Angelo Edward Gianchino v Victoria Elizabeth Gianchino(in Her Personal Capacity and Her Capacity as Executor of the Estate of Susan Martha Gianchino)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0078

ANGELO EDWARD GIANCHINO	Applicant
v
VICTORIA ELIZABETH GIANCHINO (IN HER PERSONAL CAPACITY AND HER CAPACITY AS EXECUTOR OF THE ESTATE OF SUSAN MARTHA GIANCHINO) & ORS	Respondents

---

JUDGES:	BEACH, T FORREST and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2023
DATE OF JUDGMENT:	12 July 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 162
JUDGMENT APPEALED FROM:	[2021] VSC 383 (Derham AsJ)

---

LIMITATION OF ACTIONS – Application for leave to appeal – Adverse possession between co-owners of former matrimonial home – Husband moved interstate – Wife and children did not follow and remained living on the land – Husband and wife separated but did not divorce – Husband continued to pay part of mortgage and left some personal possessions on the land – Wife changed locks – Husband returned to land on one occasion thereafter – Husband registered as sole proprietor by right of survivorship after death of wife – Children refused to vacate land and made claim for adverse possession in own capacity and as executors of wife’s estate – Whether wife went into exclusive possession of the land with the consent of the husband – Whether trial judge erred in finding wife went into adverse possession of the land in circumstances where husband allegedly derived some continuing benefit by way of increased equity in the land as a result of making partial mortgage payments and by continuing to store some personal possessions on the land – Mortgage payments made by way of child maintenance – Temporary storage of remnant possessions not inconsistent with exclusive possession of land by wife – No error in trial judge’s conclusions – Adverse possession for 15 years established – Application for leave to appeal refused.

Limitation of Actions Act 1958, ss 3(5), 8, 9, 14(1), 14(4), 18.

JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, Whittlesea City Council v Abbatangelo [2009] VSCA 188, Fourniotis v Vallianatos (2018) 56 VR 85, BA v The King [2023] HCA 14, Culley v Doe d. Taylerson (1840) 11 Ad & E 1008; 113 ER 697, Powell v McFarlane (1977) 38 P & CR 452, Radonich v Radonich [1999] WASC 165, Wills v Wills [2004] 1 P & CR 37; [2003] UKPC 84, Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072 referred to.

---

Counsel
Applicant:		Mr JD McKay
Respondents:		Mr RM Peters
Solicitors
Applicant:	E C Legal Pty Ltd
Respondents:	FCG Legal Pty Ltd

TABLE OF CONTENTS

Introduction

The statutory scheme

Proposed ground 3 — consent

Proposed ground 4 — derivation of benefit

Conclusion

BEACH JA
T FORREST JA
OSBORN JA:

