Dimitrakakis v Dimitrakakis
[2021] VCC 960
•19 July 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-19-05138
| Vassilios Dimitrakakis Plaintiff / First Defendant by Counterclaim and Registrar of Titles Second Defendant by Counterclaim v Elias Dimitrakakis Defendant / Plaintiff by Counterclaim |
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JUDGE: | Her Honour Judge Brimer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 23, 26–28 April, 18 May 2021 | |
DATE OF JUDGMENT: | 19 July 2021 | |
CASE MAY BE CITED AS: | Dimitrakakis v Dimitrakakis | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 960 | |
REASONS FOR JUDGMENT
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Subject: REAL PROPERTY
Catchwords: Adverse possession – neighbouring properties – family dispute – shared driveway – fence – easement – right of carriageway – Transfer of Land Act – Twelfth Schedule - abandonment of easement – intention to abandon – use as of right – prescriptive easements – doctrine of lost modern grant – injunction
Legislation Cited: Limitation of Actions Act 1958 (Vic) ss 8, 14(1); Transfer of Land Act 1958 (Vic) s 72, Sch 12
Cases Cited:Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; Bookville Pty Ltd v O’Loghlen [2007] VSC 67; Bookville Pty Ltd (ACN 058 191 727) v Ross Brendan O’Loghlen [2008] VSCA 27; Tickle v Brown (1836) 111 ER 826; Wilson v Campbell (Supreme Court of Tasmania, Underwood J, 29 October 1997); Tehidy Minerals Limited v Norman [1971] 2 QB 528; Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315; Copeland v Greenhalf [1952] 1 All ER 809; Anderson & Anor v City of Stonnington & Anor [2016] VSC 374; Attorney-General v Hodgson [1922] 2 CH 429; Lock v Abercester [1939] Ch 861; Sunshine Retail Investments Pty Ltd v Wullf & Ors [1999] VSC 415; McMahon v McMahon [2008] VSC 386; Kritsidimas v Dimitrakakis [2019] VSC 704
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Stavris | MCK Legal |
| For the Defendant | Mr T Messer | KCL Legal |
HER HONOUR:
Introduction
1This proceeding is about an area of land approximately 8 feet wide between two adjacent residential properties: 32 and 34 Smith Street, Richmond. The strip of land is in part, a driveway (the driveway). The plaintiff is the registered proprietor of 34 Smith Street (number 34). The defendant, who is the plaintiff’s nephew, is the registered proprietor of 32 Smith Street (number 32).
2The driveway is bisected by the title boundary separating the two properties: half of the driveway is on the land of number 32, while the other half of the driveway is on the land of number 34. Each property is encumbered by an easement entitling the owner of the other property to use that property’s half of the driveway as a carriageway. The certificates of title for each property show that the easements run north-south along the full length of the properties.
3Figure 1 is the Certificate of Title of number 34,[1] which shows the property boundaries and the easement. The easement is described as a right of carriageway over the road coloured brown (labelled BR). The Certificate of Title also shows that the property is encumbered by a carriageway easement for the benefit of number 32 (labelled B).
[1] Figures 1 and 2 are contained in an Appendix at the end of these Reasons.
4Figure 2 is the Certificate of Title of number 32, which shows the property boundaries and the easement. The easement is described as a right of carriageway over the road coloured brown (labelled BR). The Certificate of Title also shows that the property is encumbered by a carriageway easement for the benefit of number 34 (labelled B).
5Figure 3 is a plan of survey which shows the strip of land in dispute, marked X, being the half of the driveway on number 34 (the disputed land).[2] The half of the driveway on number 32, marked E-1, is the carriageway easement for the benefit of number 34 (the easement).
Figure 3
[2] Figure 3 was prepared by a surveyor on the defendant’s instructions and does not show the registered
easement in favour of number 32 over the disputed land.
The Dispute
6The heart of the dispute is a claim by the defendant that the disputed land has been adversely possessed for the benefit of number 32, and the easement in favour of number 34 has been abandoned. The defendant seeks declarations to that effect and orders to give effect to those declarations.
7The plaintiff seeks declarations that he owns the whole of the land described in the Certificate of Title for number 34, that the defendant has not acquired a title by possession to any part of that land, and that the plaintiff has not abandoned the easement appurtenant to the land.
8In the alternative, should the disputed land have been adversely possessed, the plaintiff seeks a declaration that he has the benefit of several easements over the disputed land by reason of the doctrine of lost modern grant.[3]
[3] These are a footway easement, a carriageway easement, an easement of eave, and an easement for
temporary storage.
9He seeks an injunction restraining the defendant from interfering unreasonably with his use of the disputed land.[4]
[4] Although the prayer for relief includes a claim for damages, it was not pursued at trial.
10Although the plaintiff is the party bringing the action, the onus of proof for both adverse possession and abandonment of the easement lies with the defendant.
11For the reasons set out below, I find for the plaintiff. I am not satisfied that the disputed land has been adversely possessed by the defendant or his predecessors in title. I am not satisfied that the easement has been abandoned by the plaintiff. If I am wrong on the question of adverse possession, I am not satisfied that the plaintiff has acquired any easements over the disputed land by reason of the doctrine of lost modern grant.
32 and 34 Smith Street, Richmond
12Both number 32 and number 34 are residential houses in the suburb of Richmond. Both properties have been in the parties’ extended family for generations.
13There is a driveway between the front part of the houses.[5] Running alongside the eastern edge of the disputed land are sections of different materials forming a fence (the fence). The fence consists of (from north to south):
(a) an area of picket fence;
(b) an area of brick wall being part of the residence of number 34;
(c) a section of timber paling fence;
(d) a chain wire fence;
(e) another section of timber paling fence;
(f) a sheet of galvanised tin; and
(g) a sheet of corrugated iron.
[5] On 23 April 2021, the court, the parties and their legal representatives attended a view of both number
32 and number 34. See also Court Book (CB) 224.
14Towards the front of the driveway, near the point where the picket fence meets the brick wall of number 34, there is a pale green metal gate (green gate) across the driveway.[6]
[6] CB 220, CB 224.
15South of the green gate, and further to the rear of number 32, there is ‘al fresco’ covered area (the covered area). The covered area is concreted and extends over the easements including the disputed land. The supporting posts are on the disputed land. Beyond the covered area is a garden.
Background
16In 1961, Elias Dimitrakakis (Dimitrakakis Snr), father of the plaintiff and grandfather of the defendant, purchased number 32 on vendor’s terms, becoming the sole registered proprietor in 1967. Dimitrakakis Snr also bought 40 Smith Street (number 40) in the early 1960s.[7] Dimitrakakis Snr and his wife Maria have five children: Georgia, Freda, Frank (the defendant’s father), Tina and the plaintiff.
[7] Despite being numbered 40 Smith Street, the house is next door to number 34 on the other side from
number 32. This property was gifted to the plaintiff and he is the registered proprietor of number 34: at T74.6-7.
17In 1971, Dimitrakakis Snr and Maria purchased a property at 171 Brunswick Street, Fitzroy, where they established a fish and chip shop. Around the beginning of 1972, the Dimitrakakis family began living in the apartment above the shop. From 1972 until the mid-1970s, number 32 was occupied by tenants.
18In 1972, Dimitrakakis Snr and his wife purchased, and were registered as joint proprietors of, number 34.
19Towards the end of 1975, the tenants living in number 32 refused to pay rent, prompting Dimitrakakis Snr to evict them and to move his family back into the home. Aside from periods when they lived above their take away food business in Chapel Street (which they opened in 1978), above the Brunswick Street shop, or when they spent extended periods of time in Greece, Dimitrakakis Snr and Maria lived at number 32. Maria passed away in 2008, and Dimitrakakis Snr passed away in Greece in 2012, after having moved to Greece approximately one and a half years prior. The plaintiff also lived at number 32 from time to time until May 2013 save for periods (sometimes extended periods) when he was overseas or living at his apartment in Fitzroy.
20After Dimitrakakis Snr evicted the tenants from number 32, the property was never tenanted again. It remained the family home through to 2013.[8]
[8] T71.2-14.
21During the 1970s, the backyards of number 32, number 34 and number 40 were open to each other. The rear third of each property’s yard was used to grow vegetables. There was also a small vineyard at the rear of number 34.[9]
[9] T74.19-20, 28-29; T75.3-4.
