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Bottos v Citylink Melbourne Ltd

Bottos v Citylink Melbourne Ltd

Case [2022] VSCA 266 5 December 2022

Adverse Possession

Limitation Periods

Property Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0012

NEILO STEFANO BOTTOS	First Applicant
ADRIAN LLOYD BOTTOS	Second Applicant
v
CITYLINK MELBOURNE LIMITED (ACN 070 810 678)	Respondent

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JUDGES:	BEACH, SIFRIS JJA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2022
DATE OF JUDGMENT:	5 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 266
JUDGMENT APPEALED FROM:	[2021] VSC 585 (Gorton J)

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REAL PROPERTY – Title – Adverse possession – Adverse possession of land beneath surface – Effect of building wall where posts and supporting structures encroached on adjoining land – Factual possession – Intention to possess – Whether possession open and manifest – Acknowledgment of title – Whether respondent acknowledged applicants’ title.

LIMITATION OF ACTIONS – Trespass against land – Whether applicants’ claim for trespass statute barred – Adverse possession – Adverse possession of land beneath surface – No error in trial judge’s conclusion that trespass claim statute barred – Application for leave to appeal refused.

Limitation of Actions Act 1958, ss 8, 9, 14, 18, 24 and 25; Transfer of Land Act 1958, s 42(2)(b).

Symes v Pitt [1952] VLR 412; Abbatangelo v Whittlesea City Council [2009] VSCA 188; and Price v Spoor (2021) 270 CLR 450 referred to.

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Counsel
Applicants:		Mr M Clarke KC with Mr MF Sharkey
Respondent:		Mr SR Horgan KC with Ms A Hando
Solicitors
Applicants:	Antony, Sdrinis & Co
Respondent:	Herbert Smith Freehills

BEACH JA
SIFRIS JA
J FORREST AJA:

Neilo and Adrian Bottos (‘the applicants’) are, and have at all relevant times been, the registered proprietors of 9 McColl Court, Brunswick West (‘the property’). The property runs generally from south (at the front) to north (at the back), with the Tullamarine Freeway to the north of the property and a noise wall (‘the noise wall’) running diagonally at an angle from the northwest corner of the block to the southeast corner. The unusual shape of the block came about because part of the block had earlier been compulsorily acquired for the purpose of constructing the freeway.
The noise wall was constructed some time in 1999 by CityLink Melbourne Ltd (‘the respondent’). The noise wall consists of large panels set between eight metre high steel H-beam poles set in concrete. There are 11 poles on that part of the noise wall that runs along the boundary of the applicants’ land. Although the wall panels are not on the property, the steel poles are wider than the panels and they extend between 6 to 17 centimetres into the property, according to one survey, and between 0.8 to 3.5 centimetres according to another survey. The steel poles are attached to square concrete bases that extend a further 20 centimetres from the poles. Underneath the concrete bases are deep cylindrical concrete foundations of at least 60 centimetres diameter that extend further into the property.
When one of the poles of the noise wall was being installed, a large amount of concrete spilt over, underground in…

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 Bottos v Citylink Melbourne Ltd

Details

AGLC: Bottos v Citylink Melbourne Ltd [2022] VSCA 266
Case: [2022] VSCA 266
Decision Date: 5 December 2022

CaseChat Overview and Summary

The applicants, Bottos, brought a claim against Citylink Melbourne Ltd, alleging adverse possession of land beneath the surface, encroaching upon their adjoining property. The applicants argued that the respondent's building wall, including posts and supporting structures, encroached onto their land, and that the respondent had effectively taken possession of the land beneath the surface through continuous and exclusive use over the statutory period. The case was heard in the Supreme Court of Victoria.

The legal issues before the court involved determining whether the respondent's encroachment constituted factual possession, whether the respondent intended to possess the land, and whether the possession was open and manifest. Additionally, the court had to decide if the applicant's claim for trespass was statute-barred under the Limitation of Actions Act 1958. The applicants also claimed that the respondent acknowledged their title to the land beneath the surface.

The court found that the respondent's encroachment did not constitute adverse possession, as it did not amount to factual possession of the land beneath the surface. The court held that the posts and structures were not sufficient to demonstrate continuous and exclusive use of the land. Furthermore, the court found that the applicants' claim for trespass was indeed statute-barred under the Limitation of Actions Act 1958, and there was no error in the trial judge's conclusion on this point. The court also found that the applicants had not established that the respondent acknowledged their title to the land beneath the surface. The application for leave to appeal was subsequently refused.

This decision highlights the complexities involved in establishing adverse possession of land beneath the surface, and the importance of factual possession and intention to possess. The case also underscores the significance of the Limitation of Actions Act 1958 in relation to claims of trespass and adverse possession.

Orders