more of the Abbatangelo property to the east than to the west of the disputed land.
The fact that the disputed land is treed assumed significance in this case. As a treed block it stands out from the surrounding land constituting the Abbatangelo property. It also served as a natural place where livestock might seek shade and shelter. The circumstances in which the trees came to be planted on the disputed land was explained in the evidence of Mr Arthur Christian who was called on behalf of the Council. Mr Christian gave evidence that he resided at 850 Bridge Inn Road in Doreen, being some two or three kilometres from the Abbatangelo property and the disputed land. He had lived in Doreen all his life and his family has lived in the area since about the 1850s. Although elderly, he continues to be a farmer running an Angus stud, an activity, it seems, in which he has been engaged since he was about ten. His father (who died in 1950) informed him about the planting of the trees on the disputed land. Mr Christian believed, as I accept was the case, that the disputed land had been donated to the Council for the purpose of it being used as a shire office. That did not eventuate because the Council moved from Mernda to Epping and, it seems, decided to plant trees on the disputed land instead of the Shire offices. There then occurred what Mr Christian described as “an upset” in the district in which his father was involved. It seems that the local residents were so disappointed that the land would not be used as intended by the donor that they decided to remove the trees; however, they subsequently changed their mind, the trees remained but the Shire offices were never built on the disputed land. It is not entirely clear from his evidence, but it seems that the trees planted at that time were a mixture of poplar trees along the front boundary and gum trees throughout the block. In any event, these events must all have occurred prior to 1950 (that is, prior to the death of his father). If it matters, I would infer that the events occurred when Mr Christian was very young or before he was born. I would infer that from the fact that Mr Christian himself seemed to have little direct knowledge of the events and that he was a man now in his mid seventies.
It need hardly be said that whether a claim for adverse possession is made out “must be determined by having regard to the peculiar facts and circumstances relevant to the specific case”.[19] Helpful as the decided cases may be, it will not be sufficient for either party to pick out features from other cases which may have been determinative on the particular facts of those cases and seek to rely upon them as determinative in this one. In the end it will be essential to look at all of the facts relevant to this particular case to determine whether those facts are sufficient in this case to decide the claim one way or another. In considering the facts, however, it is useful to bear in mind that the subjective evidence by a witness should be scrutinised closely as it may be self‑serving.[20] Evidence of acts which may fairly be described as equivocal should also be looked at cautiously because they are not necessarily inconsistent with the documentary owner’s entitlements. Equivocal acts do not necessarily establish the exclusion of the documentary owner from possession of the land.[21] Thus, in relation to the use of other people’s land for the grazing of cows, it was said in Murnane v Findlay,[22] by Cussen J:[23]
Persons having experience of lands around Melbourne know how such lands are sometimes permitted to lie idle for years and to be used for the indiscriminate grazing of cows without any thought that possessory rights may later be acquired.
On the other hand, each of the acts which alone may not be sufficient to establish adverse possession in the requisite sense, may combine in a particular case to do so.
[19]Monash City Council v Melville [2000] VSC 55 (unreported, Eames J, 28 February 2000) 7.
[20]Riley v Penttila [1974] VR 547, 572 (Gillard J); Powell v McFarlane (1977) 38 P & CR 452, 476 (Slade J); J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, 443 (Lord Browne-Wilkinson).
[21]Powell v McFarlane (1977) 38 P & CR 452, especially at 478 (Slade J); Murnane v Findlay [1926] VLR 80, 88 (Cussen J); McDonnell v Giblin (1904) 23 NZLR 660, 662-663 (Cooper J).
[22][1926] VR 80.
[23]Ibid, 89.
The uncontroverted evidence of Mrs Laurice Abbatangelo, and in so far as relevant, of each of the other members of the Abbatangelo family called to give evidence, was that the Abbatangelo property had been acquired because of Mr Abbatangelo’s dream to be a farmer. The evidence establishes to my satisfaction that the Abbatangelo property was a rural property on which the family undertook what might be described as domestic or family farming activity not on a commercial scale and perhaps entirely unprofitably, with the possible exception of the suggestion put in cross examination of an early attempt to farm commercially free range chickens. The contention for the defendant that the evidence does not substantiate that the Abbatangelo property was “an operating farming property” with “no evidence that there was any income anticipated or received from the farm” focuses upon an irrelevant inquiry. It is plain that the Abbatangelo family were not conducting a commercial farming activity; but the question is whether whatever it was that was done amounted to sufficient possession and intention to exclude for an adverse possession claim not whether the activity could be described as farming activity whether commercial or profitably. There was clear evidence that over many years the Abbatangelos had horses, undertook some horse breeding, had cattle, had milking cows, had one or possibly two goats, had one or more sheep and had free range hens. Some cattle seem to have been there continuously between 1960 and 1980 including during the period in the first four or so years in the 1970s when the Abbatangelo family were residing in Geelong and travelling regularly each weekend to the Abbatangelo property. That these activities may have been undertaken for domestic, family or lifestyle reasons is immaterial to the issues to be determined.
