Bowman v Tremaine
[2016] WASC 294
•20 SEPTEMBER 2016
BOWMAN -v- TREMAINE [2016] WASC 294
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 294 | |
| Case No: | CIV:1008/2011 | 4-6, 9 & 11 MAY 2016 | |
| Coram: | ALLANSON J | 20/09/16 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs' application for relief dismissed Defendant's claim for adverse possession allowed Declaration made | ||
| B | |||
| PDF Version |
| Parties: | KEVIN JOHN BOWMAN ELIZABETH MARGARET SHARPE DAVID FREDERICK BOWMAN BARBARA EDITH HARRIS GARY ELLIS TREMAINE |
Catchwords: | Property law Real property Adverse possession Turns on own facts |
Legislation: | Limitation Act 1935 (WA), s 4, s 5, s 30 Transfer of Land Act 1893 (WA), s 68(1A) |
Case References: | Bayport Industries Pty Ltd v Watson [2002] VSC 206; (2006) V ConvR 54-709 Harris v Wongama Pty Ltd [1969] 1 NSWR 245 Higgs v Nassauvian Ltd [1975] AC 464 Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 Phillips v Southage Pty Ltd [2014] VSCA 17 Whittlesea City Council v Abbotangelo [2009] VSCA 188; (2009) 259 ALR 56 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- ELIZABETH MARGARET SHARPE
DAVID FREDERICK BOWMAN
BARBARA EDITH HARRIS
Plaintiffs
AND
GARY ELLIS TREMAINE
Defendant
Catchwords:
Property law - Real property - Adverse possession - Turns on own facts
Legislation:
Limitation Act 1935 (WA), s 4, s 5, s 30
Transfer of Land Act 1893 (WA), s 68(1A)
Result:
Plaintiffs' application for relief dismissed
Defendant's claim for adverse possession allowed
Declaration made
Category: B
Representation:
Counsel:
Plaintiffs : Mr C M Slater
Defendant : Mr G D Cobby
Solicitors:
Plaintiffs : Jackson McDonald
Defendant : Borrello Graham Lawyers
Case(s) referred to in judgment(s):
Bayport Industries Pty Ltd v Watson [2002] VSC 206; (2006) V ConvR 54-709
Harris v Wongama Pty Ltd [1969] 1 NSWR 245
Higgs v Nassauvian Ltd [1975] AC 464
Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
Phillips v Southage Pty Ltd [2014] VSCA 17
Whittlesea City Council v Abbotangelo [2009] VSCA 188; (2009) 259 ALR 56
1 ALLANSON J: The plaintiffs and the defendant own adjacent properties. For many years they have disputed which of them is entitled to a strip of land which runs along the border between their properties. The land lies within the surveyed boundaries shown on the plaintiffs' title. The plaintiffs rely on their title. The defendant asserts that he and his father have been in possession of the land for over 50 years, and have title by adverse possession.
The proceedings
2 The plaintiffs are the registered proprietors of an estate in fee simple in a block of land at 74 Capricorn Esplanade, Yanchep (Lot 133). The defendant is the registered proprietor of 72 Capricorn Esplanade (Lot 132), immediately to the south. The disputed land is a strip, approximately 134 sqm in area, which extends the entire length of the boundary between the plaintiffs' property and the defendant's property. Its width varies from approximately 2 m at the western end to 4.65 m at the eastern end, and it is about 44 m from the western to the eastern boundary.
3 It is convenient to refer to that land as the disputed land, as the parties have done.
4 The disputed land lies within the boundaries, as registered, of Lot 133. The defendant says that he and his father, his immediate predecessor in title for Lot 132, have maintained exclusive and continuous possession of the disputed land and have intended to maintain exclusive and continuous possession of that land since about 1952.
5 The plaintiffs commenced these proceedings in 2011, originally seeking relief for trespass. The defendant counterclaimed, claiming title by adverse possession. The proceedings evolved so that, at the hearing, the plaintiffs relied on their registered title and the defendant bore the burden of proof on all issues.
6 The plaintiffs are the successors in title to their father, Hedley George (Bill) Bowman. In these reasons I will refer to the plaintiffs' father as Mr Bowman, and, where necessary, other members of the plaintiffs' family by their given name and family name.
7 The defendant, Gary Tremaine, is the successor to his father, Desmond Robert Ellis (Bob) Hugill.
The title documents
8 The title documents included in the trial bundle show the following brief history of the title.
9 On 14 February 1928, an area of land, Lot M1689, was granted in fee simple to Robert William Ludovic Lindsay (Major Lindsay) and Joyce Emily Lindsay as tenants in common. Lot M1689 includes the land now known as Lots 133 and 132.
10 On 20 August 1952, Kenneth Campbell Rhodes lodged an absolute caveat (caveat 909/1952) over a portion of Lot M1689. The caveat claimed an interest in the land:
by virtue of a deed of assignment made the 18th day of August 1952 between Margue-Rita Gobby and [Mr Rhodes] whereby the said Margue-Rita Gobby assigned to [Mr Rhodes] all her right title and interest in and to an agreement in writing dated the 8th day of February 1949 and made between Mary J Lindsay as Attorney for Robert William Ludovic Lindsay and Joyce Emily Lindsay as vendors and the said Margue-Rita Gobby as purchaser …
- The interest was in part only of Lot M1689. The caveat includes a sketch of the land, showing it to be rectangular, with dimensions of 100 links by 250 links. The dimensions of the land claimed by the defendant convert to 20.12 m by 50.29 m.
11 A certificate of title dated 7 June 1956 shows Major Lindsay and Mrs Lindsay as registered proprietors, and caveat 909/1952 is shown as lapsed.
12 On 27 May 1959, Wydgee Pastoral Company Pty Ltd became the proprietor in fee simple of part of Lot M1689, including the subject land, by transfer.
13 18 June 1959, Mr Rhodes lodged a further caveat (caveat 1388/1959) over part of Lot M1689, on the same basis as the earlier caveat. On this occasion, the caveat was expressed to forbid registration unless subject to his claim. The caveat recites that the transfer to Wydgee Pastoral Company was expressed to be subject to his interest.
14 On 18 February 1960, Mr Hugill lodged a caveat (caveat 376/1960) claiming an estate or interest in the land by virtue of a deed of assignment by Mr Rhodes of his interest in the land. Although Mr Hugill only lodged a caveat to protect his interest in 1960, the evidence shows he entered possession of the land in 1952.
15 On 10 January 1963 Mr Hugill lodged a partial withdrawal of caveat 376/1960 - in effect deleting a triangular area on the eastern boundary.
16 On 27 May 1965, Wydgee Pastoral Company's interest in part of Lot M1689 was transferred to the Crown.
17 On 2 November 1970, land which included what later became Lots 132 and 133 was transferred to Taylor Woodrow Bond Pty Ltd as proprietors in fee simple. Taylor Woodrow Bond applied for the issue of separate certificates of title for particular areas. On 10 December 1970, a certificate of title was issued, showing Lots 132 to 135. This certificate was cancelled on 10 December 1970 and separate certificates were issued for those lots. Caveat 376/1960 was shown as an encumbrance on the title for Lot 132.
18 On 8 May 1972, Yanchep Estates Pty Ltd became the registered proprietor of Lots 132 and 133.
19 On 25 September 1985, Mr Bowman was registered as the proprietor of Lot 133, having acquired the estate in fee simple therein by adverse possession.
20 On 22 November 1985, Lot 133 was transferred to Stephen William Bowman.
21 On 23 July 1990, Mr Hugill was registered as the proprietor of Lot 132, having acquired the estate in fee simple by adverse possession.
