DPP v Zierk - [2008] VSC 194

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

---

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

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Zierk

Details

AGLC: Director of Public Prosecutions v Zierk [2008] VSC 194
Case: [2008] VSC 194
Decision Date: 30 May 2008

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions for the State of Victoria v Zierk, the matter was heard in the County Court of Victoria. The dispute revolved around a claim for title by possession concerning the correct boundary of a property. The defendants, who were the current occupants of the property, sought to establish their title based on their long-term possession. The Director of Public Prosecutions, representing the State, contested the claim, arguing that the defendants had not acquired title by possession as required by law.

The central legal issues the court needed to address were whether there had been any compromise of an earlier proceeding between the same parties, and if so, whether it had been breached. Additionally, the court considered whether a concession made during the earlier proceeding gave rise to an estoppel. The Registrar of the County Court also needed to determine whether the defendants had acquired title by possession and whether it was appropriate to exercise the Registrar's discretion to register the title transfer.

The court found that there had been no compromise of the earlier proceeding, and therefore, no breach of any such compromise. Regarding the concession made during the earlier proceeding, the court held that it did not give rise to an estoppel. The Registrar was not satisfied that title had been acquired by possession, and exercised their discretion to not register the transfer of land. The court held that the Registrar's exercise of discretion was independent of any agreement or expectation of the parties. The court also dismissed the argument that there was an abuse of process.

Ultimately, the court ruled in favour of the Director of Public Prosecutions, finding that the defendants had not established their claim for title by possession. The Registrar's decision to not register the transfer of land was upheld, and the defendants' claim was dismissed.

Orders