Body Corporate No 435612 v Kaufer
[2003] VSC 250
•11 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 5776 of 2003
| BODY CORPORATE NO. 435612 | Plaintiff |
| v | |
| JOHN KAUFER and MIROHN CONSTRUCTIONS PTY LTD | Defendants |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 6, June 2003 | |
DATE OF JUDGMENT: | 11 June 2003 | |
CASE MAY BE CITED AS: | Body Corporate No. 435612 v Kaufer & Mirohn Constructions P/L | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 250 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M.E. Mulvaney | Richard Billings |
| For the Defendants | Mr P.G. Cawthorn | B2B Lawyers |
HIS HONOUR:
By summons filed 13 May 2003, the plaintiff seeks orders preventing each defendant from continuing further with the works being carried out by them at 21 Hodder Street, Brighton East, near or over the boundary with 23 Hodder Street, or encroaching on the land of the plaintiff at 23 Hodder Street, and further relief. A writ was issued on the same day. An amended statement of claim to which I shall come was filed on 3 June 2003.
The present plaintiff, a body corporate, is the registered proprietor of the land at 23 Hodder Street, Brighton East, its units and facilities. The first defendant is the director of the second defendant. The units occupy the land known as 23 Hodder Street, Brighton East.
It is alleged by the plaintiff that on Sunday 11 May 2003, without notification to the plaintiff, the defendants commenced to carry out works on the land at 21 Hodder Street, Brighton, in particular on a large brick wall for a garage, together with associated works, including footings and scaffolding. It was initially alleged by the plaintiff that the works wrongfully encroached upon the plaintiff’s land by a substantial margin, said in imperial terms to be, in places, of the order of 18 inches, which involved also trespass. It was further alleged that, in carrying out the works, the defendants came wrongfully on to the plaintiff’s land and interfered with it, and that, despite demands made of them by the plaintiff to remove the works and cease the works and cease to encroach and trespass, the defendants have proceeded with the works.
By the amended statement of claim, as I say filed on 3 June 2003, the present claim was pleaded, which is that there was a boundary fence between the plaintiff’s units and the adjoining land; that, without seeking permission from the plaintiff, the defendants wrongfully uplifted and removed portions of the dividing fence; that the plaintiff has been in continuous possession and occupation as of right for fifty years of the area of land adjacent to the title boundary of the plaintiff’s land between the units and the dividing fence; that by reason of such continuous possession and occupation, the plaintiff has acquired title by adverse possession to the further land; and that by commencing and carrying out the works the defendants have wrongfully interfered with and trespassed upon that land and are encroaching upon it. By the amended statement of claim the plaintiff claims a declaration that it has acquired title by adverse possession to the further land.
Related to these proceedings is a proceeding as to whether the defendants are in contempt of an order of Coldrey, J. of 13 and then of 16 May 2003. I put that matter completely aside in this judgment and in consideration of the matters relevant thereto. I also put completely aside whether the defendants have been overbearing or high-handed in their treatment of the plaintiff. Again, that matter, if it exists, I put completely aside. I have considered and shall decide this case strictly on the relevant legal criteria.
In support of the plaintiff’s original claim and amended claim are numerous affidavits. By affidavit sworn 15 May 2003, Mr Gersch Ulman, the brother of the owner of Unit 1 of the units, deposed that his sister purchased Unit 1 as a new unit in 1952, that over the period since that purchase he has visited the unit on innumerable occasions, and that the fence the focal point of the dispute between the parties has been in its present position since 1952. By affidavit sworn 15 May 2003, Mrs Carmel Curtin deposed that she is the owner of Unit 6, she purchased her unit in early 1986, and that the fence likewise has been in the same position since that time, 1986. There were four affidavits sworn by Mr P.L. Denham, the owner of Unit 2, a retired draftsman, in which he sets out the history of the matter, which I do not need to rehearse in detail for the purposes of this judgment. He sets out the matters as to the discovery of the works and the general dealings between the plaintiff and the two defendants in relation to them. He exhibits to his last two affidavits, of 26 May 2003 and 5 June 2003, numerous photographs, which speak for themselves. An affidavit sworn 3 June 2003 by Mr J.R. Leared, a land surveyor who has been practising for 27 years, deposed that he has been engaged by the body corporate to survey the land and the boundaries between the two properties, 21 and 23 Hodder Street. He did so on 15 May 2003. He exhibited as Exhibit 1 to his affidavit the plan he prepared in relation to that. He stated that from his survey he determined the brick wall encroached inside the fence boundary by .205 metres at the western end and .145 metres at the eastern end. Finally, an affidavit sworn 6 June 2003 of Ms M.B. Dickson deposed, in relevant part, that the 23 Hodder Street premises had been the subject of an offer in 1989 of $1.5 million and would now, she believes, be of the value of $1.8 million.