22 In 1997, Lot 132 was transferred to the executor of Mr Hugill's estate, and subsequently transferred to the defendant.
23 On 26 October 2006, Lot 133 was transferred to Kevin John Bowman, Elizabeth Margaret Sharpe, David Frederick Bowman and Barbara Edith Harris (the plaintiffs) as joint tenants.
The claims
24 The defendant says:
1. A major part of the disputed land was physically incorporated as part of the defendant's property when Mr Hugill constructed a limestone retaining wall, beginning in about 1957.
2. Mr Hugill constructed the portion of the limestone retaining wall which runs east to west along the line of an old stock fence that was a boundary fence between the properties for some years.
3. In about 1954, and again in 1960, Mr Hugill levelled out a section of the disputed land to the east of the limestone wall for the purpose of erecting a water tank and constructed a water tank for his own use on the disputed land.
4. Mr Bowman, then the proprietor of the plaintiffs' land, was not permitted to draw water from the water tank without permission. Mr Bowman requested permission of Mr Hugill to use the water tanks on the disputed land.
5. In 1962 or thereabouts the defendant and his father installed lawn on the in the area to the south of the limestone wall.
6. In about 1974, Mr Hugill installed a third tank, a 5,000 gallon steel tank on the disputed land, to the east of the limestone wall.
7. Mr Hugill and his family planted tea trees on the disputed land, and erected or installed a barbecue, clothes line and septic tank on it.
8. Since the late 1950s or thereabouts the plaintiffs and their father have been denied access and have not had access to the disputed land by reason of fencing, the topography of the plaintiffs' property and the disputed land, and vegetation that has existed on and has been planted by the defendant and his father immediately on the north side of the disputed land.
9. Neither the defendant nor his father has ever granted the plaintiffs use or possession of the disputed land.
10. The disputed land was continuously and exclusively used by Mr Hugill and his family and friends.
25 The defendant also pleaded acts consistent with possession in and after 1995. Because disputes arose between the adjacent owners after 1990, the defendant at trial relied on a possessory title acquired before 1990.
26 The defendant pleads that he is beneficially entitled to the disputed land and is entitled to be registered as proprietor of that land. The relief sought is declaratory. The defendant pleaded, but did not pursue, an order pursuant to s 200 of the Transfer of Land Act 1893 (WA).
27 The plaintiffs deny that the defendant and his father maintained exclusive and continuous possession of the land in dispute. In their defence to counterclaim, the plaintiffs plead:
1. The disputed land is part of Lot 133.
2. From time to time during the period from about 1954 to the present, Mr Bowman and his family occupied Lot 133 and an area to the east of it by visiting it regularly, undertaking repairs, checking buildings and water tanks, undertaking maintenance to buildings and water tanks, leaving possessions there, and claiming an interest in the land pursuant to an agreement. They took care of the natural vegetation on the area by planting appropriate vegetation, and clearing as required for a fire break between the areas occupied by the plaintiffs' family and the defendant's family.
3. The building of the limestone retaining wall was without the approval or authority of Mr Bowman and was the subject of a complaint by Mr Bowman and his family.
4. Mr Bowman and his family were aware of temporary or periodic use of the disputed area and did not object to periodic or temporary use. But they did not permit, and expressed a prohibition on, any permanent structure being placed on the area, and on the use of that area other than on a temporary or periodic basis.
4. The levelling of the area for a water tank in around 1960 was for a limited purpose. It was also subject to an agreement between Mr Bowman and Mr Hugill by which Mr Bowman permitted the temporary use by Mr Hugill. That agreement was terminated in about 1980.
5. In about the early 1960s, Mr Bowman objected to the defendant's family using the area near the border of the two properties for a toilet, and the toilet and related septic pipes were removed.
6. On 2 May 1985 Mr Bowman applied to become the registered proprietor of Lot 133, including the disputed land. On 25 September 1985, he became the registered proprietor of an estate in fee simple of Lot 133.
7. On 26 February 1996 and 4 March 1996 the defendant wrote to the Mr Bowman seeking his agreement to change the boundaries on the certificates of title. Mr Bowman responded that he and his family did not agree.
28 In and from the 1990s, the plaintiffs have asserted entitlement to the whole of Lot 133, including by erecting a ring lock fence.
The principles
29 The parties are largely agreed on the principles to be applied in resolving this dispute.
30 The plaintiffs are the registered proprietors of land that includes the disputed land. In the absence of evidence to the contrary, as the owners of the land with title they are deemed to be in possession of the land and, prima facie, the persons with the right to possession: Bayport Industries Pty Ltd v Watson [2002] VSC 206; (2006) V ConvR 54-709 [39]. A registered owner may bring an action to recover land from a person in possession.
31 The rights of a registered owner are, however, subject to the rights of a person who can establish adverse possession. Title to land arising from adverse possession is an express exception to indefeasibility of registered title in the Transfer of Land Act: see s 68(1A).
32 At times relevant to this case, the Limitation Act 1935 (WA) applied. By s 4:
No person shall make an entry or distress, or bring an action to recover any land or rent, but within 12 years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within 12 years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same.
33 Section 5 deals with when the right to make entry or to bring an action to recover the land first accrues. Relevantly it provides:
In the construction of this Act, the right to make an entry or distress, or bring an action to recover land or rent, shall be deemed to have first accrued at such time as hereinafter is mentioned, that is to say: -
(a) When the person claiming such land or rent, or some person through whom he claims, has, in respect of the estate or interest claimed, been in possession or in receipt of the profits of such land, or in receipt of such rent, and while entitled thereto has been dispossessed, or has discontinued such possession or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received.
…
For the purposes of this section, the right to make an entry, or bring an action to recover any land, has not and shall not be deemed to have first accrued to any person in any case, whether or not such person has been in possession or receipt of the rents and profits of such land, until such land is in the actual possession of some person not entitled to such possession, and any land not in the actual possession of any person shall be deemed to be in the possession of the person entitled to such possession.
34 Dispossession refers to the situation where a person comes on to the land of another. Discontinuance is where a person voluntarily goes out of possession and another assumes possession in their place: Harris v Wongama Pty Ltd [1969] 1 NSWR 245, 248.
35 By s 30 of the Limitation Act:
At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action or suit, the right and title of such person to the land or rent, for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, shall be extinguished.
36 That is, the Limitation Act does not merely operate as a bar to an action, but title to the land is lost: Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163, 166.
37 The issue is whether Mr Hugill dispossessed the registered proprietor by going into possession for the required period without consent. There is a peculiarity in this matter: Mr Hugill entered the land, now Lot 132, in 1952 pursuant to an agreement with Mr Rhodes. Mr Bowman was given possession of Lot 133, pursuant to an agreement with the owners, in 1956. But until 1985, the registered proprietors of the land occupied by both the plaintiffs' family and the defendant's family were, successively, Major Lindsay and Mrs Lindsay, Wydgee Pastoral Company, Taylor Woodrow Bond, and Yanchep Estates. Mr Bowman only became the registered proprietor of Lot 133 in 1985. On the defendant's case, Mr Hugill had then been in possession of the disputed land for over 30 years.
38 The defendant has the onus of showing that Mr Hugill had both factual possession and the requisite intention to possess.
39 For factual possession there must be a degree of physical control appropriate to the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Fencing and enclosing the land may be highly relevant as demonstrating an intention to adversely possess and exclude others, but will not always be decisive. Warning others off the land may also be relevant. Mere use of the land is not sufficient. But use of the land in a manner inconsistent with the possession of the true owner may indicate factual possession and the intent to possess.