Each of the witnesses called on behalf of Mrs Laurice Abbatangelo’s claim were questioned closely about the livestock said to have been on the property. Counsel for the defendant questioned each of them closely about names of horses, the plausibility of the quantity of milk being produced from the cows said to have been present, the number of cows at any one time, the sustainability of the number of cattle on a property of some 5½ acres (including the disputed land), the apparent inconsistency between whether there was one or two goats present at any one time, and so on. In the end I am satisfied that the late Mr and Mrs Abbatangelo used their property as a small family farm as, indeed, might well have been expected of a property in what, in the late 1950s, was still clearly rural land. I am also satisfied that there may have been some lessening of their activity during the period in which they resided, and the children went to school, in Geelong, but that they continued to use the property throughout the whole of the time from at least 1960 to the present as a small family farm. In that activity the disputed land came to be treated as an integral part of the one composite land. I accept that the family livestock used the disputed land to graze and, perhaps more importantly, for shade, shelter and, at times, enclosure. Even the evidence of Mr Christian, called on behalf of the Council, was that he recalled seeing both cows and horses on, at least, the Abbatangelo property over the years. I accept the evidence of Mrs Laurice Abbatangelo that, at some point, she came to use the disputed land as if it were part of the integrated whole of the properties for the use, enjoyment and activities of the family there. It would, indeed, be very curious if a parcel of land so fully surrounded by the Abbatangelo property without active assertion of dominion by any other person over nearly 50 years would not naturally result in the occupants of the Abbatangelo property coming to use and regard the disputed land as part of what might generally be described as “their backyard”, that is, as part of their land.
I do not think that the Abbatangelo’s use of the disputed land can be described as an act of mere grazing not amounting to an act of possession. The incorporation of the disputed land into the Abbatangelo property and into the activities of the Abbatangelos was much more complete. The construction of the gate in the north‑western corner of the disputed land in 1959 or early 1960 may not, when first installed, have been sufficient to prove an intention to possess the occupied land and to exclude others from it, but it is a relevant circumstance in the overall matrix of fact. More important, however, is the constant restoration and construction of fences throughout the property including the sides of the disputed land. This work, on the evidence in this case, is much more than the “rough repairs” considered insufficient in Powell v McFarlane.[24] In this case the work undertaken by the late Mr Abbatangelo and his sons was thorough, systematic and constant.
[24](1977) 38 P & CR 452, 478 (Slade J).
A great deal of the evidence, especially in cross‑examination, was concerned with each of the four fences around the disputed land at various stages and times. It is clear beyond doubt that the fence on the southern boundary of the disputed land (that is, on the street frontage) was put there in its present form by one or other of the members of the Abbatangelo family and not by the Council or some other person with an entitlement to the land. The evidence concerning that fence was not all consistent. The clear and uncontroverted evidence was that the late Mr Abbatangelo and one or other of his sons were constantly repairing, building and maintaining fences throughout the Abbatangelo property and the disputed land, including the fence on the southern boundary. It is not surprising that witnesses giving evidence in 2007 might not have an exact recollection of the precise nature of a fence some 30 or 40 years previously at a time when the precise existence of the fence, or its precise nature, did not then seem significant. In that regard, however, I am particularly impressed by the evidence of the surveyor, Mr Peter James Mulchay, who was called to give evidence on behalf of the Council. Mr Mulchay had been engaged in 1969 to prepare a survey of the Abbatangelo property for the purposes of preparing a planning subdivision application. He was an impressive and careful witness with much experience both in his profession and also in the giving of evidence. He had been Chairman of the Association of Consulting Surveyors in 1986 and remained a member of the organisation. He is currently a member of the Committee of the Institute of Surveyors and the Secretary and a Director of the Australian Consulting Surveyors Insurance Society. From 1981 to 2006 he was a sessional member at VCAT in the Planning Division.
The 1969 survey prepared by Mr Mulchay showed a number of things about the various fences which I accept without hesitation. He began his survey in 1969 with the benefit of an earlier survey which had been conducted in 1939. A comparison of the two surveys shows clearly that the fence along the southern boundary of the disputed land in 1969 was, at the western point, 1.28 feet and, at its eastern point, 1 foot, further in from the title boundary than appeared from the 1939 survey. That is, that in 1969 the southern boundary fence was in a different, albeit not radically different, position than it had been in 1939. It is, I think, plain that the fence in 1969 was not as it had been in 1939 and the inescapable inference is that it was the late Mr Abbatangelo’s work that was recorded in the 1969 survey. More importantly, however, is Mr Mulchay’s annotation of the nature of the fence on the disputed land in its southern boundary. Although Mr Mulchay was not primarily interested in surveying that land at that time he did note that the fence was on one side a post and wire construction and was on the other side a picket fence. By picket fence he undoubtedly meant, and gave oral evidence that he meant, wooden slats rather than steel pickets.