For the defendants, the first defendant, Mr Kaufer, has sworn two affidavits, the first of 30 May and the second of 4 June 2003. In the first affidavit he sets out the history of the dealings between the parties which, as with the plaintiffs, I shall not rehearse for this ruling. In relevant part, he denies that there has been any encroachment over the title boundary and that he at all times relied upon the advice of his surveyor, Mr C. Raven, as to the position of the boundary. He went on in that first affidavit – a matter which I shall return to in his later affidavit – that the development at 21 Hodder Street had total costs in excess of $2.2 million with sales anticipated of approximately $2.8 million. He deposed that if the defendants are restrained from taking any steps to work on the wall they will not be able to complete the development, with the consequent deleterious financial effects. In his second affidavit, that of 4 June 2003, he further developed that financial matter. He said the development is funded by a facility with the NAB of $1.9 million which is presently drawn down to the extent of $350,000. Further funds are being advanced by interests associated with himself and other investors. The interest is of 7.5% per annum. He deposed that the project was, at least until the injunction was granted ex parte and now the subject of this judgment, expected to be completed by December 2003. He deposed that if the injunction remains in place the development will not be able to be completed. He deposed that the ultimate costs of these delays will be approximately 7.5% of $2.2 million per annum, being effectively $3,200 per week. He exhibited to his affidavit an article as to the potential of the property values dropping thereafter which will adversely affect him if things are held up.
Critically, an affidavit of Mr C. Raven, a land surveyor of Kew, sworn 30 May 2003 has been filed on behalf of the defendants. Mr Raven deposed that he is a licensed land surveyor with a Diploma of Land Surveying and has been practising for 33 years. He had been engaged by Mr Kaufer, the first defendant, to survey the land the subject of the development at 21 Hodder Street, East Brighton. He deposed as follows. He surveyed the property on 22 August 2001 in order to determine the position of the title boundaries and prepared a plan showing the position of the title boundaries in relation to the fencing. The title boundaries of the property were marked on 1 April 2003 prior to construction of the development commencing. On 14 May 2003 he was requested to re-survey the boundaries. He attended the property on that day in order to do so, and his findings were consistent with his findings on 22 August 2001. He has prepared a plan showing the position of the wall which has been constructed along part of the north boundary of No. 21, 23 being to its north. The wall has been constructed 0.04 metres south of the title boundary; that is, the wall does not encroach on the title of the property to the north, being 23 Hodder Street; it is within the title boundary of the property at 21. That plan is exhibited as Exhibit 1 to his affidavit, being the original plan, together with an enlargement to provide an indication of the position of the wall. He further deposed that as a result of his inspection and re-surveying of the property on 14 May 2003 he has prepared a diagram which shows with more precision the position of the wall which is adjacent to the north title boundary. The fence palings were attached to the south side of the fence posts. Whilst at all times remaining within the title boundary, part of the wall protrudes approximately 40 millimetres to the north side of the fence posts. The remainder of the wall is within the line of the fence posts. The wall extends past the line of the palings by approximately 12.5 centimetres at the south end and approximately 20 centimetres at the north end. Exhibited as Exhibit 2 to his affidavit is a diagram to that effect. He finally deposed that whilst he was attending the property on 14 May 2003 he was able to observe that the wall had already been completed to its full height and that the abutting wall, which is at the centre of the wall and at 90 degrees to the wall, was also complete.
Other affidavits have been filed by the plaintiff and the defendants which are not relevant to the present proceedings, although they may be relevant to the contempt of court proceedings.
The defendants first submit that it is plain on the affidavit of Mr Raven which I have just recited that there has been no encroachment on the property of the plaintiff. Mr Cawthorn, who made submissions to this end on behalf of the defendants, pointed to the affidavit of Mr Leared of 3 June 2003, which does not disagree with the affidavit of Mr Raven sworn three days earlier. Mr Raven has sworn that the fence palings were at all times within the title boundary.
Mr Cawthorn further submitted that there has been no application for adverse possession under s.60 Transfer of Land Act 1958; that on the basis of Riley v. Penttila[1], so far as a declaration as to adverse possession is sought, it must be proved that the body corporate has dispossessed the true owner and is intentionally in actual possession of the disputed area to exclude the true owner. He relied upon the citation at page 561 of that judgment, of Cussen, J., speaking on behalf of the Full Court in Murnane v. Findlay,[2] that the authorities establish the following: first,
“the possession of the land in every case must be considered with reference to the peculiar circumstances of the case being considered. The acts implying dispossession in one case afford no assistance in another, since the question of possession might be quite different in one case as compared with another. The character and value of the property, the suitable and natural mode of using it having regard to all the circumstances, and the course of conduct which a proprietor might reasonably be expected to follow with due regard to his own interests, varying as they will from case to case, must be taken into account. Two, where dispossession of land is to be inferred from equivocal acts, the intention with which they are done is all important. Three, the nature of the property must be looked at. A person alleging rights accruing from possession must show that the acts were done which were inconsistent with the enjoyment of the land by the true owner for the purpose for which he intended to use it.”
Mr Cawthorn submitted that factual possession and the requisite intention must be established: Braybrook Industries Pty Ltd v. Watson.[3] He submitted that other than the existence of the fence there is no evidence to support the exclusion of the true owner.
[1][1974] V.R. 547, particularly at 561.
