Carver v State of New South Wales

[2023] NSWCA 223

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Carver v State of New South Wales [2023] NSWCA 223

Hearing dates:

13 September 2023

Date of orders:

13 September 2023

Decision date:

13 September 2023

Before:

Gleeson JA

Decision:

(1)   Stay enforcement of the judgment given on 14 July 2023, as corrected on 17 August 2023, pending the determination of the appeal.

(2)   Note the undertaking given by the appellant in his affidavit to prosecute the appeal with diligence.

(3)   Expedite the hearing of the appeal.

(4)   Grant leave to the parties to approach the Associate to Ward P to obtain a hearing date with an estimate of one day.

(5)   Note that the proceedings are listed before the Registrar on 20 September 2023 and direct the parties to agree in advance of that date a timetable for the exchange of written submissions and the preparation of the appeal books.

(6)   Costs of the appellant’s motion will be costs in the cause.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Stay of judgment pending appeal — Judgment for possession of Crown land — Where applicant claims adverse possession — Whether proposed appeal raises an arguable case — Whether balance of convenience favours stay of enforcement of judgment

Legislation Cited:

Crown Land Management Act 2016 (NSW), s 13

Limitation Act 1969 (NSW), ss 27, 28

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383

State of New South Wales v Carver [2023] NSWSC 828

State of New South Wales v Carver (No 2) [2023] NSWSC 972

Category:

Procedural rulings

Parties:

Peter Carver (Applicant)
State of New South Wales, Department of Planning, Industry and Environment (Respondent)

Representation:

Counsel:
Mr P Tomasetti SC (Appellant)
Ms K C Morgan SC / Ms I King (Respondent)

Solicitors:
Department of Planning and Environment (Respondent)

File Number(s):

2023/232351

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2023] NSWSC 828

Date of Decision:

14 July 2023

Before:

Hammerschlag CJ in Eq

File Number(s):

2021/364911

Judgment

1. GLEESON JA: Before the Court is an application by Mr Peter Carver for a stay pending appeal against orders made by Hammerschlag CJ in Eq on 14 July 2023, as corrected under the slip rule on 17 August 2023, giving judgment in favour of the State of New South Wales (the Crown) for possession of land on the banks of the Georges River at Illawong on which is situated a cottage referred to as Cottage H: State of New South Wales v Carver [2023] NSWSC 828; State of New South Wales v Carver (No 2) [2023] NSWSC 972.

2. The land is described in the judgment below as comprising: (a) the land of the Crown that is located below the mean high water mark of the Georges River, adjoining the Georges River National Park comprised in Crown Plan 22617-3000; and (b) the land comprised in Crown Plan 22617-3000 (also known as the Georges River National Park).

Background

3. Cottage H is one of five similar cottages. Each was the subject of a permissive occupancy from the Crown at some point. Given their heritage status, the Crown has obtained planning permission from Sutherland Shire Council to demolish three of the cottages, which are in a dilapidated condition, and has sought but not yet obtained planning permission to demolish the other two cottages, which includes Cottage H.

4. The Crown proposes, if it obtains possession, that the area around the five cottages be fenced to prevent unauthorised access, pending demolition of the cottages with a view to providing public access to the land where the five cottages are now situated.

5. Mr Carver has occupied the Cottage H since 1997, pursuant to an agreement with Ms Pat Hood, who he described in his affidavit as the landlord. Mr William Hood, is the son of Mrs Price who was the wife of Mr Frank Price. The precise relationship between Ms Hood and Mr Hood is not disclosed in the judgment below. The Prices held a permissive occupancy from the Crown in respect of Cottage H. At trial, Mr Carver raised three defences to the proceedings for possession brought by the Crown.

6. First, that he was entitled to a licence from the Crown as a result of an equitable estoppel. This defence was abandoned on the second day of the hearing. Second, that the Crown’s action for possession was statute-barred because adverse possession of Cottage H began in about 1980 with the Hoods and the limitation period of 30 years against the Crown expired after 30 years of successive adverse possession by the Hoods and then Mr Carver: Limitation Act 1969 (NSW), ss 27 and 38.

7. Third, that Cottage H is not affixed to the land but is a chattel owned by Mr Carver and, therefore, the Crown has no entitlement to possession of its land because the Cottage is heritage listed and cannot be demolished or removed without planning permission.