40 The defendant need not show physical use of every section of the land: acts of possession performed on parts of the land may be evidence of possession of the whole. This rule however, applies only where the whole of the land is sufficiently defined by fence or physical barrier or otherwise: Higgs v Nassauvian Ltd [1975] AC 464, 474 - 475.
41 The defendant must also prove that he, and his father, intended to possess and made that intention clear to the world. Frequently, the intention will be inferred from the nature of the acts of possession: see Whittlesea City Council v Abbotangelo [2009] VSCA 188; (2009) 259 ALR 56.
42 It is not sufficient for the defendant to rely on acts which are merely equivocal as regards the intention to exclude the true owner. Equivocal acts may, however, be evidence of intent when considered collectively with all of the evidence of acts of use and control.
43 It is not necessary that the defendant has a conscious intention to exclude the true owner, but he must have an intention to exercise exclusive control. An intention to control the land, believing himself to be the true owner, may be sufficient. Such a belief would not prevent the acquisition of a title by adverse possession and would be evidence of intent to possess the disputed land.
The evidence
44 On the first day of trial, at the request of counsel for the plaintiffs, the court attended at Capricorn Esplanade, Yanchep. The view was not for the purpose of taking evidence, but for the limited purpose of assisting the court in interpreting the evidence of the witnesses, and the photographs and documents describing the land.
45 The trial was primarily concerned with events between about 1952 and 1990. The two lots had changed significantly in more recent years. In particular, new houses had been built on each of them; water tanks, which had been on the disputed land, were no longer there.
46 The area is scrub covered dune. Lot 133 is to the north of Lot 132, and is significantly higher.
47 Lot 132 had originally been the site of a house known as the Hostel; the house on Lot 133 was known as Seaview Cottage. In photographs, both appear to be asbestos and iron.
48 Neither lot, as it appears on the surveyed title, is rectangular. Lot 133 has a 16.86 m frontage (western boundary), while the rear boundary is 38.24 m. Seaview Cottage was aligned with its front parallel to the front of the block, which put it at a marked angle to the side boundaries, particularly the southern boundary. The Hostel was aligned with its side walls roughly parallel to the northern boundary of Lot 132 (and thus at an angle to Seaview Cottage). The newly constructed houses have approximately the same orientation as those they replaced.
49 At the western end of the disputed land, there is a limestone retaining wall. Both parties agree that this wall was built by Mr Hugill in the late 1950s. It runs roughly east to west for about 15 m, then to the south towards the Hostel. For much of its length, it is more than 2 m high. To the south of the retaining wall, the defendant's family established a lawn. The photographs show the lawn was not always maintained.
50 The defendant alleges, and the plaintiffs dispute, that the boundary between the properties was also, at least for some time, fenced with a post and wire stock fence. There is currently no fence.
51 East of the retaining wall, still within the disputed land, there were previously located four water tanks. The parties did not agree about when the tanks were installed, or the circumstances in which that occurred. The tanks are no longer there.
52 The possession of the disputed area by the defendant and his family can conveniently be considered by reference to the answers to several (in part overlapping) factual questions: was there a boundary fence and where was it located; what were the circumstances in which Mr Hugill built the retaining wall; what were the circumstances in which each family installed and used the water tanks; and what agreements were made between Mr Bowman and Mr Hugill?
53 Mr Bowman and Mr Hugill died some years ago, before this action commenced but after disputes had emerged between the families. Neither left a statement dealing with the matters now in issue between the parties. The evidence included some documents recording things they said in their lifetime, including statutory declarations on the applications for title by adverse possession, and letters written by each of them.
54 Mr Tremaine gave evidence and called several witnesses. He also relied on statements of two men who had died before trial but had made written statements relating to the matters in issue.
55 David Frederick Bowman, one of the plaintiffs, gave evidence for the plaintiffs. The plaintiffs also called Denis McLeod, a lawyer whose firm acted for both Mr Bowman and Mr Hugill when they applied for title, and later acted for the Bowman family in the dispute between the present parties.
56 As a general comment, there was nothing in the evidence of any of the witnesses that led me to question that any of them was not honestly trying to tell the truth. There were aspects of Mr Tremaine's evidence which I do not accept. His account of some events, such as those around the installation of two of the water tanks on the disputed land, has likely become embellished over the years. Parts of that account, looked at objectively, are unlikely to be accurate. In large measure, however, his evidence is consistent with the evidence of other witnesses. In part, he can rely on documents he created at the time which are consistent with what he now says. And on all essential matters, his evidence is consistent with the evidence of other witnesses.
57 Much of the evidence was based on the witnesses' recollection of things and events between about 1957 and 1995. Although many of the witnesses were not directly questioned on whether they accurately remembered specific matters, in considering the evidence I have taken into account the passage of time. I have also taken into account that some of the witnesses were recalling matters from when they were very young. Apart from the difficulty of recalling events from so long ago, children may not have been fully aware of the extent of any agreements or disputes between the two families.
58 One source of evidence lies in the application, made by Mr Bowman and then Mr Hugill for title to the land.
The applications for title
59 Mr Bowman and Mr Hugill were registered as proprietors, based on adverse possession. Both entered possession as purchasers, but in circumstances where title could not then be registered because the land had not then been subdivided. The right of the vendor in each case to sell has not been questioned in this action.
60 The applications for title provide written accounts by each of them in support of their own application. And each made a declaration in support of the other's claim.
61 Mr Bowman applied to be registered as the proprietor of Lot 133 in 1985. In support of the application, he lodged a statutory declaration dated 2 May 1985, in which he said:
1. On 14 May 1956, he entered into an agreement Mrs M J Lindsay, the mother of the registered proprietors and their apparent agent, to purchase Lot 133. Consideration was the sum of £800 paid by instalments. He was given possession on 14 May 1956. The balance of the purchase price was finally paid on 24 August 1959. The land was not transferred because it was not then subdivided. Lot 133 was created as a separate lot by the successor in title to the Lindsays.
2. The registered proprietor of Lot 133 since 1970 had been Yanchep Estates Pty Ltd.
3. During the whole of the time that Mr Bowman had occupied the land there had been fences on the boundaries. When Lot 133 was created in 1970, the land was surveyed and the survey pegs were placed 'approximately 2 m within the boundary of the existing fence line'. Mr Bowman made no claim to land outside the survey boundaries.
4. Because the fences on the boundaries of the property were in a poor state of repair, by 1958 he replaced them with new post and wire fences.
5. Mr Bowman and his family had, from 1956, used the property for holiday accommodation, visiting a few days every two weeks on average and for longer periods during school holidays.
62 In support, Mr Bowman lodged a statutory declaration of Rosella Dilkusha Nettie Randell, whose daughters were the registered proprietors of Lot 134, immediately to the north. She said that Mr Bowman and his family apparently used the land for holiday accommodation, spent long periods during school holidays at the cottage, and visited it every second or third weekend. She believed that Mr Bowman still visited Lot 133 'quite frequently'. Ms Randell continued:
Mr Bowman's Lot 133 is fenced with wire most of the way around the property although it is difficult to tell on the eastern boundary as it is well hidden by trees. There is some wire fencing between Lot 133 and Lot 134, however it is not continuous, owing to the amount of movement between the two properties over the years. I understand there is a small amount of asbestos fencing on the southern boundary between Lot 133 and Lot 132 which belongs to a Mr Hugill.
63 Similar statements were made in a statutory declaration by Michelle Louise Randell, one of the proprietors of Lot 134.
64 Mr Hugill applied for title in 1990. In his application, Mr Hugill said that he had occupied the land continuously since 1952.
