Evans v Smith

Case [2025] NSWCA 102

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Evans v Smith [2025] NSWCA 102
Hearing dates: 7 April 2025
Date of orders: 16 May 2025
Decision date: 16 May 2025
Before: Ward P and Stern JA at [1]; Adamson JA at [117]
Decision:

1.   The appeal be allowed.

2.   Orders 1, 7 and 9 made on 8 August 2024 be set aside.

3.   In lieu thereof, declare that the respondent is the rightful owner of so much of the land in Lot 41 DP 1003436 upon which the respondent’s house and its curtilage house sits (as identified in the plan attached (i.e., “Plan Sheet A” attached to the appellant’s 23 May 2024 offer) but extended to accommodate vehicular and pedestrian access from the respondent’s land to the Unformed Road).

4.   Order the respondent to pay the appellants’ costs of the proceedings at first instance on the ordinary basis.

5.   Order the respondent to pay the appellants’ costs of the appeal on the ordinary basis.

Catchwords:

LAND LAW – adverse possession – where the first respondent’s land borders on land owned by the appellants (Lot 41) – where the first respondent sought a declaration that he was entitled to legal title of part of Lot 41 (the contentious land) by reason of decades of adverse possession – whether the first respondent and his predecessors in title had demonstrated continuous exclusive possession and an intention to possess the contentious land – whether the primary judge erred in concluding that the Lot 41 paper title owners lost title to the contentious land in 1989

LAND LAW – adverse possession – extent of relief – whether the court ought to declare any part of the contentious land beyond which the appellants conceded in an open offer as curtilage

Legislation Cited:

Crimes Act 1900 (NSW), ss 4, 111(2)

Conveyancing Act 1919 (NSW), s 88K

Real Property Act 1900 (NSW), ss 13A(1), 28T(4)

Roads and Streets Act 1833 (NSW), Act 4 William IV No 11

Cases Cited:

Ben-Pelech v Royle [2020] WASCA 168

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Cawthorne v Thomas (1993) 6 BPR 13,840

Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Cooke v Dunn (1998) 9 BPR 16,489

Director of Public Prosecutions v Jay Williams [2018] NSWSC 1832

Enzo Developments Pty Ltd v Kiama Municipal Council [2025] NSWLEC 1092

Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311

Grasso v Stanthorpe Shire Council (1996) 91 LGERA 429; [1996] QCA 187

Henwood v Copeland [2023] EWHC 598 (Ch)

JNM Pty Ltd v Adelaide Banner Pty Ltd [2009] VSC 327

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Milro Pty Ltd v Associated Securities Ltd [1970] 2 NSWR 70

Pilbrow v St Leonard, Shoreditch Vestry [1895] 1 QB 433

Powell v McFarlane (1977) 38 P…

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AGLC
Evans v Smith [2025] NSWCA 102
Case
[2025] NSWCA 102
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute over land ownership between the appellants, owners of Lot 41, and the first respondent, who claimed title to a portion of Lot 41 through adverse possession. The first respondent asserted that he and his predecessors in title had occupied the disputed land, referred to as the "contentious land," for decades, thereby extinguishing the appellants' paper title. The primary judge had found in favour of the first respondent, concluding that the appellants had lost title to the contentious land in 1989.

The legal issues before the Court of Appeal were whether the first respondent and his predecessors had demonstrated continuous exclusive possession of the contentious land with an intention to possess it, and whether the primary judge had erred in finding that the appellants' title had been extinguished in 1989. Additionally, the court considered the extent of relief to be granted, specifically whether any part of the contentious land beyond that conceded by the appellants in an open offer as curtilage should be declared to belong to the respondent.

The Court of Appeal allowed the appeal, setting aside the orders of the primary judge. The court reasoned that while the respondent had established a claim to ownership of the contentious land, the extent of that ownership was limited. The court declared the respondent to be the rightful owner of so much of the land in Lot 41 as comprised his house and its curtilage, as identified in a plan attached to the appellants' offer, but extended to include vehicular and pedestrian access from the respondent's land to the Unformed Road. The court ordered the respondent to pay the appellants' costs of both the proceedings at first instance and the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 1, 7 and 9 made on 8 August 2024 be set aside.

3. In lieu thereof, declare that the respondent is the rightful owner of so much of the land in Lot 41 DP 1003436 upon which the respondent’s house and its curtilage house sits (as identified in the plan attached (i.e., “Plan Sheet A” attached to the appellant’s 23 May 2024 offer) but extended to accommodate vehicular and pedestrian access from the respondent’s land to the Unformed Road).

4. Order the respondent to pay the appellants’ costs of the proceedings at first instance on the ordinary basis.

5. Order the respondent to pay the appellants’ costs of the appeal on the ordinary basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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