22Number 34 was tenanted shortly after it was purchased in 1972. Before it was tenanted, Dimitrakakis Snr built a section of wooden paling fence running north to south from the end of the brick wall of number 34. At the end of this fence, he erected a short section of chain wire fence which also ran from north to south. At right angles to the point where the chain wire fence ended, Dimitrakakis Snr erected a chain wire fence running east-west across the backyards of both number 32 and number 34. These chain wire fences separated the rear third of each backyard from the front two thirds. The purpose of the chain wire fences was to ensure that the family dogs could not get into the vegetable garden or vineyard at the rear third of the properties.[10]
[10] T78.3-5.
23The first third of the backyard of number 34 was accessible to the tenants. The yard of number 32 took on a L-shape that incorporated the back two thirds of the yard of number 34.
24In 1977, Dimitrakakis Snr, with the help of the plaintiff, planted an olive tree at the back of number 34.[11] The position of the fence in relation to the olive tree was an issue in the trial and is dealt with further below.
[11] Frank said that it was in 1976. Nothing turns on whether the olive tree was planted in 1976 or 1977.
25The paved covered area was built in around 1977.[12] There was no issue in the trial that this area was used by members of the family for family lunches and other occasions.
[12] The plaintiff recalled the covered area was built in 1977 for his sister Tina’s engagement
party: at T82.30-T83.5.
26Over the years, bricks and timber were stored on the disputed land. Where they were from and to whom they belonged were issues in the trial and are dealt with below.
27From the 1970s until approximately 2000, the driveway was spanned by a pink, wooden gate (pink gate) near the point where the brick wall of the house on number 34 meets the wooden paling fence.
28In 1980, Frank, along with his wife Theresa, moved into number 34. While Frank and Theresa lived at number 34, Dimitrakakis Snr removed a portion of the fence near the kitchens at the rear of the homes to allow passage between them. After living there for a short time, Frank and Theresa moved to a property at nearby Waltham Street. The gap in the fence was closed so that the property could be tenanted.
29In 1983, Dimitrakakis Snr and Maria gifted number 34 to Frank. For the next two years, number 34 was renovated. A gap was opened in the fence which allowed tradespeople to access the rear of number 34 via the driveway. The number and timing of gaps in the fence was in dispute and is dealt with further below.
30In around 1985,[13] a car accidentally reversed into a brick fence at the front of number 34, partially destroying the structure. The remainder of the brick fence was demolished and replaced with a picket fence running along the front and around the side of the property to the brick wall of number 34. The side section of the picket fence had a small picket gate that opened up onto the driveway between the two houses.
[13] T238.18-22; T240.15.
31Once the renovations were finished in 1985, Frank and Theresa and their children, including the defendant, moved into the property. The configuration of the fence from 1985 onwards was in dispute and is dealt with further below.
32Frank and his family lived at number 34 until 1988, when they moved to a property in Kew. After they moved out, number 34 was tenanted.
33In 1989, Frank transferred the property to the trustee company of his family trust, Jeffaway Pty Ltd.
34In 1992, Frank wanted to sell number 34. Dimitrakakis Snr wanted to keep number 34 in the family. In the end, it was agreed that Frank would sell number 34 to his brother, the plaintiff. Dimitrakakis Snr and Maria gifted the plaintiff $40,000 so that he could purchase number 34, thus ensuring that the property remained in the family.
35In around 1996 or 1997, the plaintiff built the green gate across the driveway. The green gate was further down the driveway towards Smith Street than the pink gate.
36The driveway was spanned by both the green gate and the pink gate until 2000, when the pink gate was removed.[14]
[14] T253.1-4.
37Between 1992 and 2018, the plaintiff leased number 34 to various tenants, including Dr Alan Luckie (Dr Luckie), Mr Carl Barker (Mr Barker), and Ms Sarah Abbott (Ms Abbott).[15]
[15] All of whom gave evidence in the trial.
38Upon Dimitrakakis Snr’s death in 2012, number 32 formed a part of his Estate. In his will, Dimitrakakis Snr left number 32 to the defendant.
39In 2013, and with the permission of the executrix of the Estate, Georgia Kritsidimas,[16] the defendant evicted the plaintiff and moved into number 32. Ms Kritsidimas was granted probate on 9 February 2015. She subsequently transferred number 32 to the defendant. The defendant became the registered proprietor of number 32 on 7 July 2015.
[16] The plaintiff’s and Frank’s sister.
40On 12 December 2016, a survey was completed by Mr Goodison.[17]
[17] The plan of survey is dated 8 December 2017: at CB 153.
41On 25 November 2017,[18] the plaintiff moved the rear portion of the fence west onto what he contends is the title boundary.
[18] T173-5.
42In 2019, the plaintiff moved back into number 34.[19]
[19] Affidavit of Vassilios Dimitrakakis, [63].
Family dispute
43This proceeding was initiated in the context of a dispute between the plaintiff and the rest of the siblings, including Frank, the defendant’s father.
44In 2018, Ms Kritsidimas issued proceedings in the Supreme Court seeking to recover from the plaintiff various sums and property she alleged were mis-appropriated by him.[20] In summary, the plaintiff was said to have taken advantage of Dimitrakakis Snr to the disadvantage of his siblings. The plaintiff denied the allegations and sought removal of Ms Kritsidimas as executrix of the Estate.
[20] Kritsidimas v Dimitrakakis [2019] VSC 704.
45In reasons for decision, Landsdowne AsJ observed that “there is very considerable distrust and animosity between the [plaintiff] on one hand and the [Frank] and other siblings on the other”.[21]
[21] Ibid [22].
46The defendant gave evidence that this dispute is one subset of a larger family dispute.[22] This dispute is referred to below in the context of the issues to be determined.
[22] T181.20-30.
Issues
47The three issues that must be decided are as follows:
1. Has the defendant established title to the disputed land by reason of adverse possession?
2. Has the easement been abandoned by the plaintiff and his predecessors in title?
3. Has the plaintiff acquired an easement by reason of the doctrine of lost modern grant as alleged in paragraph 9 of the amended Statement of Claim?
1.Has the defendant established title to the disputed land by reason of adverse possession?
Defendant’s submissions
48Counsel for the defendant, Mr Messer, contended that since at least 1985, the fence constituted the physical boundary between number 32 and number 34.[23]
[23] Defence to Amended Statement of Claim and Counterclaim (Defence and Counterclaim), 4(a).
49The fence was:
(a) configured as an area of picket fence to the north, an area of brick wall, being the part of the residence standing on number 34 to the south of the picket fence, a timber paling and chain wire fence to the south of the brick wall and a galvanised tin and corrugated iron fence to the south of the timber paling and chain wire fence since at least 1985; and
(b) constructed on its current line in 1985.[24]
[24] Counsel for the defendant, Mr Messer, argued that paragraph 4(a) was admitted by the plaintiff at
paragraph 1 of his Reply and Defence to Counterclaim (Reply). Mr Messer contended the admissions were ‘‘significant’’ because it meant that the facts in paragraph 4(a) were no longer in dispute between the parties. He accepted, however, the trial was run as if there had been no admission: both the plaintiff and the defendant led evidence on the configuration of the fence. In response to my query what significance should be attached to the admission in light of the way the trial had proceeded, Mr Messer responded that while the admission was “a factor in the mix”, I should ultimately be guided by the evidence.
50Factual possession is made out because the physical boundary established by the fence in 1985 has remained intact and in the same position ever since.[25] The olive tree marked the boundary. There were no access points in the fence after 1985.[26] The disputed land has been completely enclosed by the fence since 1985, it forms part of the backyard of number 32 and was adversely possessed by 2000.
[25] Outline of Closing Submissions of the Defendant/Plaintiff by Counterclaim (Defendant’s Closing
Submissions), [13].
[26] T340.19-20.
51Mr Messer submitted that Dimitrakakis Snr exercised exclusive control over the disputed land, treating it as if it were part of the backyard of number 32 for decades.[27] From 1985 onwards, “whoever was in 32 Smith Street… would have said ‘Yeah, this is 32, this is our land’, meaning the covered concrete area, the garden, the area where all the bricks are stored, the area where the timber is stored and the backyard”.[28]
[27] T329.1-3.
[28] T332.24-31.
52Mr Messer contended I ought be satisfied that the defendant and his predecessors in title intended to possess the disputed land. An intention to possess on the part of Dimitrakakis Snr can be inferred from the objective acts of possession, including the construction of the covered area, the garden at the rear and, most significantly, the fence that enclosed the disputed land. Prima facie, enclosure by the fence indicates the requisite intention to possess.