65 In a statutory declaration dated 3 January 1990, in support of his claim, Mr Hugill said:
1. In about 1952 he agreed with Kenneth Campbell Rhodes to purchase the property from him.
2. When he agreed to purchase the property, there was a building on the land, originally used as a hostel for returned soldiers and subsequently as tea rooms, and commonly known as the Yanchep Hostel.
3. He had been in exclusive possession of the property continuously since making the agreement with Mr Rhodes and had lived in the Hostel and used it as his dwelling house from that time until the present day. His family lived there with him and he used it as a base for his fishing operations.
4. The property was not transferred when he agreed to purchase it as it was then not subdivided into a separate lot.
5. Mr Hugill had paid rates from the time he went into possession.
6. Mr Hugill referred to the land he was applying for by reference to the land 'now comprised in certificate of title volume 449 volume 110A being Lot 132 on diagram 40405'. He further referred to the survey of the land when Lot 132 was created: 'the positions of the survey pegs can be seen on the ground that I am occupying and have always occupied since about the year 1952 the whole of the land now included within the said survey pegs, setting out Lot 132'.
7. Mr Hugill referred to improvements he had made to the property and the hostel, including the erection of a limestone retaining wall 'along part of the northern boundary of the property from the north-west corner thereof for a distance of about one half of the length of the northern boundary and the grounds have been grassed by me …'.
66 Mr Bowman made a statutory declaration in support of Mr Hugill's application. In it, Mr Bowman said that Mr Hugill was always in possession of Lot 132 with members of his family since the year 1956, and that Mr Hugill always appeared to act as owner of the property, carried out maintenance to the building and grassed certain parts of the land. In particular, Mr Bowman declared that Mr Hugill 'built a stone retaining wall along part of the boundary between my Lot 133 and his Lot 132'.
67 The statements in these applications are admissible under s 79C(1) and (2a) of the Evidence Act 1906 (WA).
68 The plaintiffs' counsel sought to minimise the importance of statements made in these applications, because they were made in the context of a non-adversarial application. It is true that the applications were uncontested and none of the declarations was challenged. The statements were, however, made in statutory declarations relating to the acquisition of title to property. While not adversarial, they were in a formal context.
The fence - the witnesses
69 The defendant relies in part on the presence of a boundary fence between Lots 132 and 133, with the disputed land on the southern side of the fence. That fence, on the defendant's case, was there until sometime after 1974. The plaintiffs denied there was a fence.
70 Evidence about the fence was given by the defendant, Sandra Davis, Graham William Arthur Noack, Robert Gordon Henley, Kenneth Peter Dudney, Margaret Elizabeth Waddell, and Cameron Lynton Mableson.
71 Counsel for the plaintiffs put to each of them that, as a normal part of aging, their memory of distant events had eroded, and memory of precise detail (including the location of things at various times), sources of information, sequences of events and dates may be affected. With the notable exception of Ms Davis, the witnesses agreed with that general statement. Few of the witnesses were cross-examined in more detail about whether their recollection of particular events, sequences and dates may be unreliable, or whether the source of their evidence was solely in remembered events. That did not leave their evidence totally unchallenged, and the evidence of the various witnesses was not wholly consistent. But the cross examination did not provide a basis on which to assess the quality or reliability of particular recollections.
72 Mr Tremaine said that he grew up at the Hostel. For as long as he could remember, a barbed wire stock fence ran from east to west across the north side of Lot 132 until it was partially removed in about 1959. It was about halfway up a steep, scrub covered rise between the Hostel and Seaview Cottage.
73 In about the late 1950s, Mr Tremaine watched his father and his friends build a limestone retaining wall 'along the line of the stock fence'. Mr Tremaine was born in 1950, so was then aged only 7 or 8. Mr Tremaine said he recalls part of the stock fence hanging in the air over the area with men working as they dug under it, preparing the foundations for the wall. As the wall extended east, portions of the stock fence fell down and the wires were dumped behind the wall before backfilling commenced.
74 Mr Tremaine said that when the limestone wall was completed, the stock fence wire between the eastern end of the wall and an area immediately north of the first water tank had drooped and ended up lying on the ground. The section of the fence that ran from the water tank to the eastern boundary of Lot 132 was not affected.
75 Mr Tremaine said that the unaffected section of the stock fence was maintained by his father in the period from 1959 to about 1974. He helped occasionally, chopping scrub out from between the fence wires. Access to the fence was by a narrow track which he and his father maintained for that purpose, immediately to the south of the fence.
76 Mr Tremaine could recall his father cutting the stock fence wire near the water tanks and moving two posts to make enough room to level ground where Mr Bowman was to install a water tank. This must have been in the early 1960s, when he was only about 13 or 14.
77 He said that in 1974 he and his father installed a third water storage tank, a large red tank, which was placed hard up against the stock fence to the east of the water tanks that had been installed earlier.
78 Mr Tremaine said that the stock fence remained in place until 1993 when he removed most of it in order to level the area near the fence. All that was then left were wooden posts and some bits of wire stock.
79 The defendant also relied on evidence of Ross Anthony McLaughlin, a surveyor who attended the site in 2011 and again in 2015. In 2015, Mr Tremaine and Mr McLaughlin attempted to locate the remains of the posts of the stock fence. They located two 'posts'. They also found wire in the ground; Mr Tremaine had earlier located the wire using a metal detector.
80 Ms Davis is the defendant's older sister. She was born in 1947 and lived at the Hostel from when she was born until 1953. After that she stayed there on weekends and during school holidays until 1974 when she finished school.
81 Ms Davis recalls the Hostel had an outside toilet which was located against the stock fence. Although she puts her first memory of this as in about 1950, when she was three years old, I understood her evidence not to be limited to such an early recollection.
82 Ms Davis described the fence as running from east to west, with wooden posts and about six strands of wire, the top two of which were barbed wire. Between the Hostel and Seaview Cottage, the fence ran across the face of the hill, about half way from the bottom.
83 Ms Davis also recalls that the retaining wall followed the line of the stock fence and that part of the fence was suspended in the air while the foundations of the wall were built.
84 In cross examination, Ms Davis said she believed the retaining wall was a foot or two inside the Bowman's property, with the face of the fence on the boundary. I do not believe this evidence (if admissible for that purpose) assists as to the position of the boundary, and I disregard it. I do, however, take it as evidence of the position of the fence in relation to the face of the wall.
85 Ms Davis recalled during the years 1952 to 1957 (that is until she was about 10) seeing her father tighten fence wires. In the 1950s and 1960s she and her brothers helped to keep a fire break clear.
86 Ms Davis recalls that the concrete water tank installed in 'about 1954' was just south of the stock fence. She saw her father and brother install another tank, a 'red tin tank', in about 1974. It was hard up against the stock fence so that it was no longer possible to get past and go east along the fence line.
87 Mr Noack was born in 1956. His family and the Hugill family were friends. He referred to the Hostel as 'the Shack' (one other witness did so). Mr Noack lived there for a couple of years in the very early 1970s, while working for Mr Hugill. The retaining wall was then in place with the area in front of it grassed. He could recall attending many parties and barbecues there.
88 He described an un-cemented rock wall east of the retaining wall.
89 Mr Noack helped to install a new pipe from the tin water tank to the house. He said the tank was installed in 1974 or 1975, but he could not be precise. He described the tank as east of the concrete water tanks and south of the stock fence. Mr Noack referred to an old stock fence that separated the Shack from the neighbouring property on the north, running from immediately behind the concrete water tanks through to the eastern end of Lot 132. He could not recall if the fence ran west from the water tanks.
