Fisher v Registrar of Titles
[2011] VCC 1420
•2 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL
GENERAL DIVISION
Case No. CI-10-03025
IN THE MATTER OF THE WILL AND ESTATE OF DOROTHY MAY KELLY
IN THE MATTER OF AN APPLICATION UNDER ORDER 54 OF THE RULES OF COURT
| IN THE MATTER OF AN APPLICATION BY MAUREEN PATRICIA FISHER | Plaintiff |
| AS EXECUTRIX OF THE WILL OF DOROTHY MAY KELLY | |
| v | |
| REGISTRAR OF TITLES | Defendant |
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| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 February 2011, 3 June 2011 and 26 September 2011 |
| DATE OF JUDGMENT: | 2 December 2011 |
| CASE MAY BE CITED AS: | Fisher v Registrar of Titles |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1420 |
REASONS FOR JUDGMENT
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Catchwords: REAL PROPERTY – Administration of estate- Adverse possession claim – property vested in State Trustees – whether possession by members of deceased’s family adverse possession – Limitation of Actions Act 1958, s.8 – Administration and Probate Act 1958, s.38.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R E Cook | Allan Jenes |
| For the Defendant | No appearance | - |
| HIS HONOUR: |
1 The plaintiff, Maureen Patricia Fisher, is executor and trustee of the estate of her late mother, Dorothy May Kelly, who died 8 January 1998. Anthony Kelly is co-executor and joint trustee.
2 Ms Fisher seeks determination of a question which has arisen in the course of the administration of the estate of Dorothy Mary Kelly relating to the ownership of the property at 32 Castlemaine Road, Maldon, being the land contained in Certificate of Title Volume 1456, Folio 117.
3 The question is:
“To any and what extent has the title to the land being situate at and known as 32 Castlemaine Road, Maldon, and being the land more particularly described in Certificate of Title Volume 1456 Folio 117 (‘the property’) vested in the plaintiff and/or any other person
(a) by reason of the property being adversely possessed by Dorothy May Kelly and others for a period of in excess of 15 years; or (b) otherwise.”
4 The amended Originating Motion also seeks orders vesting title to the property in the owners thereof or otherwise as the Court, in the light of the answers it gives to the question referred to, considers fit.
5 The application for the determination of this question is said to be authorised by Order 54 of the County Court Civil Procedure Rules 2008, which provides that:
“(1) A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution of any proceeding under the direction of the Court of the estate or trust in respect of which the relief is sought. Without limiting paragraph (1), a proceeding may be brought for –
(a) the determination of any question which could be determined in an administration proceeding, including any question – (i) arising in the administration of an estate or in the execution of a trust.”
6 “Administration proceeding” is defined to mean:
“a proceeding for the administration of an estate or the execution of a
trust under the direction of the Court.”
7 The power conferred by the Rule is said to be a wide power. If there is any doubt that this application is being brought in an administration proceeding[1], it is still desirable to determine it. The proceeding was commenced by Originating Motion, all relevant persons notified and it raises an issue that requires determination.
[1] See ‘Civil Procedure Victoria’, Volume 1, at page 5122
8 The application appears to fall within the wide powers contained in s.37 of the County Court Act 1958. I was not referred to any Act which excludes the power of the Court to hear the application. The Court can grant a declaration under s.49 of the County Court Act 1958.
9 The property is currently registered in the name of Joseph Baxter and became so registered on 29 April 1893. Joseph Baxter died on 15 February 1943.
10 The issue is whether Ms Fisher, or anyone else, is entitled to claim adverse possession of the property in order to obtain a title thereto. Relevant sections of the Limitation of Actions Act 1958 state:
“8 Action to recover land No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him …
Provided that if the right of action accrued to the Crown the action may be brought at any time before the expiration of fifteen years from the date on which the right of action accrued to some person other than the Crown.
9 Accrual of right of action in case of present interests in land
(2) Where –
(a) any person brings an action to recover any land of a deceased person, whether under a will or on intestacy; and (b) the deceased person was on the date of his death in possession of the land, or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged, and was the last person entitled to be in possession thereof –
the right of action shall be deemed to have accrued on the
date of his death.14 Right of action not to accrue or continue unless there is adverse possession
(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereinafter in this section referred to as adverse possession); and where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date the right of action shall not be deemed to accrue until adverse possession is taken of the land. (2) Where a right of action to recover the land has accrued and thereafter before the right is barred the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action be deemed to accrue until the land is again taken into adverse possession. …
18 Extinction of title after expiration of period
Subject to the provisions of section eleven of this Act, at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action or an action to compel discharge of a mortgage) the title of that person to the land shall be extinguished.”