53By 2000, title to the disputed land was extinguished by adverse possession, and the plaintiff lost the ability to claim title to the disputed land.[29]
[29] T347.22-25; T349.11-14; T329.13-16. See also s 8 of the Limitation of Actions Act 1958 (Vic), which
says the following: “No action shall be brought by any person to recover any land after the expiration of
fifteen years from the date on which the right of action accrued to him or, if it first accrued to some
person through whom he claims, to that person”.
Plaintiff’s submissions
54Counsel for the plaintiff, Mr Stavris, contended that neither factual possession nor intention to possess have been made out. The fence has not been configured in its current form or in its current line since 1985. The position of the fence was changed by the defendant in recent times, in a late attempt to possess the land. The piece of corrugated iron that makes up the rear portion of the fence was installed by the defendant in or around 2015.[30]
[30] Plaintiff’s Closing Submissions, [29].
55The olive tree was planted by the plaintiff and his father in mid-1977 on number 34, set back from the boundary. It was not planted to mark the boundary as contended for by the defendant. Further, throughout time and ownership of number 32 and number 34 by different members of the family, gaps in the fence were made to allow passage between the two properties, allowing the occupants of number 34 to access and use the disputed land.[31]
[31] Ibid [28]-[29].
56The configuration of the fence over the years demonstrates a lack of appropriate degree of physical control. It reflects the fluid nature of the fence used primarily to facilitate residential tenancy of number 34. In light of the family context, the fence does not show that Dimitrakakis Snr dealt with the land as an occupying owner might have and that no one else did so.
57Mr Stavris submitted the defendant has failed to prove an intention by Dimitrakakis Snr to take exclusive possession. In the context of the family ownership and use of both properties, no intention to possess could be inferred from the construction of the fence, covered area, the garden and the storage of materials. Rather, these indicia disclose an intention to enhance or share both properties for the benefit of the family.
Legal principles
58The principles relating to adverse possession were set out by Ashley J in Bayport Industries Pty Ltd v Watson.[32] Paragraphs [39] and [40] are as follows:
[32] (2006) V ConvR 54-709.
The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane. Thus, pertinently:
“It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:
(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession,… The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed… It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession… Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
(4) The animus possidendi, which is also necessary to constitute possession,… involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow… the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisition animus possidendi and consequently as not having dispossessed the owner.”
To those principles should be added and/or highlighted the following:
·When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804 (my emphasis).
·As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn C.J. said in Seddon v. Smith (1877) 36 L.T. 168, 1609: ‘Enclosure is the strongest possible evidence of adverse possession.’ Russell L.J. in George Wimpey & Co. Ltd. v. Sohn [1967] Ch. 487, 511A, similarly observed: ‘Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner.
·It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd. v. Chamberlain, 20 P. & C.R. 633, 642, per Sachs L.J.”
·A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession.
·Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed. The cases cited by counsel for the plaintiff were not this case, as counsel accepted. There, the adverse possessor had made active use of some of the disputed land. The question was whether that use constituted possession of the whole. In the present case the plaintiff rather pointed to active use of part of the land of which its predecessors were the paper title owners to assist a conclusion that they possessed and intended to possess all the enclosed land.
·Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal. The present case is, I should say, factually different to the type of case to which this proposition essentially refers.
·At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned (citations omitted).
59Mr Messer referred to paragraph [6] of Whittlesea City Council v Abbatangelo:[33]
[33] (2009) 259 ALR 56.
For the purposes of this appeal, the following additional principles are also relevant:
(a)The reference to ‘adverse possession’ in s 14(1) of the Act is to possession by a person in whose favour time can run and not to the nature of the possession. The question is simply whether the putative adverse possessor has dispossessed the paper owner by going into possession of the land for the requisite period without the consent of the owner, with the word ‘possession’ being given its ordinary meaning. Whether or not the paper owner realises that dispossession has taken place is irrelevant.
(b)Factual possession requires a sufficient degree of physical custody and control. Intention to possess requires an intention to exercise such custody and control on one’s own behalf and for one’s own benefit. Both elements must be satisfied by a putative adverse possessor, although the intention to possess may be, and frequently is, deduced from the objective acts of physical possession.
(c)In considering whether the putative adverse possessor has factual possession, a court has regard to all the facts and circumstances of the case, including the nature, position and characteristic of the land, the uses that are available and the course of conduct which an owner might be expected to follow. Each case must be decided on its own particular facts. While previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a person’s dealings with land. Acts that evidence factual possession in one case may be wholly inadequate to prove it in another. For example, acts done by a putative adverse possessor who lives next to the relevant property may sufficiently evidence a taking of possession, whereas those same acts may be insufficient if done by a person who lives some distance from the property (my emphasis).
(d)The intention required by law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land.
(e)A number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention.
(f)Statements about intention by a putative adverse possessor should be treated cautiously, as they may be self-serving. But while a statement by a person that he or she intended to possess land will not be enough in itself to establish such an intention, it may be relevant when taken in combination with other evidence suggesting an intention to possess.
(g)Mere use falling short of possession will not suffice. In some circumstances, a person’s use of land may amount to enjoyment of a special benefit from the land by casual acts of trespass and will neither constitute factual possession nor demonstrate the requisite intention to possess. For example, where vacant land abutted a putative adverse possessor’s land, occasional tethering of the claimant’s ponies on the vacant land, and grazing them there, and occasional playing on the vacant land by her children were held not to suffice. Use and enjoyment of a special benefit and exclusive possession are not, however, necessarily mutually exclusive, for exclusive possession will usually entail use and special benefit. Use and enjoyment of a special benefit, on the other hand, will not necessarily amount to exclusive possession.
(h)There is no separate requirement that the use to which the land is put by the putative adverse possessor be inconsistent with the paper owner’s present or future intended use of the land, as suggested by Leigh v Jack. In Monash City Council v Melville, Eames J reviewed the history of the rule in Leigh v Jack and said the following:
To the limited extent that the rule still applies its effect, now, is as follows. Where the trespasser’s acts had not been inconsistent with the future planned use, not therefore manifesting the requisite intention of dispossessing the owner, one might conclude that the requisite elements for adverse possession had not been established; [l]ikewise it may more readily be concluded that the requisite elements to constitute adverse possession had not been established where the land is waste land and the possessor had not done any acts to manifest an intention to dispossess the owner.
However, where the trespasser had done acts which plainly manifested an intention to dispossess the owner, and where the acts would otherwise lead to the conclusion that adverse possession had been established, the fact that the land was waste land or was set aside for some future public purpose, did not introduce any special rule which gainsaid that conclusion.
It was not suggested before us that Eames J incorrectly stated the law in relation to the present limited effect of the rule in Leigh. We would therefore proceed on the basis that his Honour correctly stated the law even if it was not for the subsequent decision of the House of Lords in Pye, where Lord Browne-Wilkinson (with whom the other Law Lords agreed) said this in relation to the rule in Leigh:
The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong … The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such an inference could be properly drawn in cases where the title owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.
(i)While inconsistent use is not required, it may be a factor, where it is present, which is indicative of factual possession and of an intention to possess to the exclusion of the paper owner.
60The enquiry then is whether the defendant himself or through Dimitrakakis Snr had exclusive occupation and physical control of the disputed land with the intention to exclude all others, including Frank,[34] and then the plaintiff,[35] in an unequivocal way for a continuous period of 15 years or more. The resolution of the enquiry involves consideration of the nature of the acts performed by Dimitrakakis Snr over the relevant period and his intention in respect of the disputed land.
Analysis
[34] The owner of number 34 until 1989 and through Jeffaway Pty Ltd from 1989 to 1992.
[35] The owner of number 34 from 1992 until the present.
Factual possession
61I am not satisfied on the evidence that the fence was configured as pleaded, intact and in its current line since at least 1985, such as to support a finding of single and conclusive possession.[36] A great deal of evidence was given about the configuration of the various parts of the fence at various points in time both before and after 1985. Of particular significance in respect of the defendant’s claim of adverse possession however, is the evidence as to the portion of the fence at the rear of the properties.
[36] The defendant relied on the fence being configured, intact and in its current line since 1985 to establish
factual possession. See Defence and Counterclaim, 4(a)-(b); Defendant’s Closing Submissions, [13].
62In summary, the plaintiff gave evidence that “[t]here wasn’t … anything separating the two properties behind the olive tree. What you saw there today is what my nephew put back there in 2014, 15 or whenever it was he did it.”[37]
[37] T78.25-9.
