Dalton v Green

[2013] VCC 1471

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL CASES DIVISION

Case No. CI-13-00065

COLIN DALTON and SUSAN DALTON	Plaintiffs
v.
IRENE GREEN	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 October 2013
DATE OF JUDGMENT:	23 October 2013 (revised)
CASE MAY BE CITED AS:	Dalton v. Green
MEDIUM NEUTRAL CITATION:	[2013] VCC 1471

REASONS FOR JUDGMENT

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Catchwords:  Adverse possession – Common boundary – Evidence that part of
plaintiffs’ property fenced as part of defendant’s property since the
1950s – Declaration made that plaintiffs’ title to disputed land
extinguished.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W. Rimmer	Peter Speakman & Co
For the Defendant	Mr M. Black	MW Law

!Und efined Boo kmark, I

HIS HONOUR:

1 The plaintiffs own land at Coldstream which borders land owned by the defendant. The defendant made an application to the Registrar of Titles pursuant to s60 of the Transfer of Land Act 1958, claiming adverse possession of a disputed portion of land

which presently forms part of the plaintiffs’ Certificate of Title Volume 5717 Folio 216. present proceeding to support the caveat and their opposition to the claim by the defendant for adverse possession of the disputed land.

2           The proceeding was set down for trial commencing 22 October 2013. By agreement between the parties, the defendant had carriage of the trial. Defendant’s counsel Mr Black opened the defendant’s case and referred to a number of documents in the

court book, including extensive photographs and aerial photographs taken since the
1940s. The defendant gave evidence and was cross-examined. After she had
completed her evidence, her husband, Robert Wayne Green, commenced his
evidence-in-chief. The proceeding settled overnight on the basis that the Court would
be asked to make appropriate declarations to the effect that the plaintiffs’ title to the
disputed land had been extinguished and the defendant was the beneficial owner of
the disputed land, having adversely possessed the land for longer than the relevant
limitation period.

3           I have, at the request of the parties, made appropriate declarations. I consider, on the basis of the oral evidence I heard and the documentary evidence that was contained in the court book, that the defendant’s claim for adverse possession was clearly

established by that evidence. The documentary evidence in the court book included
the defendant’s statutory declaration made on 23 August 2012 in support of her
application for a vesting order pursuant to s62(1) of the Transfer of Land Act. The
evidence of the defendant given in Court confirmed the matters contained in the
statutory declaration.

4           In summary, the matters of evidence that make it appropriate for the declarations to be made by the Court, are as follows:

a.	the defendant’s property in Coldstream was originally owned by her grandfather, and then by her uncles, before it was transferred to her in 2001;
b.	the defendant had regularly visited the property since she was a young child in the 1950s;
c.	at that time, fences were established on the northern and eastern boundaries of the property on the bank of the creek that flowed intermittently in that area;
d.	the fence on the northern side ran in a straight line along the rear of the defendant’s land and adjacent properties that had also been previously owned in the family. At a point near the eastern boundary of the property, the fence dog-legged to the south joining up with the street frontage;
e.	the fences remained in the same position until about 2009 when works were undertaken by Melbourne Water to ensure the banks of the creek did not become further eroded;
f.	at the time of the Melbourne Water works, the fence was removed at and adjacent to the north-eastern corner of the property and along the eastern boundary;
g.	after the Melbourne Water works were completed, the defendant arranged for the erection of a fence which generally was in the same position as the fence which had been removed in 2009;
h.	on the north-eastern corner of the property, because of erosion of the creek bank, the corner post of the new fence was brought slightly closer towards the defendant’s property boundary as shown on the title by approximately 25cm;
i.	the disputed land which the defendant now claims is the land within the new fence rather than the land which was formally contained within the old fence which had existed since at least the 1940s.

5           I consider that on the basis of this evidence, which is supported by extensive photographic material, including photographs of the old fence, the posts of the new fence and their location relative to posts of the old fence, the location of buildings adjacent to the fence of the northern and eastern boundaries and various aerial photos which confirm these matters at various dates, it is appropriate to conclude that the defendant and her predecessors in title have been in exclusive occupation of the disputed land for more than 50 years.

6           Accordingly, on the basis of this evidence I have made the following orders:

a.  judgment for the defendant on the defendant’s counterclaim for the following declarations:

i.      the defendant has established adverse possession to the parcel of land marked Lot A on the plan of survey dated 30 August 2013, a copy of which is attached to this judgment, being the land described in Certificate of Title Volume 5717 Folio 216 (“the disputed land”);

ii.     the plaintiffs’ title to the disputed land is extinguished pursuant to section 18 of the Limitations of Actions Act 1958;

iii.     the defendant is the beneficial owner in fee simple of the disputed land;

b.	the proceeding, including the plaintiffs’ claim instituted to support the caveat lodged by the plaintiffs on Certificate of Title Volume 5717 Folio 216 in dealing number AK073655D, is otherwise dismissed;
c.	no order as to costs.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 23 October 2013 and revised that day.

Dated: 23 October 2013

Philippa Gilkes

Associate to His Honour Judge Anderson