90 Mr Henley is Mr Tremaine's cousin. He was born in 1934. Mr Henley would visit regularly at the Hostel between 1957 and 1967 to stay with Mr Hugill. Mr Henley recalled a wooden post fence with wires or possibly rails that existed between the two properties. He recalled that it ran along the top of the sand hill in an east-west direction.
91 Mr Henley helped build the limestone wall. He said that when the wall was being built it followed the line of fence, with the fence immediately above the wall. The wall took some time to be completed.
92 Mr Dudney was a friend of one of Mr Hugill's employees, and spent time during school holidays and weekends at the Shack (as he called the Hostel) between 1963 and 1966. He was a teenager at the time.
93 Mr Dudney could recall an old barbed wire fence behind the concrete water storage tanks to the north of the Shack. He described the fence is running in an east-west line about half the length of the Hugill property, separating it from the property to the north. Above the fence was a very steep rise, 7 or 8 m.
94 Mr Dudney said that the limestone wall was constructed along the same lines as the fence, but there was no fencing on or above the wall itself. He could not recall if the fence spanned the gap from the eastern end of the limestone wall to the back of the water tanks, but it ran east from the back of the tanks.
95 To visit friends on a property to the north of the shack he had to walk a long way round because the fence, the vegetation, the nature of the terrain and the limestone retaining wall prevented direct access from the shack.
96 Mr Dudney recalled an incident when Mr Hugill and Mr Bowman had harsh words about Mr Bowman's use of water from the tanks. Mr Dudney described Mr Bowman as looking down from a higher level on the northern side of the fence.
97 Ms Waddell was born in 1949. Her parents were friends of the Hugill family. She and her parents visited Yanchep over many years through to the mid-1970s, and would spend weekends and school holidays staying at the Hostel. She could particularly recall a barbed wire fence between the Hostel and Seaview Cottage because she carries a scar from running into it.
98 Ms Waddell could recall seeing some of the stock fence being removed when the limestone wall was being built. She remembered the hill being dug away by hand and the stock fence pulled down out of the way. She could recall seeing Mr Tremaine and his siblings planting pig face and other ground cover around the retaining wall and along the south side of the remaining stock fence.
99 Mr Mableson was related by marriage to Mr Hugill. He was born in 1967 and stayed regularly at the 'Beach House' (as he called the Hostel) from the early 1970s until the early 1980s during school holidays. During that time the limestone wall was there. He described, along the top of the sand dune to the east of the limestone wall, a wire fence with wooden posts that ran along the same line as the main section of the limestone wall.
100 The defendant tendered a statutory declaration made in 2008 by Oliver Raymond Edwards. Mr Edwards had died before the trial and his statement was received under s 79C of the Evidence Act.
101 Mr Edwards knew the Hugill family and spent time working for Mr Hugill from the hostel. He stated that from 1949 to around 1959 there was 'a stock fence which delineated the proper dividing boundary between the hostel and Seaview Cottage'. In 1958, Mr Hugill constructed a retaining wall along the dividing boundary. In the process of constructing the wall limestone blocks were laid down 'on the north side of the stock fence line to form the footing for the retaining wall and the face of the limestone retaining wall followed the alignment of the stock fence (dividing boundary)'. The area immediately behind the retaining wall was approximately 3 m higher than the ground in front of it. The wall ran from west to east for approximately half the boundary length then turned to the south for approximately 30 feet (9 to 10 m).
102 I do not accept Mr Edwards' statement as evidence of the location of the boundary, but it is evidence of the existence of a fence and its position in relation to the wall.
103 The reliability of Mr Edwards' declaration was challenged on the basis of his age when he made it, and also for inconsistency with a statutory declaration later made by Mr Tremaine. In the circumstances, the inconsistency cannot be resolved. The declaration made by Mr Edwards is, however, consistent with the evidence of other witnesses.
104 Raymond Dixie Krakouer made an affidavit sworn 6 July 2015. He also had died by the time of trial.
105 Mr Krakouer was born in 1924. He was a friend of Mr Hugill, having met him about 1941. Mr Krakouer first came to Yanchep in 1948 and started staying at the Shack in the mid-1950s. In the mid-1960s he still regularly stayed at the shack working for Mr Hugill on his cray boat up until the 1980s.
106 Mr Krakouer says that he could recall from the time of his earliest visits that there was a barbed wire fence located between the shack and the neighbouring property to the north. From time to time over the years he saw Mr Hugill tidy up the fence and get scrub off it and perform work on the south side of the fence.
107 Mr Krakouer helped build the limestone wall which he described as 'pretty well along the same line as the barbed wire fence'. The Hugill family held barbecues in the area next to the limestone wall.
108 David Bowman gave evidence for the plaintiffs. He made two statements, dated 29 January 2016 and 3 May 2016.
109 David Bowman was born in 1943. His first recollections of visiting Seaview Cottage are when he was about 13 years old in 1956. His earliest recollection of staying there was in the last quarter of 1956. David Bowman moved to Canada at the end of 1967, and lived there until 1969. After a holiday of about three weeks in Perth, he then moved with his family to Europe, returning about every two years. In 1974, he was transferred in his employment to Australia, but based in Sydney. In 1977, he again transferred to Europe for about a year, before returning to Australia and living in Geelong, where he remained until 1986. While living in Geelong, he came to Perth every six months or so for meetings and would come for a weekend before a Monday meeting. In 1986 he again transferred to Europe until 1993, after which he again lived in Victoria.
110 In the last part of 1958 he could recall seeing the side of the hill on the south west corner of the property had been bulldozed away. On later visits he saw a limestone wall about eight feet high had been built to hold back the sand. The position of the limestone wall was north from the base of the slope. David Bowman said nothing about any disagreement or objection by his family to the building of the wall in that place.
111 David Bowman says that in about late 1980 he recalls his father deciding to write a letter to Mr Hugill. He does not recall if any reply was received. The letter was sent to Mr Tremaine in 1996, and is discussed in greater detail below.
112 David Bowman can recall in about 1976 there being a toilet/shed on the foreshore just west of the limestone wall to which his father expressed objection. By 1990 it was no longer there. From the description of its location, it is likely that it was not on the disputed area but outside the area of the defendant's property and on the reserve. There was, however, a small septic system on the land immediately to the south of the limestone wall.
113 David Bowman could not remember there ever being a fence along the southern boundary, the hillside acting as the division between the two properties. He said that, on his visits to the property, he would check the level of water in the water tank by checking a gauge. There was no fence affecting his access to the gauge.
114 The other plaintiffs, all of whom had lived in Western Australia for longer periods than David Bowman, did not give evidence.
The fence - documents
115 The fence is not visible in any of the photographs tendered at trial. Mr Tremaine attempted to point out the top of a post and some barbed wire in one photograph, but I could not see it.
116 In his application for title in 1990, Mr Hugill and Mr Bowman referred to the retaining wall. Neither of them referred to a fence. And none of the other evidence in support of the declaration mentioned a fence.
117 Later, on 20 March 1998, Mr Tremaine signed a statutory declaration in support of an application for right of carriageway over a limestone and sand track to the east of Lot 132 (and Lots 133 and 134). Although he addressed the occupation of the two lots he did not identify the fence. Considering the nature of the application, a fence on the boundary between Lots 132 and 133 may have been of little if any relevance.
118 The fact of a fence may be supported by the declaration made by Mr Bowman in support of his application for title, where he referred to fences on the boundaries of Lot 133. He did not specifically refer to the southern boundary, but nor did he exclude it.
