Executive Seminars Pty Ltd v Peck

Case [2001] WASC 229


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…

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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

Orders of the court

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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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