Blake v Maguire
[2010] VCC 1265
•16 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST – GENERAL DIVISON
Case No. CI-09-05171
| VALERIE NORMA BLAKE | Plaintiff |
| v | |
| BRIAN WAYNE MAGUIRE | First named Defendant |
| -and- | |
| SUSANNE MARIE MAGUIRE | Second Named Defendant |
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| JUDGE: | HER HONOUR JUDGE KENNEDY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 September 2010 |
| DATE OF JUDGMENT: | 16 September 2010 |
| CASE MAY BE CITED AS: | Blake v Maguire & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1265 |
REASONS FOR JUDGMENT
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Catchwords: Property – Adverse Possession- part of Defendants’ land north of a fence exclusively occupied by plaintiff since at least 1975
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. T. Messer | Mitchell Burke & Co |
| For the Defendants | No appearance | |
| HER HONOUR: | ||
| Background: Procedural history |
1 On 17 May 2010, the Court made the following orders on by consent in the proceeding:
(1) There be judgment for the Plaintiff against the Defendants.
(2) The Court declares that the Plaintiff, who is the owner of the fee simple estate in the land more particularly described in Conveyance Deed No. 783 Book 761, is now in exclusive possession of the whole of the land hatched red on the plan of survey dated 17 March 2010 prepared by Willem Nagel and annexed as a schedule to these orders (“the Plan”) and being the parcel of land marked “A” on the Plan having an area of 5619m2 and being part of the land described in Certificate of Title Volume 11153 Folio 449 (“the Adversely Possessed Land”).
(3) The Court declares that by reason of the provisions of section 8 and section 18 of the Limitation of Actions Act 1958 the registered title of the Defendants to the Adversely Possessed Land is extinguished.
(4) The Court declares that the Plaintiff is entitled to be registered as the
proprietor of the Adversely Possessed Land.(5) The Court orders and directs that the Defendants do all things that may be reasonably and properly required of them in order to enable the Plaintiff to become registered at the Land Titles Office as the proprietor of the Adversely Possessed Land.
(6) The Court expressly reserves any rights of the Plaintiff to apply for further relief pursuant to provisions of section 103 of the Transfer of Land Act 1958 and the general liberty to apply reserved to the parties in paragraph 7 below may be used by the Plaintiff for the purpose of seeking any such relief.
(7) The Court reserves liberty to the parties to apply.
(8) There be no order as to costs.
2 Although by order (3) above, the court declared that the registered title of the defendants had been extinguished, no reasons were provided to accompany the orders.
3 Counsel for the plaintiff now seeks a formal finding, with reasons, and has asked the court to otherwise confirm the orders and make an order under s103(1) of the Transfer of Land Act 1958 to direct the Registrar of Titles to amend the Register to give effect to the orders.
4 The defendants and the Registrar of Titles have been notified of this application but have chosen not to take part. The defendants consented to the previous orders of 17 May.
Factual background
5 The plaintiff is the sole owner of the fee simple estate in the land situated and known as 88 Bourkes Road, Inverleigh in the State of Victoria. The plaintiff’s land includes the whole of the land contained in Crown Allotment Five in the Parish of Doroq County of Grenville. A conveyance in respect of the land was registered in 1975 but the plaintiff and her late husband had occupied the land since 1965.
6 Lot 5 is bounded on the east by the Defendants’ Land which is known as 4 Young Road Inverleigh and more particularly described in Certificate of Title Volume 11153 Foliio 449.
7 A post and wire fence (“the Subject Fence”) runs in an easterly direction across the defendants’ land which:
(a) commences at or near the med point of the lot 5 boundary;
(b) ends at or near the intersection of the defendants’ land with the Leigh
River; and(c) has stood in its present location for in excess of 70 years.
8 The plaintiff alleges that she, together with her husband (prior to his death in 1980) have enjoyed exclusive and uninterrupted possession of the whole of that portion of the defendants’ land lying to the north of the Subject Fence (“the Adversely Possessed Land”).
