BOWMAN -v- TREMAINE [2016] WASC 294

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 294
Case No:	CIV:1008/2011	Heard:	4-6, 9 & 11 MAY 2016
Coram:	ALLANSON J	Delivered:	20/09/16
No of pages:	34	Judgment Part:	1 of 1
Result:	Plaintiffs' application for relief dismissed Defendant's claim for adverse possession allowed Declaration made
Category:	B
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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

CITATION : BOWMAN -v- TREMAINE [2016] WASC 294 CORAM : ALLANSON J HEARD : 4-6, 9 & 11 MAY 2016 DELIVERED : 20 SEPTEMBER 2016 FILE NO/S : CIV 1008 of 2011 BETWEEN : KEVIN JOHN BOWMAN

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…

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 Bowman v Tremaine

Details

AGLC: Bowman v Tremaine [2016] WASC 294
Case: [2016] WASC 294
Decision Date: 20 SEPTEMBER 2016

CaseChat Overview and Summary

Bowman v Tremaine involved a dispute between the Bowman family, the registered proprietors of a property, and Tremaine, who claimed adverse possession of a portion of the land. The case was heard in the Supreme Court of Queensland. The Bowmans sought an order to declare that Tremaine's adverse possession claim was invalid, arguing that the evidence did not support such a claim. Tremaine, on the other hand, sought a declaration of adverse possession of a defined area of land, asserting that he had exercised exclusive possession over the land for the requisite period under the Limitation Act 1996.

The court was required to determine whether Tremaine's use and occupation of the land amounted to adverse possession, and whether the evidence supported such a claim. The legal issues included the necessary duration and nature of possession, and whether there was evidence of an intention to possess the land as the owner. The court also had to consider the effect of any relevant statutory provisions.

The court found that Tremaine's possession of the land was open, notorious, and exclusive, and that he had an intention to possess the land as the owner. The court rejected the Bowmans' argument that the evidence did not support a claim for adverse possession, finding that the evidence demonstrated that Tremaine had been in possession of the land for the requisite period under the Limitation Act. The court made a declaration that Tremaine had adversely possessed the defined area of land and dismissed the Bowmans' application for relief.

Orders

Orders of the court

Plaintiffs' application for relief dismissed

Defendant's claim for adverse possession allowed

Declaration made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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