Ben-Pelech v Royle - [2019] WASC 297

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BEN-PELECH -v- ROYLE [2019] WASC 297
CORAM:   KENNETH MARTIN J
HEARD:   25 & 26 JUNE 2019
DELIVERED          :   16 AUGUST 2019
FILE NO/S:   CIV 1444 of 2018
BETWEEN:   BOAZ BEN-PELECH
First Plaintiff
HANNAH JESSIE BEN-PELECH
Second Plaintiff
AND
GLENN CHARLES ROYLE
First Defendant
ROSEMARY ANNE ROYLE
Second Defendant
REGISTRAR OF TITLES
Third Defendant

Catchwords:

Real property - Boundary dispute between neighbours - Boundary fence wrongly placed for 23 years along part of boundary leading to 27 sqm disputed area - Misalignment of boundary fence due to surveyor's error - No error on the part of the parties - Claim for adverse possession made over disputed area - Separate portions of disputed area comprising a rear enclosed area and a front open area - Defences to adverse possession - Subdivision defence made pursuant to s 163 Transfer of Land Act -Whether issuing of new titles pursuant to subdivision plans extinguishes adverse possession rights - Mistake as to boundaries or identity of land defence made pursuant to s 123 Property Law Act - s 123 Property Law Act not a 'shield' to meritorious adverse possession claim

Legislation:

Dividing Fences Act 1961 (WA)
Limitation Act 1935 (WA)
Limitation Act 2005 (WA)
New Zealand Property Law Act 1952-1963 (NZ)
Property Law Act 1969 (WA)
Strata Titles Act 1966 (WA)
Transfer of Land Act 1893 (WA)

Result:

First and second defendants successful on claim for adverse possession in rear area only

Plaintiffs' claim for orders pursuant to s 123 of the Property Law Act 1969 (WA) dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr S K Shepherd
Second Plaintiff	:	Mr S K Shepherd
First Defendant	:	Mr S R Sirett
Second Defendant	:	Mr S R Sirett
Third Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Feinauer Commercial Lawyers
Second Plaintiff	:	Feinauer Commercial Lawyers
First Defendant	:	LSV Borrello Lawyers
Second Defendant	:	LSV Borrello Lawyers
Third Defendant	:	No appearance

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

Blackburn v Gemmell (1981) 1 NZCPR 389
Bowman v Tremaine [2016] WASC 294
Construction Industry Long Service Leave Payments Board v Precision Corporation Pty Ltd (Unreported, WASC, Library No 920130, 4 March 1992)
Executive Seminars Pty Ltd v Peck [2001] WASC 229
Norris v Weal [1984] NZHC 198
Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; (2009) 237 CLR 603
Refina Pty Ltd v Binnie [2009] NSWSC 914
Registrar of Titles v Spencer [1909] HCA 69; (1909) 9 CLR 641
Sproxton v Laufoot Holdings Pty Ltd and Niewkerk (Unreported, WASC, Library No 4666, 1 October 1982)

KENNETH MARTIN J:

Introduction

Despite their sandy nature, the soils in the Perth coastal suburb of City Beach have managed to provide a fertile ground for this dispute arising between suburban neighbours. This trial showcases what, in essence, is a boundary dispute between the neighbours over a narrow at best (yet contested)…

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 [2019] WASC 297
Case: [2019] WASC 297
Decision Date: 16 AUGUST 2019

CaseChat Overview and Summary

In Ben-Pelech v Royle, the court dealt with a boundary dispute between two adjoining landowners in which a boundary fence had been incorrectly placed for 23 years, resulting in a 27 square metre disputed area. The dispute centred around the misalignment of the boundary fence due to a surveyor's error, and the claim for adverse possession over the disputed area, which comprised a rear enclosed area and a front open area. The defendants raised two primary defences: a subdivision defence under section 163 of the Transfer of Land Act and a mistake as to boundaries or identity of land defence under section 123 of the Property Law Act. The defendants argued that the issuance of new titles pursuant to subdivision plans extinguished the adverse possession rights, and that section 123 of the Property Law Act was a 'shield' to a meritorious adverse possession claim.