63The defendant gave evidence that:
(a) The sheet of corrugated iron that currently forms part of the fence is the same sheet of corrugated iron that had always been there, but it was buried in vines and plant matter.[38] The wooden beam that had held up the corrugated iron sheet had rotted, so he used a new wooden beam to lift up the corrugated iron sheet on the same line.[39]
(b) There was either one beam or two beams running through the fork of the olive tree. The front part of the beam supported the bit of tin north of the olive tree, and has been there as long as he could remember. Towards the back the second beam or the southern half of the beam had rotted, causing the corrugated iron sheet that was attached to it to fall down. He repaired the support beam using another bit of timber in the yard.[40] He recalls the piece of tin being there in the 1990s. He also gave evidence that the galvanised sheet of iron that currently forms part of the fence is the original sheet of iron.[41]
[38] T176.5-22.
[39] T176.17-22.
[40] T204.17-31; T205.1-4.
[41] T212.10-13.
64Frank gave evidence that:
(a) He did some work on the rear fence in 1985.[42] He put in some rails between the olive tree and the back fence and used building reinforcement and whatever was left of the paling fence to secure and make a fence there and to stop the defendant, who was three years old at the time, and anyone else being able to go into next door.[43]
(b) Between the olive tree and the rear of the properties, a span of approximately two and half metres, Frank and his father made another fence, not with that sheet of corrugated iron[44], but with reinforcement and leftover palings.[45] Frank said that he and his father put a couple of rails, top and bottom rails, fixed one between the fork of the olive tree off to the fence and one nailed to the stump of the olive tree to the fence then put the reinforcement and leftover palings vertically in between the reinforcement and made it into a fence. Frank said that the fence did not consist of that corrugated iron sheet.[46] He said that the palings are not there,[47] and that the rails of the old fence have worn away. Between the olive tree and the fencing, there was a beam but also a bottom rail and also some reinforcement and bits of paling above that they had left over.[48] The beam through the olive tree marked the fence line he created in 1985.
[42] T240.16-31.
[43] Ibid.
[44] This was a reference to the same sheet of corrugated iron to which the defendant’s attention
was drawn and about which he gave evidence had always been there: at CB 245.
[45] Ibid. Contrary to the evidence in fact given by Frank, Mr Messer put to the plaintiff in cross-examination
that Frank would say that in 1985, the fence was extended using galvanised tin and corrugated iron. The plaintiff denied this and said “That’s happened since my nephew took possession in 2013.” Whilst the defendant said that the back part was very overgrown and there was building material that was used to block that up and make a barrier, he maintained that the corrugated iron sheet was the same sheet that had always been there.
[46] Ibid.
[47] Frank said he sealed off the gap between the chain wire fence and the olive tree using sections of the
paling fence that used to run east-west along the backyard of number 34. This is the same location as where the defendant said the piece of tin had been “…for ages, probably in the I reckon 90s, that bit of tin was definitely there, maybe even earlier, I probably couldn’t tell you an exact date of when that was put in”.
[48] T267.20-24.
65Theresa said that the olive tree became part of the fence because it was not constructed with poles in the ground like a fence would, the sections were sort of placed against it. There was cyclone wire fence there and it had been attached to that, and there were other pieces that were attached to the tree because it was the only way to stabilise the fence. There was a section between the tree and the back fence; a bit of metal mesh like that in a concrete slab that made part of the fence line as well.[49]
[49] T319.5-19.
66The evidence of the tenants can be summarised as follows:
(a) Dr Luckie and his family were tenants of number 34 from around February 1996.[50] Dr Luckie said that he could not recall whether there were any access points in the fence, or whether he could walk around the back of number 34 into number 32.[51]
(b) Dr Luckie bought a swing set and a pre-assembled cubby house while living at number 34. He could not recall how the swing set was brought into the property. He recalled that the cubby house was too large to be brought in the house, saying that ‘it had to come in and over the fence’.[52]
(c) Ms Abbott recalled that there was a wooden kind of fence that ran all the way to the back of the property.[53] She did gardening at the rear of the property and recalled putting big armfuls of green waste over the fence into the backyard of number 32.[54]
(d) Mr Barker thought there was a ‘sort of corrugated piece of metal or something’ at the rear blocking it off, but could not remember precisely.
[50] T62.4-7.
[51] T62.27-31.
[52] T65.5-6.
[53]T153.11-19.
[54] T153.24-31.
67The evidence of the defendant and his father, Frank, was at odds as to whether the corrugated iron sheet which the defendant maintained was always there but buried and which he put back “on the same line”, was there since 1985.
(a) Frank said that he and Dimitrakakis Snr made another fence, ‘not with that sheet of corrugated iron’,[55] but with reinforcement and leftover palings.[56] When it was put to him in cross- examination that his son had given evidence that the corrugated iron sheet was always there, Frank said “I didn’t put that [the piece of corrugated iron] in in ‘85”.
(b) The defendant said that the wooden beam that had held up the corrugated iron sheet had rotted, so he used a new wooden beam to lift up the corrugated iron sheet on the same line. In cross-examination, Frank said in respect of a photograph of the same beam, that the beam was the one that he installed in the fork of the tree in 1985.[57] When it was put to Frank that “your son said he replaced the rail because it had rotted”, Frank said “Well, I put one in there back in ’85 in exactly the same position”.
[55] This was a reference to the same sheet of corrugated iron to which the defendant’s attention
was drawn and about which he gave evidence had always been there: at CB 245.
[56] Ibid. Contrary to the evidence in fact given by Frank, Mr Messer put to the plaintiff in cross-examination
that Frank would say that in 1985, the fence was extended using galvanised tin and corrugated iron,
which was denied by the plaintiff. He said “That’s happened since my nephew took possession in 2013.”
[57] T269–270.
68The photographs indicate that the rear of both properties were heavily overgrown. This is consistent with the oral evidence that the back of the properties had been covered in overgrowth for a long period of time.[58] The defendant recalled that, in 2013, the backyard was “really dilapidated, there was so much overgrowth”, and “it was a big job cleaning up the whole backyard”.[59] The defendant agreed that there was a pile of overgrowth on both sides, saying “it was everywhere”.[60] Frank described it as “grossly overgrown”. The photographs show a huge pile of vegetation which appears to run across the rear of both properties between the olive tree and rear boundary wall and fence.[61]
[58] The defendant gave evidence to that effect by reference to the photograph at CB 309.
[59] T166.
[60] T196.19.
[61] CB 241 and 243. Photographs marked as having been taken in 2014.
69It is not possible to discern from the photographs, whether there was a fence between the olive tree and rear boundary, and if so, of what configuration and on what line before 2015, when the defendant cleaned up the back part of number 32:
(a) In a photo marked April/May 2013,[62] it is not possible to see where the trunk of the olive tree is in relation to the paling fence, however the bulk of the tree appears to be to the left of the fence, on number 34 side of the fence. This is consistent with the olive tree being within the boundary of number 34 as claimed by the plaintiff. The defendant agreed this was so:
(Mr Stavris) Do you agree with me that that paling fence again, is to the right of the tree?---(the defendant) Well, I said before I didn't see the trunk so, yeah.
[62] CB 221. Part of the olive tree is also visible in a photograph at CB 235. This photograph was marked
March 2014, a year later.
(b) In a photo marked 25 November 2017 (before the plaintiff moved the fence towards number 32), three rails are visible on the ground. The defendant gave evidence in cross-examination that the rail to the right “looks like it was the beam holding up the bit of tin on this side [number 32’s side] of the olive tree”. This is consistent with the plaintiff’s evidence that the sheet of tin on the north side of the olive tree (which he said was used as a gate) ran to the right of the olive tree.
70The defendant’s evidence that he re-propped the fence using a new wooden beam to lift up the corrugated iron sheet “on the exact same line as the rotted beam” must be considered in the context of the family dispute with the plaintiff. Frank agreed that he had discussions with the defendant about the adverse possession claim, about where the boundaries were and that he told the defendant where the boundaries were. In 1985, the defendant was only 3 years old. He could have no independent recollection of the configuration of the fence and its line in 1985.
71The photos show areas of bare patches consistent with recent movement of the fence line into number 34.[63] I accept Mr Stavris’ submission that it appears that the debris between the olive tree and rear fence was parted for the corrugated iron sheet, and inserted further onto number 34 with the timber beam pushing over the rear paling fence.
[63] CB 250-1.
72Although the defendant explained the bare patches as being the last bit of overgrowth that he cleaned up, I consider the plaintiff’s evidence is consistent with the photographs.
73Further, I am not satisfied that there were no access points in the fence after 1985 as claimed by the defendant. At the very least, there was a gap in the fence for the purpose of passage between number 32 and number 34 from the time Frank and his family moved back into the house until 1988-9.