Introduction

The applicant, Angelo Gianchino, seeks leave to appeal a decision of Derham AsJ with respect to the adverse possession of a former matrimonial home.
In September 1983, Angelo and his wife, Susan Gianchino, purchased and became the registered proprietors as joint tenants of land containing a detached house in Mont Albert.
On 10 July 2004, Angelo moved to Toowoomba, Queensland leaving Susan and their two children, Victoria Gianchino and Ben Gianchino, residing on the land. At the time, Victoria was 18 and Ben was 10 years of age. Victoria and Ben are the first and second respondents to the present proceeding in both their personal capacities and as executors of Susan’s estate.
A few weeks later, Susan told Angelo that she and the children would not be following him to Toowoomba. Angelo and Susan then separated though never formally divorced.
In or about August 2004, Susan changed the locks to the house in order to exclude Angelo from the land.
When he moved to Queensland, Angelo left a quantity of personal belongings in the garage on the land, including in particular, equipment and resources relating to his hobby of stage lighting.
In March 2005, at Angelo’s request, Susan shipped boxes containing some 90 kilograms of his equipment to Angelo. Some of Angelo’s other possessions were left in the home office in the garage.
Susan permitted Ben to destroy some documentation belonging to Angelo which was believed to be of no value.
On 19 September 2005, Angelo returned to the home to collect some further belongings he had left in the garage. Susan gave him access to the property for this purpose. He did not return again. Susan changed the locks for a second time after this visit.
After his departure in 2004, Angelo continued to make some payments towards partial discharge of a mortgage over the land. These payments continued up until in or about May 2008.
In the course of evidence before the trial judge, Angelo agreed that the mortgage payments were made by way of maintenance contribution in respect of his children, and in particular, Ben.
Susan died on 12 February 2019. Victoria and Ben are the executors of her estate and have continued to reside at the property.
Upon learning of Susan’s death in June 2019, Angelo took steps to become the sole registered proprietor by right of survivorship. He was registered as sole proprietor on 29 July 2019.
Victoria and Ben have refused to vacate the land, and in January 2020, filed a writ claiming possessory title over the whole of the land relying on s 14(4), or alternatively s 14(1), of the Limitation of Actions Act 1958 (‘LAA’).
In response, on 23 July 2020, Angelo filed a counterclaim in which he sought possession of the land and the removal of a caveat lodged by Victoria and Ben.
The Registrar of Titles was joined as a necessary party but has taken no active part in the proceeding.
Following a one day hearing in May 2021 and further written submissions, judgment was handed down on 29 June 2021.[1] In his Reasons, the trial judge set out in detail the evidence relating to the circumstances of Angelo and Susan’s separation and made comprehensive findings of fact with respect to these circumstances.
[1]Gianchino v Gianchino [2021] VSC 383 (Derham AsJ) (‘Reasons’).
His Honour rejected the proposition that the circumstances of Angelo’s departure for Queensland on 10 July 2004 had the effect that from that time Susan’s possession of the land was a separate possession from Angelo’s, for her own and Victoria and Ben’s benefit, excluding him, such that a period of deemed adverse possession under s 14(4) of the LAA commenced.[2]
[2]Ibid [184]–[190].
The trial judge further rejected the proposition that the combination of Angelo’s departure together with Susan informing him within weeks of him leaving that she and the children would not be moving to Queensland amounted to a taking of separate possession of the land from Angelo’s, for her own and Victoria and Ben’s benefit, excluding him, such that a period of deemed adverse possession under s 14(4) of the LAA commenced.[3]
[3]Ibid [191]–[192].
Conversely, the trial judge held that Susan was in adverse possession of the land as against Angelo from the time she changed the locks in August 2004 and that Victoria and Ben continued that adverse possession after Susan died.[4] In the alternative, his Honour found that Susan was in adverse possession of the land from March 2005 because a combination of other circumstances demonstrated that she had by that date entered into sole possession of the land and that Victoria and Ben continued that adverse possession after Susan died.[5]
[4]Ibid [198]–[199].
[5]Ibid [193]–[196].
In consequence, the trial judge found that the period of adverse possession had continued for the requisite period of 15 years prior to the commencement of Angelo’s counterclaim on 23 July 2020 and made relevant declarations and orders to extinguish Angelo’s title to the land and facilitate the registration of Victoria and Ben as the registered proprietors.
In so doing, his Honour rejected contentions by Angelo:
(a)that Susan had been in possession with Angelo’s consent;[6] and
(b)that Angelo had derived a benefit from Susan’s possession in consequence of his ongoing mortgage payments and his storage of goods on the land, which was inconsistent with adverse possession of the land by Susan.[7]
[6]Ibid [220]–[222].
[7]Ibid [200]–[209].
The application for leave to appeal to this Court sought leave to appeal on four proposed grounds. Proposed grounds 1 and 2 sought to challenge the findings of the trial judge that:
(a)Susan changed the locks at the land in or about August 2004; and
(b)in the alternative, Susan went into adverse possession of the land as against Angelo in March 2005.[8]
[8]Proposed grounds 1 and 2 were expressed as follows:
l.The learned trial judge erred in finding that the First and Second Respondents’ mother, Susan Martha Gianchino (Susan), changed the locks at the Land in or about August 2004, and that Susan thereupon went into adverse possession of the Land as against the Applicant.
2.The learned trial judge erred in finding, in the alternative, that Susan went into adverse possession of the Land as against the Applicant in March 2005.
On the hearing of the application for leave to appeal however, proposed grounds 1 and 2 of appeal were abandoned and only the following grounds are now pursued:
3.The learned trial judge erred in finding that Susan went into adverse possession of the Land as against the Applicant at any time prior to 23 July 2005. The trial judge should have held that Susan’s possession and occupancy of the Land prior to that date occurred with the consent of the Applicant, and that no such adverse possession could have arisen at law prior to 23 July 2005.
4.The learned trial judge erred in finding that Susan went into adverse possession of the Land as against the Applicant at any time prior to 23 July 2005. The trial judge should have held that the Applicant derived some benefit from the Land, and/or from Susan’s possession of the Land, prior to 23 July 2005, such that no adverse possession could have arisen at law prior to 23 July 2005.