[2][1926] V.L.R. 80 at 87.
[3][2002] VSC 206 at [39] and [43].
Mr Cawthorn also made a number of submissions which I consider are of a formal sort for the purposes of this judgment. He said that the true owner is not a party to the proceedings; that the plaintiff is only a limited party because of the true ownership residing with individuals; and that s.60 Transfer of Land Act and ss.28 and 28A Subdivision Act 1988 stand against the plaintiff’s claim. Mr Mulvaney stated on the last occasion that any matters of formal deficiency shall be attended to in relation to the proper parties to the proceeding.
Mr Cawthorn submitted that, on the question of whether there is a serious question to be tried, the plaintiff’s claim has shifted from its original claim of encroachment to a claim of adverse possession; that the existence of a fence is not conclusive of that matter; and that there was no serious question to be tried. He further submitted that the balance of convenience is in favour of the defendants; the defendants have a very significant financial stake involved, and impediment to the development will have a very significant deleterious financial consequence to the defendants, as the figures I have previously cited demonstrate; and that on the other hand there is no significant deleterious consequence to the plaintiff or to such parties as may be joined in relation to the plaintiff, because this is a thin sliver of land which is not actively used by the plaintiff or the owners of the units. Mr Cawthorn has further submitted that, if there is any breach which ultimately might be made out, damages are an entirely adequate and proper remedy to the plaintiff or the plaintiff and its further partners, and that the relief sought ought not be granted on that ground. He has further submitted, and indeed by summons of 4 June and notice to produce of 4 June has in essence put, that the plaintiff cannot give an adequate undertaking as to damages which would be required for an interruption to such a substantial commercial endeavour as here is being sought.
Mr Mulvaney, on the other hand, for the plaintiff, has submitted that there is a clear and strong prima facie case of adverse possession here; that the possession has run undisturbed since 1952; that the fence speaks for itself in an eloquent way that none other could speak over fifty years; that in the law of adverse possession a physical enclosure of land is a matter of great substantive and evidentiary significance; that the claim of fifty years’ non-moving fence, unlike the forest from Birnam to Dunsinane, has not moved or been moved until the defendants sought to move it this year and intrude upon it; and that there is thus clearly a substantial case to be tried. He referred to a number of decisions - Bayport v. Watson[4] and Rose v. Curtis[5] - and submitted that those cases fell far short of this non-moving fifty-year-old fence.
[4][2002] VSC 206.
[5]7 BPR 14,430.
In relation to the balance of convenience, Mr Mulvaney put that these are senior citizens who have remained undisturbed for many years in the quietude of their adverse possession, and that it is a matter of significance to them, as indeed the bringing of these proceedings demonstrates, and that it is entirely inadequate to say that they can take their remedy in damages or that at the end of proceedings the defendants, if unsuccessful, can be required to move the erection which has by then been completed. He has thus put that the real and abiding human and personal interests of these numerous unit owners in the quiet possession of their land that they can see every day is not to be lightly put aside. It is proposed early to join the individual unit-holders as plaintiffs and steps have already been taken to that end.
It is, I consider, of significance that this fence has been in its present place since 1952, before the Queen was crowned, before Hillary and Norgay conquered Everest, and before there was television in Australia. Such possession in my view is not lightly to be put aside.
Having considered the various arguments, I am satisfied that there is a serious question to be tried on that of adverse possession. The fence, although not standing alone as a legal criterion (Braybrook Industries) speaks for itself sufficiently on the summons. I am not satisfied that the balance of convenience favours the two defendants, substantial though their interests are. I consider that the balance of convenience is made out in favour of the plaintiff and those prepared to be joined as plaintiffs. I am not satisfied as to the formal objections which have been raised by Mr Cawthorn in his most comprehensive and thoughtful submissions for the defendants, and in all the circumstances I consider that the order sought ought be granted and I so grant it.
The formal terms of an order and any matters of form can be attended to between the parties and I can sign the appropriate order at the appropriate time.
MR MULVANEY: Might I indicate to Your Honour that I have instructions to give the usual undertaking as to damages on behalf of every unit holder, and we have prepared a proposed amended statement of claim which my friend has not seen. It may be appropriate to just simply have the matter referred to the Master for the necessary tidy-up. We will be seeking to add those additional entities as defendants.
(Discussion ensued.)
HIS HONOUR: I will make the orders that are sought, adopting Mr Cawthorn’s helpfully drawn order, inserting the word “between” in the sixth line; adding the Leared plan as an exhibit; adding the proviso as foreshadowed. Then I will give the plaintiff 48 hours to join the other plaintiffs and to join the two defendants. I give all the parties liberty to apply. That in particular applies to the two new defendants, and if they want to come before me to be heard they are welcome to do so.
Otherwise I will make the following orders:
On Monday 23 June the defences be in. Monday 30 June, discovery by the respective parties. Then the matter can be referred to the Listing Master. I will recommend to the Listing Master that the matter be given priority for hearing. If there are any further orders which are sought I will make them convenient to the parties. I give liberty to apply. I reserve the costs.
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[Orders drawn up and signed]
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