119 In his letter of 12 October 1990, Mr Hugill refers to the old stock fence that runs behind the red water tank, and to the retaining wall being built 'along the position of the stock fence'.
120 Diaries kept by Mr Tremaine record the presence of a fence on several occasions. On 21 June 1993, Mr Tremaine wrote, 'Spoke to Mr Bowman about levelling off tank storage area with Bulldozer and it would be okay for me to remove and batter part of the hill on his side of the stock fence'. On 30 June 1993, he wrote of 'clearing overgrowth to stock fence'. On 7 July 1993 he records, 'Mr Bowman up to oversee bulldozing of his side of the stock fence'. In the same entry, he refers to making the land level with 'my side of the fence'. On 11 July 1993, he records planting 'on sloped area and along fence line all day'; the next day, 'bulldozing sand from my side of the boundary fence line'. On 27 October 1993, Mr Tremaine records removing the small concrete water tank and planting lawn, 'only 4 old fence posts left now'.
121 On 16 December 1995, Mr Tremaine referred to speaking to Mr Bowman about 'correcting dividing boundary back to the alignment of the old barbed wire fence and R Wall'. On 17 December, 'Mr Bowman came down and said he agreed in having dividing boundary at back of retaining wall, as per new position, instead of along old barbed wire fence line if I am going to pay to rebuild retaining wall in same alignment'. On 28 December 1995, Mr Tremaine wrote, 'Marked out alignment of old barbed wire fence line and retaining wall face and area for exchange to extend retaining wall'. He records that Mr Bowman agreed on the area to be exchanged in return for building retaining wall. This thread is continued on 5 February 1996, again referring to the retaining wall and the stock fence line.
122 On 24 March 1996, Mr Tremaine recorded another conversation with Mr Bowman about the boundary, including that Mr Bowman thought 'we might have to settle on having dividing boundary being on alignment of old stock fence'.
The fence - conclusion
123 Counsel for the plaintiffs pointed to difficulties in the defendant's case for the existence of a fence on the boundary between the two properties.
124 There are some inconsistencies in the evidence of the defendant's witnesses about where the fence was situated: two say at the top of the hill, while Mr Tremaine and Ms Davis say it was along its face. I also take into account the submission on behalf of the plaintiffs that the topography of the blocks did not support a fence along the face, where it would be on a slope, in places a steep slope. The plaintiffs also submit that a stock fence would serve no purpose, there being no evidence of stock on either block, or any movement of stock other than from the east or, perhaps, up from the beach on the west.
125 I have also considered the plaintiffs' general submission regarding the effect of time on the recollection of the defendant's witnesses, particularly those witnesses who may have been very young at the time of the events they described.
126 David Bowman said that there was no fence. I did not regard him as an untruthful witness, but I should consider whether he might be mistaken. I have had regard to the limited extent of his connection with the block after 1967, when he first left Australia. Even before then, his use of the land (together with the rest of the Bowman family) was as a holiday cottage.
127 None of the other members of the Bowman family gave evidence.
128 Considering all of the evidence I am satisfied that there was a fence. Although stating the precise location of the fence is now difficult, because it has not been there for some years, I accept that the limestone wall was built along the line of the fence, so that its location and line can be determined within the tolerance of the width of the wall.
129 The fence may not have been necessary for keeping stock in or out, particularly given the topography of the land, but fences have other purposes, including the marking of a boundary. In this regard, there is evidence of a fence on the boundary between Lots 132 and 133 when Mr Bowman applied for his title.
130 Many witnesses for the defendant referred to a fence. They were not totally consistent with each other, but those who were around at the time of the building of the limestone wall are consistent in putting the fence above and along the line of the wall. It is also consistently described as being behind the water tanks, and hard up against the red tank. The evidence included aerial photographs that were taken of the land while the tanks were there: if the line of the face of the retaining wall is extended, it passes just to the north of the tanks. The red tank would properly be described as hard against that line.
131 Finally, in the context of the other evidence, and having regard to their position, I believe that the wire and posts identified by Mr Tremaine and Mr McLaughlin are likely to be from the fence. I accept that the timbers that were found were not necessarily in their original location, and that other material, including timbers and wire, may have been buried in the area. The finding of the material in a position consistent with the fence may be coincidental, although the western most of the two timbers found by Mr McLaughlin was not in the area where materials had been buried. But like all circumstantial evidence, it cannot be considered in isolation. Together with the other evidence, Mr McLaughlin's evidence supports the earlier presence of a post and wire fence on the line followed by the retaining wall.
132 While there might be uncertainty about the recollection of individual witnesses, when the accounts of the defendant's witnesses are read together, and in the light of that testimony and the documents to which I have referred, I am satisfied that there was a stock fence. The western end of it was replaced by the retaining wall in the late 1950s. The fence was along the line followed by the retaining wall, and in the position of the wall. A section of it, up to the concrete tanks, was probably down after the building of the retaining wall. The section from the tanks to the east, however, was maintained at least into the 1970s, when the red tin tank was installed.
The area adjacent to the limestone wall
133 In about 1957 or 1958, Mr Hugill began constructing the limestone retaining wall at the western end of the disputed land, and which the defendant says is on the boundary of Lots 132 and 133. There is no dispute that the wall was built (it is still there). The wall is wholly within the surveyed boundary of Lot 133.
134 The plaintiffs pleaded that the building of the limestone wall was without approval or authority of the Bowman family and was the subject of complaint, although they did not object to periodic or temporary use of the land next to it. There is no evidence of any complaint about the wall being built.
135 The areas of dispute are whether the wall was on the boundary, whether the use of the disputed land on the south of the wall is sufficient to amount to possession by the defendant, and whether the building of the wall and the use of the land was pursuant to an agreement between Mr Bowman and Mr Hugill.
136 The plaintiffs submitted that there is no evidence from those who planned the wall, although there is some evidence from those who assisted in building it. There is no evidence as to how or why its specific location was chosen.
137 I have found that the wall was built on the line of an existing fence. I also am satisfied that both adjacent owners believed it to be on the boundary. That is the effect of the declarations they made in Mr Hugill's application for title. Mr Hugill's belief may also be inferred from the use of the land adjacent to the wall. Indirectly, the location of the wall also provides some evidence: had it been built further south, it would not have needed to be so high and substantial. Mr Hugill either believed the land was his or intended to make it his if that were in doubt.
138 The defendant relies on the wall as a physical boundary and its construction as an act of possession and indicative of the intent to possess. The defendant pleads, at [26.1] of the defence and counterclaim, that the construction of the wall caused a major part of the disputed land to be physically incorporated as part of the defendant's property. The defendant further says that he and his family have occupied and used the land adjacent to the wall since the 1950s, planting and maintaining lawn, at one time erecting a brick barbecue there, and using it for various purposes. The defendant does not rely on any particular use of the land, but on all of the facts as demonstrating an actual and intended incorporation of that land as part of the Hugill family home.
139 The plaintiffs say that the wall does not enclose the land. It was not apparently intended to exclude people or livestock, but to retain sand or earth. In particular, the western boundary of the defendant's land, including the western boundary of the disputed land, is open to the public marine reserve and the beach area. The wall is not an active enclosure but simply a retaining wall.
140 The plaintiffs submitted that the evidence regarding the use of the land adjacent to the wall was not sufficient to support a right of possession or an inference of title being created by possession. Maintaining a lawn, building a barbecue for use by family and guests, are not uses that exclude others. Mere use for social events which were occasional or periodic would not indicate necessary occupation to create a title by possession.
141 The plaintiffs submitted there was not continuous use, referring to a photograph from 1993 which showed wildflowers growing in the area adjacent to the wall. It was no longer maintained as a lawn area.
