DPP v Zierk
[2008] VSC 194
•30 May 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7848 of 2007
| ZELJKO GLAVINIC | Plaintiff |
| v | |
| NIKOLAOS PATSIOS, ESTHER PATSIOS and THE REGISTRAR OF TITLES | Defendants |
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22, 26, 27, 28 AND 29 MAY 2008 | |
DATE OF JUDGMENT: | 29 MAY 2008 | |
CASE MAY BE CITED AS: | GLAVINIC v PATSIOS &ORS | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 194 | |
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Real Property – Claim for title by possession – Dispute about the correct title boundary - Discontinuance of earlier proceeding between the same parties –Whether there was any compromise of the earlier proceeding, and if so, whether it was breached - Whether concession made during the earlier proceeding gave rise to an estoppel – Registrar not satisfied that title acquired by possession - Exercise of Registrar’s discretion independent of any agreement or expectation of the parties - Whether an abuse of process – Transfer of Land Act 1958, ss.60, 61 and 62.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Dennis | Richard Desmond, Solicitor |
| For the First and Second Defendants | In person | |
| For the Third Defendant | Mr W. Rimmer | John Cain, Victorian Government Solicitor |
HIS HONOUR:
The parties to this litigation (I exclude for present purposes the third defendant, the Registrar of Titles) are neighbours in Lancaster Street, East Bentleigh. The plaintiff is the owner of number 49, lot 102; the defendants the owners of number 47, lot 101. As is not uncommon amongst those who live next door to each other, differences have arisen about the reconstruction of the fence which once separated the two properties and which is now in a state of disrepair. Those differences were in this case exacerbated by problems which arose when the plaintiff sought to subdivide his property, and when the time came to fix the position of the reconstructed fence (and hence the true position of the plaintiff's southern boundary, that also being the northern boundary of the defendants' property). The plaintiff's subdivision incorporated a driveway which was so close to his southern boundary as to call into question whether it could be constructed to the planning authority's satisfaction within the curtilage of his land.
Some time before the plaintiff assumed ownership of his land, the fence separating that land from the property of the defendants had been positioned to the south of what is now established as the true position of the plaintiff's southern boundary. As a consequence, the plaintiff applied to the Registrar of Titles pursuant to s.60 of the Transfer of Land Act1958. So far as is presently relevant, that section provides in sub-s.(1) as follows:
A person who claims that he has acquired a title by possession to land which is under this Act may apply to the Registrar in writing ... for an order vesting the land in him for an estate in fee simple or other the estate claimed.
The section then proceeds to prescribe the giving of notice, by way of advertisement and otherwise, to persons who might be interested in the land the subject of the claim. Then by sub‑s.(4), it provides:
The Registrar shall appoint a period of not less than 21 days from publication of the advertisement or service of the notice after the expiration of which he may, unless a caveat is lodged as hereinafter provided, grant the application altogether or in part.
…
The purpose of the process of advertising is of course to enable a person who might wish to claim an interest in the land the subject of an application for title by possession to be made aware that an application which is adverse to that interest has been made. That person may then pursue his or her own claim and the rival positions can be the subject of such adjudication as is necessary to resolve them.
The defendants, having been made aware of the plaintiff's application, lodged a caveat pursuant to s.61 of the Act. Its effect was to prevent the Registrar from granting the plaintiff's application until the dispute between the neighbours to which the application gave expression was resolved. It is clear from ss.60 and 61 that the Registrar is not to determine any application for title by possession until the statutory processes have been exhausted.
If further confirmation of that proposition were needed, it is supplied by s.62. That section provides by sub‑s.(1), and so far as is presently relevant, that:
Subject to this Act after the expiration of the period appointed the Registrar if satisfied that the applicant has acquired a title by possession to the land may make an order vesting the land in the applicant ... .
It will be seen that there are two necessary preconditions for the exercise by the Registrar of the discretion given to him or her by the legislation to grant an application of the kind made by the plaintiff. First, the period appointed by the Registrar pursuant to sub‑s.(4) of s.60 must have expired; secondly, the Registrar must be satisfied that the applicant has acquired a title by possession.
The caveat lodged by the defendants was, by s.26R(6) of the Act, deemed to have lapsed after the expiration of 30 days of its lodgement, unless within that time the defendants commenced proceedings in a court of competent jurisdiction. The defendants issued a writ in this court accordingly. But then, as I find, they perceived (I think with justification) that the difficulty and expense of contested litigation was not proportionate to the issues at stake.