The statutory scheme

The trial judge usefully summarised the critical statutory provisions as follows:
145Section 8 of the LAA provides, so far as relevant:
No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person…
146The reference to ‘land’ includes any legal or equitable estate or interest in land and the reference to ‘action’ includes any proceeding in a court of law.[9] By s 3(5) it is provided that:
[9]LAA s 3(1).
References in this Act to a right of action to recover land shall include references to a right to enter into possession of the land; and references to the bringing of such an action shall include references to the making of such an entry.
147Section 9 of the LAA is a deeming provision in relation to the accrual of a right of action applicable to ‘present interests’ in land and so far as relevant provides by ss (1):
Where the person bringing an action to recover land or some person through whom he claims—
(a) has been in possession thereof; and
(b)has while entitled thereto been dispossessed or discontinued his possession—
the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.
148 Under s 14(1) of the LAA:
No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as ‘adverse possession’); and where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date the right of action shall not be deemed to accrue until adverse possession is taken of the land.
149 Section 14(4) of the LAA provides:
When any one or more of several persons entitled to any land or rent as joint tenants or tenants in common have been in possession or receipt of the entirety or more than his or their undivided share or shares of such land or of the profits thereof or of such rent for his or their own benefit or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons or any of them but shall be deemed adverse possession of the land.
150 This provision can be simplified for present purposes in this way:
When one of [two] persons entitled to any land as joint tenants [has] been in possession of the entirety of such land for [her] own benefit or for the benefit of any persons other than the other [joint tenant], such possession … shall not be deemed to have been the possession of [the other joint tenant] but shall be deemed to be adverse possession of the land.
151Under s 18 of the LAA, at the expiration of the period prescribed by the LAA for any person to bring an action to recover land, the title of that person to the land is extinguished.[10]
[10]Reasons, [143]–[151] (citations in original).
It can be seen that both s 14(1) and s 14(4) utilise the concept of adverse possession. Section 14(1) provides that the relevant right of action accrues when adverse possession is taken of the land. Section 14(4) provides for a statutory fiction which relevantly deems adverse possession to have occurred as between joint tenants in the circumstances specified.
Adverse possession simply means possession by a person in whose favour time can run.[11] In Abbatangelo, the Court of Appeal said:[12]
The reference to ‘adverse possession’ in s 14(1) of the Act is to possession by a person in whose favour time can run and not to the nature of the possession.[13] The question is simply whether the putative adverse possessor has dispossessed the paper owner by going into possession of the land for the requisite period without the consent of the owner, with the word ‘possession’ being given its ordinary meaning.[14] Whether or not the paper owner realises that dispossession has taken place is irrelevant.[15]
[11]See LAA, s 14(1); JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, 434 [35] (Lord Browne-Wilkinson, Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Hutton concurring) (‘Pye’); Whittlesea City Council v Abbatangelo [2009] VSCA 188, [6(a)] (‘Abbatangelo’).
[12]Abbatangelo [2009] VSCA 188, [6(a)] (citations in original).
[13]Pye [2003] 1 AC 419, 433–5 [33]–[36] (Lord Browne-Wilkinson).
[14]Ibid 434 [36]–[37] (Lord Browne-Wilkinson).
[15]Rains v Buxton (1880) 14 Ch D 537; Re Johnson [2000] 2 Qd R 502, 506 (Wilson J).
In Pye, Lord Hope of Craighead said of the phrase ‘adverse possession’:
It is plainly of some importance, both now and for the future, to understand what the use of the word ‘adverse’ in the context of section 15 of the Limitation Act 1980 was intended to convey. At first sight, it might be thought that the word ‘adverse’ describes the nature of the possession that the squatter needs to demonstrate. It suggests that an element of aggression, hostility or subterfuge is required. But an examination of the context makes it clear that this is not so. It is used as a convenient label only, in recognition simply of the fact that the possession is adverse to the interests of the paper owner, or in the case of registered land, the registered proprietor. The context is that of a person bringing an action to recover land who has been in possession of land but has been dispossessed or has discontinued his possession: paragraph 8 of Schedule 1 to the 1980 Act. His right of action is treated as accruing as soon as the land is in the possession of some other person in whose favour the limitation period can run. In that sense, and for that purpose, the other person’s possession is adverse to his. But the question whether that other person is in fact in possession of the land is a separate question on which the word ‘adverse’ casts no light.[16]
[16][2003] 1 AC 419, 445 [69] (Lord Hope of Craighead).
Under s 14(1) of the LAA, adverse possession comprises two elements. First, factual possession by way of physical custody and control of the land, and second, an intention to exercise that custody and control for the benefit of the factual possessor.
In BA v The King, the majority of the High Court stated:[17]
72 … Possession is a different legal concept from occupation or habitation.
73Whether a person does or does not occupy or inhabit premises are not necessarily straightforward questions. ‘Occupation’ is a word with different meanings in different contexts.[18] In ordinary usage, a person would not be described as ‘occupying’ a holiday property that they own but are not inhabiting. A furnished apartment rented to tourists but intermittently empty would not be described as ‘occupied’. But, in law, ‘occupation’ is a term of art used to mean the exercise of ‘physical control over land’.[19] Even then, the legal relevance of occupation, or ‘physical possession’, has only been as an element which, combined with an intention, can establish a legal right to possession.[20] Hence, as Lord Browne-Wilkinson said in the leading speech in J A Pye (Oxford) Ltd v Graham:[21]
there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession ... Suppose a case where A is found to be in occupation of a locked house. He may be there as a squatter, as an overnight trespasser, or as a friend looking after the house of the paper owner during his absence on holiday. The acts done by A in any given period do not tell you whether there is legal possession. If A is there as a squatter he intends to stay as long as he can for his own benefit: his intention is an intention to possess. But if he only intends to trespass for the night or has expressly agreed to look after the house for his friend he does not have possession. It is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession.
[17][2023] HCA 14, [72]–[73] (Gordon, Edelman, Steward and Gleeson JJ) (citations in original).
[18]Compare Hadley v Taylor (1865) LR 1 CP 53, Parker v Leach (1866) LR 1 PC 312, and, in a statutory context, Western Australia v Ward (2002) 213 CLR 1.
[19]Jowitt and Walsh, Jowitt's Dictionary of English Law, 2nd ed (1977), vol 2, 1274. See also Western Australia v Ward (2002) 213 CLR 1, 82 [52]; Gray and Gray, Elements of Land Law, 5th ed (2009), 153 [2.1.7].
[20]Holmes, The Common Law (1881), 216.
[21][2003] 1 AC 419, 435–436.
In Pye,[22] the respondents, the Grahams, initially occupied farmland pursuant to a grazing licence and continued their occupation of the land after the licence was revoked. They farmed the land in conjunction with an adjoining property for more than 12 years.[23] The paper owner carried out no activity on the land during this period.
[22][2003] 1 AC 419.
[23]Being the relevant period stipulated under the Limitation of Actions Act 1980 (UK): Pye [2003] 1 AC 419, 430 [24].
The critical question was whether Pye had been dispossessed within the meaning of the equivalent s 9(1) of the LAA.
After considering the history of the relevant legislation, Lord Browne-Wilkinson[24] stated:
The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.[25]
He further stated:
It is sometimes said that ouster by the squatter is necessary to constitute dispossession: see for example per Fry J in Rains v Buxton (1880) 14 Ch D 537 at 539. The word ‘ouster’ is derived from the old law of adverse possession and has overtones of confrontational, knowing removal of the true owner from possession. Such an approach is quite incorrect. There will be a ‘dispossession’ of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter’s subsequent occupation of it in law constitutes possession the squatter must have ‘dispossessed’ the true owner for the purposes of Schedule 1 para 1 : see Treloar v Nute [1976] 1 WLR 1295, 1300; Professor Dockray (supra). Therefore in the present case the relevant question can be narrowed down to asking whether the Grahams were in possession of the disputed land, without the consent of Pye, before 30 April 1986. If they were, they will have ‘dispossessed’ Pye within the meaning of paragraph 1 of Schedule 1 to the 1980 Act.[26]
[24]With whom Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Hope of Craighead and Lord Hutton agreed.
[25]Pye [2003] 1 AC 419, 434 [36] (Lord Browne-Wilkinson).
[26]Ibid 434–5 [38].

