Duarte v Denby
[2007] WASC 94
•26 APRIL 2007
DUARTE & ANOR -v- DENBY & ORS [2007] WASC 94
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 94 | |
| Case No: | CIV:2303/2004 | 26 & 27 MARCH 2007 | |
| Coram: | McKECHNIE J | 26/04/07 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiffs' claim succeeds Counterclaim dismissed | ||
| B | |||
| PDF Version |
| Parties: | OLIVER LEO DUARTE YVONNE DUARTE CHRISTOPHER GEORGE DENBY EMA RITA ADELIA DENBY REGISTRAR OF TITLES |
Catchwords: | Real property title by adverse possession Turns on own facts |
Legislation: | Limitation Act 1935 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- YVONNE DUARTE
Plaintiffs
AND
CHRISTOPHER GEORGE DENBY
EMA RITA ADELIA DENBY
First Defendants
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Real property title by adverse possession - Turns on own facts
Legislation:
Limitation Act 1935 (WA)
(Page 2)
Result:
Plaintiffs' claim succeeds
Counterclaim dismissed
Category: B
Representation:
Counsel:
Plaintiffs : Mr M R Hall
First Defendants : Ms W F Buckley
Second Defendant : No appearance
Solicitors:
Plaintiffs : Malcolm Hall
First Defendants : Batemans
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 McKECHNIE J:
"Something there is that doesn't love a wall,
That sends the frozen-grounds-swell under it,
And spills the upper boulders in the sun
And makes gaps even two can pass abreast."
Mending Wall by Robert Frost.
2 All was well in Basinghall Street, East Victoria Park, until in 2001 part of the fence separating the Denby and Duarte properties fell down and left a gap through which more than two could pass abreast. What followed has been years of acrimony and expense, including a contested Magistrates' Court case over the repair of the dividing fence, calls to the police for intervention and general incivility. And so the parties come to this Court in dispute over a piece of land, irregularly quadrilateral in shape, some 56 metres long, 10 centimetres at one end and moving back to 33 centimetres at the rear of the block. The land is valued at slightly less than $3000 but this is a notional value only as no-one in their right mind, apart from the Denbys and Duartes, would ever think of paying a penny for it. Nothing particular has been put on the land that gives it any special value to either party. Neither party will experience any physical difficulty with the result I have reached. Mr Denby sought to persuade me that a finding adverse to him would have an impact upon his ability to use his driveway. I am unpersuaded. He has narrowed the driveway by putting in a gate and it is simply not the case that my decision will have any practical effect on either party.
The issues in the case
3 The plaintiffs, Mr and Mrs Duarte, live on a corner block at 102 Basinghall Street, East Victoria Park, having purchased the property from Mr Fenn on 3 March 1995. Mr and Mrs Denby, the first defendants ("the defendants"), live next door at 100 Basinghall Street, having purchased the house from Mr Faulkner on 5 February 1980. The second defendant played no part in the proceedings and is a nominal defendant only. The plaintiffs claim a declaration that they are the sole proprietors of the disputed land. The defendants by counterclaim say that the disputed land has passed to them by adverse possession. And so issue is joined.
4 For two days, I heard a number of witnesses testify, chiefly as to the position of the dividing fence and whether or not it ran along the true boundary. Numerous photographs, ancient and modern, have been tendered to support the respective cases. These were, with one exception,
(Page 4)
- Exhibit D31, contained within the plaintiffs' and defendants' books of documents. For ease of reference I will refer to page numbers (plaintiffs) or exhibit numbers (defendants). A qualified surveyor, Mr Rhodes, has surveyed the true boundary and there is no dispute about the survey. The real issue is whether the fence ran along the true boundary within a time before the plaintiffs' claim has been extinguished by the Limitation Act 1935 (WA) or whether the true boundary and the fence have never aligned or at least never aligned within the last 12 years. It is accepted that the Denbys carry the burden of proof. The fence line as surveyed by Mr Rhodes is on land which forms part of the Duartes' title unless they have lost their claim to it by reason of the uninterrupted possession of the disputed land by Mr and Mrs Denby over a long time.
5 The survey by Mr Rhodes was done on 5 August 2002, many months after part of the fence had been destroyed. He estimated that only about 50 per cent of the fence, from the end of the fibro fence to the rear of the land, was still standing. He observed other parts of the fence and was told things by Mr Denby. If the parts he observed were in the original position then the fence did not run along the true boundary line.
Impression of the witnesses
6 I do not consider that any witness was deliberately telling lies.
Mr Denby
7 Having seen Mr Denby giving evidence in the witness box, my impression of him is that he is very angry over the boundary and fence issues. This anger is reflected in some less than temperate comments in his closing statement in the dividing fences case in the Magistrate's Court: Exhibit P1 in this trial.