In this respect, I refer to the judgment of Smith J pronounced in proceeding No. 8430 of 2003 in which the present plaintiff was first defendant and the present defendants were plaintiffs:
In that situation, the plaintiffs acted reasonably in appreciating the commercial futility of proceeding any further with the matter and in trying to end the litigation by offering the first defendant [that is, the present plaintiff] what he wanted but on terms that each side bear their own costs.[1]
[1]Patsios v Galvinic [2005] VSC 92 at [48]
The plaintiff's claim was for all the land between the fenceline and the southern boundary of his property, but the area of that claim varied according to the correct view of the position of the boundary. According to surveys which adopted as their starting point a point in the nearest road to the north, Molden Street, the eastern extremity of the relevant boundary is 0.02 metres north of the eastern extremity of the boundary as determined if the commencement point of the survey is a point in an unnamed street to the south.
The plaintiff originally claimed all the land between the fenceline and the more northerly boundary. The area of that claim was some 14 square metres. It appears, however, that the fencing contractors who placed fences on what were at the time thought to be the true boundaries of properties facing Lancaster Street, took as their starting point not the point in Molden Street, but the point in the unnamed street to the south. Buildings were constructed and other works effected on the basis of the property dimensions and boundary positions determined in this way.
The surveyors involved in doing the survey work that was made necessary by the issues which have arisen in this case now accept, as I understand it, that for this reason (if not for others as well) it is the point in the unnamed street that should be taken as the starting point. Once that is accepted, the eastern extremity of the boundary between lots 101 and 102 is 30.48 metres to the north of that point. An area of some 5 square metres then falls between the fenceline of the present dilapidated fence and that boundary. It is that area to which for some time now the plaintiff has restricted his claim.
Once the present defendants had perceived that the difficulty and expense of contesting by litigation the issues between them and the present plaintiff were disproportionate to the issues at stake, they made an offer to him. That offer was contained in a letter from their then solicitors to the plaintiff's then solicitors dated 6 April 2005. The terms of the offer are set out at paragraph 22 of the plaintiff's affidavit of 5 September 2007. In that paragraph the plaintiff says this:
On or about 6 April 2005 I received a letter from the [then] plaintiffs’ solicitors Macpherson & Kelley offering to settle the proceeding on the following terms: 1, that I be permitted to retain the land the subject of the proceeding described in [a certain survey]; 2, the current boundary to be demolished and a wooden paling fence to a height of 1.9 metres be erected along the same fenceline with the palings facing towards the defendants' property and each party pay half the costs of the fence; 3, each party bear their own costs of the proceeding and the Fences Act complaint in the Magistrates' Court; 4, the defendants discontinue both the Supreme Court and the Magistrates' Court proceeding.
I interpolate to repeat that the then plaintiffs are the present defendants and the then first defendant is the present plaintiff.
By paragraph 23 of his affidavit, the plaintiff swears that he did not accept the offer of 6 April 2005; and he did not do so because he believed that because the defendants (that is, the then plaintiffs) wanted to discontinue their claim, they should pay his costs. There is evidence that not only did the plaintiff believe that his costs should be paid by the present defendants, but that those costs should be paid on an indemnity basis.
Once the defendants' offer as set out in paragraph 22 of the present plaintiff's affidavit had been rejected by him, negotiations effectively ceased. Having made the offer, and the offer having been rejected, the defendants then sought to discontinue their proceeding on the basis to which I have already referred, that is, that it was not a claim that was proportionate to the issues at stake.
The question of the costs of discontinuance then arose. When the application for leave to discontinue came before Master Evans, he ordered that the present defendants have leave to discontinue their then proceeding and that the present plaintiff pay their costs. That order was the subject of an appeal which was heard by Smith J. His Honour upheld the Master's order and ordered in addition that the present plaintiff pay the costs of the appeal.
It has been submitted in this proceeding on behalf of the plaintiff by Mr Dennis, that in deciding the appeal as he did, Smith J must have been influenced by what Mr Dennis described as a concession given by the barrister then acting for the present defendants on the appeal. The relevant passages of the transcript are in evidence before me. One passage in particular seems to me to be significant. Counsel for the present defendants said to Smith J:
My instructions are, and in essence I am projecting, forecasting myself ahead, what would occur here. The plaintiffs' view [and I interpolate to say that the reference is to the view of the present defendants] is that if the proceeding is to be discontinued that the Titles Office will then proceed to make a determination as to where the title boundary should be.