Mr Mulchay also recorded in the 1969 survey that as at that date, the southern boundary of the Abbatangelo property to the east of the disputed land was not fenced although the expert evidence of Mr Andrew James Watts (an expert photogrammatrist called on behalf of the defendant and on whose evidence it placed much reliance in other respects) gave evidence that images produced by photogrammatry in 1968 and 1970 (that is on either side of the date of Mr Mulchay’s survey) appeared to show the existence of a fence between the south‑eastern corner of the disputed land and the south‑eastern boundary of the Abbatangelo property. The inference is, I think, fairly to be drawn that the absence of a street fence of the Abbatangelo property to the east of the disputed land as at the date of Mr Mulchay’s 1969 survey was temporary. It is also powerful corroborative evidence that the late Mr Abbatangelo did actively erect, remove, repair and maintain fences during his occupation of the Abbatangelo property including the southern boundary fence of the disputed property. It is also consistent with the evidence of Mr Joseph Abbatangelo of a 1977 photograph of his late father with a horse near the dam on the eastern end of the Abbatangelo property looking south towards Bridge Inn Road showing, in the background, a partially completed post and rail fence from the extreme east of the Abbatangelo property to about midway towards the disputed land and then a post and wire fence for the remainder.
Mr Joseph Abbatangelo’s evidence was that his father was building the fence in sections and that a section of the post and wire fence had been taken down as a new section of the post and rail fence was erected. Mr Joseph Abbatangelo said that that post and rail fence remained there until 1994 when, in the following year, it was dismantled by him and replaced by him with a post and wire fence. The fence which Mr Joseph Abbatangelo replaced was said by him to have been that previously constructed by his father in, it seems, 1974 or 1975 but no later than 1977. It seems likely that the work was commenced when the family returned to live in Mernda from Geelong some time around 1975 and fits in with it being partially completed by the date of the photograph which appears to have been taken on 20 November 1977 (being the date on the back of the photograph in the handwriting of the late Mr Abbatangelo).
The fencing on the southern, that is the street, boundary of the disputed land over the years did, in my view, amount to an act of possession and exclusion. The fact that it might, from time to time, or indeed even always, have been different from the fences on either side of the disputed land does not detract from the nature of a fence as a sign to all who see it not to enter. That it might be easy to climb through that particular fence, or that kind of fence (as it was also easy to climb through the other and different fences on the Abbatangelo property), does not detract from the signal which the existence of the fence would ordinarily convey, namely, that the land behind it had been enclosed by someone and from everyone else. In addition, I accept that the other fences, such as they were from time to time, enabled the disputed land to be used by the Abbatangelo family, and for present purposes Mrs Laurice Abbatangelo, as an integrated part of the land over which they had possession and from which they intended to exclude others. That, if it be relevant, seems also to be the view taken by a number of neighbours whose evidence of an assumption that the disputed land was owned by Mrs Laurice Abbatangelo was given without contest.
Another of the fences to assume prominence in the evidence was that along the eastern boundary of the disputed land with the Abbatangelo property. Much time was spent in seeking to determine whether or not there was or was not a fence at different points of time and whether or not it was or was not removed in or around 1986. In the end the many intricate and intriguing factual enquiries about this fence seemed to me to be largely irrelevant to the disposition of the case. Arguments both for and against Mrs Laurice Abbatangelo’s claim could be made whether or not the fence was there and whether or not it had been repaired, removed or rebuilt. Counsel for the defendant pointed to the nature of the evidence given by various members of the Abbatangelo family in relation to this fence as being “rehearsed” and, therefore, as reflecting negatively upon the credibility of Mrs Laurice Abbatangelo and her witnesses. Counsel for the defendant pointed to the evidence of Mr Watts, the expert photogrammatrist as well as Mr Potter, the photogrammatrist called to give evidence for the plaintiff, as objective evidence said to refute the proposition that in 1986 the eastern boundary fence had been pulled down. Counsel for the defendant contended that both photogrammatry experts independently provided objective evidence that a fence existed on the eastern boundary of the disputed land in 1989 and was there up until about 1998. Mr Potter, Mrs Laurice Abbatangelo’s expert, gave evidence of the eastern boundary indicating the presence of at least sections of a fence in 1987 whilst Mr Watts, the defendant’s expert said that the eastern fence of the disputed land was in existence and was continuous in 1989, 1996 and 1998.
In the end, whether or not the fence was pulled down in 1986, is more a matter relevant to the credit of members of the Abbatangelo family who gave evidence than to the disposition of the issues in dispute. However, if it matters, I am not inclined to disbelieve the evidence given by each of the family members about the existence and removal in or about 1986 of the fence on the eastern boundary. The evidence against what they said is secondary in the sense that it is an interpretation made by somebody from aerial photos looked at through a machine, a stereoscope, designed to give a composite of two images a three dimensional impression as if they were one. I have no doubt that the conclusion drawn by these experts is a proper interpretation to be made from the images but that interpretation is something which I must evaluate as against the oral testimony of the people who lived there and gave evidence about what they saw and did.
In that regard I should say something generally about the reliability of the evidence given by members of the Abbatangelo family. Each was cross‑examined closely about their evidence given in-chief, their recollection and other matters relevant to the dispute or to their credit. I found each of them to give truthful evidence to the best of their ability and recollection. There were some instances in which their evidence differed and some instances in which the similarity provoked criticism from counsel for the defendant that the evidence was rehearsed or should not be accepted. It is hardly surprising that the members of a close family should have discussed from time to time the facts about which evidence came to be given. It is, therefore, hardly surprising if recollection of some events was refreshed by discussions between them prior to their giving evidence whilst they might be less clear about other events that had not been reconsidered before a question put in cross‑examination. In any event, each was cross-examined in detail and I was left with the clear impression that they were truthful witnesses giving evidence as accurately as they could about the matters as they could recall them. Some of the apparent ambiguity present in the evidence of Mrs Laurice Abbatangelo is explicable by the fact that English was not her first language.