11 Section 23 deals with the extension of limitation periods in the case of disability.
History of Proceedings
12 The proceeding was commenced by Originating Motion dated 15 July 2010, which was later amended. It was supported by an affidavit of Maureen Patricia Fisher of 7 July 2010. On 1 October 2010, her Honour Judge Lewitan gave directions for the conduct of the proceeding, including for the joining and service of the Registrar of Titles. The order also directed that the plaintiff serve a letter notifying a number of individuals of the application and of their right to be joined as parties. Those individuals were Dianne Winduss, Gerard Kelly, any other son or daughter of Dorothy May Kelly who is now living, with the exception of the plaintiff in the proceeding, and State Trustees, as executor of the Will of Edna Eileen Winduss deceased. The order also directed the placement of an advertisement, stating the existence of the proceeding and the right of a person to apply to be joined as a party in a newspaper circulating in the Maldon district and circulating throughout the State of Victoria.
13 Those directions were carried out.
14 By letter of 1 November 2010, the Registrar of Titles wrote to the plaintiff’s solicitors stating that “on the basis of present information, I do not intend to appear in the action and I do not intend to claim costs”. The letter also referred to authority and stated that the plaintiff would need to obtain a declaration from the Court of a positive finding of adverse possession in the plaintiff’s favour to support an application for a vesting order pursuant to s.62 of the Transfer of Land Act 1958. Reference was made to the decision in Malter v Procopets.[2] The letter stated that if the plaintiff was successful, she would need to make a s.60 application, supported by the order of the Court and a plan of survey of the disputed land, which is the subject of the adverse possession claim. The letter also sought confirmation that costs would not be sought against the Registrar.
[2] [2000] VSCA 11
15 The proceeding returned to the Directions List on 2 December 2010, when I gave further directions and fixed the application for hearing on 4 February 2011.
16 I gave directions for service of the order and a procedure for anyone who wished to be heard to provide notification of that fact. No one gave that notification.
17 On 4 February 2011, I heard submissions from counsel for the plaintiff and raised the following questions:
(a) whether the relevant limitation period was fifteen or thirty years; (b)
what was the Court required to do in order to identify the true owner of the land so that that Court could identify against whom the adverse possession ran?
(c)
did the occupancy of Dorothy Kelly between 1988 and 1998 and thereafter by Gerard Kelly constitute adverse possession?
(d) what orders in the circumstances should be made? 18 I directed that written submissions be provided about these issues. I received submissions on 25 February 2011. Those submissions raised, for the first time, the submission that when Joseph Baxter died intestate leaving seven children, those children had no rights, vis-à-vis, the real estate, and had only a right of action against the person or persons who would have been his personal representatives for division of the receipts when the property was sold. Because Joseph Baxter died intestate, pursuant to the Administration and Probate Act 1928, as subsequently amended, the land vested in the Public Trustee, and then State Trustees, until the present date. Under s.19 of the Administration and Probate Act 1958, the estate of an intestate vests in State Trustees between death and the grant of administration.
19 The submission put was that after the deceased died, no person other than the Public Trustee/State Trustees had an interest in the land sufficient to give any other person the right to live in the property. Those persons living in the property since the death of the registered proprietor had clearly done so with an intention to possess the whole of the land.
20 State Trustees had the right to possession of the property as legal owner and could be sued, e.g. in an ejectment proceeding.[3]
[3] See Andrews v Hogan (1952) 86 CLR 223 at 234 and Perpetual Trustee Co Ltd v Public Trustee (1956) 56 SR (NSW) 384
21 On 4 May 2011, I directed that State Trustees Ltd be served with copies of relevant papers and a letter stating that that it was the person against whom adverse possession is claimed and provided for a procedure for it to notify the Court if it wished to be heard.
22 The proceeding was relisted on 3 June 2011 to seek clarification of State Trustees’ position and to raise two further questions with the plaintiff. They were:
[4] [2009] WASC 152
[5] cf Nolan v Nolan [2004] VSCA 109
(a) whether State Trustees, or its predecessors, were to be regarded as part of the Crown so that no title by adverse possession could be made against them: see s.7 of the Limitation of Actions Act 1958 and cases such as Water Corporation v Hughes.[4] (b) does the plaintiff hold the property in issue as trustee for its true beneficial owners and, if so, does s.21(1) of the Limitation of Actions Act 1958 apply?[5] 23 I received written submissions about these issues on 28 June 2011.