74When asked in examination-in-chief whether the gap opened up during the renovations was closed up, Frank answered that it was closed at the end of 1985: “Ah, 85, Soon after that, yeah. At the end of ’85”. When asked by Mr Stavris whether he opened an opening later on while he was living there, Frank agreed he did, but said that it was “a very small opening”.[64] In cross-examination, Mr Messer put to the plaintiff that the gap was closed over when the property was let by Frank.[65] Frank gave evidence that he ceased living at number 34 in 1988, and that he rented out the property from that time until he sold it to the plaintiff in 1992.[66]
[64] T298.6-7.
[65] T123.29-30.
[66] T252.16-20.
75The fence is a patchwork that reflects its changing purpose depending on who was living in each house; whether they were family or tenants, and on how the properties were being used. For example, Frank gave evidence that the reason for the construction of that part of the fence between the end of the wooden paling fence and the olive tree in 1985[67] was to stop the defendant, at that stage about 3 years old, from crossing from the backyard of number 34 into the backyard of number 32.
[67] This was a reference to the piece of tin the plaintiff said was used as a gate.
76On the evidence of the nature of the land and the manner in which it was used or enjoyed, I do not consider the fence is evidence of exclusive control of the disputed land by Dimitrakakis Snr against all the world including the true owners. The fence was convenient for the family using number 32 as the family home base. It enhanced the use and enjoyment of the family home, providing a special benefit for Dimitrakakis Snr’s family, including the owners of number 34, his two sons.
77Even if I am wrong and the element of factual possession has been made out, I am not satisfied of an intention to possess on the part of Dimitrakakis Snr for 15 years from 1985, or at all.
Intention to possess (animus possidendi)
78The other element that has to be satisfied is the necessary intention to possess. In many circumstances, enclosure of the disputed land is highly probative evidence of such intention. However, the evidence of enclosure here is, at its highest, equivocal as regards the intention to exclude the true owners. Equivocation arises in the context of the family circumstances as described above.
79On the evidence going back to the 1970s, the creation of the L-shape fence enclosing the garden at the rear of both properties was not, as Mr Messer contended, Dimitrakakis Snr saying ‘this is my land, not yours’,[68] but rather ‘this is our land, not yours’, with the ‘our’ being the Dimitrakakis family and the ‘yours’ being the tenants. It is reasonable to infer that Dimitrakakis Snr did not want tenants who rented number 34 accessing number 32 whenever they wished. However, it is unlikely that Dimitrakakis Snr intended to exercise exclusive possession of the disputed land at the expense of his own children. As I have found above, the fences were not to exclude all others and an inference that Dimitrakakis Snr intended to possess the disputed land ought not be drawn.
[68] T331.25-7.
80Although not pleaded, the defendant relied on other indicia about which evidence was given, to found an inference of intention to possess. These indicia were the covered area, the garden at the rear of number 32 and the storage of bricks and timber on the disputed land. In my view, these indicia are equivocal as to intention:
(a) Dimitrakakis Snr is unlikely to have built the garden and the covered area to possess the area on his own behalf. I accept the plaintiff’s submission that these things were done for the benefit of the whole family. For example, Frank and Theresa could go into the rear of number 32 and use the covered area when they were living at number 34 into the late 1980s.
(b) The storage of bricks and timber on the disputed land takes the analysis no further in light of the family context.[69] The evidence supports a finding that the timber came from properties that were either owned by the Frank and the plaintiff in common, or held on trust by the trustee company of the Dimitrakakis family trust, Rodia Pty Ltd, of which Frank and the plaintiff were both directors.
(i)The defendant said the timber was taken from ‘renovations and things’ on properties that Dimitrakakis Snr and Frank renovated. The defendant agreed that the timber was also from properties owned by the plaintiff: “some of the properties [the plaintiff] is a part owner in, so I think but I don’t think they’re all his, I don’t know”. Frank said the timber came from a number of building projects, including the renovation at number 34, number 32 roof repairs, the property on Chapel Street and the development of other premises, including a property on Bridge Road, which is part owned by the plaintiff and Frank. Frank said that ‘maybe one or two’ timbers came from Bridge Road.
(ii)The plaintiff said the bricks on the disputed land were Frank’s bricks from the renovation of number 34, and that he used them when renovating his property at Kew. Frank denied this, stating that the bricks were from a stable that once stood at the rear of number 34, along its boundary with number 40 and belonged to Dimitrakakis Snr. In the family context, even if the bricks belonged to Dimitrakakis Snr, I do not consider that their storage evinces an intention on the part of Dimitrakakis Snr to possess the disputed land in the relevant sense.
[69] The plaintiff maintained part ownership of the timbers on the basis that they came from jointly owned
properties.
81Mr Messer submitted that the family never turned their minds to where the title boundaries were because they were not aware of the title boundaries.[70] This submission is inconsistent with evidence given by both the plaintiff and Frank:[71]
(a) The plaintiff gave evidence that he had a discussion about title boundaries with his brother Frank at the time he bought number 34 to the effect that it was agreed that the structure “over the easement” (the covered area) was part of the property of number 34. The property was tenanted at the time. The plaintiff said: “Whilst the title of the easement was transferred to me, the property was leased at the time of transfer and continued to be leased till 2019.”
(b) In evidence in chief, Frank denied this conversation. In cross-examination, however, he said he had planned to amend the title before selling number 34, but because the plaintiff bought it, he didn’t think there was a need for it because the plaintiff knew what the title boundaries were.[72]
(Mr Stavris) If it was your father's intention that that was the boundary, why wouldn't you amend the title before you transferred 18 the ownership to Vassilios in 92?---(Frank Dimitrakakis) Well, I was intending to amend the title but, you know, if it - when I was planning to sell it I would've amended the title then sold it. But Vassili bought it, so Vassili bought it so I didn't - I didn't think there was a need for it because he knew what the boundaries were. My father wouldn't take - would tolerate him taking that land, he was quite protective about - about 32…
[70] The plaintiff submitted that if people did not turn their minds to the title boundary, then they could not
have intended to possess the disputed land: at T334.23-5; T337.5-10.
[71] Including Frank’s evidence that Dimitrakakis Snr planted the olive tree on the boundary so that
each house could harvest olives: at T247.2-6.
[72] T258.17-24.
82On Frank’s own evidence, he turned his mind to the title boundaries at the time of transfer to the plaintiff. This tends to support the plaintiff’s evidence of a conversation about title boundaries at the time he bought number 34. I prefer the evidence of the plaintiff and accept that the conversation took place. In these circumstances, the fact that the transfers took place without the certificates of title being amended to give the disputed land to number 32 supports an inference of intention that the boundaries were to remain as they were on the certificates of title.
83During cross-examination, Mr Stavris asked Frank whether Dimitrakakis Snr gifted him number 34 as it was titled.[73] Frank first responded that Dimitrakakis Snr had given him the property as it was fenced.[74] However, when pressed, Frank agreed that Dimitrakakis Snr was not the sort of person that would give him something, only to take it away.[75] Frank said that his father “intended for me to get number 34”.[76]
[73] T259.7-9.
[74] Ibid.
[75] T259.10-16.
[76] Ibid.
84I consider the following description by the plaintiff most likely reflects the true situation:
My father wanted all of us to live alongside him. Have our little Greek village, so to speak, and have all his grandchildren around him with common yards to grow vegetables. And –and that's what we did. Make wine and be supportive of one another. And we were all pretty much that and loving until he died.[77]
[77] T84.18-24.
85In my view, it is more likely than not that the defendant formed the requisite intention to possess the disputed land more recently in the context of the family dispute. Frank agreed that at the time the executrix applied for probate in 2012, she was not aware of an adverse possession claim. It was not mentioned in the Supreme Court proceeding involving the value of the estate assets. The defendant said he did not know about the easement until late 2016 or early 2017, when he engaged Mr Goodison to conduct the survey.
86The onus is on the defendant to prove that his predecessor in title, Dimitrakakis Snr, intended to possess the disputed land. On the balance of probabilities, I do not consider that inference can be drawn.
87The claim of adverse possession of the disputed land fails.
2.Has the easement been abandoned by the plaintiff and his predecessors in title?
Defendant’s submissions
88The defendant contended the easement was abandoned because:
(a) it was not used as of right; and
(b) the plaintiff acquiesced to the existence of the fence such that the disputed land was adversely possessed by the defendant, and the plaintiff could no longer access the easement without trespassing on the defendant’s land.
89The defendant further contended that the easement has become obsolete.[78]
[78] This was not pleaded, but the defendant referred to it in closing submissions. I deal with it in short
compass below.