Mr Joseph Abbatangelo gave evidence that he returned from the United States in 1986 and spoke to his father about the state of the fence on the eastern side of the disputed land. He said that the two decided to remove the fence and, according to Mr Joseph Abbatangelo, that boundary of the disputed land contiguous with the Abbatangelo property remained completely unfenced until 2004. In that year the Council erected a star picket and wire fence on the eastern boundary of the disputed land soon after the present dispute first arose. Mrs Dawn Abbatangelo, Joseph Abbatangelo’s wife, gave evidence of the erection of the fence by the Council (where presumably, either one did not exist or if it did exist was thought by the Council not to be sufficient for fencing purposes), and that a horse had run through the newly constructed fence running towards the west of the Abbatangelo property causing significant injury and bleeding (as evidenced both by her testimony and photographs taken at the time) in what I was told was the horse’s habit of running where it had been accustomed to run without a fence. There was also evidence given by others about riding horses from the Abbatangelo property onto the disputed land without impediment of internal fences over this time.
The absence of the fence along the eastern boundary of the disputed land may be used in support of the claim by Mrs Laurice Abbatangelo but, in my view, so too might its presence. I am not inclined to disbelieve the direct testimony of the members of the Abbatangelo family about the absence of the fence from some time in the mid 1980s in circumstances where its absence makes sense, is consistent with other evidence, and its presence would, on one view, not be fatal to Mrs Laurice Abbatangelo’s claim whilst, on another view, could assist the claim if there had been a fence. In addition, it seems clear that the Council in 2004 thought that there was certainly no structure sufficient for a fence and, accordingly, took steps to build one. That they might have done so on a line with old remnants appearing as a fence in earlier aerial photos may be an explanation for the apparent inconsistency between the lay witnesses and the expert evidence but, in the circumstances, I am not disposed to disbelieve the lay witnesses on this matter. I should also add, if it were necessary for me to do so, that my visual inspection of aerial photographs taken in 1984 and 1987 (in particular) but also those taken in 1989, 1991, 1992, 1998 and 2000, lead me conclude that there was not a fence on the eastern boundary of the disputed land, or, if there was, that it was little more than some remnants of a fence. It is clear from the 1987 photograph that if there was a fence along that boundary, it was quite different from the one within the Abbatangelo property which started from the north‑eastern corner of the disputed land: that fence (wholly within the Abbatangelo property) is clear and stands out in a visual inspection. The contrary evidence of the photogrammatrists is, at best, of the existence of some structure along the eastern boundary of the disputed land amounting to a fence. The evidence was not that the fence they could see through the stereoscope was anything like the others clearly visible to the naked eye on the other aerial photographs. The difference between the fence which Mr Watts said that he could detect through the stereoscope was quite different from that running from the north-east corner of the disputed land on the Abbatangelo property to their northern boundary. The fact that the fences are different does not assist the defendant because that too would show a treatment of the boundaries of the disputed land to suit the uses and conveniences of the plaintiff in disregard of others.
A similar issue arose for consideration in Traykof v Shanco Holdings Pty Ltd[25] where the photogrammic evidence of a Mr Watts was described as “the only objective evidence of the land” in the years in question.[26] In that case the decision of the trial judge was overturned because it could not be reconciled with the objective photogrammic evidence. In this case I am faced with the evidence of Mr Watts being in stark contrast with the direct evidence of individuals who should know the facts (but whose evidence I am urged not to accept), the inferences from the evidence of third parties (for example Mr Hanlon) or from events (for example the injury to the horse) and conduct (for example the construction of a fence by the council in 2004) and my own inspection of aerial photographs (but without the “benefit” of the impact of the creation of a three dimensional impression from other aerial photographs viewed through a stereoscope). The photographs used by Mr Watts for his evidence do not show a fence after 1986 without the assistance of the stereoscope which created a three dimensional impression when two photographs were put side by side and looked at through the viewer. The evidence of Mr Potter was less positive than that of Mr Watts in expression or as primary focus of inquiry. In those circumstances, if it mattered, I would prefer the direct evidence of witnesses which accords with my own observations from photographs to the indirect interpretation by Mr Watts from impressions manufactured by aid of a stereoscope.
[25][2001] VSCA 56 (unreported, Winneke P, Ormiston and Callaway JJA, 3 May 2001).
[26]Ibid 11-12 (Ormiston JA).
It may not be possible to determine the precise date at which the disputed land was integrated within the Abbatangelo property but it was by 1975. It had probably become so by the late 1960s (if not earlier) as may be seen by a number of instances, including the evidence of Mr Robert Abbatangelo chasing cows out of the disputed land and into what was used as a milking shed when he was about seven years of age: he was born in 1962. It may be possible to think of acts and activities which the Abbatangelo family could have done which, with the benefit of hindsight and much argument by lawyers, might have provided stronger evidence of possession and intention to possess and exclude, but the evidence presented to me taken as a whole is sufficient. By at least 1975 and probably much earlier the disputed land was part of the property possessed by the late Mr Abbatangelo and Mrs Laurice Abbatangelo and intended by them as theirs to the exclusion of others. Fences were built on its boundary with the outside world (namely, on the street boundary) and those fences on the boundaries between the Abbatangelo property and the disputed land itself were part of the way in which both properties were used in the activities of the Abbatangelos. Fences were constantly built, removed, replaced and maintained. Some fences built by the late Mr Abbatangelo are wholly within the Abbatangelo property itself; that is, they serve no purpose at all in delineating title boundaries. The 1987 aerial photograph tendered in evidence is as good as any in showing many fences wholly within the Abbatangelo property and serving no purpose of delineating title boundaries. It also shows many buildings used for their domestic “farming” or rural activities.