142 In my opinion, the retaining wall is important evidence of possession and intent to possess the land to the south of it.
143 The enclosure of land is an act of possession and which evidences an intention to possess. I do not understand the authorities as requiring that land be completely enclosed by an adverse possessor before a claim can be maintained, if acts of possession and the necessary intent can be established otherwise: see Higgs v Nassauvian (464). The use of the land adjacent to it must be looked at with all of the other matters evidencing possession.
144 In the present matter, the wall is a substantial structure - about 15 m long and 2.2 m high. It took a long time to build. It was built along the line of the existing fence. I am also satisfied that it was intended by Mr Hugill, and accepted by Mr Bowman, to be on the boundary between their properties.
145 I have considered the nature of the land comprising Lots 132 and 133. It is not just hilly but sandy. Ms Randell, in her declaration in support of Mr Bowman's title claim, said the fencing between Lot 133 and Lot 134 was not continuous, 'owing to the amount of movement between the two properties over the years'.
146 I accept the defendant's submission that the land adjacent to the wall was used and maintained in a way that incorporated it into the Hugill property. It was part of their yard, physically bounded by the substantial wall to the north. The fact that the whole of the western boundary was open does not affect my finding that Mr Hugill was occupying and intending to occupy that land, just as he occupied the rest of his yard to the west of the house.
The water tanks
147 The four water tanks are no longer there, but are clearly shown in photographs taken at various times. They were on elevated ground to the north east of the Hostel, and within the disputed area. The plaintiffs submit, and it is likely, that the tanks were placed where they were because the slope enabled water to be pumped to that height so that it could then be reticulated back to the house without further pumping.
148 Three of the tanks were installed by the Hugill family, and one by the Bowman family. Essentially, the parties dispute which of them consented to the other locating a tank in that area. The plaintiffs say that the defendant's father located tanks in that area with Mr Bowman's consent, pursuant to an agreement regarding the supply of water – an agreement which also extended to the use of the land adjacent to the limestone wall. The defendant says that his father agreed to Mr Bowman placing a tank there, notwithstanding that it was Hugill land.
149 The plaintiffs also submit that the water tanks are not a use of the land sufficient to establish possession.
150 The first important finding regarding the tanks, following from my findings about the fence, is that they were in an area south of an existing boundary fence, although part of that fence was down after the building of the retaining wall. In order to position the tanks, the land had been levelled and sufficient foundation, in the form of a concrete ring, put in place.
151 Ms Davis said her father installed the first tank in about 1954. Before then, the family had to bring water to the Hostel in drums. She could also recall her father telling Mr Bowman that he was going to put in another tank, and that Mr Bowman could use overflow from it. She was then about 13 years old.
152 Ms Davis also recalled her brothers clearing and levelling land for Mr Bowman to place his tank, but it was over a year before he did so. The Bowman tank was installed after a row between Mr Bowman and Mr Hugill, in about 1963.
153 Ms Davis remembered the installation of the last tank, the red tin tank, which she described as hard up against the stock fence.
154 Mr Tremaine said the first tank had been there for as long as he could remember. He could remember his father and some friends installing a second tank in about 1960 - this coincides with Ms Davis' recollection. Not long after that, Mr Hugill had told Mr Tremaine that he could install a tank of his own and run an overflow pipe from the Hugill tank.
155 Mr Tremaine said the land on the Bowman side of the fence would have been unsuitable - too high, and probably requiring a 'decent' retaining wall. For that reason the Bowman tank was south of the fence.
156 Mr Tremaine said the Bowman tank was installed in about 1964, after Mr Hugill and Mr Bowman had exchanged words about the Bowman's use of water. His account of the installation of the tank was challenged, and I believe that it was embellished. David Bowman's account of the installation of the tank is more plausible.
157 There are other areas where the witnesses differed.
158 David Bowman put the installation of the first Hugill tank in about 1959. He said his family tank was installed in 1962, before the second Hugill tank. The difference about when the Bowman tank was installed - in 1962 or 1964 - is of marginal relevance to the central questions. The timing of the Hugill tanks is more relevant. If the first was installed before 1956, there is no question of Mr Hugill obtaining consent from Mr Bowman. It is a significant use of the land, for the benefit of the house on Lot 132.
159 David Bowman saw no dispute between his father and Mr Hugill. I accept the evidence of the defendant's witnesses that there was an occasion when Mr Hugill complained about the Bowman use of water.
160 David Bowman also said that his father told him that he had consented to the Mr Hugill putting the tanks on his (Mr Bowman's) land. The evidence was not tendered as to the truth of Mr Bowman's assertion, but only to show that he had asserted to his son that the property was his.
East of the tanks
161 Finally, the area about which there is the least evidence is that area to the east of the water tanks. It was common ground between the parties that this area, because of its physical features and dense vegetation, together with the more than occasional snake, was seldom actively used, at least not until about 1993.
162 On the evidence of the defendant's witnesses, I am satisfied that a boundary fence was in place up to, at least, 1974 when the red water tank was installed hard up against the fence. That would give a period of about 20 years in which Mr Hugill maintained a boundary fence to the north of his land, and fencing this area from its neighbour.
163 Mr Tremaine also said that he cleared and maintained a track, east of the water tanks, from about 1974 to 1977. He did so by coming in from the east.
164 Having regard to the topography and vegetation of the land, and the general use of the land along the border (first with a retaining wall, then fenced to the area where water tanks were installed, then fenced to the rear of the lot), I am satisfied that there were sufficient overt acts of possession in incorporating that land into the defendant's property to amount to possession of that land. I am also satisfied, from those acts and the maintenance of the fence, for such a period, that Mr Hugill intended to possess it. I think it most likely that he believed the land to be his.
Agreements
165 Where the registered proprietor grants permission or consent, possession by another is not 'adverse': see Phillips v Southage Pty Ltd [2014] VSCA 17 [75].
166 The plaintiffs plead that the building of the limestone wall and the placement of the water tanks were subject to agreements between Mr Hugill and Mr Bowman, with Mr Hugill giving his neighbour access to water from the tanks. In [16](e) of the reply and defence to counterclaim, the plaintiffs plead an agreement relating to the area in which the water tanks were placed, and evidenced in three letters dated January 1980, 11 October 1990 and 26 February 1997. Only the first two of those letters were admitted into evidence. That agreement was terminated in about 1980 (reply and defence to counterclaim [16](d) and (e)). In [16](h), the plaintiffs refer to two of those letters as terminating an agreement regarding the land adjacent to the retaining wall. The plaintiffs' case at trial was that the building of the wall on the plaintiffs' land was pursuant to an agreement.
167 There is no other evidence of the agreement or agreements.
168 The first letter, by date, is signed by Mr Bowman and dated (apparently in a different hand) January 1980. The letter is addressed to Bob (Hugill). The evidence does not establish whether it was sent or given to him around the time it was written. A copy of the letter was given to Mr Tremaine in about 1996.
169 Mr Bowman wrote:
Re the supply of water at Yanchep the position is far from satisfactory. The agreement as you know was to supply water in return for the piece of land at the side. The [man?] now at Yanchep has said that the diesel engine is US and that it does not lend itself to repairing.
…
I am afraid that if the position does not improve I will have to see about having a bore put down with a pump and if this becomes necessary our agreement is finished.
170 The letter lacks any certain meaning - in particular, to which land 'at the side' it refers. The plaintiffs' case in closing appeared to confine the relevance of this letter to the retaining wall and the disputed land to the south of it.
