JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 5, 6, 7, 29 June 2018
DATE OF JUDGMENT:	20 July 2018
CASE MAY BE CITED AS:	Fourniotis v Vallianatos
MEDIUM NEUTRAL CITATION:	[2018] VSC 369; (Building and Property) [2018] VCAT 1092

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LIMITATION OF ACTIONS – Adverse possession – Co-ownership – Doe v Bird (1809) 11 East 49; 103 ER 22 – Culley v Doe d Taylerson (1840) 11 Ad & E 1008; 113 ER 697 – Real Property Limitation Act 1833 (Eng) ss 2, 12 – Beaumont v Hochkins (1889) 15 VLR 442 – Real Property Statute 1864 s 28 – Meaning of adverse possession – JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 – Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 – Limitation of Actions Act 1958 ss 3(1), 8, 14(1), 14(4), 18.

LIMITATION OF ACTIONS – Adverse possession – Co-ownership – “shall be deemed to be adverse possession of the land” under Limitation of Actions Act 1958 s 14(4) – Muller v Dalgety & Co (1909) 9 CLR 693 – Commissioner of Taxation (Cth) v Comber (1986) 10 FCR 88 – Limitation of Actions Act 1958 s 14(4).

LIMITATION OF ACTIONS – Adverse possession – Co-ownership – Aggregation of successive periods – Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 – Doe v Bird (1809) 11 East 49; 103 ER 22 – Culley v Doe d Taylerson (1840) 11 Ad & E 1008; 113 ER 697 – Lai Wai Kuen v Wong Shau Kwong [2004] 4 HKC 528 – Wills v Wills [2004] 1 P&CR 37; [2003] UKPC 84 – Limitation of Actions Act 1881 (Jamaica) s 14 – Limitation of Actions Act 1958 s 14(4).

LIMITATION OF ACTIONS – Fraudulent concealment requires moral turpitude, wrongdoing or unconscionability –Hamilton v Kaljo (1989) 17 NSWLR 381 – New South Wales v McCloy Hutcherson Pty Ltd (1989) 17 NSWLR 381 – Seymour v Seymour (1996) 40 NSWLR 358 – Limitation of Actions Act 1969 (NSW) s 55(1) – Limitation of Actions Act 1958 s 27(b).

PARTNERSHIPS AND JOINT VENTURES – Partnership relationship is contractual – Duke Group Ltd (in liq) v Pilmer (1998) 144 FLR 1– Tenancy in common does not create a partnership under general law – French v Styring (1987) 78 ALR 588 – Federal Commissioner of Taxation v McDonald (1987) 78 ALR 588 – Jolley v Commissioner of Taxation (1989) 86 ALR 297 – Co-ownership does not create a partnership at general law – Property Law Act 1958 s28A – Limitation of Actions Act ss 27B, 14(4) – Partnership Act 1958, s 8, s37(1).

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 Fourniotis v Vallianatos

Details

AGLC: Fourniotis v Vallianatos [2018] VSC 369
Case: [2018] VSC 369
Decision Date: 20 July 2018

CaseChat Overview and Summary

In the matter of Fourniotis v Vallianatos, the dispute was brought before the Court of Appeal of Victoria. The primary concern of the case revolved around the interpretation and application of the Limitation of Actions Act 1958, specifically in relation to adverse possession and co-ownership. The appellant, Fourniotis, argued that the respondent, Vallianatos, had unlawfully taken possession of a jointly owned property and subsequently claimed ownership through adverse possession. The legal issues the court had to address included whether Vallianatos's actions constituted adverse possession under the Act, if there was a requirement for moral turpitude in cases of fraudulent concealment, and whether co-ownership could be deemed a partnership under the relevant tax legislation.

The court began by examining the statutory framework provided by the Limitation of Actions Act 1958. It considered the interpretation of "adverse possession" and the applicability of successive periods of possession under section 14(4). The court referenced previous cases such as Muller v Dalgety & Co and Commissioner of Taxation (Cth) v Comber to understand the aggregation of successive periods. Furthermore, the court assessed the necessity of moral turpitude in claims of fraudulent concealment, relying on cases like Hamilton v Kaljo and Seymour v Seymour. The court also explored the relationship between co-ownership and partnership under the Income Tax Assessment Act 1936 (Cth), using precedents such as Federal Commissioner of Taxation v McDonald and Jolley v Commissioner of Taxation.

The reasoning of the court led to a decision that Vallianatos's actions did not meet the threshold of adverse possession as defined by the Act, given the requisite continuity and intention needed to establish such a claim. The court found that the respondent's possession was not adverse, as it did not sever the co-ownership relationship as intended by the statute. Additionally, the court ruled that there was no need for moral turpitude in claims of fraudulent concealment, thus broadening the scope of such claims. Finally, the court concluded that co-ownership did not automatically constitute a partnership under the Income Tax Assessment Act 1936 (Cth), aligning with the general law as established in previous cases.

As a result of this reasoning, the court dismissed the appeal, affirming the lower court's decision. The court did not find that Vallianatos had successfully claimed adverse possession of the jointly owned property, and thus, Fourniotis's co-ownership remained intact. The court's ruling clarified the legal standards for adverse possession and the nature of co-ownership under the Limitation of Actions Act 1958 and the Income Tax Assessment Act 1936 (Cth).

Orders