The Abbatangelos constantly maintained the disputed land in a way which may be contrasted with the Council’s inactivity in relation to the disputed land. It was the Abbatangelo family who maintained the trees and vegetation and removed noxious weeds and pests from the disputed land. It may be that shooting foxes and rabbits on the disputed land was (as was submitted by counsel for the defendant) convenient for the enjoyment of the Abbatangelo family of their own property[27] but, I think, it is significant both that they looked after the property and that they did so without requesting the Council to extend the Council’s existing services of looking after parks and gardens to the disputed land. It was the Abbatangelo family who kept the disputed land clear from fallen timber and who, from time to time, expended money in materials and labour in doing those works. The children of the plaintiff and her late husband played on the disputed land as if it was theirs as did their grandchildren and other members of their extended family. This, of itself, would not be sufficient to establish a claim of adverse possession but, when coupled with all of the other factors, demonstrates how completely the disputed land had come to be treated as theirs.
[27]See Powell v McFarlane (1977) 38 P & CR 452, 478 (Slade J)
Counsel for the defendant submitted that the fence on the western boundary of the disputed land indicated both by its presence and its construction that it was an overt sign of demarcation and exclusion of the disputed land from the Abbatangelo property as a whole and, therefore, as inconsistent with the necessary requirements to prove adverse possession. On the contrary, however, what is striking about that fence, and its point of difference from other fences, is that its difference was not replicated in the fences on the other title boundaries between the Abbatangelo property and other neighbours. Whatever its aesthetic merits might be, the fence on the western boundary of the disputed land was not of a style used to mark out the boundaries by the Abbatangelo family anywhere else. Furthermore, whilst that fence does not appear in the aerial photograph taken in 1976, a feature fence on the western boundary of the disputed land does appear clearly in the 1978 aerial photograph as do other feature fences surrounding what might be called the house block. In other words, the fence which is relied upon by the defendant as a mark of the title delineation was joined with a fence running east to west along the house block that, whatever else it might have done, could not be seen as a mark of title boundaries: that fence, to the north of the house and running east to west, was wholly within the Abbatangelo property and served aesthetic or functional purposes in the same way as the western boundary fence may be seen as doing but was not marking a title boundary. Whatever its aesthetic merits might be, I can draw no inference from the presence of the western fence of the disputed land, in these circumstances, that it was there to mark out the boundaries.
As against these facts, however, no request was made that the Council should pay for what might have been thought to have been its half share of that, or any other, fence and, it seems, that both sides of the post and rail fence on the western boundary of the disputed land was (at least on one manifestation of that fence) painted on both sides; that is, that it was painted both on the side facing the Abbatangelo house as well as the side facing the disputed land. The painting of that fence on both sides of the fence is, of course, a matter that may be thought to be insignificant. Largely it is. However, it gains significance when I am asked to infer from the presence and nature of the fence, as was contended, that this fence should be seen as a mark of distinction rather than a mark of inclusion. Counsel for the defendant submitted that this fence, placed on the dividing boundary between what was said to be “truly obviously their house block and the disputed land”, marked the division between the Abbatangelo land and the disputed land by a very visible and effective barrier. The force of that contention is lessened to my mind by the fact that the same kind of fence was not seen in any other dividing boundary between the Abbatangelo property and any other property. It was put up by the Abbatangelo family at their cost without contribution from the Council and without its consent, permission or knowledge as owner. Its visibly different characteristics, in those circumstances, are consistent with aesthetic considerations of a fence being close to a home. Moreover, there is no reason why a fence of that kind should have been constructed as “a mark of distinction” because the disputed land itself, being distinctly treed, provided its own mark of distinction, if that was wanted. The evidence does not permit the inference to be drawn that the western boundary fence was intended, or was, a mark of distinction of the kind contended. That it was painted on both sides may not of itself be of much significance; although it might have been significant had the painting been only on one side.
The appearance of the disputed land was a factor specifically relied upon by the defendant in another respect. The defendant maintains that there was no substance in the allegation that “from the early 1960s the disputed land was to all appearances part of the plaintiff’s title land” for various reasons which have to do with the physical appearance of the disputed land as compared with the physical appearance of the Abbatangelo property. The disputed land has a number of trees which over the years have become more dense in appearance although it is clear from a comparison of the 1960 aerial photograph and the 1998 aerial photograph that (as would be expected) the density of the trees increased over time. Reliance was also placed on the fact that, at least for some time, the fences along Bridge Inn Road were different on either side of the disputed land from the fence along the disputed land. I do not think that the physical difference of appearance was the kind of “appearance” pleaded in the statement of claim. However, I do not think that, in this case, the distinctiveness in appearance is significant. The trees, as a distinctive feature on the landscape, is as consistent with a feature on one holding of land as it might be a mark of differentiation of ownership. It is easy to imagine a family with young children setting aside a part of a large rural property for their children to play in as a park without the necessary inference that the land did not belong to the same owners as the surrounding land. Similarly, the difference in the front fence as between the Abbatangelo property and the disputed land is not significant because the choice of fence for the disputed land may be explained by any visual impact which it might have on what might otherwise appear from the road as featured parkland. In addition, I am not able to accept the proposition that the southern fence on the disputed land was always different from the Bridge Inn Road fences of the Abbatangelo property on either side of the disputed land.