24 I am satisfied that by reason of the State Trustees (State Owned Company) Act 1994, State Trustees is a State Owned company within the meaning of the State Owned Enterprises Act 1992 and by s.70 of that latter Act, does not represent the State. I consider that adverse possession of property can be had against State Trustees.
25 I am also satisfied that the plaintiff does not hold the land as trustee for any beneficiaries.
26 On 9 June 2011, State Trustees wrote to my Associate acknowledging receipt of the documents that I had directed to be served, and stating:
“It is not the intention of State Trustees Ltd to appear in the matter or to
make submissions.”
Events After the Death of Joseph Baxter in 1943
27 According to Joseph Baxter’s Death Certificate, his wife predeceased him and he was survived by seven children, aged between sixty-five and forty-nine, as at February 1943. The second youngest child was Edwin John Baxter, aged fifty-one years.
28 There has never been a grant of probate of the Will of Joseph Baxter, or a grant of letters of administration in relation to his estate.
29 The affidavit in support of the application by Ms Fisher swears as to her belief, that after the death of Joseph Baxter, Edwin John Baxter, his second youngest child, continued to live in the Maldon property.
30 Edwin John Baxter died on 7 September 1981. There was never a grant of probate of a will or of letters of administration of the estate of Edwin John Baxter. According to his Death Certificate, he left seven children, aged from sixty-seven years to fifty-two years, including Irwin, Edna Eileen Winduss and Dorothy May Kelly.
31 Ms Fisher refers to a will purportedly signed by Edwin John Baxter dated 28 July 1972, by which his estate was left to his daughters, Edna Eileen Winduss, and Dorothy May Kelly, the mother of Ms Fisher, in equal shares. There was no evidence whether Edwin John Baxter made a later will.
32 According to Ms Fisher’s affidavit, after Edwin John Baxter died in 1981, his eldest son, Irwin, and his wife, lived in the property and paid rates. Next, Dorothy May Kelly, who was Edwin John Baxter’s daughter and Ms Fisher’s mother, moved onto the property in mid-1988 and lived there until her death on 8 January 1998.
33 Ms Fisher’s affidavit states that at the time of her death, Dorothy Kelly was a widow and left five children.
34 Dorothy May Kelly’s Will appointed her son, Anthony John Kelly, and Ms Fisher as executors and trustees of her Will and estate. It gave the Maldon property and the residue of her estate to her trustees upon the following trusts:
“In relation to any share which I might have in my father’s house at 32 Castlemaine Road, Maldon, I give to my son Edwin James Kelly as long as he wishes to use or reside in it and then to be sold and any monies arising from the sale be returned to the trustees and distributed with the residue.
…
In relation to the residue of my estate I direct my trustees to give to such of my children as survive me by thirty days in equal shares. If any of the children do not survive me leaving a child or children surviving then that child or children will take the share the parent would have taken.”
35 Maureen Fisher obtained probate of her mother’s Will on 27 April 2007, more than nine years after her death. The grant of probate reserved to Anthony John Kelly, the other named executor, to come in at any time and prove the Will.
36 According to Ms Fisher’s affidavit, Edwin James Kelly did not wish to exercise any right given to him by his mother’s Will to reside in the property. As Edwin James Kelly did not wish to use or reside in the property under the terms of the Will, it was to be sold, and any monies arising from the sale be returned to the trustees and distributed with the residue.
37 Ms Fisher states that following the death of Dorothy Kelly, she and Edna Winduss, who was also one of the co-beneficiaries of the estate of Edwin John Baxter under the 1972 Will, consented to one of Dorothy Kelly’s son’s, Gerard Kelly, living in the property. He still does so, in essence as a caretaker. He makes no claim to the property.
38 Edna Eileen Winduss died in 2005 and left her residuary estate to her daughter, Diane Winduss, her husband having predeceased her.
39 In May 2007, a month after she had obtained probate of Dorothy Kelly’s will, Maureen Fisher and Diane Winduss signed a Deed of Agreement, whereby it was agreed that she would make an application for adverse possession of the Maldon property in order to obtain title thereto. It was also agreed that within sixty days of the issue of a new title, the property would be sold and the proceeds divided equally between them after payment of all costs.