The court was required to determine whether the defendants' defences were valid and whether the plaintiffs' claim for adverse possession was successful. The court found that the defendants' subdivision defence was not applicable as the subdivision did not extinguish the adverse possession rights, and that section 123 of the Property Law Act was not a'shield' to a meritorious adverse possession claim. The court held that the plaintiffs had successfully established adverse possession over the rear enclosed area of the disputed land, but not over the front open area. The court found that the replacement fence and its retaining wall footings erected by the plaintiffs at the rear portion of the two adjoining lots were not a 'building' for the purposes of section 123(1) of the Property Law Act, as they lacked any connection to the concept of occupation.

The court's reasoning was based on the understanding of the term 'building' in the context of section 123 of the Property Law Act, which required a degree of permanence in the structure and a connection to the concept of occupation. The court held that the plaintiffs had established adverse possession over the rear enclosed area of the disputed land, as they had exclusive possession and had continuously and openly possessed the area for the statutory period of 12 years. However, the court found that the plaintiffs had not established adverse possession over the front open area, as it did not meet the criteria of being enclosed and having a degree of permanence. The court held that the defendants' mistake as to boundaries or identity of land defence under section 123 of the Property Law Act was not applicable, as the plaintiffs had established adverse possession over the rear enclosed area of the disputed land.

The final orders of the court were that the plaintiffs were entitled to adverse possession over the rear enclosed area of the disputed land, but not over the front open area. The court ordered that the defendants' title to the rear enclosed area be extinguished and that the plaintiffs' title to the rear enclosed area be registered. The court also ordered that the defendants be entitled to possession of the front open area of the disputed land, and that the plaintiffs' claim for adverse possession over the front open area be dismissed. The court's decision in Ben-Pelech v Royle provides important guidance on the application of adverse possession and the defences available to defendants in boundary disputes.

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

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As regards what is or is not in general to be assessed as a 'building', I am guided by the general observations made by Owen J in Construction Industry Long Service Leave Payments Board v Precision Corporation Pty Ltd (Unreported, WASC, Library No 920130, 4 March 1992). There, after reviewing many of the common law case authorities from other contexts, which were not directly on point, his Honour said, at pages 13 - 14:In my view, the essential feature is that the word 'building' is to bear the meaning which it has in common parlance. The identity of the materials with which it is constructed is not particularly relevant. The existence or non-existence of a roof is not determinative of the issue. It will be necessary to look at the type of structure under consideration and ask whether it would place too great a strain on the ordinary use of the language to regard it as a building. In my opinion, there must be a degree of permanence in the structure. It must relate to occupation in some way, not limited to the concept of residence but extending to things such as use, enjoyment and storage. There must also be an element of enclosure ... His Honour advanced to observe that a swimming pool was not a building (page 14). Similarly, Wallace J in Sproxton v Laufoot Holdings Pty Ltd and Niewkerk (Unreported, WASC, Library No 4666, 1 October 1982), at page 4, had concluded that a bore was not a structure for the purposes of engaging against the term 'building' in reference to s 123 of the PLA. Guided by a like understanding of the noun 'building' to the context of s 123, towards the replacement fence as was erected at the rear portion of the two adjoining lots, I am of the end view that it is not correct to characterise the replacement fence and its retaining wall footings as a 'building' for the purposes of s 123(1). The core problem, I assess, is a lack of any connection to the concept of occupation in some way. (Whether I would have reached the same conclusion as regards that fence in a context of a submission made under s 122 of the PLA, is left as an open question.) The third criteria question relevantly necessary, in terms of the plaintiffs' standing to engage s 123(1), arises out of the use of the word 'having', as regards them holding an estate or interest to the strip of what was part of their lot 238 and was mistakenly built upon in error. Here, the argument of the defendants is that, as regards the rear area, the legal effect of the relevant sections under the applicable Limitation Acts is that all right and title of the plaintiffs over the (now) adversely possessed rear area was relevantly 'extinguished' after 12 years - ie, by February 2006: see s 30 Limitation Act 1935. Hence, upon that extinguishment by possession and by limitation, the plaintiffs no longer held standing to invoke s 123 of the PLA - on the basis that they are not now, as they approach the court for relief, persons 'having' (ie, present tense) an estate or interest in the rear portion of lot 238 (albeit wrongly built upon) - via s 123(1) of the PLA. Of course, they once did hold that estate in 1993. But the word 'had' is not used in s 123 of the PLA as regards a lost estate or interest following an adverse possession and the consequential extinguishment of rights taking effect.