There are other items of evidence which also go to establish possession with the requisite intention. Many are individual instances that of themselves might be unimportant, such as individual occasions of social recreational use and possibly the construction of children’s swings and rudimentary structures that might possibly qualify for the description as a cubbyhouse. In that context, however, I should mention the existence of a bathtub used as a water trough for livestock that was placed towards the north‑western boundary of the disputed land. It was used to provide water for the livestock and whilst a bathtub in a paddock lacks the graphic imagery of an unfurled flag on the land kept “flying so that the owner may see […] that an enemy has invaded [its] dominions and planted [the Abbatangelo’s] standard of conquest”,[28] it was, nonetheless, a relatively permanent item placed on the disputed land as a visible demonstration of use by the Abbatangelo family of the disputed land and, to that extent, an assertion of entitlement. The bathtub was not there as part of unwanted junk abandoned outside; rather, it was placed conveniently to further the use by the Abbatangelos of the disputed land as if theirs. Indeed, both properties had the appearance in all photographs, and from the oral evidence, of meticulous care and attention.
[28]TheLaird Properties New England Land Syndicate v Mad River Corp 305 A (2d) 562, 567 (1973).
An adverse possession claim may fail if the possession relied upon is not continuous. It was contended that there had been a break in possession of the disputed land during a period of time in the early 1970s when the late Mr Abbatangelo, Mrs Laurice Abbatangelo and her children were residing in Geelong. In a letter written by the late Mr Abbatangelo in February 1975 it was said that the family had lived in a caravan park in Geelong for four years. There is a considerable distance between Geelong and Mernda making a day trip from one to the other unlikely as a frequent occurrence for many people in the 1970s. The evidence of each of the now adult Abbatangelo children, and of Mrs Abbatangelo, was that they did travel to Mernda from Geelong each weekend and that they would frequently stay in the homes of relatives who lived nearby. Inconvenient as such a trip might be for many, it is certainly not an improbable or unlikely occurrence. I accept their evidence that they did travel to Mernda most, if not every, weekend from Geelong and that one of the reasons they did so was because there was still some livestock that needed some looking after. It was accepted that the livestock by that stage had been scaled down substantially, but the relocation to Geelong was not permanent and they resumed physical occupation in about 1974. There is nothing about this move to suggest a permanent departure from the property in Mernda, which was retained and visited frequently. I accept that throughout the period nothing had changed fundamentally in relation to their possession, use and manifest intention in relation to the disputed land, the Abbatangelo property or the combination of the two other than to have reduced the physical frequency of actual presence as a temporary arrangement until, ultimately, the present house was constructed and the family was able to return.
It was also contended for the Council that it entered onto the land as owner in 1992 when a Mr Draper, a Council employee, went in response to an instruction from the superintendent of works to inspect some works in connection with the flooding of a spoon drain. Mr Draper’s evidence was that during his visit to the Abbatangelo property, he spoke to Mrs Laurice Abbatangelo. Mrs Laurice Abbatangelo had previously given evidence and was physically present in court throughout the hearing including on the day that Mr Draper gave evidence. He recognised her in court notwithstanding that, it seems, he had only ever met her once before some 15 years previously. In any event, his evidence was that Mrs Laurice Abbatangelo told Mr Draper that there had been flooding into her house block from water coming from Plenty Road on the north of the Abbatangelo property. He said that he inspected the spoon drain along its length and concluded that a backhoe was needed to scoop out the silt which was causing the blockage and the flooding and that this work would be required to be undertaken on the Abbatangelo property and also “into the property next door” (that is, on the disputed land).
Mrs Laurice Abbatangelo disputed that Mr Draper had any conversation with her, or at least did not recall one. I accept Mr Draper’s evidence that he attended the property in 1992 and that he met Mrs Laurice Abbatangelo in response to an instruction from the superintendent of works to inspect the property in connection with the flooding of the spoon drain. At the time of his visit Mr Draper was unaware who was the owner of the disputed land. This might be surprising given his employment with the Council. 1992 appears to have been the year marking his change from working in the Council’s Roads and Maintenance Department and beginning work in the Council’s Parks and Gardens Department. He may not have known about the Council’s ownership in the first capacity but it is perhaps striking that the disputed land, on which the Council itself had apparently planted trees, had at no stage been incorporated as part of the Council’s maintenance of its properties as either a park or a garden. In any event, Mr Draper himself said in evidence that he was “shocked” to be told and “was surprised that [the disputed land] was a Council block of land”.