40 The application raises the issues of:
(a) who is entitled to possession of the Maldon property? and (b) has there been adverse possession of that property so that the time limit contained in s.8 of the Limitation of Actions Act has expired? 41 This is not a case where there is any extension of the limitation period because of disability. The effect of ss.19 and 38 of the Administration and Probate Act 1958 is that those persons entitled to the estate of an intestate take no interest held by him at the date of his death, but only a right of action against the person or persons who would have been his personal representatives for division of the receipts when the property was sold.
42 Counsel for the plaintiff put the following submissions:
•
In order to establish title to the property by adverse possession, it must be shown that there has been open possession of the land without the licence of the true owner, such possession being held with animus possidendi, an intention to possess the land. His case was, that upon the death of Joseph Baxter, the only true owner of the land was his executor or administrator. If there was no will, then the estate vested in the State Trustees pursuant to s.19 the Administration and Probate Act 1958.[6]
•
There being no administration of the estate of Joseph Baxter, title in the land would therefore seem to have vested in the Public Trustee and then the State Trustees.
•
After the deceased died, no person other than the Public Trustee/State Trustee had an interest in the land sufficient to give any other person a right to live in the property. Those persons living in the property since the death of the registered proprietor have done so with the intention of possessing the whole of the land.
•
The occupancy of the property by Irwin Baxter after Edwin Baxter’s death, together with the occupancy of Dorothy Kelly and Gerard Kelly, can be looked upon as being possession of the property adversely against the true owner.
[6] By the Administration and Probate Act 1928, the property of the intestate vested in the Chief Justice of the Court. By the Public Trustee Act 1939, s.15 of the 1928 Act was amended so as to vest the estate of an intestate person in the Public Trustee until administration was granted. State Trustees have replaced the Public Trustee.
43 The applicable principles were discussed by the Court of Appeal in Whittlesea City Council v Abbatangelo.[7] The Court of Appeal set out relevant principles in detail by reference to earlier authority including:
[7] (2009) 259 ALR 56; [2009] VSCA 188 and see Cervi v Letcher [2011] VSC 156, Kleiner v Randall [2005] NFSC 3 per Kiefel J, Kierford Ridge Pty Ltd v Ward [2005] VSC 215, Roy v Lagona [2010] VSC 150
(a)
that a person who claims adverse possession must be shown to have both factual possession and the requisite intention to possess;
(b)
factual possession signifies an appropriate degree of physical control. What will be required depends on the circumstances, but a court has regard to matters including the nature, position and characteristics of the land, the uses that are available and the course of conduct that the owner might be expected to follow;
(c)
so far as the intention to possess is concerned, there need not be a conscious decision to exclude the true owner, but an intention to exercise exclusive control – to exclude the world at large, including the owner with the paper title if he is not the possessor. Clear and affirmative evidence is required that the alleged adverse possessor had the requisite intention. Acts open to more than one interpretation are insufficient.
(d)
a person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession.[8]
[8] Whittlesea City Council v Abbatangelo (supra) at [5]
44 In Kierford Ridge Pty Ltd v Ward, Hansen J, in dealing with the necessary intention to possess the disputed land to the exclusion of the owner, stated:
“In submitting that the plaintiff had not established the necessary intention to possess the disputed land to the exclusion of the owner of the land, counsel said the mere possession of the area by the plaintiff and its predecessors was not enough. It had to be occupation with intent, and the plaintiff had the onus of establishing that intent. Counsel submitted that the fact that the disputed land was enclosed and attached to the plaintiff’s building was not enough to establish the requisite intention. The mere use of the toilet facility was not enough what was required was evidence of the plaintiff’s predecessors in title of their intention, and there was no evidence from those persons. While not overlooking that submission it is important to attend to what Slade J said in the passage quoted, in particular that the courts will require clear and affirmative evidence that the trespasser not only had the requisite intention to possess but made such intention clear to the world. It is important to understand what is meant by intention in this respect. This is referred to conveniently in Bayport as follows:
‘When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin. As a number of authorities indicate, enclosure by itself, prima facie indicates the requisite animus possidendi ….’”[9]
(references omitted)
[9] [2005] VSC at [132]-[133]
45 On 3 June 2011, I stated my conclusion that, on the material then filed, a case of adverse possession had not been established. That was, it has not been established that any possession of property since 1943 was with the intention to exclude the world. The terms on which persons had occupied the property had not been established.