8 At times Mr Denby had difficulty containing himself in answer to questions from Mr Hall for the plaintiffs, although the questioning was not of a goading kind. He suggested that someone may have bent the top of the fence as shown in plaintiffs' photo P44a. He speculated that someone might have removed a DOLA letter from his letter box. While these are possibilities, they are, in this case, indicative of a person who lost his equilibrium.
9 There seems little doubt that the collapse of much of the fence was due to the earthworks being carried out by the Duartes. That was a seminal event for the rancour that has followed. It is immaterial whether Mr Denby's anger is justified or not. I think it has caused him to take a
(Page 5)
- one-sided view of some matters, blinding him at times to other reasonable explanations and causing him to become, on the issue of the fence and boundary, fixated.
10 I make clear that I do not think at any point Mr Denby engaged in conscious falsehood or deception; the depth of his feelings has made him a more than partial witness and one whose testimony I have considerable hesitation in accepting when it differs from other witnesses.
Mr Graham Faulkner
11 Mr Faulkner is an independent witness whose evidence I accept. His evidence chiefly related to the iron fence, the construction of the letter box and flower box. He lives nearby and has walked past and considers the original posts of the iron fence are in the same position with rusty nails indicating that the posts had never been moved. His opinion about whether he could drive a vehicle up the driveway, if the fence was aligned with the true boundary, I do not accept. He has not done it and such a view is inconsistent with my other findings.
Mr Paul Rhodes
12 Mr Rhodes is a qualified surveyor who knew on accepting the assignment that litigation was highly likely and he acted with that in mind. His work was meticulous. Each party accepts the position he assigns to the boundary line.
13 His credibility is not in issue when considering his alignment of the fence line. I accept that when he measured the fence in August 2002, what remained of the fence was as he described it and where he described it. The issue of course is whether it had moved in the years prior to his survey.
14 If the probabilities are that the fence has moved out of alignment over the years from a position on the true boundary then the Denbys' cannot succeed. That is what the Duartes say has occurred. The dilapidation of the fence and the effects of weather mean that what Mr Rhodes has surmised is the fence line is not correct.
Mrs Duarte
15 Mrs Duarte was more measured and conciliatory in the witness box than Mr Denby. However, such demeanour is not a reliable guide as to honesty and reliability. It is clear that over the years mutual animosity has
(Page 6)
- developed between the Duartes and the Denbys. (I have little expectation that this judgment will resolve that).
16 Mrs Duarte has as much stake in the outcome as has Mr Denby.
17 The importance of Mrs Duarte's evidence for me is mainly in the photographs she has taken.
Mr Fenn
18 Mr Fenn is an elderly gentleman, a Justice of the Peace, civil marriage celebrant and, as far as I can judge, a disinterested and impartial witness.
19 He was obviously proud of his handiwork on the fence and the other improvements, as might be expected from an owner builder, but I do not consider this pride adversely affected his general credibility. His evidence appeared to be given without rancour and in a straightforward manner. Where there is a conflict in the evidence between he and Mr Denby, I accept Mr Fenn's evidence as more probably the correct version.
The original fence
20 Mr Fenn purchased the property with his late wife on 19 June 1951. He was an owner builder having subsequently built the house and improvements. Number 100 was occupied by an elderly lady. The dividing fence was an open post and rail fence. There was no vegetation growing along the fence. It ran in a straight line from the front to the rear of the properties and he had no reason to suppose that the fence was other than on the correct surveyed boundary. The fence was in poor condition and he used second-hand material to replace post and rails as needed replacing. He fixed second-hand galvanised corrugated iron (which he had obtained from chicken sheds that were in Kenwick) with nails to the posts and rails on his side of the fence. He buried the iron deep into the earth. He did not disturb the fence line when he replaced the posts and rails and when he attached the iron.
21 When Mr Fenn worked on the fence by putting the iron onto the existing posts, he used a string along the top straight to the existing rails and posts. Mr Fenn conceded (TS 232): "I never had the block surveyed. I put the iron fence on the existing fence. Now, if that was wrong it was wrong".
