| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7737 of 2000
| BAYPORT INDUSTRIES PTY LTD | Plaintiff |
| (A.C.N. 005 107 031) | |
| v | |
| GLENTON and HENDRIKA WATSON and THE REGISTRAR OF TITLES | Defendants |
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JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 May 2002 | |
DATE OF JUDGMENT: | 12 June 2002 | |
CASE MAY BE CITED AS: | Bayport v Watson | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 206 | |
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Real property – adverse possession – significance in the particular circumstances of enclosure by fence predating establishment of title boundary.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Phillips | Taylor Splatt & Partners |
| For the first and second Defendants | Mr D. Klempfner | Goldstein Partners |
| For the third Defendant | No appearance |
HIS HONOUR:
The Plaintiff’s claim; and some basic geography
The plaintiff, Bayport Industries Pty Ltd (“Bayport”), is the registered proprietor of two parcels of land. One parcel is in Pottery Road, Tyabb. Having account of an extension at its south east corner, I estimate the paper title area of this parcel of land to be about 22 hectares. Pottery Road runs approximately east and west. It terminates at the eastern boundary of the plaintiff’s land.
The first and second defendants[1], Glenton and Hendrika Watson (“the Watsons” or “the defendants”), are the registered proprietors of a parcel of land which fronts Webb Lane, Somerville. According to its title boundaries it is a little less than 4.4 hectares in size.
[1]There is a third defendant, the Registrar of Titles. He took no part in the proceeding before me.
The plaintiff’s second parcel of land also fronts Webb Lane. It is to the north of the defendants’ land, and is about four hectares in area.
Webb Lane runs approximately north and south. It is west of Pottery Lane. The Watsons’ land is on its eastern side. So is the second parcel of the plaintiff’s land.
The consequence of the geography which I have described is that the first parcel of the plaintiff’s land (which I shall call “the claypit land”) abuts the rear, that is, the eastern, boundary of the Watsons’ land; whilst the second parcel of the plaintiff’s land (I shall call it “the plaintiff’s other land”) abuts the northern boundary of the Watsons’ land. The plaintiff’s land, in its totality, assumes an inverted “L” shape around the Watsons’ land.
The plaintiff’s case, as it was confined at trial, was that it had obtained title by adverse possession to a strip of land along the rear of the defendants’ land. In that connection the plaintiff claimed and the defendants denied that for more than 30 years up to about June 2000 the boundary between the claypit land and the defendants’ land was constituted by a post and wire fence which was some 11.5 metres west of the true boundary.
The area of land in dispute has been surveyed to be 1627 square metres, that is, less than a fifth of a hectare. It is, to emphasise the tragedy…
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- Case
- [2002] VSC 206
- Decision Date
CaseChat Overview and Summary
The court considered the principles of adverse possession, which require continuous, open, and notorious possession of land for a statutory period, coupled with an intention to possess the land as one's own. The court examined the evidence regarding the fence and its significance in the context of the adverse possession claim. It found that the fence did not constitute an effective enclosure of the land as it was not sufficiently substantial or permanent to exclude the true owner from possessing the land. The court also noted that the fence did not align with the title boundary and that Watson had not demonstrated a consistent intention to possess the land as his own. Consequently, the court ruled that Watson had not acquired title to the disputed land through adverse possession.
In its judgment, the court held that the fence erected by Watson was not sufficient to constitute adverse possession in the particular circumstances of this case. The court found that the fence did not effectively enclose the land and did not align with the title boundary. Furthermore, the court determined that Watson had not demonstrated a consistent intention to possess the land as his own. Therefore, the court dismissed Watson's adverse possession claim. The final orders of the court were that Bayport Industries Pty Ltd was entitled to a declaration of title to the disputed land and that Watson's adverse possession claim was dismissed.
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