Chhibber v Barton - [1990] HCATrans 128

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M46 of 1989
B e t w e e n -
RAMONA MARGARET CHHIBBER
Applicant

and
NORMAN BENJAMIN BARTON and
RUTH ZARA RACHEL BARTON
Respondents

Application for special leave
to appeal

DEANE J
GAUDRON J

McHUGH J

Chhibber

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 JUNE 1990, AT 2.59 PM

M1Tl3/l/RB

8/6/90

MS S. MORGAN: If the Court pleases, in this matter I appear

for the applicant. (instructed by Al"wJ11 Samuel & Associates)

MR N. MUKHTAR:

May it please the Court, I appear on behalf

o the respondent. (instructed by Lester Fielden
& Faraone)

DEANE J:	Yes, Ms Morgan.
MS MORGAN:	If the Court pleases, this matter has an unusual

curial history and if Your Honours desire me to
outline that or to answer questions, I would be
happy to do so.

DEANE J:

You can take it that we have read the documents and

are well acquainted with the past rather long
history of these proceedings.

MS MORGAN:

As Your Honour pleases.

The applicant is a

suburban housewife who has had, as Your Honour has
observed, a longstanding dispute with her neighbours.
I would submit, however, that the question raised by
this application is a question of public importance.
I would submit that the question of adverse
possession generally, and in particular the significance
of fencing and of the interpretation of section 27(c)
of the LIMITATION OF ACTIONS ACT and the concept of
mistake in the concept of adverse possession are
matters of public importance.
Your Honours, section 27 of the LIMITATION OF

ACTIONS ACT is extracted in the judgment of
His Honour Mr Justice Hampel and appears at page 60

in the application book. I believe that there are
no reported Australian authorities upon this
provision and there is certainly no authority of
this Court; indeed, Your Honours, it appears that
the only reported authority is that of a single judge,
Mr Justice Pearson.
Your Honours have recently had occasion to

consider mistake in a new situation, that of electronic

transfers of funds in WESTPAC V THE ANZ BANK and I
would submit, Your Honours, that an appropriate
occasion now arises to consider section 27 and the
concept of mistake in relation to adverse possession.
I would respectfully submit further, Your Honours,
that the situation presented by this dispute has an
added twist to it, in that the mistake, as I understand
the facts found by the trial judge, was the mistake of
a contractor employed by the defendants - or at least
the defendants'predecessor in title - and the predecessor
in title - I am sorry, the respondents, if Your Honours please - and the predecessor in title of the applicant.

GAUDRON J:

But where is the action for relief from the consequence

of mistake?

M1Tl3/2/RB	2	8/6/90
Chhibber

MS MORGAN:

Your Honour, I would submit that in defending these

proceedings as she…

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 Chhibber v Barton

Details

AGLC: Chhibber v Barton [1990] HCATrans 128
Case: [1990] HCATrans 128
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Ramona Margaret Chhibber, a suburban housewife, was involved in a longstanding dispute with her neighbours, Norman Benjamin Barton and Ruth Zara Rachel Barton. The applicant sought to raise questions of public importance concerning adverse possession, specifically the significance of fencing, the interpretation of section 27(c) of the Limitation of Actions Act, and the concept of mistake in adverse possession.

The central legal issues before the court were the interpretation of section 27 of the Limitation of Actions Act, particularly the meaning of "mistake" in the context of adverse possession, and whether the applicant could rely on this provision. The applicant argued that there was no authoritative Australian case law on this section and that the present dispute offered an appropriate occasion for the High Court to consider it, especially given a recent decision on mistake in a different context. A further point of contention was that the mistake in question was allegedly made by a contractor employed by the respondents' predecessor in title, and potentially the applicant's predecessor in title.

The applicant contended that by defending the proceedings, she was seeking relief from the consequences of a mistake within the meaning of section 27. She argued that the trial judge's view, that she could not have succeeded on the basis of section 27 even if she had been the plaintiff, was incorrect. The applicant submitted that if she had been the plaintiff, she could have relied on a common mistake between the parties. The court noted that the action for relief from the consequences of mistake was distinct from the applicant's defence.

Orders