8. A claimant to a possessory title must establish (i) actual possession of the land, and (ii) an intention to possess – an animus possidendi. That is, an intention to possess the land to the exclusion of all others. In rejecting Mr Carver’s defence based on the claim of adverse possession exceeding 30 years, the primary judge found that:

1. Mr Carver not established that the permissive occupancy of Mrs Price terminated on her death in June 1980;

2. the Crown continued to accept rent and did nothing formally to terminate the permissive occupancy relating to the Cottage or to enforce an eviction when Mrs Price’s son, Mr William Hood, took possession of the Cottage and rent continued to be paid to the Crown;

3. Mr Carver paid rent to Ms Hood, as deposed to in his affidavit of 9 June 2022, which his destructive of any suggestion that he had animus possidendi at the time he took possession and for the time that he paid rent;

4. Mr Carver’s various requests for a licence or regularisation of his occupancy are also destructive of any suggestion that he had animus possidendi at any time; and

5. Mr Carver’s pleading of his estoppel claim, although ultimately abandoned, is destructive of his claim that his possession was adverse.

9. Addressing the chattel defence, the primary judge found that the Cottage rests on piers sunk into the bed of the Georges River and objectively viewed was plainly built to stay there, as it has (since the 1930s), and that the Cottage has acceded to the land.

Stay application

10. The principles to be applied when exercising the Court’s power to grant a stay pending an appeal are well-known: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695 and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20]. It is appropriate first to consider whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies.

Whether reasonably arguable appeal

11. The parties diverged as to whether the appeal raises arguable grounds. Mr Carver asserted that the grounds of appeal are reasonably arguable, whilst the Crown said that the appeal has limited prospects of success. It is well-established that the Court will not generally speculate upon the appellant’s prospects of success but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospects of success simply to gain time: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd at [18]-[19].

12. In its written submissions the Crown identified a number of matters which it said weigh in the scales against a stay of the judgment below, including difficulties with the factual challenges to findings made by his Honour concerning the acts of Mr Carver and those of the Hoods as to whether they had an intention to possess the land to the exclusion of all others.

13. Senior counsel of Mr Carver outlined the manner in which it is proposed to challenge those factual findings and it is not appropriate at this interlocutory stage to attempt to assess the likely outcome of those factual challenges. I am prepared to assume that these grounds are arguable.

14. Turning to the question of construction of the Limitation Act and the Crown Land Management Act 2016 (NSW), it is said that the argument to be advanced on the appeal is not that the Crown's action for possession is barred by Mr Carver's title by adverse possession, but rather the Crown's action for possession is barred by Mr Carver's in personam claim to occupy the cottage by reason of successive adverse possession of more than 30 years by the Hoods and Mr Carver. This argument seems novel. Senior counsel for Mr Carver candidly accepted that he could not point to any authority in support of the argument. Nor does the argument address the operation of s 13.1(c) of the Crown Land Management Act.

15. In support of this argument, it is said that the primary judge erred in requiring Mr Carver to prove an intention to possess the land, importing an element of the common law concept of adverse possession into the statutory definition of “adverse possession” in s 38(4) of the Limitation Act. It is not appropriate to express a view on the merits of that argument other than to note that it seems to be a new point on appeal. Nonetheless, I am prepared to assume that the limitation argument based on these grounds is arguable.

16. It is not necessary to say anything in relation to ground 12 which is an alternative ground challenging the discretionary decision of the primary judge granting leave to assure writ of possession forthwith on the basis that the writ lie in the Registry for 42 days. That is because even if the appeal is expedited, as I consider it should be, this ground is likely to be moot by the time the appeal is determined.

17. Having considered the grounds of appeal and the competing submissions of the parties, I proceed on the basis that the appeal is arguable, but not necessarily strong.

Balance of convenience

18. As to the question of the balance of convenience or the balance of hardship, the principal issue is whether the prejudice to Mr Carver, if he is required to vacate the Cottage immediately, is outweighed by the asserted prejudice to the Crown.

19. The prejudice relied upon Mr Carver is:

1. the appeal would be rendered nugatory if he must vacate the Cottage immediately because the Crown is at liberty to demolish the Cottage, consistent with its stated intention in the proceedings below;

2. the cost and inconvenience of removing all of his goods from the Cottage and later resuming habitation if the appeal succeeds; and

3. the severe hardship Mr Carver would suffer if forced to leave the Cottage before the appeal is determined given his age (73 years), medical condition, financial position in terms of limited savings ($3,000) and meagre income from his small practice as a solicitor, which he conducts working from home at the Cottage ($25,000 gross last year), and he has no alternate place of accommodation.