22 Mr Faulkner was also called on behalf of the Denbys. He had previously owned the land. His presumption had been that the fence was
(Page 7)
- on the boundary line. He was able to drive his 6-cylinder XW Ford Falcon station wagon along the driveway. It was a tight squeeze but nevertheless he managed to drive to the rear of the property and park. Because he lives very close he has kept an interest in the property whenever he walks or drives past it. He remembers the erection of the letter box and flower box and the fibro fence. He noted that the brick letter box was still in the same position and the renewal of the fence did not affect the previous position of the fence as it was when he purchased 100 Basinghall Street (the Denby property) in 1976. Insofar as the original iron and timber fence had not been shifted, he still found the original posts still in the same position albeit it with rusted nails indicating these had never been moved. He also noticed the old clothesline posts inside 100 Basinghall Street and a Japanese pepper tree. He thought he would never have been able to manage to drive his Ford Falcon up the driveway if the fence had been erected further towards the Denbys' property and on the correct survey line; it would have been too narrow. In cross-examination he was very sure that the brick flower box and letter box had been put in before the fibro fence. He thought they were put in quite some time before the fibro fence. He thought he could probably still get his Ford Falcon down the drive.
23 There are a number of matters to be looked at to judge if the Denbys can discharge the onus of proof.
The fibro fence at the front
24 The front 18 metres of the iron fence was replaced by Mr Fenn in the early 1990s. Mr Denby assisted to a small degree. Mr Fenn used corrugated fibro cement sheets capped with galvanised iron. During the trial the fence was interchangeably described as "asbestos", "Hardie" and "fibro". I shall refer to it as the fibro fence.
25 When Mr Fenn decided to replace the front section of fence with a freestanding fibro fence there was a large row of trees adjacent to the property that had been removed. Large roots remained under the earth and were an obstruction to erecting the fence. He levelled out the embankment upon which the fence line ran. To avoid the tree roots he dug the trench initially veering away from the fence line into his property and then back again towards the boundary. As a result the end of the fibro fence and the start of the remaining iron-clad fence were out of alignment by about 25 centimetres at the start of the pergola. Mr Fenn started the replacement of the fence from this point and worked towards the street.
(Page 8)
26 Mr Fenn stated:
"21. I have read paragraph 6 the First Defendants Defence and Counterclaim and viewed the not-to-scale plan attached thereto, and say that by reason of my construction of the asbestos fence in place of the first 18 metres of the iron clad fence subsequent to the First Defendants purchasing their property, the first 18 metres of fence depicted on that plan is correct as to the position of the asbestos fence so replaced and the start of the iron clad fence.
22. As to the remainder of the fence it is incorrect, that being the iron clad fence which was always on the boundary, straight and at right angles to the rear boundary."
27 Partly by reference to Exhibits D19, D20, D21 and D22, Mr Denby sought to persuade me that the erection of the fibro fence had moved the fence line slightly towards his property, although still on the disputed land.
28 Mr Fenn's evidence was to the contrary. I accept Mr Fenn on this point.
29 My analysis of the photographs relied on by Mr Denby does not support his proposition.
30 I accept Mr Denby's evidence that the letter box and brick flower bed were in situ at the time of construction of the fibro fence. However, the front galvanised post does not seem to be in much different a position, relative to the letter box, from its red painted predecessor. If anything, it is slightly towards the Duartes' property.
31 Everyone agrees that the fibro fence does not follow the boundary line. Mr Fenn says that he moved it slightly.
32 I do not accept Mr Denby's point about the laterals to the flower bed wall constructed by Mr Fenn. I accept that they are lateral walls to prevent the flower bed wall from falling down. They are not to restrict the downward flow of sand as suggested by Mr Denby. As such there was no reason to build them to abut the iron fence. They do not abut the fibro fence. They would therefore not have been an impediment to moving the fibro fence as it was being erected to a position slightly closer to the flower bed wall.
(Page 9)
The overhanging pergola
33 Mr Denby said that the pergola always extended over the metal fence with a wooden frame. The pergola has overhung the fence from the time it was renovated by Mr Fenn in the 1990s. At that time Mr Fenn replaced the slats on top of the pergola and thereafter the slats overhung the fence. He also attached shadecloth from the top of the pergola down to the top of the fence (TS 141). He replaced the slats on top (according to Mr Denby) because there was a Japanese pepper tree through the middle that was causing the pergola to crack up.
34 Mr Fenn gave evidence that he erected the pergola as a shade house for his wife's plants. He said that he never replaced the slats or made them hang over the fence. He agreed that he put shadecloth over the pergola down to the fence. He said he cut a hole in the existing slats to let the Japanese pepper tree through but did not replace the slats. The slats were parallel to the iron fence when he erected the pergola. He did cut on the side of the pergola to meet the fibro fence when it was erected. In answer to being directed to the photograph at 48b, he said: "Well sir, it is - - it actually is extending past the asbestos fence line but it would be plum with the iron fence line" (TS 233 - 234).