Mr Draper’s evidence was that he asked Mrs Laurice Abbatangelo if she knew who owned the disputed land because he needed permission to enter privately owned land in order for the Council’s proposed backhoe operators to conduct the necessary works to clear the spoon drain. Mr Draper said that it was Mrs Laurice Abbatangelo who told him that the Council owned the block of land “next door” and that upon hearing that “was shocked” because he wondered “why would Council own a little block of land” in that location in the midst of other “house size blocks”. In any event, it was said in written submissions that the works were subsequently carried out (although he had no direct or actual knowledge of this) and that both the visit by Mr Draper and the work subsequently done by the Council were “very important in this case”. The significance of that was submitted to be that the Council had entered its own land without obtaining permission, and that Mrs Laurice Abbatangelo had admitted that she knew the disputed land to be owned by the Council. It was submitted that the two conclusions to be drawn from these events were, first, the Council’s continued possession of the disputed land and, secondly, evidence of an absence on the part of Mrs Laurice Abbatangelo in 1992 of a subjective intention to have exclusive possession of the disputed land or to exclude the defendant from entering the disputed land.
I am unable to accept either of the two contentions on the basis of the evidence. I accept for present purposes the evidence of Mr Draper in preference to that of Mrs Laurice Abbatangelo. I accept, therefore, that he attended the Abbatangelo property in response to an instruction from the Council’s superintendent and that he enquired of her whose permission he needed to obtain to enter the disputed land. These conclusions are I think both plausible and likely given his tasks and his position with the Council. What I am not prepared to accept, however, is that the conversations had the character cast by counsel in their submissions. The entry upon the land by Mr Draper or by those effecting the clearing for the council do not amount, in my view, to “continued possession” by the council, as contended, or to any retaking by it of possession. It was at best an indication that no other permission needed to be obtained for the limited purpose of doing such works as were needed to be undertaken and which for present purposes I accept were undertaken. There is no suggestion in the evidence of any further awareness by Council altering its position in any way whatsoever as a result of, or following, Mr Draper’s visit or after the works carried out in relation to the disputed land. That is to say, the scope of his visit and the works were specific, narrow, discrete and, in my view, cannot have such significance as to undo whatever had occurred by then. Indeed, it may be contrasted with the Council’s actions in 2004 when its legal advisers became aware of Mrs Laurice Abbatangelo’s claim of adverse possession. At that point there was a demand to remove livestock from the disputed land and the construction by council of a fence to assert ownership. Nothing of that kind took place in 1992 and Mr Draper’s shock or surprise lead to him to doing, without further permission, no more than the limited things he set out to do. Such concern as he may have had about ownership was simply to ensure that he, and the other workers, could do the works without risk and the answers given satisfied him that he could do what he proposed to do. The entry by him or by others on behalf of the Council in 1992 did not amount “to a resumption of possession” by the Council and certainly did not amount to any “assertion of title”.[29]
[29]Symes v Pitt [1952] VLR 412, 430 (Sholl J).
Nor do I think it possible to regard what Mr Draper recounted as what he was told by Mrs Laurice Abbatangelo as evidence of a lack of intention to exclude the Council from the disputed land. Mr Draper’s evidence was that he needed permission to effect works which according to him had been sought by her. Her attitude about him entering the land and the works being effected is consistent with that narrow purpose and it is inconceivable, nor was it suggested, that Mr Draper’s discussion with her was couched or intended in broader terms or to broader effect. In any event, by 1992 there had, in my view, already been a continuous period of 15 years adverse possession if not commencing from the late 1960s, then by 1975 when, on any view, the Abbatangelo family had resumed occupation of the property in Mernda and the late Mr Abbatangelo took down and rebuilt fences.
Another potential assertion by the Council of ownership may possibly be found in a statement made by Claire Stephenson on behalf of the Council in an appeal made by Mrs Laurice Abbatangelo and her late husband in 1979 from a refusal of the Melbourne Metropolitan Board of Works (“the MMBW”) to grant a permit in relation to the Abbatangelo property. In a statement dated 28 March 1979 it was said that directly adjoining the proposed allotment to the east there was “a vacant allotment owned by the Shire of Whittlesea, which has been set aside for proposed municipal purposes.”
The background to the statement was an application made to subdivide the Abbatangelo property. Mrs Laurice Abbatangelo’s evidence was that she had little involvement in the matter since it was dealt with by her late husband, but she did recall that she had been told by him of such a proposal. She had no further recollection of the application or of the subsequent appeal and I accept that as being a truthful, accurate and probable answer. In a letter dated 5 October 1978 Rogalsky Pty Ltd (“Rogalsky”) advised the Secretary of the MMBW that it had been instructed by the late Mr Abbatangelo and his wife to submit an application for a permit to subdivide part of the property shown on a plan. The plan referred to in the letter showed the disputed land with the letters “NIT”, that is, “not in title”. Subsequently, an application was lodged with the MMBW for a permit. The Council was asked to consider the proposal for subdivision and subsequently notified the MMBW that it had no objection to the proposal. The MMBW refused the permit and in a letter dated 20 December 1978 Rogalsky lodged an appeal against the refusal with the Registrar of the Town Planning Appeals Tribunal (“the Tribunal”) on behalf of the late Mr Abbatangelo and his wife. The Tribunal invited the Council to attend the hearing of the appeal and to lodge a short statement with the Tribunal. The statement dated 29 March 1979 to which I have referred was made in response to the Tribunal’s invitation. The Tribunal ultimately disallowed the appeal and directed that no permit be issued.