His Lordship expressly approved[27] the following statement of Slade J in Powell v McFarlane[28] as to what constitutes factual possession of land:
Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.[29]
[27]Ibid 436 [41].
[28](1977) 38 P & CR 452.
[29]Ibid 470–1 (Slade J). See also Abbatangelo [2009] VSCA 188, [5] (Ashley and Redlich JJA, Kyrou AJA).
In Pye, the Grahams were in occupation of land which was in their exclusive physical control. The paper owner, Pye, was physically excluded from the land by hedges and a locked gate. The Grahams farmed the land on an ongoing basis. They were held to be physically in possession.
Lord Browne-Wilkinson also adopted Slade J’s formulation of the necessary intention required to establish possession:
intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.[30]
[30]Powell v McFarlane (1977) 38 P & CR 452, 471 cited in Pye [2003] 1 AC 419, 437 [43].
There is no requirement that the intention is to be an owner or acquire ownership of the land.[31]
[31]Pye [2003] 1 AC 419, 436–7 [42] (Lord Browne-Wilkinson); and see Abbatangelo [2009] VSCA 188, [6(d)] (Ashley and Redlich JJA, Kyrou AJA).
It is also not necessary that the acts of the squatter be inconsistent with the intention of the paper owner.[32]
[32]Pye [2003] 1 AC 419, 437–8 [44]–[45] (Lord Browne-Wilkinson); and see Abbatangelo [2009] VSCA 188, [6(h)] (Ashley and Redlich JJA, Kyrou AJA).
For all practical purposes, the Grahams used the land as their own and in a way normal for an owner to use it throughout the relevant period. Conversely, Pye did nothing on the disputed land from which they were wholly excluded save on foot.
The necessary conclusion as to intention was to be inferred from these facts. Lord Hutton stated:
I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.[33]
[33]Pye [2003] 1 AC 419, 447 [76] (emphasis added).
Whilst the above principles are clear, their application to cases of joint ownership raises a further conceptual complication. We turn then to s 14(4) of the LAA which governs the application of the concept of adverse possession as between co-owners of land.
In Fourniotis v Vallianatos,[34] Croft J was concerned with circumstances in which one co-owner was in receipt of the whole of the rent from premises for the period specified for adverse possession. His Honour traced the history of s 14(4) of the LAA by reference to relevant authority.[35]
[34](2018) 56 VR 85 (‘Fourniotis’).
[35]Ibid 95–100 [74]–[93] including citation of Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072, 1081–5; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, 433–4 [33]–[35]; Wills v Wills [2004] 1 P & CR 37; [2003] UKPC 84, [14]–[16].
The common law presumed that possession by one co-owner was possession by and for the benefit of all co-owners. It was necessary to prove ouster for one co-owner to establish possessory title against the other co-owner.[36] The co-owner in possession had to rebut the common law presumption by evidence that they had in fact taken possession to the exclusion of the other.[37]
[36]Fourniotis (2018) 56 VR 85, 96 [79], citing W R Cole, Cole on Ejectment (The Law and Practice on Ejectment) (H Sweet, London, 1857), 17; Doe v Bird (1809) 11 East 49, 51; 103 ER 922, 922–3.
[37]Radonich v Radonich [1999] WASC 165, [170]–[173] (Parker J).
In Culley v Doe d. Taylerson, Lord Denman CJ addressed the common law at the time of the introduction of the first progenitor of s 14(4) of the LAA as follows:
Generally speaking, one tenant in common cannot maintain an ejectment against another tenant in common, because possession of one tenant in common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant, tenant in common, has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster.[38]
[38](1840) 11 Ad & E 1008, 1014; 113 ER 697, 700 (emphasis added) (citations omitted) (‘Culley’).
Section 12 of the Real Property Limitation Act 1833 (Eng) provided:
When any one or more of several persons entitled to any land or rent as coparceners, joint tenants, or tenants in common, shall have been in possession or receipt of the entirety, or more than his or their undivided share or shares of such land, or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons, or any of them.
The effect of this provision is to make the possession of coparceners, joint tenants or tenants in common, separate in the circumstances specified.[39]
[39]Ibid 1015; 113 ER 697, 701 (Lord Denman CJ).
As Croft J records,[40] the earliest Victorian case dealing with this form of statutory provision appears to be Beaumont v Hochkins,[41] in which Hodges J, after referring to Culley,[42] said with respect to s 28 of the Real Property Statute 1864:
That case clearly shows what the law was before, and what the law was as altered by that section. It shows that before the Act came into operation, possession of one coparcener, joint tenant or tenant in common, was the possession of the other; but after the Act came into operation, possession of one coparcener, joint tenant or tenant in common was not the possession of the other, even as between coparceners, joint tenants, or tenants in common themselves. When one coparcener, joint tenant or tenant in common, is receiving all the profits, the other has a right to make an entry or bring an action without any ouster to recover his portion of the profits or share in the land.[43]
[40]Fourniotis (2018) 56 VR 85, 98 [83].
[41](1889) 15 VLR 442.
[42](1840) 11 Ad & E 1008; 113 ER 697.
[43]Beaumont v Hochkins (1889) 15 VLR 442, 448–9. See also Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072, 1081–5; Pye [2003] 1 AC 419, 433–4 [33]–[35].
The effect of s 14(4) of the LAA is that if one of the alternative matters specified in the sub-section are satisfied, including possession of the land by one co-owner to the exclusion of the other then this state of affairs is deemed to be adverse possession of the land.[44]
[44]Fourniotis (2018) 56 VR 85, 98–9 [85]–[88].