It seems to me that in saying what he did to Smith J, counsel for the present defendants was saying no more than that he was projecting, or forecasting, or predicting, what the likely outcome of the application - which would then go back to the Registrar - would be. The word "concession" was later used by that counsel. In my opinion, his use of that word must be seen in its proper context, and in my opinion that proper context includes the passage to which I have just referred.
I do not accept that in using the word "concession" counsel for the present defendants was intending to formally put before his Honour that the present defendants would actively support the present plaintiff's application to the Registrar, although I do accept that by using the word "concede" or the word "concession", counsel did give the present plaintiff reason to believe that his application for title by possession would be granted by the Registrar without opposition from the present defendants.
The plaintiff's belief, as I have just outlined it, was disappointed when the matter returned to the Registrar following the discontinuance of the present defendants' then proceeding after they had been given leave to discontinue.
As I understand the position of the present defendants, it is that they responded to communications from the Registrar concerning the present plaintiff's application. In their response they indicated their opposition to the granting of the application. In the result, having received communications from both the present plaintiff and the defendants, and having read the reasons of Smith J on the appeal from the Master, the Registrar determined that the application for title by possession should not be granted. The Registrar, I accept, made that determination because the Registrar was not satisfied in the terms required by s.62 that the applicant had acquired a title by possession. That being the case, one of the preconditions for the grant of the application was not satisfied.
In those circumstances, the proper application of the legislation is in my opinion clear: the Registrar is not in a position to grant, and cannot lawfully grant, the application. I repeat that the application for title by possession can only be granted by the Registrar if the Registrar is satisfied that the applicant has acquired a title by possession. In the absence of such satisfaction, the Registrar has no discretion; the application must be refused.
If I am right about that, then the effect of any so‑called concession made before Smith J would not be to remove from the Registrar the obligation to determine for himself or herself whether or not an application for title by possession had been made out. The concession might be a factor which the Registrar might take into account, although that would be a matter for the Registrar in a particular case. The important point is whether or not the Registrar is satisfied in the terms of s.62. I repeat that in the absence of such satisfaction, the Registrar has no option but to refuse to grant the application.
In the light of those observations I turn to the relief which the present plaintiff seeks on his originating motion issued on 14 August 2007.
The first substantive head of relief is set out in paragraph 4 of that originating motion. By paragraph 4 the plaintiff seeks a declaration that in order to obtain leave to discontinue proceeding No. 8430 of 2003 (that is, the proceeding which went before Smith J on appeal) the first and second defendants compromised their claim in that proceeding by agreeing to the area of land marked “A” on the plan of survey prepared by Peter J Rickard on 22 May 2003 vesting that land in the plaintiff.
For the reasons I hope I have made clear, there was no agreement by which the defendants were bound to accept that the relevant land had vested in the plaintiff. Indeed, as I understood him, Mr Dennis did not press the proposition that an agreement had been reached between the parties once the plaintiff had rejected the offer made by the letter of 6 April 2005.
The second relevant head of relief sought by the originating motion is a declaration that the first and second defendants have breached a term of a compromise by subsequently opposing the making of a vesting order in respect of the land described in the originating motion as "area A". For the reasons I have given, there was no compromise, and accordingly there could be no breach of any compromise; and it follows that the declaration sought by this paragraph of the originating motion should not be granted.
The next head of relief is that a declaration be made to the effect that an estoppel has arisen upon which the plaintiff can rely. The argument is, first, that by reason of the representations made, or said to have been made, by the first and second defendants to Smith J, they had conceded the land described as "area A" to the plaintiff. Then, by the “concession” made in order to obtain leave to discontinue the action, and by the grant of leave on 31 May 2005 to so discontinue, and by the discontinuance of the action by the first and second defendants by filing notice of discontinuance on 21 July 2006, the plaintiff was misled into making the subsequent payment by him to the first and second defendants of the sum of $22,000 as the costs of the appeal. The plaintiff had thus acted to his detriment in reliance on the representations and the compromise, and the defendants are estopped from denying the entitlement of the plaintiff to be registered as the proprietor of the area “A” land.
In my opinion, that declaration cannot be made. First, as I have indicated, I do not accept that the defendants conceded that the area “A” land was land to which the plaintiff was to be automatically entitled; they did no more than acknowledge that the likely outcome of the application to the Registrar would be that the Registrar would grant the application.