171 Next in time is a letter of 11 October 1990. There is other evidence relating to the writing of this letter.
172 Mr Tremaine maintained a diary. In an entry dated 22 March 1990, he refers to speaking to Bill Bowman about extending the retaining wall along to the back boundary and asking him whether the dividing boundary was the face or back of the retaining wall. On 23 September 1990 Mr Tremaine records:
Dad up. Said there was a survey peg at NW side retaining wall, none ever inside retaining wall. Asked dad about when he was building the retaining wall and Mr Bowman came up when it was almost finished and called out to dad that the shack will end up down with him if he kept digging in the direction he was going. What sort of agreement that they reach? Ask dad if he could give me letter explaining the agreement between him and Mr Bowman. I am to get details of title for dad.
173 On 25 September 1990 Mr Tremaine wrote that his father was to write a letter he could give Mr Bowman. On 12 October 1990, he wrote that he picked up a letter from his father regarding 'the agreement for build the retaining wall along the dividing boundary'. He identified the letter in the trial bundle as that letter.
174 Ms Davis said the letter was dictated to her by her father in October 1990. It is in her handwriting, and he signed it. The title details which appear on the letter were given to her earlier by Mr Tremaine. The letter reads:
Gary as per your query in respect to the agreement reached with Bill Bowman in 1957 - 58, relating to the retaining wall dividing 'Yanchep Hostel' and 'Seaview Cottage' properties, now lots 132 and lot 133 respectively on diagram 40405 volume 1880 folio 816.
The agreement between Bill Bowman and myself is that I could remove soil from his property to enable me to build the retaining wall along the dividing boundary of Seaview Cottage and the Yanchep Hostel properties, in return I was to allow the Bowmans to draw water from our water tanks.
In or about 1959 I had to get Bill Bowman to install the tank alongside our tanks to collect water from our overflow, as they were drawing too much water when there was no wind to drive our windmill.
In 1962 I replaced the windmill with a motor pump to keep up with the demand. Bowman's never contributed to any expenses of pumping water.
As you know the boundary that divided Seaview and Hostel properties has always been in the position of the old stock fence that runs behind the red water tank through to the eastern boundary; the East/West section of the retaining wall was built along the position of the stock fence. I don't know if the dividing boundary has been changed by Alan Bond's surveyors. If it has, it is a mistake you may have to get a surveyor to sort it out.
I can't see you having any problems in extending the retaining wall along the original boundary dividing Seaview cottage and the Yanchep Hostel properties. We have given Bowmans access to our fresh water over 35 years with no complaints from them.
175 The plaintiffs questioned the reliability of this evidence. They submitted that it was written at a time when Mr Hugill was elderly, had been unwell, and had been living for a time in Broome. They went further, and also questioned whether it was reliable as to its date. The implication was that the letter had been created much later, after 1996.
176 The date of the letter was supported by evidence from Mr Tremaine and Ms Davis, and by the diary entries of Mr Tremaine. The matter primarily relied on to raise doubt about the genuineness of the date is without substance. It was suggested that the use of the phrase 'as you know', when those words are also found in Mr Bowman's letter which was only provided to Mr Tremaine in 1996, might cast doubt on whether Mr Hugill's letter was truly dated and whether it might have been produced some time after 1996. The use of such a common expression is an extremely tenuous foundation for questioning the letters authenticity.
177 In the light of the diary entries, and the evidence of Mr Tremaine and Ms Davis, I am satisfied that this letter was produced in the manner Ms Davis described at the date it bears. It records Mr Hugill's response when he was asked by his son about any agreement he had with Mr Bowman.
178 The terms of the letter are, in my opinion, relatively clear. Mr Hugill was permitted to remove soil from the Bowman property to enable him to build the wall along the dividing boundary. If the face of the wall was the boundary, that also would require the removal of soil from the Bowman land. But even if that was not intended, when looking at the width of the wall and the slope of the land where it was built (it was necessary to retain to a height of 2.2 m) it is obvious that soil on the Bowman side was going to have to be removed. Mr Tremaine referred to dumping portions of the fence behind the wall before backfilling.
179 The letter, in its terms, does not support any agreement regarding the land to the south of the wall.
180 The letters are quite inconsistent about the agreement or agreements to which they refer. It is not a matter of construction of the letters - the plaintiffs' case is that the agreement was oral and the letters are only evidence of its making. Mr Bowman and Mr Hugill are both dead. There is no basis to assess the credibility of each of them as a witness. The competing claims to an agreement must be assessed against the other evidence. Considering all of the evidence, I am satisfied that there was no agreement in the terms asserted by the plaintiffs.
181 First, if Mr Hugill only used the land pursuant to an agreement that was terminated in about 1980, there is no evidence of anything said or done by Mr Bowman or his family after the termination to assert their rights in relation to the land until after 1990.
182 Second, the only evidence of the Bowman family using the disputed land is by placing a water tank on it. There is competing evidence about whether that was by permission of Mr Hugill.
183 Third, the statutory declaration that Mr Bowman made in 1990, in support of Mr Hugill's claim for title, is inconsistent with Mr Hugill using the land to the south of the retaining wall pursuant to an agreement, particularly if the agreement had by then been terminated. Both Mr Hugill and Mr Bowman stated that the limestone wall was along part of the northern boundary.
184 Fourth, Mr Hugill's letter was written soon after his application for title was approved. The agreement described makes sense.
185 Fifth, there is no explanation for why Mr Hugill would build a retaining wall on his neighbour's land, 2 m inside the boundary so that the wall needed to be about 2 m high. On the plaintiffs' case, a wall would either not be required on the boundary (if the boundary was at the bottom of the hill) or would be a much more modest affair.
186 Sixth, for the reasons given above, I am satisfied on balance that the wall was constructed on the line of an existing boundary fence. Mr Hugill needed no agreement from Mr Bowman to use land on his side of the fence.
Conclusion
187 On these findings, I am satisfied that from early in the 1950s, probably as early as 1952 when Mr Hugill went into possession of the Hostel, Mr Hugill treated the land in dispute as part of his land.
188 Mr Hugill asserted possession by lodging a caveat. The boundaries of the land in the caveat were not surveyed. The width of the block was, however, asserted to be 20.12 m, measured at right angles from the northern boundary.
189 The land was fenced to the north, and the fence was maintained, at least in part, until after 1974. The only part of the fence that was not kept up was that replaced by the retaining wall and that which drooped and fell after the building of the wall.
190 Mr Hugill constructed a substantial retaining wall which amounts to a physical boundary to the north for a bit less than half of the block. The land to the south of the wall was used in a manner which incorporated it into the yard of the Hostel. The land east of the wall was used for water tanks for the benefit of the Hostel. The land east of the tanks was not used but was fenced at its northern boundary.
191 I have carefully considered whether this decision should differentiate between the three areas: that adjacent to the wall, then east to the last of the tanks, then east to the eastern boundary. The acts of possession by incorporating the land into the greater holding, are most compelling in the area bounded by the retaining wall. Because of my finding about the boundary fence, I believe the disputed land can be viewed as a whole. Having regard to the nature of the land, including that the land to the west was Crown reserve, I am satisfied that Mr Hugill possessed the whole of the land, with the intention to treat the land as his own. It may be that possession can go back to when Mr Hugill first entered the land in 1952. But, if not, it dates from the building of the wall in about 1958 at the latest.
192 The first questioning of Mr Hugill's possession and right to possess may have been in 1980, when Mr Bowman wrote his letter. By then, the right to bring action for recovery of the disputed land was lost.
193 I would dismiss the plaintiffs' claim, and make the declaration sought by the defendant.
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