The final words ‘but shall be deemed to be adverse possession of the land’ were introduced by the Limitations of Actions Act 1955.[45] In Fourniotis, Croft J considered the Parliamentary records relating to this Act and found no explanation for the inclusion of these additional words.[46] His Honour concluded:
In my view, it is clear, having regard to the language and history of s 14(4) of the [LAA] and its English provenance that the purpose is apparent on the face of the words: that is, to create a binding statutory fiction to the effect that if the conditions referred to in the subsection are satisfied, including (relevantly here) receipt of rent in respect of land, this is adverse possession of the land for the purpose of s 14(1) of the [LAA].[47]
[45]Ibid 96 [77].
[46]Ibid 96 [78].
[47]Ibid.
As the trial judge held in the present case, there are two ‘deeming’ elements in s 14(4), one negative and one positive.[48]
The first enables a co-owner to bring an action to recover possession by not deeming the possession or receipt of profits of the other co-owner to be his possession or receipt, thus making the possession of co-owners separate. The second deems the possession or receipts of the profits to be ‘adverse possession’ as defined in s 14(1) of the LAA.[49]
[48]Reasons, [158].
[49]Ibid (emphasis in original).
The nature of the possession required of an occupying co-owner under s 14(4) is the same as the nature of the possession of a squatter in actual possession under s 14(1). As the trial judge put it:
The remaining co-owner must have a sufficient degree of physical custody and control of the land to have factual possession of the entirety for their own benefit and the benefit of any other person except the other co-owner, and they must have an intention to exercise that degree of custody and control for their own benefit and the benefit of any other person except the other co-owner. Thus, the twin requirements of factual possession and an intention to possess, that is the exercise of custody and control on one’s own behalf and for one’s own benefit, are required under s 14(4) of the LAA.[50]
[50]Ibid [167(a)] (emphasis in original) (citations omitted).
On the hearing of the application for leave to appeal, the parties accepted that both factual and intentional possession of the requisite kind were required by s 14(4).
We further take it to be common ground that factual possession involves a question of fact and degree which falls to be decided in all the circumstances of the case.
After setting out the submissions of the parties concerning the construction of s 14(4), the trial judge concluded:[51]
179In my opinion, s 14(4) only makes sense in the context of ss 8, 9(1) and 14(1). These sections import requirements in the interpretation of s 14(4) for the possession of [the] remaining co-owner to have been in possession for their own benefit, and not for the benefit of the departed co-owner, for 15 years from the date on which the right of action accrued to the departed co-owner (s 8). The date of the accrual of that right is the date of dispossession or discontinuance of possession of the departed co-owner (s 9(1)). The reference in s 14(4) to adverse possession is to that phrase as defined in s 14(1), namely the land being in the ‘possession of some person in whose favour the period of limitation can run’.
180To contend, if that is what the plaintiffs do, that the date of accrual is also deemed, begs the question of when that occurred. To say that the final words of positive ‘deeming’, or the earlier words of negative deeming alone, remove the requirement to establish the accrual of the right of action, which turns on dispossession of the departed co-owner or that owner discontinuing possession of the land, leaves a critical matter of fact undecided. In addition, the remaining co-owner has to show their possession is for their benefit, or the benefit of others, but not for the benefit of the departed co-owner. This involves in my view the need to establish the same elements of physical custody, excluding the other co-owner, and an intention to possess, as are required under s 14(1) of the LAA.
181The conclusion reached by Croft J in Fourniotis that in the circumstances of that case there was no need to establish animus possidendi because of the deeming provision in s 14(4) turns on his conclusion that all that needed to be proved was receipt of an excess share of profits or rent by one co-owner for its benefit or the benefit of other persons (other than the complaining co-owner).[52] But that is a consequence of the nature of rents and profits. If they are received by one co-owner to the ‘exclusion’ of the other or others, so that the rent or profits are not received as agent or trustee for example, then that shows two things. First, a ‘dispossession’ or ‘discontinuance’ of the other co-owner’s receipt of the rent or profits. Second, a date of that ‘dispossession’ or ‘discontinuance’. In other words, applying that reasoning to the position of an actual possession of the land by one co-owner, it is still necessary to establish both possession of the land and dispossession of, or discontinuance by, the other co-owner. These are questions of fact and degree. I agree with what Parker J said in Radonich v Radonich,[53] s 14(4) leaves the question of whether possession by one joint owner is on behalf of another joint owner, or to the exclusion of the other joint owner, to be determined as an issue of fact in each case, according to the truth of each situation (see above at [172]).
182In my view, the plaintiffs must still prove possession to the exclusion of the other co‑owner under s 14(4) and the date from which the right of action accrued to the co‑owner out of possession. That requires the same substantive elements as are required under s 14(1) of the LAA.
[51]Ibid [179]–[182] (emphasis in original) (citations in original).
[52]Fourniotis (2018) 56 VR 85, 100 [93].
[53][1999] WASC 165.
We respectfully agree with these conclusions.