Easement abandoned because not used as of right
90The defendant’s pleaded case was that for a period in excess of thirty years the carriageway easement over number 32 has not been used as a right of way, or at all. As a consequence, the plaintiff and his predecessors in title abandoned the easement.[79]
[79] Defence and Counterclaim, 5(a)-(b).
91In closing submissions, Mr Messer contended that for the easement to have been relevantly used, it must have been used ‘as of right’, and that use by permission is not the exercise of an easement right. To support this submission, Mr Messer referred to:
(a) several authorities relating to the common law definition of ‘enjoyment as of right’. One such case is Tickle v Brown,[80] in which Lord Denman said the following:
It seems, therefore, that ‘enjoyment as of right’ must mean an enjoyment had, not secretly or by stealth, or by tacit sufferance, or by permission asked from time to time, on each occasion or even on many occasions of using it; but an enjoyment had openly, notoriously; without particular leave at the time, by a person claiming to use it without danger of being treated as a trespasser, as a matter of right…[81]
[80] (1836) 111 ER 826.
[81]Ibid 831; See also Wilson v Campbell (Supreme Court of Tasmania, Underwood J, 29 October 1997).
(b) the Twelfth Schedule of the Transfer of Land Act 1958 (Vic) (TLA), which describes an easement of carriageway as consisting of a full and free right and liberty to enter upon the affected land.
92Mr Messer contended there is no evidence of use of the easement ‘as of right’ by those occupying number 34 since 1985. The plaintiff’s tenants, Dr Luckie, Mr Barker and Ms Abbott all used the easement with the permission of the plaintiff. The tenants were unable to access the easement as of right because of the gate spanning the driveway, which was locked.
93Even if the plaintiff used the easement as of right, any rights that he exercised were as an occupant of number 32 rather than as the owner of number 34. As a consequence, the plaintiff’s use of the easement does not count on the question whether the easement had been used for the benefit of number 34 as of right.
Easement abandoned because plaintiff could no longer access it
94Mr Messer submitted that as the disputed land has been adversely possessed, the dominant tenement has been altered so as to make the plaintiff incapable of benefitting from the easement ever again. The plaintiff took no steps to assert his ownership of the disputed land, and made no attempt to relocate the fence.[82] The plaintiff became the registered proprietor in 1992, accepted the title boundaries as they were for decades, took no action and lost his title to the disputed land and has now lost his ability to access the easement.
[82] Until 2017.
95Even if the plaintiff were to construct a gate or remove a section of fencing, it would open up onto land that the plaintiff has no right to access.[83] The fact that the dominant tenement has been altered indicates that the plaintiff intended to abandon the easement.
[83]The defendant sought to distinguish the facts in this case from those in Bookville v O’Loghlen [2007]
VSC 67. I discuss this in further detail below.
Easement has become obsolete
96Mr Messer contended the easement has been rendered obsolete:
(a) If the claim for adverse possession is made out, then the plaintiff will have lost the ability to use the disputed land as of right, thereby rendering the easement obsolete;
(b) The easement was created in 1915, a time when there were no motor vehicles in Richmond, and it was not intended for use by motor vehicles; and
(c) The easement has not been used as an easement of carriageway for decades. Overwhelmingly, the uses to which it has been put are inconsistent with the nature of an easement, adding that the right to store vehicles, bricks and timber over weeks, months or years is not the proper subject matter of an easement.[84]
[84] Copeland v Greenhalf [1952] 1 All ER 809 (Copeland).
Plaintiff’s submissions
97The plaintiff contended that neither he nor his predecessors in title abandoned the easement. There is no basis to infer the plaintiff intended to abandon the easement. Both the plaintiff and his tenants used the easement.
98The purpose of the gate was not to exclude the plaintiff or his tenants from the easement, but to stop drug users from coming up the driveway, using the services and breaking into the properties.[85] The gate was not locked, but could only be opened from the inside. The plaintiff could open the gate to access the easement at any time, and he would frequently drive down the easement to park and store the car while he was overseas.
[85] T105-6.
99The plaintiff disputed the defendant’s argument about the capacity in which he used the easement, but said that even if it was correct, he used the easement in his capacity as registered proprietor of number 34 to access his roof and carry out repairs.
100The proposition that the easement was obsolete, which was made by the defendant in closing submissions, was never put to the plaintiff.
Legal principles
Transfer of Land Act 1958 (Vic)
101Section 72 of the TLA relates to the notification of easements in the Register. Section 72(1) reads as follows:
(1)A folio of the Register may contain a recording to the effect that the land therein described is subject to or has appurtenant thereto an easement.
102Section 72(3) deals specifically with a right of carriage-way. It states that:
(3)When in any folio of the Register or instrument an easement is referred to or created or reserved by the use of the words "Together with [or Reserving] a right of carriage-way over" [specifying the roads subject to the easement and referring to a map or plan of subdivision] such words shall have the same effect and shall be construed as if the words contained in the Twelfth Schedule had been inserted in the folio of the Register or instrument.
103The Twelfth Schedule – right of carriage-way reads as follows:
Together with full and free right and liberty to and for the registered proprietor for the time being of the land herein described [or hereby transferred or as the case may be] or any part thereof and his tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated [and coloured brown] on the said map [or plan of subdivision].
Abandonment of easements at common law
104The question whether an owner, or any of their predecessors in title, have abandoned an easement of carriageway over a laneway is dealt with in Bookville Pty Ltd v O’Loghlen,[86] in which the common law principles relating to abandonment are conveniently summarised:
· At common law, the abandonment of an easement depends on the intention of the dominant tenement.[87] Abandonment is a question of intention of either the owner of the dominant tenement, or one or more of the predecessors of the owner of the dominant tenement.[88] In order to establish abandonment, it must be proven that the owner of the dominant tenement, or their predecessor in title, intended forever to forego the rights provided by the easement, and not to assert them again.[89]
· The relevant intention of the owner of the dominant tenement is generally derived from all the facts and circumstances of the case by a process of inference.[90] Each case depends on its own facts.[91]
· It is well-established that mere non-user of an easement, even for a lengthy period of time, is not conclusive evidence of abandonment of a right of way, although it may be evidence of abandonment.[92] Non-user, even for a very long time, will generally not provide by itself sufficient evidence of an intention to abandon.[93]
· Abandonment of an easement can only be treated as having taken place where the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else.[94]
· The onus of establishing abandonment of an easement lies on the party asserting abandonment.[95]
· Once an easement has been abandoned, it is abandoned forever.[96]
· The cases show how hard it is to establish abandonment notwithstanding what might appear to a layperson to be a strong case for abandonment.[97] A Court will not lightly infer abandonment by the owner of the dominant tenement.[98] An inference of abandonment is not lightly drawn.[99] An easement is a valuable right over a property.[100] As the authorities state, in order that abandonment be established, the plaintiff must prove that the defendant intended forever to forego his rights over the laneway.[101]
[86] [2007] VSC 67. This case was heard by Kaye J in the first instance. The plaintiff appealed the decision.
The appeal (Bookville Pty Ltd v Ross Brendan O’Loghlen [2008] VSCA 27) was heard by Buchanan, Dodds-Streeton JJA and Pagone AJA. To distinguish between the decisions, I refer to them as Bookville (trial) and Bookville (appeal) respectively.
[87] Bookville (trial), [15].
[88] Ibid.
[89] Ibid [17].
[90] Ibid.
[91] Ibid [18].
[92] Ibid [16].
[93] Ibid [16].
[94] Ibid [17]. See also Tehidy Minerals Limited v Norman [1971] 2 QB 528 at 553.
[95] Ibid [18].
[96] Ibid [15].
[97] Ibid [18]. See also Shelmerdine v Ringen Pty Ltd [1993] 1 VR 315 at 339.
[98] Ibid [20].
[99] Ibid [31].
[100] Ibid.
[101] Ibid [31].
Analysis
105I am not satisfied the easement has been abandoned. In my judgment, the defendant has failed to prove that the owner of the dominant tenement, the plaintiff, intended forever to forego the rights provided by the easement, and not to assert them again.[102]
[102] Counsel for the defendant conceded that he could not rely on any argument that the plaintiff’s
predecessors had abandoned the easement because, at the time the plaintiff became the registered
proprietor of number 34, the easement was still recorded on the certificate of title.
Easement abandoned because not used as of right
106I am satisfied that the easement was used. For example:
(a) The plaintiff used the easement to renovate and repair number 34. In 2000 he repainted number 34, accessing the property via the easement.[103] In 2003, the plaintiff repaired the roof and gutters on number 34, recalling that he stored and moved materials via the easement.[104] This evidence was not challenged by the defendant. The plaintiff used the easement to move his car in and out of number 32 from time to time.[105]
(b) Dr Luckie parked in the driveway in front of the green gate.
