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Executive Seminars Pty Ltd v Peck

Executive Seminars Pty Ltd v Peck

Case [2001] WASC 229 29 August 2001

Adverse Possession

Constructive Trust

Equitable Estoppel

Statutory Interpretation

Property Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: EXECUTIVE SEMINARS PTY LTD -v- PECK & ORS [2001] WASC 229

CORAM: HASLUCK J

HEARD: 21 JUNE 2001

DELIVERED : 29 AUGUST 2001

FILE NO/S: CIV 1370 of 1998

BETWEEN: EXECUTIVE SEMINARS PTY LTD (ACN 009 016 522)
Plaintiff
AND
ADRIAN JOHN PECK
First Defendant
DAVID RUSSELL McPHEE
SUZANNE MARGARET McPHEE
Second Defendants
SUSAN LESLEY WALKER
Third Defendant
REGISTRAR OF TITLES
Fourth Defendant

Catchwords:

Property Law Act 1969 - Power of court to grant relief in cases of encroachment - Encroachment due to builder's error in construction of dividing walls - Agreement by owners to resurvey and create new titles to land affected by the error - One of the subject lots transferred to an incoming purchaser - Application of just and equitable criteria prescribed by s 122 and s 123 of Property Law Act - Relief granted pursuant to statutory powers

Application of common law rules concerning adverse possession - Adverse possession held not to apply where the subject land was occupied pursuant to a consensual arrangement - Application for relief on this ground dismissed

Application of equitable principles concerning estoppel and constructive trust - Agreement between neighbouring owners to remedy problems caused by encroachment - Purchaser found to have acquired land with notice of boundary discrepancy and prior agreement - Purchaser required to transfer land affected by the encroachment to the plaintiff as a party to the prior agreement

Legislation:

Interpretation Act 1984, s 18

Limitation Act 1935, s 4, s 5
Property Law Act 1969, s 34(1), s 34(2), s 122, s 123
Settlement Agents Act 1981
Supreme Court Act 1935, s 24(7)
Transfer of Land Act 1893, s 68, s 134

Western Australian Planning Commission Act 1985

Result:

Judgment for the plaintiff

Category: A

Representation:

Counsel:

Plaintiff:     Mr R R Cywicki
First Defendant             :     No appearance
Second Defendants       :     In person
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance

Solicitors:

Plaintiff:     Geoffrey Coad
First Defendant             :     Godfrey Virtue
Second Defendants       :     In person
Third Defendant           :     Cocks Macnish
Fourth Defendant          :     State Crown Solicitor

Case(s) referred to in judgment(s):

Bahr v Nicolay (No 2) (1988) 164 CLR 604
Baumgartner v Baumgartner (1987) 164 CLR 137
Breskvar v Wall (1971) 126 CLR 376
Bunney v State of South Australia [2000] SASC 141
Commonwealth v Verwayen (1990) 170 CLR 394
Foran v Wight (1989) 168 CLR 385
Frazer v Walker [1967] 1 AC 569
Giumelli v Giumelli (1996) 17 WAR 159
Giumelli v Giumelli (1999) 196 CLR 101
IW v City of Perth (1997) 191 CLR 1
Maharaj v Chand [1986] AC 898
Muschinski v Dodds (1985) 160 CLR 583
Petkov & Ors v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
Pettkus v Becker (1980) 117 DLR (3d) 257
Sorna Pty Ltd v Flint [2000] WASCA 22
Stowe & Anor v Stowe (1995) 15 WAR 363
Waimiha Sawmilling Co v Waione Timber Co [1926] AC 101
Walton Stores (Interstate) Ltd v Maher…

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 Executive Seminars Pty Ltd v Peck

Details

AGLC: Executive Seminars Pty Ltd v Peck [2001] WASC 229
Case: [2001] WASC 229
Decision Date

CaseChat Overview and Summary

The plaintiff, Executive Seminars Pty Ltd, sought to obtain title to a small piece of land (the "Executive portion") which was occupied by Executive but lay within the boundaries of a title vested in the second defendants, Mr and Mrs McPhee. The plaintiff asserted title to the Executive portion pursuant to principles of adverse possession, the special rules applicable to encroachments set out in the Property Law Act 1969 and equitable rules concerning constructive trust and estoppel. The second defendants argued that the plaintiff had no entitlement to the Executive portion. The court found that the plaintiff was entitled to obtain relief on the basis that the second defendants were estopped from denying that Executive was entitled to a transfer of the Executive portion, or, alternatively, that the second defendants held the subject land upon a constructive trust in favour of the plaintiff. The court considered that it was just and equitable that the Executive portion, which had been occupied by Executive for many years, should be vested in the plaintiff company and without compensation being allowed to the McPhees. The court gave directions for the making of orders.

Orders