Proposed ground 3 — consent

In Pye,[54] Lord Browne-Wilkinson stated:
It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act. Beyond that, as Slade J said, the words possess and dispossess are to be given their ordinary meaning.[55]
[54][2003] 1 AC 419.
[55]Ibid 434 [37].
The trial judge accepted that possession with the consent of the co-owner is not dispossession of the true owner in the required sense.[56]
[56]Reasons, [176]. See also Abbatangelo [2009] VSCA 188, [6(a)].
The trial judge found that by changing the locks to the house on the land in or about August 2004 Susan dispossessed Angelo and took exclusive possession of the land as a matter of fact.[57]
[57]Reasons, [198].
His Honour structured his judgment by reference to a series of questions formulated by the plaintiff.[58] The ‘third questions’ comprised a set of questions which went to the issue of the changing of the locks, and was set out as follows:
Did Sue change the locks to the Property within weeks of Angelo leaving for Queensland?
If so, does that fact, in the circumstances, have the effect that from that time -
(a)Sue’s possession of the Property was a separate possession from Angelo’s, for her own and the children’s benefit excluding him, such that a period of deemed adverse possession under s 14(4) of the LAA commenced at that time? or
(b)Sue had ousted Angelo from the Property, such that a period of actual adverse possession commenced at that time?[59]
[58]Ibid [15].
[59]Ibid [18].
His Honour answered these questions as follows:
198I have concluded that Sue did change the locks to the house on the Property and that was for the purpose of preventing Angelo to come without her permission. This is a clear act that showed her intent, and for that purpose it does not matter that the side gate was left without a new lock. The point is that Sue intended by the act of changing the locks to exclude Angelo from possession of the Property which was a ‘home’. It is evident that, for whatever reason, Angelo accepted that was the case, because when he visited in September 2005 to see his children and collect more of his possessions from the home office in the garage, he made no attempt to stay at the house and effectively sought permission to visit. That means that Sue’s possession was for her and her children’s benefit to the exclusion of Angelo and that her intention followed her acts. It is also relevant to observe that:
(a)Putting aside the mortgage payments made by Angelo, Sue paid for all the utilities at the Property alone and on the shared understanding that she and Angelo had separate homes for which they were separately responsible, as she recounted in her email to Angelo on 26 November 2005 (see above at [124]).
(b)Angelo had no control over any of the activities in the family home. He did not and was not free to reside there when he came to Melbourne, he did not and was not free to arrange social events there, control the children’s use of the Property or generally to come and go as he pleased. These things were all matters over which Sue had exclusive control.
(c)Angelo was not in a position to keep the Property in repair. He was not consulted about and had no say in what work was done about the house or who would be engaged to do that work. To the extent he had an interest in this, for example for the purposes ensuring his personal property was kept safe, he had to rely on Sue and indeed expected her to do that.
(d)Angelo maintained his own home separately from the family, first in Toowoomba and later in Brisbane.
199Angelo’s right of action to recover possession of the Property for himself accrued at the time of that lock change, which I date at about mid-August 2004. I do not consider it necessary to find an ‘ouster’ of Angelo, as that expression is, as I have said, a concept from an earlier era of the law.[60]
[60]Ibid [198]–[199].
Sensibly, there is now no challenge to these findings insofar as they constitute findings of fact and we should record for completeness that we can see no basis for overturning them. Further, in our view, the facts as found by the trial judge demonstrate that Susan dealt with the land in the manner in which a full owner might be expected to deal with it from the date of the first change of locks and did so to the exclusion of Angelo. In terms of the tests adopted by Lord Browne-Wilkinson in Pye, Susan took factual possession of the land and demonstrated an intention to exclude the world at large, including Angelo, so far as was reasonably practicable.
His Honour subsequently set out Angelo’s submission that Susan’s possession occurred with Angelo’s consent and the respondents’ answering submissions:
220 The defendant submitted that:
(a)When Angelo departed on 10 July 2004, his understanding was that the family would soon be following. He did not require the family to leave the Property until such time as they moved to Queensland, but rather (and obviously) was content for them to remain at the Property.
(b)Upon Sue informing Angelo that the family would not be following him to Queensland, Angelo continued to consent to his family’s occupation of the Property.
(c)Until May 2008, Angelo was taking positive actions through the payment of mortgage contributions to allow that occupation to continue.
(d)In those circumstances, it can only be inferred that the requisite consent existed, and accordingly time cannot commence to run until such time as the consent was withdrawn (which, it is submitted, most likely occurred in May 2008 when the mortgage repayments from Angelo ceased).
221The plaintiffs submitted that there was no evidence to support the claim in the Defence that Sue, Vicki and Ben remained in the property with his consent and permission. Sue did not need his permission as joint tenant. Nothing suggests she sought consent or permission. Nothing suggests Angelo purported to give his consent or permission. The highest the evidence rose was that he acquiesced in them remaining in the Property because the children needed to have a home. His payment of the mortgage was his contribution to the support of the children and not the maintenance of his right to possession of the Property.[61]
[61]Ibid [220]–[221].