20. As to (1), this potential prejudice is militated by the undertaking offered by the Crown not to demolish the Cottage until the determination of the appeal.

21. As to (2), on the position taken by the Crown – that Mr Carver should vacate the Cottage on its undertaking not to demolish the Cottage until the determination of the appeal – Mr Carver would face the cost and an inconvenience of removing all his goods from the cottage now and later resuming habitation if the appeal succeeds.

22. As to (3), plainly, Mr Carver would face significant hardship if he is forced to vacate the Cottage now. Nevertheless, the Crown pointed to two countervailing factors. It is said first that the continued occupation of the Cottage by Mr Carver exposes him (and any visitors) to a risk of harm; and second, is delaying the plans of the Crown to demolish all of the cottages and restore the land to public access.

23. As to the second matter, Mr Carver said there is an inconsistency between the Crown’s offer of an undertaking not to demolish Cottage H pending the determination of the appeal, yet the Crown submits that Mr Carver should immediately vacate. That can be accepted. In addition, there is no urgency in the Crown obtaining possession to demolish Cottage H because the evidence discloses that the Crown’s application to Sutherland Shire Council to demolish this cottage remains undetermined. Insofar as the parties diverged as to whether planning permission is required to erect a fence around the five cottages as proposed by the Crown if it obtained possession of the land on which Cottage H stands, it is not necessary to resolve this issue.

24. As to the risk of harm to Mr Carver and any visitors, the Crown points to four matters (a) a bush fire risk; (b) flood risk; (c) failure of Cottage H to comply with current construction standards and the need for immediate attention to structural elements; and (d) the presence of asbestos. In written submissions in reply, senior counsel for Mr Carver said that none of these matters are compelling, and Mr Carver is readily prepared to assume the risk of harm if he remains in possession of the Cottage pending the determination of the appeal.

25. In this regard, I take into account the finding of the primary judge at [71], when addressing the chattel defence, that Mr Carver deposed in his 9 June 2022 affidavit that he has experienced 2 bush fires, 2 floods and many storms, and noted that there was no suggestion that Cottage H was damaged and that it had withstood these tests.

26. As to structural elements in the Cottage that might require attention, it is said that Mr Carver assumes to himself any risk of harm to persons and property, although he has not identified any particular matters of concern for the time being. It is emphasised that the report by Utech Engineers of May 2016 acknowledged that Cottage H is in far better condition than the other four adjacent cottages and although not in compliance with current relevant building codes, standards, and acceptable practice, it has stood the test of time rather well. As to the presence of asbestos, it is said that many residential, commercial, and industrial buildings throughout the State incorporate asbestos which is generally not a concern unless the sheeting is disturbed.

27. On balance, I incline to the view that notwithstanding the difficulties with the appeal grounds identified by the Crown which weigh in the scales against a stay of the judgment below, the balance of convenience favours Mr Carver, given that: (1) he has given an undertaking in his affidavit to prosecute the appeal with diligence; (2) the delay in the Crown enforcing the judgment for possession is likely to be small, since the appeal will be expedited and a hearing date can be fixed in October 2023; (3) Mr Carver accepts the risks of occupying Cottage H as he has done so for the last 27 years, given its location and condition of the building, and (4) permitting Mr Carver to remain in possession for a further short period of time pending the determination of the appeal will avoid the severe hardship that he would experience if he is forced to leave his residence now. It also would more likely avoid potential vandalism of the Cottage and damage to his goods located at the Cottage, if unoccupied, even if the Crown erected a fence around Cottage H and the other adjacent cottages.

28. Accordingly, I have concluded that a stay of enforcement of the judgment pending the determination of the appeal is appropriate.

Orders

29. For the above reasons, the Court orders:

1. Stay enforcement of the judgment given on 14 July 2023, as corrected on 17 August 2023, pending the determination of the appeal.

2. Note the undertaking given by the appellant in his affidavit to prosecute the appeal with diligence.

3. Expedite the hearing of the appeal.

4. Grant leave to the parties to approach the Associate to Ward P to obtain a hearing date with an estimate of one day.

5. Note that the proceedings are listed before the Registrar on 20 September 2023 and direct the parties to agree in advance of that date a timetable for the exchange of written submissions and the preparation of the appeal books.

6. Costs of the appellant’s motion will be costs in the cause.

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Decision last updated: 14 September 2023