35 Mrs Duarte gave evidence that in respect to Exhibit D18 which shows the iron fence under the pergola, there are some structures that were not on the retaining wall when they moved there. They found the fence was beginning to collapse and turning in toward their property so they put the structures, previously used by Mrs Fenn for her plants, to arrest the movement of the fence.
36 Mr Faulkner gave no evidence on the point.
37 I have no reason to reject the evidence of Mr Fenn that he did not ever replace the roof slats on the pergola and that when erected it was parallel with the iron fence line. He is a disinterested witness to the events. Moreover, he struck me as a man who would be careful about not intruding into Mr Denby's property. When Mr Fenn replaced the front portion of the fence with the fibro fence he deliberately set the fibro fence back some centimetres into his own yard. I am therefore not persuaded that the position of the iron fence adjacent to the pergola, when observed by Mr Rhodes in 2002, has always been the precise position of the fence. Rather, I consider that the position of the fence was some centimetres towards the Denby property.
(Page 10)
The 2 metres of fence past the fibro fence
38 Exhibits D13 and D14 show a portion of the iron fence taken at around about 2001 with the wooden post still in position. The fibro fence appears to be more upright and on the Denbys' side.
39 In cross-examination (TS 220 – 221) Mr Fenn was shown Exhibits D13 and D14 which represent the join between the asbestos fence and the iron fence. He did not recognise it. He said: "That has a post there that sort of finishes with a rail and that wouldn't have been like that at all because the other rail would have kept on going". He did not remember changing it when he put the asbestos fence there. But he says: "I can't understand that. I wouldn't have left it like that".
40 If Mr Fenn's evidence is to be accepted the horizontal rail shown as supporting the fence would have continued, that leaves open the possibility that there has been some form of alteration to the fence since Mr Fenn erected the fibro fence. The fact that the rail once continued can be seen in Exhibit D7.
41 Mr Fenn said (at TS 222):
"… I wouldn't have left it. One end - I would have actually joined it up in some way."
42 The plaintiffs' book (page 49) shows a post that appears to be the same post as depicted in the defendants' Exhibit D13.
43 The photograph was taken in 2007 by Mrs Duarte through a gap in the fence and shows a distinct gap between the metal sheets and the post.
44 Mr Denby says this occurred in 2005 when the concrete structures depicted in Exhibit D18 were removed. Mrs Duarte gave evidence (TS 185) that they put the concrete structures against the fence. They were not in that position when they moved in. They were put to prop up the fence because it was beginning to collapse and "was sort of leaning towards our pergola".
45 I consider Mrs Duarte's explanation more likely; that is, the concrete structures were placed to prevent further collapse of the fence. I consider it less likely that the fence at this point only began collapsing with their removal in 2005.
(Page 11)
Where did the fence connect with the rear fence?
46 Mr Denby's evidence is that the fence has never moved and has always been in the position as surveyed by Mr Rhodes.
47 Mrs Duarte produced a number of photographs intended to show where the fence intersected the rear fence to the two properties. Page 55b is obviously a photograph taken some years ago at a time because the pool fence was still in situ. Page 56 is a photograph taken in November 2001 after completion of the retaining wall on the Duartes' property. Part of the fence is missing and the balance of it is leaning. The boundary mark is shown by the survey peg with a pink ribbon.
48 In the plaintiffs' book pages 57 and 58 Mrs Duarte has marked, by means of arrows, points of significance. I ignore the yellow arrow lines as they are not parallel with the top and bottom of the photographs. These photographs were the subject of discussion at trial. The boundary peg is placed at a point where the fibro rear fence panels step down. Reference can also be made in some of the photographs to a broken panel of the fence. The photographs indicate to me that at some point before the damage to the fence, the fence line ran along the boundary to a point where the boundary peg now is.
49 Exhibit D31 is a photograph of the new fence with a bolt obtruding.
50 Mr Denby assumed that the bolt was in the fence post. His evidence (TS 146) was:
"… The bolt went into a fence post at the end of the fence.
…
… A bolt goes into a fence post. You can't see it when it's in the fence post.
… The fence post is no longer there."
51 While this is a possibility, there is little to indicate the purpose of the single bolt. The rear fence is freestanding and appears to be perpendicular. The bolt does not appear to have a visible head so it is just as likely that the head obtrudes on the other side of the fence; someone else's property.
(Page 12)
52 While I have taken the existence of the bolt and hole into account, I have not altered my view that the probabilities are that the fence ran along the true boundary line.