His Honour concluded:
In my view, to focus on what Angelo thought when he left in July 2004 is to approach the question from the wrong perspective. It was what Sue did that is critical. She always had the right to possession without the consent of Angelo. That included the right to have her children with her. In the eyes of the law they were her licensees. In any event, by the time that Angelo sent his email on 1 February 2005 announcing that he was trying to save same [sic] money to form a deposit on a house, and when he asked for his goods to be shipped to him in mid-March 2005, it is clear that he and Sue had separated permanently (see the email at [90] above). The payments towards the mortgage reduced unilaterally at this time and were clearly no more than a contribution to the support of the children.[62]
[62]Ibid [222].
Proposed ground 3 of appeal reagitates the submission that Susan cannot be said to have dispossessed Angelo if she acted with Angelo’s consent. Angelo relies on the statement in Butt’s Land Law cited in Cleret v Rago:[63]
Possession is not ‘adverse’ where it has the documentary owner’s permission. However, three situations must be distinguished:
• First, time cannot begin to run in favour of a person who takes possession with the documentary owner’s permission. For example, time cannot run in favour of a person who goes into possession as a tenant, or licensee, or as bailiff or caretaker. Entry in the context of a family relationship between possessor and documentary owner usually suggests that possession is by permission, and is not ‘adverse’.
[63][2014] QCA 158, [19] citing P Butt, Land Law (Thomson Reuters, 6th ed, 2010) 903 [22 18].
Angelo further relies on the statement of Vickery J in Southage Pty Ltd v Beijing Garden Resort Pty Ltd:[64]
In the context of family relationships between the possessor and the documentary owner, an inference may be drawn to the effect that the possession is with the permission of the documentary owner and is not therefore adverse.
It is, however, clear that each case in this area must turn on its own facts: see Radonich v Radonich,[65] Richardson v Greentree,[66] Tunley v James[67] and Hughes v Griffin.[68]
[64][2013] VSC 272, [92]–[93] (citations in original).
[65][1999] WASC 165.
[66](Unreported) NSWSC, December 1997.
[67](Unreported) EWCA, 7 April 1992.
[68](1969) 1 WLR 23 CA.
There are five answers to this submission:
(a)It is plain Susan did not take exclusive possession pursuant to a lease or any other form of consensual arrangement.
(b)Section 14(4) required that Susan’s children prove that she intentionally took possession of the land for the benefit of herself and the children. The facts as found by the trial judge demonstrated that this had occurred. In Abbatangelo, the Court of Appeal said:
Whilst inconsistent use is not required, it may be a factor, where it is present, which is indicative of factual possession and of an intention to possess to the exclusion of the paper owner.[69]
The changing of the locks in the present case constituted a continuing inconsistent use of this kind.
(c)There is no evidence Angelo consented to the changing of the locks which constituted the critical act of dispossession or to the continuing exclusive possession by Susan of the land. Indeed, Angelo’s case at trial was that the locks were not changed.
(d)Whilst the evidence supports the inference that Angelo acquiesced in Susan’s occupation of the land, it does not demonstrate that Angelo consented to the occupation of the land to the exclusion of himself. To the contrary, the evidence supports the conclusion that Angelo did not consent to possession of the land by Susan solely for the benefit of Susan and the children but not for the benefit of himself.
(e)The general observations upon which Angelo relies, as to the inference of permission commonly drawn in the context of family relations, do not apply with equal force in the context of a relationship which had ended. The ending of the relationship is entirely consistent with the steps taken by Susan to dispossess Angelo.
[69][2009] VSCA 188, [6(i)] (Ashley and Redlich JJA, Kyrou AJA).
Once it is accepted that the probability is that Susan did not take or continue in exclusive possession of the land with Angelo’s consent, the application of the statutory provisions does not turn on Angelo’s intentions. Mere acquiescence in Susan’s conduct did not alter its nature. Awareness by Susan of Angelo’s intentions (if established) was no more than a circumstance bearing on the probabilities as to Susan’s own intentions. The submissions made on behalf of Angelo reflect the assumption that it remains the law that proof of dispossession depended upon proof of Angelo’s intentions. In Leigh v Jack, Bramwell LJ stated:
I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it…[70]
[70](1879) 5 Ex D 264, 273.
After setting out this passage in Pye, however, Lord Browne-Wilkinson said:[71]
The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. It reflects an attempt to revive the pre-1833 concept of adverse possession requiring inconsistent user. … The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.[72]
[71][2003] 1 AC 419, 437– 8 [45] (footnote added).
[72]Applied in Wills v Wills [2004] 1 P & CR 37, [2003] UKPC 84, [29] where the Privy Council said:
In their Lordships’ opinion the courts below reached that conclusion only because they proceeded on what Lord Browne-Wilkinson in Pye called the ‘heretical and wrong’ supposition that it was Elma’s state of mind, and not George’s, which (together with George’s actions) was decisive. Elma no doubt wished to maintain her claim to co-ownership, not least because she expected to outlive George and hoped to take by survivorship. But such an intention, however amply documented, cannot prevail over the plain fact of her total exclusion from the properties. After 1976 at the latest George occupied and used the former matrimonial home and enjoyed the rents from the rented properties as if he were the sole owner, except so far as he chose to share his occupation and enjoyment with Myra. The judge’s conclusion was wrong in law, and the Court of Appeal was wrong to uphold it. Neither court had the benefit of the full and clear guidance which the House of Lords has since given in the Pye case. But that decision was not making new law; it was clarifying what has been the law in England since the 1833 Act, and in Jamaica since the Limitation of Actions Act of 1881.
In the present case, there was no evidence of communication of Angelo’s intentions that could potentially bear on the question of Susan’s intentions. It is for this reason the trial judge expressed himself with respect to the question of consent in the way that he did. No error has been demonstrated in respect of his Honour’s conclusions.