46 The period of possession that Maureen Fisher relied on as establishing a claim to adverse possession is that commencing in 1988 when her mother, Dorothy May Kelly, moved into the property.
47 There was insufficient evidence to establish the nature of the periods of possession relied on.
Further Material Filed – Affidavit of Anthony John Kelly
48 After I had indicated my view on the evidence to that point, the plaintiff sought the opportunity to file further material. This was done in the form of an affidavit of Anthony John Kelly of 7 September 2011, the brother of Maureen Fisher and the co-executor of Dorothy May Kelly’s estate. In that affidavit, he stated the following facts based in part on family history and in part on his own knowledge.
49 The family history had it that, before he died, Joseph Baxter sold the property to Mr Kelly’s grandfather, Edwin Baxter. He was told this by his mother, Dorothy Kelly, and also by his Aunt Ethel, the daughter of one of Joseph Baxter’s children. His mother, Dorothy Kelly, told him that she had seen a receipt signed by Joseph Baxter in favour of Edwin Baxter, which showed that Edwin had paid in full to purchase the Castlemaine property from Joseph Baxter. Mr Anthony Kelly had not seen this receipt but he was also told by his Aunt Ethel that the receipt was in existence and that she held the document.
50 His Aunt Ethel lived in Maldon in a property other than that the subject of this proceeding. He visited her in 1998 when she was suffering from dementia and she stated that she had all her papers in a tin including, she told him, the receipt by which Joseph Baxter had acknowledged that Edwin Baxter had purchased the property. They looked through the tin but could not find it. He did not hassle her further about it. Since then, his Aunt Ethel has died and her belongings have been dispersed. He has no idea where the tin or the receipt might be at this time.
51 Mr Anthony Kelly lived in the property between about 1950 and 1958 with his parents and his six brothers and sisters. His father’s grandmother also lived there. He described it as the family home. His mother told him that Edwin Baxter had decided to move back to Melbourne where he had a job. Because the Castlemaine Road property was then empty, his parents and the family moved up there to live on the basis that it was Edwin Baxter’s property. His father worked in a local factory. Mr Kelly’s mother told him that she was renting the property from Edwin Baxter.
52 In 1958, Mr Kelly’s family moved to Melbourne and his grandfather, Edwin Baxter, returned to live in the Castlemaine property and lived there until he died in September 1981. His wife had died six years before that and his mother, Dorothy Kelly, moved to the Castlemaine property to look after her father.
53 When Edwin Baxter died in 1981, the house was vacant for about twelve months. Everyone in the family regarded it as Edwin Baxter’s old house.
54 After the property had been vacant for a while, Mr Kelly’s uncle, Irwin Baxter, and his wife, Kath, moved into the property. Mr Kelly stated that his mother, Dorothy Kelly, allowed this to happen. The agreement was that Irwin Baxter and his wife could live there if they kept up the property and paid the rates. According to Mr Kelly, they lived there for six years with his mother, Dorothy Kelly’s permission. After Irwin Baxter died, his wife moved back to Bendigo and the house became empty.
55 Dorothy Kelly moved back to the Castlemaine property in 1988 after her husband died. At the time, the house needed a lot of work done on it and so various family members who were plumbers and carpenters help renovate the property for Dorothy Kelly to live in. Dorothy Kelly sold her property in Maldon, which enabled her to buy a car as well as pay for the renovations to the property.
56 Dorothy Kelly died in 1998 after she had lived in the property for about ten years. The property was again vacant for a few months. Gerard Kelly, a brother of Maureen Fisher and Anthony Kelly, needed a place to live. Mr Kelly states that he gave his permission for him to move into Dorothy Kelly’s house, i.e. the Castlemaine property. He has been living there ever since. He has been paying the rates for the property, all the outgoings for electricity and water and has been keeping the place up generally. He makes no claim to the property.
57 Anthony Kelly states that since his mother’s death, he has been trying to regularise the situation between her estate and Edna Winduss’ estate. Dianne Winduss and Maureen Fisher have agreed to obtain a proper title to the property so they can sell it, either to other family members or to a third person, so Dianne Winduss can receive Edna Winduss’ share of her grandfather, Edwin Baxter’s estate.