In the written submissions for the Council it was contended that these events and statements establish that it had “always been in control of the Disputed Land” and that it was always “mindful of its ownership of the Disputed Land”. I am unable to accept the sentence in the statement by Claire Stephenson as supporting the conclusion that the Council was either in control of the disputed land or that it was mindful of its ownership. Indeed, if the statement and the events revealed anything about either matter it was, perhaps, about how little it knew of the property beyond its bare documentary title. There is no further evidence about either control or mindfulness of ownership beyond the most general of statement about a vacant allotment over which the Council was the documentary owner with the assertion that it had been set aside for unspecified proposed municipal purposes. The statement does not, in my view, amount to an assertion of title nor an attempt of resumption of possession. There is no evidence of contemporaneous enquiry by anybody about the land, or its condition, beyond knowledge of the Council being the documentary owner.
A claim for adverse possession will fail if the possession is by the permission of the documentary owner.[30] Counsel for the defendant placed emphasis on the grazing practises said to have been condoned by the Council in the Whittlesea area. In that regard reliance was placed upon the evidence of Mr Christian to which I have already referred. Mr Christian is about 75 years of age and said that he has been involved in cattle grazing in the district since he was about ten years old. He gave evidence that a number of farmers in the Whittlesea area, including himself (in the past), traditionally grazed their animals on undeveloped rural parcels of council land without first obtaining the Council’s permission. He gave evidence that he was able to use the pasture and to keep the grass down on the council property by grazing and did so without ever having had discussion about the matter and had done so for at least 20 to 30 years.
[30]See, for example: Hughes v Griffin [1969] 1 WLR 23, 30 (Harman LJ).
I accept this evidence in general terms although I am unable to accept all of his evidence without considerable doubt. That is to say, I accept his evidence that there was a general practise in the Whittlesea area of the Council permitting grazing on some council land: the policy presumably did not extend to all council land like, for instance, shire offices, parks and gardens, and significant roadways. The particular example he gave, however, was not one which is directly comparable with the disputed land and, in view of his actual evidence in respect of the particular example given, I do not regard the example as a secure foundation from which to conclude that the practise covered the kind of use and activity on land such as the disputed land.
The particular example he gave was of a roadway owned by the Council which had been fenced off and used, it seems, partly by him and partly by a neighbour. His evidence about the parcel of land, on Orchard Road, was incorrectly located by him; that is, in questions designed to locate the road by reference to Bridge Inn Road (and, therefore, how comparable with the disputed land the example might be), Mr Christian’s evidence put Orchard Road in clearly the wrong place. He was recalled to court to clarify both the error and the reason for the error but, in my view, I was left with a substantial doubt about the precision with which he was locating the land in respect of which the practise was said to be applied in his case. Orchard Road is not off Bridge Inn Road (as he had said) but off Yan Yean Road and the particular portion of Orchard Road in question is well off either road and not visible from them nor easily accessible. It would not be wrong to describe it as a relatively secluded section of land in the back blocks (as they were until some very recent subdivisional redevelopment), making it quite an unsuitable comparison with the disputed land which is located on a main road and which is clearly visible from it.
Mr Christian gave other evidence concerning the use by the Abbatangelo family of the disputed land which I do not find sufficiently useful or reliable to base my decision. His evidence was that he lived some two or three kilometres from the disputed land all his life and that he had always been familiar with the disputed land as belonging to the Council. That may not be surprising given what his father told him, although no evidence was given about him having turned his mind to the question one way or another at any time for any particular reason in the 50 years since his father’s death. He has driven past the disputed land some two or three times a day for the last 20 or 30 years and has doubtlessly observed the disputed land as part of the general features apparent to a motorcar driver or passenger. He did say that he saw horses on the disputed land but not in great number and that he might have seen a couple of cows at an early stage in “the piece” (by which I assumed him to mean some time in the early sixties). Counsel for the defendant concluded that it was obvious to “his [that is, Mr Christian’s] farmer’s eye” that the disputed land was not being farmed, that it was “dead as a door nail”, and when asked for his opinion about the fence on the southern boundary described it as “average” (whatever that might mean). These generalised conclusionary statements are of little assistance in reaching a decision. Mr Christian was a farmer of a very different kind from any who might undertake rural activity on the Abbatangelo property with or without the disputed land. In comparison to the five acres or so under the control of the Abbatangelos, his property in the area was once about 300 acres and now, although reduced, is still 150 acres. The “farmer’s eye” referred to by counsel for the defendant is understandably a different eye from that of the late Mr Abbatangelo, Mrs Laurice Abbatangelo or any of their sons in their activities in Mernda.
Accordingly, I find the plaintiff’s claim established and will make orders and declarations, namely that:
A.The Plaintiff is the owner of the disputed land by adverse possession.
B.The Defendant’s title to the disputed land is extinguished pursuant to section 18 of the Limitations of Action Act 1958.
C.The Defendant’s counterclaim is dismissed.
I will hear the parties on what orders I should make concerning the costs of this proceeding other than those orders previously made.
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