Principles
9 Section 8 of the Limitation of Actions Act 1958 (“the Act”) provides, so far as is material, as follows:
“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…”
10 Section 18 of the Act provides that at the expiration of the period referred to above, the person’s title to the land shall be extinguished.
11 In order to attribute possession of land to a person who can establish no paper title, he/she must be shown to have both factual possession and the requisite intention to possess (animus possidendi).
12 In Bayport Industries Pty Ltd v Watson (2006) V Conv R 54-709, Ashley J (as he then was) summarised the law relating to adverse possession as follows (at paras. [39] & [40]):
“The law is clear enough. A number of the basic principles were summarised by
Slade J in Powell v McFarlane. Thus, pertinently:
“It will be convenient to begin by restating a few basic principles relating to the
concept of possession under English law:(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession,… 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… It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession… 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.
(4) The animus possidendi, which is also necessary to constitute possession,… involves the 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… the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisition animus possidendi and consequently as not having dispossessed the owner.”
13 To those principles should be added and/or highlighted the following:
•
”When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804.
•
As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn CJ said in Seddon v Smith (1877) 36 LT 168 at 1609: ‘Enclosure is the strongest possible evidence of adverse possession.’ Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487 at 511A, similarly observed: ‘Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner.
•
It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd v Chamberlain (1969) 20 P & CR 633 at 642, per Sachs LJ”
•
A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession.
•
Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed…
•
Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal…
•
At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned.”
14 These principles have been recently applied by the Court of Appeal in Whittlesea City Council v Abbatangelo (2009) VSCA 188.
Application of Principles
15 Having considered the evidence of the Plaintiff given by affidavit dated 15 September 2010, I am satisfied that the Plaintiff has established that she has enjoyed factual possession of the Adversely Possessed Land for at least 15 years. In particular, the plaintiff has proved:
(i) that after 1975 she cleared the Adversely Possessed Land by hand so that it was suitable for grazing and other farming activities;
(ii) that she has regularly grazed animals upon the Adversely Possessed Land since at least 1975;
(iii) that she has maintained the vegetation on the Adversely Possessed Land and removed weeds and pests since at least 1975;
(iv) that she has kept the Adversely Possessed Land clear of fallen timber since at least 1975;
(v) that sometime after 1965 (and before 1980) she, together with her husband, arranged for a windmill to be erected on the Adversely Possessed Land. The Plaintiff and her late husband also arranged for irrigation pipes to be installed in the subsoil of the Adversely Possessed Land. The windmill, which is still standing, enables the Plaintiff to water her land;
(vi) that she has since 1975 maintained the Subject Fence; and
(vii) that by reason of the above, she has dealt with the Adversely Possessed Land exclusively as an occupying owner might have done; no-one else has had access to or possession of the Adversely Possessed land since at least 1975.
16 By reason of the matters above, I am also satisfied that the plaintiff had the requisite intention to possess the Adversely Possessed Land. In particular, the Plaintiff has proved that the Adversely Possessed Land has been enclosed by the Subject Fence since at least 1965, and probably much longer. As indicated in the extract from Bayport above, enclosure prima facie indicates the requisite animus possidendi.
17 The property has been carefully and thoroughly surveyed by Mr Willem Nagle and the court was also provided with a copy of the plan of Survey and licensed surveyor’s report of 17 March 2010.
18 By reason of the matters set out above I am thereby satisfied:
(a) that the right of the defendants to recover possession of the Adversely
Possessed Land is barred by operation of section 8 of the Act;
(b) that the defendants’ title to the Adversely Possessed Land is
extinguished by operation of section 18 of the Act; and
(c) that the plaintiff has established title to the Adversely Possessed Land
by adverse possession.19 I am further fortified in these conclusions by the decision of the Court of Appeal in Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 which concerned very similar facts.
Conclusion
20 I am satisfied that the land described herein as the Adversely Possessed land has been continuously occupied by the plaintiff since at least 1975, and is land which she has acquired by adverse possession.
21 The orders sought will be made.
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