The second reason why this declaration cannot in my opinion be granted, is that the plaintiff did not act to his detriment in reliance on the representation in any sense that is relevant to these proceedings. Accordingly, an estoppel did not arise. It is true that the plaintiff did not take any steps before the notice of discontinuance was filed to go back to Smith J and seek further consideration of the orders which his Honour might make on the appeal.
In my opinion, even had the plaintiff appreciated that the Registrar would not automatically grant his application, and that the defendants had put before the Registrar material in opposition to the application, and even had the plaintiff sought some further relief from Smith J, that relief could not have resulted in an order that the land in area “A” be vested in the plaintiff.
My reasons for coming to that conclusion coincide with the reasons earlier expressed in relation to the effect of s.62 on the Registrar's discretion. Smith J would not have been in a position, on the state of the evidence before him, to order the Registrar to grant the plaintiff's application. At most, the effect of any further approach to his Honour, might have been a further consideration by the Registrar of the application, although I do not suggest that the Registrar would have been bound by law to reopen his or her consideration of that application. But in the end it would have remained to the Registrar to make up his or her mind on the question whether he or she was satisfied that the applicant had acquired a title by possession. There being no suggestion that the Registrar acted outside the confines of s.62 in coming to his or her decision on the application, there was nothing which, as I apprehend the position, his Honour could have done to ensure that the application was granted and the land in area “A” vest in the plaintiff.
The next relevant head of relief sought by the plaintiff is a declaration that the defendants by their actions in relation to their proceeding were guilty of an abuse of process. In my opinion, the defendants were not. They were permitted by the court, following the grant of leave, to discontinue their proceeding. They did no more than act upon that leave. It is true that subsequently, and indeed even before the action was discontinued, they took the position that the plaintiff's application for title by possession ought not automatically be granted by the Registrar.
In taking that position, however, the defendants did nothing, in my view, that could properly be described as an abuse of process. An abuse of process occurs where a party to litigation institutes that litigation or continues it for an improper purpose. There is no evidence before me that the discontinuance of this litigation, that is the litigation in the proceeding before the Master and Smith J, was for an improper purpose.
For these reasons, it seems to me that the declarations sought by the plaintiff as outlined above, ought not be granted. Those heads of relief should be dismissed.
There remains a head of relief that has been the subject of discussion between the parties during the course of this hearing. It is for a declaration that the plaintiff has acquired a title by possession to the area described as area “A”. That declaration is no longer sought by the plaintiff on the basis that he and the defendants can resolve their differences on a basis that is satisfactory to both parties, at least as a compromise, even though neither party would regard the ultimate result as entirely to their satisfaction.
In those circumstances, the question of costs remains to be decided. I will now hear the parties on that question.
(Discussion ensued)
It does seem to me that, given the small amount of land involved, and the very great difficulty of resolving a dispute over that small amount of land by the process of litigation, this proceeding ought to have been the subject of an offer to settle on the basis of the judgment that I will shortly pronounce. Neither party put forward such an offer, and therefore there is no question of either party accepting such an offer.
Broadly speaking, the offer was simple enough. It was, first, that the parties determine the true position of the boundary of their two properties. Given that three surveyors had agreed upon the position of that boundary, it ought not to have been difficult for the parties to accept that the true boundary had, at its eastern extremity, a point 30.48 metres from the reference point in the unnamed road to the south. The parties then, it seems to me, acting reasonably, could have worked out between themselves the kind of fence that might be built, and the other details which have occupied the court's time and which will be reflected in the orders that will be made.
It seems to me that Mr and Mrs Patsios acted reasonably in accepting that the fence should be built 0.05 metres inside their boundary, and it seems to me to be reasonable for Mr Glavinic to accept that he no longer pursue a claim for adverse possession which may have been successful. Both parties were prepared to compromise in those respects, and I commend each of them for that.
What does seem to me to have been the real problem with this case was the inability or unwillingness of the parties to look at the matter from a position which seems to me to be based in common sense; in other words, to ask themselves where the true boundary is, to answer that question (and given the information they both had, it would not have been difficult to identify the true boundary) and then, as I say, work out the details of where the fence should be erected and the type of fence that should be erected. Neither party made the relevant offer, neither party therefore accepted any offer. In those circumstances, it seems to me that there should be no order as to the costs of this proceeding.
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