(c) Mr Barker,[106] although he could not ‘totally’ recall, thought he could access the back of number 34 from the lane because he recalled getting green waste out of the back of the house into a car he rented using the ‘alleyway’. His co-tenant, Ms Abbott, owned a car, which she parked in the driveway ‘more often than not’ when the plaintiff was away.
(d) Ms Abbott said the driveway was her regular parking space for a number of years, with the permission of the plaintiff.
[103] Affidavit of Vassilios Dimitrakakis, [24].
[104] Ibid [25].
[105] Mr Cherry, a family friend, gave evidence of helping the plaintiff move his car in and out of number 32
using the driveway.
[106] Mr Barker lived at number 34 between 2010 and 2014.
107I reject the defendant’s contention that any use of the easement must have been ‘as of right’ and an intention to abandon may be inferred from the fact that the easement was not used ‘as of right’. The authorities Mr Messer relied on relate to easements acquired by prescription and do not focus on the question of use or non-use of a registered easement for the purpose of determining whether the registered easement has been abandoned.[107] The question is not whether an easement can be found where none previously existed, but whether the easement that already exists has been abandoned.
[107]The principle of use as of right is discussed in Anderson & Anor v City of Stonnington & Anor [2016] VSC 374, [48], where McMillan J, citing an article by Peter Butt, describes it as “central to the Australian law of prescriptive easements”.
108Even if I were to accept that use ‘as of right’ is required in this case, the plaintiff himself, as registered proprietor, had full and free access to the easement. I consider that, in giving permission to his tenants to use the easement, the plaintiff exercised those rights as contemplated by the Twelfth Schedule.
109Mr Messer could not take the court to any authorities that address the question of ‘capacity’ in the context of his submission that any use by the plaintiff was as the occupier of number 32. Rather, he contended it was a matter of logic. Even if I was to accept this argument, the evidence discloses that the plaintiff used the easement to perform repairs and maintenance on number 34, his own property.[108]
[108] Affidavit of Vassilios Dimitrakakis, [24] - [25].
110The plaintiff used the driveway. The plaintiff is the registered proprietor of number 34. The Twelfth Schedule grants the registered proprietor a right of carriageway. The plaintiff’s use of the driveway demonstrates the plaintiff had no intention of abandoning the easement.[109]
[109] Even if I am wrong on the question of use, Buchanan JA notes in Bookville (appeal) that “failure
to use an easement alone will rarely determine the question of abandonment. Use or non-use of an easement should not be considered in isolation. It is a circumstance to be weighed in conjunction with all other matters from which the intention of the proprietor of the dominant tenement may be inferred”: at [14].
111The defendant’s argument that the plaintiff abandoned the easement because he did not use it as of right must fail.
Intention to abandon because plaintiff could no longer access the easement
112Given my findings in relation to adverse possession, the defendant’s contention that an intention to abandon the easement can be inferred from the plaintiff’s acquiescence to the fence and subsequent inability to access it from number 34 (which proceeds on the basis that the disputed land was adversely possessed) must fail.
113If I am wrong on the question of adverse possession, I am not persuaded that the plaintiff’s acquiescence to the fence, such that it was, indicates an intention to abandon the easement. As Kaye J stated in Bookville (trial), the continued existence of a physical barrier such as a fence is not evidence of an irrevocable decision by a person never to utilise an easement, since that person can choose to make a hole or create a doorway through the physical barrier. The fact that the plaintiff never did so is irrelevant. What matters is that the plaintiff was capable of doing so.[110]
[110] Bookville (trial). Kaye J held that “at all times the owner of the dominant tenement had in his or her
own hands the capacity to insert an opening in the north wall of the garage, and thereby to regain access to the laneway”: at [24].
114On the assumption the disputed land was adversely possessed, I reject the defendant’s argument that this indicates an intention by the plaintiff to abandon the easement because he could not access it without crossing the ‘adversely possessed’ portion of number 32.
115Mr Messer relied on the following paragraph from Buchanan JA’s judgment in Bookville (appeal):
It is, however, one thing for the owner of the dominant tenement to put or leave in place an obstruction which he can readily remove. It is another to alter the dominant tenement so as to make the owner incapable ever again of benefiting from an easement. The former is generally insufficient to disclose an intention to abandon an easement.[111]
[111] Bookville (appeal), [13].
116I do not consider that Buchanan JA’s obiter passage is apposite in these circumstances. In Bookville, there was a single easement over the entire laneway. Here, there are two easements. If, contrary to my finding, the disputed land was adversely possessed by 2000 such that the plaintiff’s title to it was extinguished and ownership had passed to the defendant, the ‘owner’ of the disputed land would be the defendant, not the plaintiff. That the land was adversely possessed by the defendant could say nothing about the intention of the plaintiff in respect of the easement.
The easement has become obsolete
117Although not pleaded, the defendant argued that the carriageway easement is obsolete. I reject this submission.
(a) For reasons I have already stated, I am not satisfied that the land has been adversely possessed such that the plaintiff is unable to access the easement. This is fatal to the defendant’s first argument.
(b) The defendant’s second argument, that the easement is obsolete because of the shift from horse-drawn vehicles to motor vehicles, is contrary to authority. The Twelfth Schedule of the TLA reads as follows:
Together with full and free right and liberty to and for the registered proprietor for the time being of the land herein described [or hereby transferred or as the case may be] or any part thereof and his tenants servants agents workmen and visitors to go pass and repass at all times hereafter and for all purposes and either with or without horses or other animals carts or other carriages into and out of and from the said land or any part thereof through over and along the road or way or several roads or ways delineated [and coloured brown] on the said map [or plan of subdivision] (my emphasis).
The words cart and carriage have been interpreted to include motor vehicles as well as horse-drawn vehicles.[112] Accordingly, I do not consider the easement has become obsolete on the grounds that it was initially designed for horses and horse-drawn vehicles.
(c) I reject the defendant’s third argument, that the easement is obsolete because the uses to which it has been put are inconsistent with the nature of an easement. The case the defendant relied upon to support this argument, Copeland v Greenhalf,[113] is concerned with the question of a right arising by prescription in circumstances where the right claimed was found to be too wide and ill-defined in nature to constitute an easement.[114] This case is distinguishable. There is an existing registered easement. The evidence of use of the registered easement highlights that it is not obsolete. This includes the uncontested evidence that services for number 34 are located in the driveway. The gas meter, the water meter and supply plumbing and sewer are within the driveway and continue to service the property. I accept the plaintiff’s submission that access to the easement is necessary for the upkeep of number 34.
3.Has the plaintiff acquired an easement by reason of the doctrine of lost modern grant as alleged in paragraph 9 of the amended Statement of Claim?
[112] Attorney-General v Hodgson [1922] 2 CH 429, 438; Lock v Abercester [1939] Ch 861, 864.
[113] [1952] 1 All ER 809
[114]Per Upjohn J in Copeland, 813: “I say nothing, of course, as to the creation of such rights by deeds or by covenant; I am dealing solely with the question of a right arising by prescription”.
Plaintiff’s submissions
118The plaintiff submitted that if the disputed land has been adversely possessed by number 32, he and his tenants have peaceably, openly and without permission from the defendant’s predecessor in title for a continuous period of at least 20 years since 1985 used the disputed land for the purposes of:
(i)ingress and egress between the rear of number 34 and Smith Street at the front by foot across the whole of the disputed land for the purposes of removing rubbish, garden waste and other items from the rear of number 34; and/or
(ii)ingress and egress between Smith Street at the front and the gates across the road with or without vehicles in connection with cars parked on the road by the plaintiff or his tenants; and/or
(iii)the eave on the house at Number 34 projecting or overhanging the disputed land; and/or
(iv)the temporary storage of timber and other items on the part of the disputed land between the edge of the road and the wall of the house on Number 34 and/or on the part of the disputed land under the eave of the house at Number 34 that projects over the disputed land.
119For this reason, the plaintiff submitted that he has the benefit of the following easements by way of grants that have been lost for the reasonable use and enjoyment of number 34:
(i)a footway easement over the whole of the disputed land for ingress and egress between Smith Street and the rear of number 34; and/or
(ii)a carriageway easement over the part of the disputed land between Smith Street and the gate across the road for ingress and egress from Smith Street with or without vehicles; and/or
(iii)an easement of eave for the part of the airspace in the disputed land in which the eave of the house at number 34 projects or overhangs; and/or
(iv)a storage easement for the temporary storage of timber and other items between the edge of the road and the wall of the house on number 34 and/or under the eave of the house projecting over the disputed land.
