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
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- Ben-Pelech v Royle [2020] WASCA 168
- Case
- [2020] WASCA 168
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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