58 Mr Anthony Kelly exhibited the results of a search of the property from the rate book of the Mount Alexander Shire Council. That document, which was provided by the Revenue Officer of the Shire Council, stated that the following persons were recorded as rate payers:
(1) 1992 to 1997 : Estate of E Baxter and I J and K H Baxter; (2) 1997 to the current date: D Kelly and Estate of D Kelly. 59 The proceeding was relisted on 26 September 2011 to address the matters contained in Anthony Kelly’s affidavit. Counsel for the plaintiff submitted that Edwin Baxter and Dorothy Fisher had been “unfurling the flag” at the property since the death of Joseph Baxter:
•
With the consent of Edwin Baxter, Anthony Kelly’s family lived at the property from 1950 to 1958 paying rent to Edwin Baxter;
•
Edwin Baxter lived there from 1958 to 1981. Irwin Baxter, with the consent of Dorothy Kelly, lived there from 1982 to 1987;
• Dorothy Kelly resided there from 1988 until her death in 1998. 60 Counsel submitted that no other family member claims ownership to the property, as there has been considerable notification of all family members and other persons thought to be interested in the property, without interest being expressed. Secondly, no local resident claims ownership to the property despite their advertising both in the press and by placing a notice on the land.
61 In the circumstances, no person other than the plaintiff and Dianne Winduss, by reason of the arrangement she has with the plaintiff, can defeat a claim by the plaintiff to ownership of the land. The plaintiff was entitled to be registered as proprietor. Counsel referred to the decision of the New South Wales Supreme Court in Nicholas v Andrew,[10] as establishing that even though there are intervals of one of two to three months between the going out of one tenant and the coming in of another, and the land not being occupied during those intervals, there can be continuity of the adverse possession necessary to establish possessory title to the land.
[10] (1920) 20 SR (NSW) 178 of 187
62 During the course of submissions on 26 September 201, I raised with Counsel whether the possession of the property, since the death of Dorothy Kelly, could be regarded as possession by her estate. Mr Anthony Kelly’s affidavit suggested that he had taken an active part in the control of the property since his mother’s death.
63 Counsel did not dispute this analysis of the situation.
64 Having indicated this approach, I was concerned at the position of Dianne Winduss and the fact that she expected to receive part of the proceeds of the sale of the property under her agreement with Maureen Fisher. Accordingly, I made directions that an appropriate notice be served on her and gave her the opportunity to be heard further in the proceeding. The solicitor for the plaintiff made an affidavit stating that Diane Winduss had acknowledged receipt of his letter and had confirmed to him that she did not intend to be heard in this proceeding before judgment is delivered.
65 In those circumstances, it is appropriate that I proceed to determine this application.
66 I am satisfied that the period of occupancy between 1988 and the present is a period of adverse possession that satisfies the Limitation of Actions Act. It consists both of the occupancy by Dorothy Kelly and then occupancy by Gerard Kelly, permitted by the executors, Maureen Fisher and Anthony Kelly, on behalf of the estate. Those periods of possession can be joined. After the death of Dorothy Kelly, her executors exercised control over the property by allowing Gerard Kelly to occupy it.
67 Parts of Anthony Kelly’s affidavit relate family history. However, his evidence about Dorothy Kelly’s occupation of the property and of events after her death is direct evidence from his own knowledge. When read with Maureen Fisher’s affidavit, it provides direct evidence of an intention by Dorothy Kelly and her executors to exercise exclusive control of the property commencing in 1988 and lasting until the present, a period of twenty-three years.
68 As previously stated, that adverse possession has been exercised against State Trustees.
69 I do not consider that the agreement made between Maureen Fisher and Dianne Winduss means that the executors of her estate were not intending to exercise exclusive control of the property. Rather, it indicates a recognition by them that, because of Edwin Baxter’s 1972 Will, Edna Winduss, and now Dianne Winduss, had an entitlement to part of the proceeds of the property when it was sold. But that agreement recognises in the recital, correctly in my opinion, that it was necessary for Maureen Fisher and not Dianne Winduss to make an adverse possession application. It states:
“Maureen, on behalf of Dorothy’s estate, will make an adverse possession application to the Registrar of Titles in order to obtain a Title to the Maldon property.”
70 That recital correctly stated what needed to be done.
Conclusion
71 In those circumstances, I answer the question posed as follows:
“Maureen Patricia Fisher and Anthony John Kelly, as executors of the estate of Dorothy May Kelly, have acquired title by adverse possession of the land situate and known as 32 Castlemaine Road, Maldon, and being the land more particularly described in Certificate of Title Volume 1456 Folio 117.”
72 I will make declarations to that effect.
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