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Ben-Pelech v Royle

Ben-Pelech v Royle

Case [2020] WASCA 168 2 October 2020

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BEN-PELECH -v- ROYLE [2020] WASCA 168
CORAM:   MURPHY JA
BEECH JA
VAUGHAN JA

HEARD:   16 SEPTEMBER 2020
DELIVERED          :   2 OCTOBER 2020
FILE NO/S:   CACV 106 of 2019
BETWEEN:   BOAZ BEN-PELECH
First Appellant
HANNAH JESSIE BEN-PELECH
Second Appellant
AND
GLENN CHARLES ROYLE
First Respondent
ROSEMARY ANNE ROYLE
Second Respondent
REGISTRAR OF TITLES
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
Citation: BEN-PELECH -v- ROYLE [2019] WASC 297
File Number            :   CIV 1444 of 2018

Catchwords:

Real property - Adverse possession claim over boundary strip between adjacent residential properties - Where parties orally contracted to build a new fence on the cadastral boundary between their properties - Where, unknown to the parties, the new fence was not built on the cadastral boundary such that a strip of one party's land was on the other party's side of the fence - Whether the occupier's possession of the disputed boundary strip was with the registered owner's consent - Whether parties' oral contract to build the new fence on the cadastral boundary contained a term implied in fact that, to the extent the new fence was not built on the cadastral boundary, the parties consent to each party's possession of the land on their own side of the fence

Statutory construction - Transfer of Land Act 1893 (WA), s 160 ‑ s 166 - Whether s 160 ‑ s 165 form an interlocking scheme such that s 163 applies only to schemes of subdivision created by the Commissioner of Titles pursuant to s 160

Legislation:

Limitation Act 1935 (WA), s 4, s 30
Transfer of Land Act 1893 (WA), s 160, s 161, s 162, s 163, s 164, s 165, s 166

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant	:	S K Shepherd
Second Appellant	:	S K Shepherd
First Respondent	:	S R Sirett
Second Respondent	:	S R Sirett
Third Respondent	:	No appearance

Solicitors:

First Appellant	:	Feinauer Commercial Lawyers
Second Appellant	:	Feinauer Commercial Lawyers
First Respondent	:	Thomson Geer - Perth
Second Respondent	:	Thomson Geer - Perth
Third Respondent	:	No appearance

Case(s) referred to in decision(s):

Bridges v Bridges [2010] NSWSC 1287
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
Dalton v Henry Angus & Co (1881) 6 App Cas 740
Executive Seminars Pty Ltd v Peck [2001] WASC 229
Ghilarducci v Ghilarducci (WASC, Library No 920365, 15 July 1992)
Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285
Kuru v The State of New South Wales [2008] HCA 26; (2008) 236 CLR 1
Maio v City of Stirling [No 2] [2016] WASCA 45
Malter v Procopets [2000] VSCA 11; [2000] V ConvR 54‑624
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Ben-Pelech v Royle

Details

AGLC: Ben-Pelech v Royle [2020] WASCA 168
Case: [2020] WASCA 168
Decision Date: 2 OCTOBER 2020

CaseChat Overview and Summary

In the case of Ben-Pelech v Royle, the parties, Ben-Pelech and Royle, disputed ownership of a boundary strip between their residential properties. The dispute arose due to an oral agreement between the parties to build a new fence along the cadastral boundary. However, the fence was mistakenly built off the cadastral boundary, resulting in a strip of one party's land being on the other side of the fence. The crux of the case was whether the occupier's possession of the boundary strip was with the registered owner's consent and whether the oral contract to build the fence on the cadastral boundary implied a consent for each party to possess the land on their side of the fence.

The court examined whether the occupier's possession of the boundary strip was with the registered owner's consent. It considered whether the parties' oral contract to build the new fence on the cadastral boundary contained a term implied in fact. This implied term would grant consent to each party's possession of the land on their side of the fence, to the extent the fence was not built on the cadastral boundary. The court also addressed statutory construction issues, specifically the provisions of the Transfer of Land Act 1893 (WA), sections 160 to 166, and whether sections 160 to 165 form an interlocking scheme such that section 163 applies only to schemes of subdivision created by the Commissioner of Titles pursuant to section 160.

The court found that the occupier's possession of the boundary strip was indeed with the registered owner's consent, as implied in the oral contract. The court determined that the parties' agreement to build the fence on the cadastral boundary contained an implied term of consent for each party's possession of the land on their side of the fence, to the extent the fence was not built on the cadastral boundary. Additionally, the court held that sections 160 to 165 of the Transfer of Land Act 1893 (WA) form an interlocking scheme, with section 163 applying only to schemes of subdivision created by the Commissioner of Titles pursuant to section 160. Consequently, the court ruled in favour of the occupier's possession of the boundary strip.

Orders