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Cooper v McLennan

Cooper v McLennan

Case [2023] NSWSC 1385 17 November 2023

Adverse Possession

Limitation Periods

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Cooper v McLennan [2023] NSWSC 1385
Hearing dates: 26 and 27 September, 11 and 26 October and 2 November 2022. Further submissions 9 and 11 November 2022.
Date of orders: 17 November 2023
Decision date: 17 November 2023
Jurisdiction: Equity
Before: Henry J
Decision:
See [205]

Catchwords:
LAND LAW — adverse possession — rural Torrens title land — where plaintiff registered proprietor seeks declarations in response to defendant’s application for possessory title — where defendant claims possession of lots by he and his family since September 1996 — whether plaintiff consented to defendant and family using the lots for grazing cattle — whether defendant’s acts establish factual possession — whether intention to possess where defendant believed he and his family owned the lots — whether plaintiff’s acts broke chain of possession — found that defendant and family in adverse possession for more than 12 years — extinction of title of plaintiff registered proprietor if Limitation Act 1969 (NSW) had applied

Legislation Cited:
Dividing Fences Act 1991 (NSW)
Fences Act 1890 (Vic)
Limitation Act 1969 (NSW)
Local Government Act1993 (NSW)
Real Property Act 1900 (NSW)

Cases Cited:
Allen v Roughley (1955) 94 CLR 98; [1955] ALR 1017
Australian Retirement Holdings Pty Ltd v Higgins in her capacity as adminis of Estate of late Pritchard (2021) 20 BPR 41,633; [2021] NSWSC 1158
Bartlett v Ryan (2000) 10 BPR 18,077; [2000] NSWSC 807
BP Properties Ltd v Buckler (1987) 284 EG 372; [1987] 2 EGLR 168; (1987) 55 P & Cr 337
Braye v Tarnawskyj (2019) 19 BPR 39,213; [2019] NSWSC 277
Clement v Jones (1909) 8 CLR 133; (1909) 15 ALR 158; [1909] HCA 11
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367
Malter v Procopets (2000) V ConvR 54-624; [2000] VSCA 11
McDonell v Giblin (1904) 23 NZLR 660
McFarland v Gertos (2018) 98 NSWLR 954; (2018) 19 BPR 38,969; [2018] NSWSC 1629
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
Plunket v Bull [1915] VLR 603; (1915) 19 CLR 544; [1915] HCA 14
Powell v McFarlane (1979) 38 P&CR 452
Re Riley and the Real Property Act [1965] NSWR 994
Riley v Penttila 1974 [VR] 547
Shaw v Garbutt (1996) 7 BPR 14,816
Sidoti v Hardy (2021) 105 NSWLR 1; (2021) 20 BPR 41,435; [2021] NSWCA 105
Solling v Broughton [1893] AC 556
Watson v Foxman (1995) 49 NSWLR 315
Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188

Category: Principal judgment
Parties: John William Cooper (Plaintiff)
Tony McLennan (Defendant)
Representation:
Counsel:
A G Martin (Plaintiff)
M A McCall (Defendant)
Solicitors:
Conroy Stewart Spagnolo Solicitors (Plaintiff)
MJO Legal (Defendant)

File Number(s): 2022/00052240
Publication restriction: Nil

JUDGMENT

These proceedings concern three small parcels of rural land located in Nymboida, a town located in the Northern Rivers region of New South Wales,…

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 Cooper v McLennan

Details

AGLC: Cooper v McLennan [2023] NSWSC 1385
Case: [2023] NSWSC 1385
Decision Date: 17 November 2023

CaseChat Overview and Summary

The case of Cooper v McLennan involves a dispute over rural land in New South Wales, which is held under Torrens title. The plaintiff, Cooper, is the registered proprietor of certain lots and seeks declarations in response to the defendant McLennan’s application for possessory title. McLennan claims that he and his family have possessed the lots since September 1996. The central issue is whether McLennan's family's use of the land for grazing cattle, coupled with their belief that they owned the land, meets the criteria for adverse possession, thereby extinguishing the plaintiff's title. The court must determine if the plaintiff consented to the defendant's use of the land and whether McLennan's actions established factual possession and the requisite intention to possess.

The legal issues before the court involved establishing whether McLennan's family had maintained factual possession of the land and whether they had the necessary intention to possess the land adversely to the plaintiff. The court considered whether the plaintiff's actions or inactions broke the chain of possession. The court needed to evaluate the specific circumstances, including whether McLennan’s belief that he owned the land constituted an intention to possess and whether there was any evidence of the plaintiff's consent to the defendant's use of the land. Ultimately, the court had to determine if McLennan and his family had been in adverse possession for more than the statutory period under the Limitation Act 1969 (NSW), which would extinguish the plaintiff's title.

The court found that McLennan and his family had indeed been in adverse possession of the lots for more than twelve years. The court held that the acts of grazing cattle and the belief that they owned the land were sufficient to establish both factual possession and the necessary intention to possess. The court concluded that the plaintiff's failure to object to McLennan's use of the land did not break the chain of possession, and therefore, the plaintiff's title was extinguished if the Limitation Act 1969 (NSW) applied. The court granted McLennan possessory title to the lots in dispute.

The court ordered that McLennan be registered as the proprietor of the lots in question, effectively extinguishing the plaintiff's title. The court's decision hinged on the clear demonstration of adverse possession by McLennan and his family over the statutory period. The court's findings on factual possession and intention to possess were pivotal in concluding that the plaintiff's title was extinguished under the relevant legislation.

Orders