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Braye v Tarnawskyj

Braye v Tarnawskyj

Case [2019] NSWSC 277 19 March 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Braye v Tarnawskyj [2019] NSWSC 277
Hearing dates: 5 March 2019
Date of orders: 19 March 2019
Decision date: 19 March 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Possessory title established to part of claimed parcel of land

Catchwords: LAND LAW – possessory title – claim made over area of land between two residential lots – qualified title – claimed land subject to right of way benefitting plaintiff’s adjoining property – where the plaintiff and his tenants used parts of the claimed land for parking, storage and a garden – where the plaintiff undertook paving works on parts of claimed land – whether acts exceed those authorised by right of way – whether acts sufficient acts of possession showing an intention to exclude all others – where acts not done on a pathway area – possessory title established over part of the claimed land
Legislation Cited: Real Property Act 1900 (NSW), ss 28A, 28J, 28P
Limitation Act 1969 (NSW), ss 27, 65
Cases Cited: Butler v Muddle (1995) 6 BPR 97,532
Coffill v Lagudi Holdings Pty Ltd (2016) 18 BPR 36,483; [2016] NSWSC 1764
Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74
Higgs v Nassauvian Ltd [1975] AC 464
JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30
Kleiner v Randall [2005] NFSC 3
Laris v Lin (No 2) (2016) 18 BPR 35,917; [2016] NSWSC 560
Lord Advocate v Lord Blantyre (1879) 4 App Cas 770
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
Owners of Strata Plan 48754 v Anderson (1999) 9 BPR 17,119; [1999] NSWSC 580
Powell v McFarlane (1979) 38 P&CR 452
Pwllbach Colliery Co Ltd v Woodman [1915] AC 634
Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch)
Seddon v Smith (1877) 36 LT 168
Thorpe v Frank [2019] EWCA Civ 150
Zenere v Leate (1980) 1 BPR 97,029
Category: Principal judgment
Parties: Keith Stanley Braye (Plaintiff)
Gloria Millicent Tarnawskyj (as Administrator of the Estate of the late Mary King) (First Defendant)
Simon John Ward (Second Defendant)
Representation:
Counsel:
Mr M L D Einfeld QC with Mr J Horowitz (Plaintiff)
Mr R D Marshall SC (Second Defendant)
Solicitors:
Fox & Staniland Lawyers (Plaintiff)
Turnbull Hill Lawyers (First Defendant)
Osborn Law (Second Defendant)

File Number(s): 2018/249328
Publication restriction: None

Judgment

Introduction

These proceedings were commenced by Summons on 14 August 2018 by Dr Keith Braye. Dr Braye died on 3 November 2018. On 5 February 2019, an order was made appointing his widow, Mrs Ellen Braye, as the representative of Dr Braye’s estate for the purposes of the proceedings.
Dr Braye is recorded as the registered proprietor of the land contained in Folio Identifier 6/741555, and known as 7 Brien Street, The Junction. Dr Braye acquired the property in December 1986.
The proceedings primarily concern a claim for possessory title over a small parcel of adjoining land, being the land contained in qualified folio 1/1063598.…

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 Braye v Tarnawskyj

Details

AGLC: Braye v Tarnawskyj [2019] NSWSC 277
Case: [2019] NSWSC 277
Decision Date: 19 March 2019

CaseChat Overview and Summary

The dispute in Braye v Tarnawskyj involved the plaintiff, Braye, who claimed possessory title over an area of land situated between two residential lots. The plaintiff alleged that the claimed land was subject to a right of way benefiting his adjoining property. The defendants, Tarnawskyj, denied the plaintiff’s claim to the area of land. The case was heard in the Supreme Court of Victoria. The plaintiff and his tenants had been using parts of the claimed land for parking, storage, and a garden. Additionally, the plaintiff had undertaken paving works on parts of the land. The court was tasked with determining whether these actions exceeded those authorised by the right of way, and whether they constituted sufficient acts of possession demonstrating an intention to exclude all others from the land. The court had to consider whether the plaintiff's acts were done on a pathway area and whether the plaintiff's use of the land was sufficient to establish possessory title over the claimed land.

The court examined the nature and extent of the plaintiff’s use of the claimed land. It was noted that the plaintiff’s acts, including parking, storage, gardening, and paving, were not limited to the pathway area but extended beyond it. The court held that these acts were not merely incidental to the right of way but were sufficient to demonstrate the plaintiff’s intention to exclude others from the land. The court found that the plaintiff's continuous and exclusive use of the claimed land, particularly the paving works, indicated a clear intention to possess and control the land. Consequently, the court established that the plaintiff had possessory title over part of the claimed land. The court's decision hinged on the intensity and exclusivity of the plaintiff's use of the land, which surpassed what was reasonably necessary for the exercise of the right of way.

The court's reasoning was grounded in the principles of possessory title and the right of way. It concluded that the plaintiff's extensive use of the land, which included activities beyond mere passage, established a possessory title over the part of the land where the plaintiff had exercised such acts. The court found that the defendants’ title to the land was qualified to the extent of the plaintiff's possessory title. The court did not find it necessary to determine the exact boundary of the land over which the plaintiff held possessory title, as it was sufficient to establish that such title existed over part of the claimed land. The court's decision provided clarity on the extent of the plaintiff's possessory title and confirmed the qualified nature of the defendants' title to the land.

Orders