The destruction of part of the fence
53 It is common ground that a large part of the fence was removed in 2001. Mr Denby put the collapse and removal of large sections of the fence at approximately 50 per cent of the iron and timber fence. Mr Denby denied that pieces had come adrift earlier than the time when the Duartes started the retaining wall. Mrs Duarte said that three of the panels had fallen off (TS 180). The fence appears to have been held up by the vegetation because when the vegetation, including creepers, was removed, photographs of the fence indicate a very rickety structure. There is no evidence that anyone moved the top to achieve that effect notwithstanding a suggestion to that effect from Mr Denby. The photographs in the plaintiffs' book at page 43 show the fence in a damaged condition while the vegetation was still on top of it, while the photographs at page 44 show the fence in a considerable state of precariousness. The photograph at page 45, photo c, said to have been taken in July or August 2001, show a number of sheets of the fence displaced and in the Duartes' land. The extent to which the fence lost pieces of tin prior to the contractors beginning work on the retaining wall is unnecessary for me to resolve because at that time, as I have said, all parties agree there was considerable disruption to the fence.
The survey
54 Mr Rhodes was engaged to resurvey the property at 100 Basinghall Street and did so on 5 August 2002 knowing that litigation would likely ensue. At the front he observed the fibro cement fence which he described as being in good condition. The original fence which consisted of jarrah uprights and corrugated tin continued for a while. He could see the lines and made the survey accordingly; that survey appearing on pages 27, 28 and 29 of the defendants' book. His survey of the actual boundary is not in dispute and is accepted by both parties. His survey of the position of fences, as he observed them, does not appear to be in dispute either. On the diagram at page 29 he nominates three spots which he entitles:
"A Section of original corrugated iron & timber rail fence.
Solid, leaning Circa 1950's
B Original corrugated iron & timber rail fence not in
- original position, partly rusted panels replaced September 2001
- C Fence removed."
55 In relation to A, in a letter to the Registrar of Titles dated 26 February 2004 Mr Rhodes said:
"The sections of fence shown A on the sketch were of original construction, appeared to be undisturbed, and were certified by Mr & Mrs Denby as being in the original location."
56 In his view (TS 160) the fence would appear straight:
"… In fact, although we said that it was 330 millimetres over the length of the fence, in fact it's 230 millimetres from the beginning where it's 100 millimetres over the boundary to 330 millimetres at the other end, and the variations inside of that are very small and it would be difficult to ascertain that the fence wasn't straight with the naked eye."
57 In cross-examination (TS 162) Mr Rhodes agreed with the proposition that in joining up the dots he followed the advice of Mr Denby. He said: "That's correct". He was not cross-examined extensively. He had his boundary work checked and approved by the inspecting surveyor from DOLA in November 2002. However, Mr Rhodes necessarily had to make some assumptions as to the fence line because a fair proportion of it was either missing or had obviously been replaced out of alignment.
58 Moreover, I consider, for reasons already set out, the probabilities are that one portion which Mr Rhodes marked A, namely that adjacent to the pergola, had at sometime been moved from its original position because it now no longer aligns with the roof slats of the pergola.
59 Before further considering the case for adverse possession, the Denbys must first satisfy me that the fence line has not run along the boundary for at least a time within the limitation period of 12 years. Having regard to the photographs produced by Mrs Duarte and the evidence of Mr Fenn (that in relation to the pergola), I am not persuaded on the balance of probabilities that the line of the fence prepared by Mr Rhodes has represented the true fence line for more than 12 years. The probabilities in fact are that the fence line from the fibro fence at the
(Page 14)
- front did run along the boundary until, most probably, some stage before it was disrupted in September/October 2001.
60 As to the fibro fence, it is conceded by the Duartes that there is a small portion of their land which is on the side of the fence favouring the Denbys. However, they have laid claim to this land within the 12 year period. They did seek realignment of the fence and I am satisfied that any licence given by them to the Denbys as to the use of that land was revoked at the time that they wished to realign the fibro fence with the boundary. Permission to do so was denied by the Denbys. The Denbys laid a small drain (plaintiffs book page 59) and erected a gate and posts after the dispute arose. I do not think either of these factors establishes a claim to the land sufficient to defeat the Duartes by reason of adverse possession. They were put in at a time when the position of the fence and the position of the boundary had become contentious. The Duartes were resisting the claim for adverse possession strongly.
61 The defendants have failed to discharge the onus of proof that they have been in possession of the disputed land for a time beyond which the plaintiffs can take action to recover it. Moreover, within a period of 12 years there are no sufficient indicia of possession of the disputed land by the defendants to make out their claim.
62 For these reasons the defendants' counterclaim fails and I give judgment for the plaintiffs on their claim.
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