Proposed ground 4 — derivation of benefit

Ground 4 contends that the trial judge should have held that the applicant derived some benefit from the land and from Susan’s possession of the land after 23 July 2005 (the date fifteen years prior to Angelo’s counterclaim), such that no adverse possession could have arisen prior to 23 July 2005.
Angelo relies on the facts that:
(a)he made some payments in partial reduction of the mortgage liability affecting the land up until May 2008;
(b)he stored some possessions in the garage on the land until after 23 July 2005.
The fourth question considered by the trial judge was whether Angelo’s payment of the mortgage instalment beyond 23 July 2005 constituted Angelo retaining possession of the property. His Honour summarised the submissions made behalf of Angelo as follows:
202The defendant pointed to the decision of Hodgson J in Webeck v Foley[73] where the co-owner in possession of the property in question had required other co-owners not in possession to make contributions towards rates, insurance and a sewerage connection. However, that fact and the fact that the co-owner in possession acknowledged other co-owners (there were several) their right to stay in the property, and made no attempt to prevent them doing so, led to the conclusion that –
…Mrs Foley’s possession was not, and was not considered by her to be, otherwise than for the benefit of all the owners and with their consent.[74]
203The defendant submitted that the decision of Hodgson J in Webeck v Foley supports the proposition that a demand by one co-owner for contribution towards expenses related to the property (such as rates or mortgage repayments) creates a strong inference that there has not been any intention to possess the property to the exclusion of the other co-owner.[75]
[73](1992) 5 BPR 11,694.
[74](1992) 5 BPR 11,694, 11,700–11,701.
[75]Reasons, [202]–[203] (citations in original).
His Honour concluded:
In the circumstances of this case, I consider that Angelo’s continued payments towards the mortgage until mid-2008 does not lead to any inference of the kind suggested by the defendant. Those payments need to be assessed in the context of the express acknowledgment by Angelo that the payments were in lieu of support for his children, that the separation between Angelo and Sue was complete by mid-March 2005 when Angelo requested his goods be packed and shipped to Brisbane, but most particularly by Sue changing the locks to the house on the Property in order to keep Angelo out. The Court must look at all the relevant circumstances collectively to determine whether the plaintiffs have establish adverse possession, and these facts, and others to which I have referred, show an intention that Sue’s possession was for her benefit and that of her children to the exclusion of Angelo.[76]
[76]Ibid [204].
On the application for leave to appeal, Angelo submitted that the trial judge erred because the payment of mortgage instalments demonstrated that Susan’s possession of the land was as a matter of fact in part for the benefit of the co-owner. More particularly, the payment had the consequential effect of increasing Angelo’s equity in the land.
We do not accept this submission. The payment of mortgage instalments was not a use of the land. It did not affect the question of whether Susan possessed the land for the benefit of herself and her children.
Further, Angelo’s agreed characterisation (in his evidence) of the mortgage payments as maintenance for his children is necessarily fatal to this ground. The maintenance arrangement was entirely consistent with Susan’s exclusive possession of the land.
There was no error in his Honour’s assessment of the facts.
The fifth question decided by the trial judge was whether by leaving personal possessions in the property when he left on 10 July 2004 Angelo retained possession of the land until some time after 23 July 2005.
Angelo submitted that he was not excluded from the benefit of the continued possession of the property because he stored goods in his home office in the garage and left personal items on the land.
After referring to the decision of the Privy Council in Wills v Wills,[77] the trial judge concluded:
In all the circumstances of this case it is clear to me that by March 2005, disregarding for the moment the lock change in August 2004, Angelo had started a new life in Queensland, and had abandoned his former matrimonial home. Sue’s conduct in effecting the first lock change, and keeping control of both the Property and the possessions that Angelo had left behind, shows her intention to possess the Property for her and her children’s benefit and not for Angelo.[78]
[77][2004] 1 P & CR 37; [2003] UKPC 84, [32]; Reasons, [209].
[78]Reasons, [210].
No error has been demonstrated in this analysis.
The storage of remnant belongings in part of the garage on the land does not demonstrate that Susan took and maintained possession in part for the benefit of Angelo. The taking of exclusive possession was demonstrated by the changing of the locks in August 2004 and the maintenance of exclusive control of the land thereafter. Susan took control of the remnant personal items left by Angelo in the garage and permitted Ben to destroy some of them. The fact that she also returned goods to Angelo by freight in March 2005 and permitted Angelo to collect other goods in September 2005 did not demonstrate that she took possession of the land in part (or at all) for the benefit of Angelo. Susan simply made reasonable arrangements for the return of Angelo’s personal property after the marriage ended.
Ground 4 must also fail.

Conclusion

Leave to appeal will be refused.
---

[2023] VSCA 162

12 July 2023