120These easements are in addition to the registered carriageway easement over the part of the road on number 32.[115]
[115] Amended Statement of Claim, 9(b).
Defendant’s submissions
121The defendant submitted that the plaintiff’s attempt to call in aid the doctrine of lost modern grant should be refused. There has been no ‘as of right’ use of the easement by those in occupation of number 34. At best, there has been limited use of the land included within the easement with the full knowledge and permission of the owner of number 32.
Legal principles
122The principles related to the doctrine of lost modern grant were set out in Sunshine Retail Investments Pty Ltd v Wullf & Ors.[116] In that case, Hedigan J stated the following:
75. There is not much doubt about, nor indeed was there much dispute between the parties, about the general legal principles that must apply for an easement of way to arise pursuant to the doctrine of the lost modern grant. It is conceded by the developer that the doctrine of the lost modern grant applies in the State of Victoria to land registered under the Transfer of Land Act 1958. See Nelson v Hughes 1947 VLR 227. It was accepted that there must be established uninterrupted enjoyment of the right-of-way for in excess of 20 years ‘as of right’. The use or enjoyment of the right-of-way must be, as generations of law students were taught, ‘nec vi, nec clam, nec precario’, that is without force, without secrecy and without permission. See Megarry and Wade Law of Real Property, 5th ed. at 870, citing the authorities in support of that precept. However, it is just as much part of the necessary state of satisfaction of the Court that acquiescence by the servient owner in the use of the land must be established, that is, the claimants must not only prove their user but raise circumstances which show that the servient owner acquiesced in that user. I have expressed that language neutrally because there is a dispute between the parties, that is between the claimant and the servient owner, as to who has the burden of proof of these matters.
76. The five elements of which the Court must be satisfied, either by direct evidence or by inference, do not seem to be in dispute in this case either, a matter which does not surprise as the principles have been pronounced in countless cases from Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 786. The elements of which the Court must be satisfied are the following:
(1) the doing of an act by a person or persons upon the land of another;
(2) the absence of right to do that act in the person doing it;
(3) the knowledge of the person affected by it that the act is done;
(4) the power of the person affected by the act to prevent it, either by an act on his own part or by action in the courts;
(5) the abstinence by that person from interference of such a length of time which renders it reasonable for the Court to say that it shall not afterwards interfere to stop the act being done.[117]
[116] [1999] VSC 415.
[117] Ibid [75]–[76].
Analysis
123I have already found that the disputed land was not adversely possessed by the defendant. However, if I am wrong, I am not satisfied that the easements sought by reason of the doctrine of lost modern grant have been created because I am not satisfied that element 2 has been proven.
124If the disputed land was adversely possessed by 2000 as asserted by the defendant, then the absence of the right to use the disputed land crystallised in 2000 and the disputed land was used in the absence of a right to do so, for only 13 years, not the required 20 years.[118]
[118] Affidavit of Vassilios Dimitrakakis. In 2013, the plaintiff was evicted from number 32 and prevented from
having access to the disputed land by the defendant: at [32].
Injunction
125The plaintiff seeks an injunction, both interlocutory and permanent, restraining the defendant from:
(a) preventing or interfering unreasonably with the plaintiff utilising the whole of the driveway for the purposes of a carriageway; and
(b) trespassing upon the land described as number 34 for purposes other than utilising the driveway as a carriageway.[119]
[119] Amended Statement of Claim, 5. Subparagraph (aa), which was pleaded alternatively to (a),
sought an injunction restraining the defendant, by his servants, agents or howsoever otherwise from
preventing or unreasonably interfering with the plaintiff’s use of number 32’s half of the driveway for the purposes of a carriageway or easements arising pursuant to the doctrine of lost modern grant. It is pleaded in the event of my finding that the disputed land was adversely possessed. Having found that the disputed land was not adversely possessed, it is unnecessary for me to consider subparagraph (aa).
126Mr Messer submitted that if the plaintiff is found not to have abandoned the easement, I should, in the exercise of my discretion, decline to grant an injunction sought. In summary, Mr Messer contended that given the configuration of number 32 for the best part of half a century, it would cause extraordinary hardship to the defendant to have to relinquish possession of the disputed land and, he submitted, build a fence on the title boundary.[120]
[120] Mr Stavris contended that the practical outcome would be to build a fence running along each side of
the driveway, leaving the easement open: at T367.
Legal principles
127The defendant referred to Jessica Estates v Lennard Pty Ltd,[121] in which the question was whether an injunction should be granted in respect of a breach of covenant. In relation to the discretionary factors attending the grant of injunctive relief, Brereton J made the following observation:
Factors relevant to the exercise of the court’s discretion in this respect include the defendant’s knowledge of the wrongful nature of his acts; whether the defendant has hastened the completion of the wrongful acts so as to steal a march on the court (or the plaintiff); the hardship which would be caused to the plaintiff by the refusal of an injunction; the hardship which would be caused to the defendant by the grant of an injunction; and the extent to which the injuries suffered by the plaintiff are compensable by an award for damages. The normal remedy for a threatened or actual breach of a restrictive covenant is an injunction, and the court’s power to award damages in lieu of an injunction is discretionary and exercised with caution. Ordinarily, damages may be a sufficient remedy, only if (1) the injury to the plaintiff’s legal rights is small, and (2) is one which is capable of being estimated in money, and (3) is one which can be adequately compensated by a small money payment, and (4) the case is one in which it would be oppressive to the defendant to grant an injunction. (case citations omitted).[122]
[121] [2007] NSWSC 1434 (Jessica Estates). See also Break Fast Investments v PCH Melbourne (2007) 20
VLR 311 (Break Fast Investments).
[122] Jessica Estates, [22].
Analysis and conclusion
128Having regard to the factors set out by Brereton J, I consider the injunction sought by the plaintiff should be granted.
129For reasons I have already explained:
(a) I do not regard the easement as obsolete as set out above. Any prejudice to the defendant, and to his tenants, from opening up the easement is not out of all proportion to any harm suffered by the plaintiff if access to the easement were not opened up;
(b) The defendant’s assertion that number 34 has been used by its occupants for decades without access to the easement is not supported by the evidence;
(c) The defendant’s submission that there has been laches, acquiescence and delay on the part of the plaintiff is also not supported by the evidence, in particular in light of the evidence of family ownership and use of the properties; and
(d) The defendant’s argument that the plaintiff took no steps to move the fence or enforce access to the easement until the commencement of this proceeding is not supported by the evidence.[123]
[123] Affidavit of Vassilios Dimitrakakis, [40]–[43].
130I consider that the plaintiff is prima facie entitled to the injunction he seeks.[124] Mr Messer did not argue that damages be awarded instead of an injunction restraining the defendant from interfering with the plaintiff’s use of the driveway.[125]
[124] Break Fast Investments, [36], [39]-[41], [72].
[125] I would not have considered damages in place of injunctive relief to be appropriate in this case.
Conclusion
131Judgment for the plaintiff.
132The court makes the following declarations:
(a) the plaintiff is the owner of the whole of the disputed land including that part of the carriageway easement being part of the land described in Certificate of Title Volume 3930 Folio 991;
(b) the defendant has not acquired a title by possession to the disputed land or any part of the dispute land;
(c) the plaintiff has not abandoned the carriageway easement appurtenant to the land described in Certificate of Title Volume 3930 Folio 991.
133I propose to order that the defendant, by his servants, agents or howsoever otherwise, is restrained from preventing or interfering unreasonably with the plaintiff utilising the whole of the road for the purpose of a carriageway. Before making any final orders, I shall seek submissions of counsel as to the precise wording of the injunction.
134Subject to any matters that the parties bring to my attention on the question of costs, I propose to order that the defendant pays the plaintiff’s costs of the proceeding (including reserved costs) on the standard basis, in default of agreement.
135I invite the parties to prepare draft orders to give effect to these reasons.
136If the parties are unable to agree upon the form of order, those minutes of order should be accompanied by short submissions directed to the matters remaining in issue.
- - -
Certificate
I certify that these 136 paragraphs are a true copy of the judgment of Her Honour Judge Brimer delivered on 19 July 2021.
Dated: 19 July 2021
Ilias Tsirogiannis
Associate to Her Honour Judge Brimer
Appendix – Certificates of Title
Figure 1 – Certificate of Title – 34 Smith Street
Figure 2 – Certificate of Title – 32 Smith Street
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