Ghilarducci & Ors v Ghilarducci

[1992] HCATrans 315

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl7 of 1992

B e t w e e n -

PIETRO GHILARDUCCI, FLORA

GHIDLARDUCCI, JOHN GHILARDUCCI

and DAVID GHILARDUCCI

Applicants

and

GIUSEPPE GHILARDUCCI and MARIA

GHILARDUCCI

Respondents

Application for special leave

to appeal

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 16 OCTOBER 1992, AT 12.06 PM

Copyright in the High Court of Australia

Ghilarducci 1 16/10/92

MR c.w. SANDERSON:  May it please the Court, I appear for

the applicants in this matter. (instructed by

Wilson & Rogers)

MR P.A. MONACO:  May it please the Court, I appear for the

respondents. (instructed by Godfrey Virtue)

MR SANDERSON:  Your Honours, this application raises a

question of adverse possession and I would venture

to suggest it is not a matter that comes before

this Court on a regular basis.

The matter has to do with a property in

Karragullen, which is - - -

MASON CJ:  We have read the judgments and we are aware of

the facts, so there is no occasion to dwell on

them.

MR SANDERSON: Thank you, Your Honour. Perhaps I could

confine the points to be made on behalf of the

applicant to these, Your Honour. What the

applicant says is that the facts between the

parties are not in dispute to a large measure; that

the findings of fact by the trial judge and the

conclusions of law that he reaches are largely not

in dispute. The law as applied both at first

instance and by the Court of Appeal seems well

settled and covered by the cases of McWhirter v

Emmerson-Elliott and others.

What the applicant now says is that the

application of the law to this case raises a

question as to when adverse possession will lie, and

further raises the question of the certainty of the

area claimed, to what extent certainty is necessary

and to what extent lack of certainty can defeat the

claim.

Your Honours, if I could turn first to the

judgment of the judge at first instance, the facts

can be taken from that judgment because they were

supported on appeal.	I refer Your Honours to
page 11 of the application book.	What is said
there by His Honour is:

The evidence established to my

satisfaction that the fence which was erected

in 1983 was located somewhat to the north of

the position in which the parties had thought

the boundary to be, at least in certain

places. Six trees, three plums and three

apples, which were planted by the plaintiffs

and at all material times were cultivated,

watered, pruned and harvested by the

Ghilarducci 2 16/10/92

plaintiffs grow to the south of the common

boundary .....

In addition, a Bore was drilled by the

plaintiffs in or about 1961 on land which the

plaintiffs and the defendants both believed to

be within Lot 11 and which has been found to

be located slightly within Lot 12. It is
clear that the plaintiffs have enjoyed the

exclusive right to take water from that Bore

and the small dam which surrounds it,

throughout the past 30 years or so.

So, in essence, Your Honours, the position was

that the parties were mistaken as to their belief

as to the position of the boundary. When the

survey was conducted in 1983 the bore, in

particular, and certain fruit trees were found to

be on the respondents' land, when both parties had

assumed prior to that date that they were on the

applicants' land.

TOOHEY J:	Mr Sanderson, what are the size of these lots?
MR SANDERSON:	Your Honour, I am not sure that that comes

out from the evidence and it was not an issue

between the parties. They are, I believe, something in the region of 15 to 20 acres.

TOOHEY J: It is pretty disturbing, is it not, that given

land of that size, there is an argument that has

progressed this far over a two metre strip?

MR SANDERSON:  Yes, Your Honour. The problem is the bore.

If I could refer Your Honour to the survey feature

map on page 1, Your Honour will note that the bore

just protrudes into the respondents' property. It
is about a third of the way up from the bottom of

the page and a plan of it is developed over to the

left of the map.

Now, the evidence at trial was that the bore

was crucial to the viability of the owners of

lot 11 and, in essence - - -

DEANE J: Are bores terribly expensive in Western Australia?

MR SANDERSON: They are not terribly expensive, Your Honour,

but they are often dry when sunk.

DEANE J: But if it is right on the boundary, you would

think a bore, a yard or a metre in the right

direction, would have 100 per cent certainty of

success. I am told, not in Western Australia.

MR SANDERSON: Unfortunately not, Your Honour. It is a dry

State. There was no expert evidence about that, I

Ghilarducci 3 16/10/92

should add, Your Honour, but certainly it was put

by the applicants at trial that this bore was

crucial to the property as a whole. There was also

no evidence that without it the property would not

be viable but certainly that really is the matter

which has caused concern to the applicant.

Your Honours, the findings of the trial judge

were essentially that although the trees referred

to were said to belong to the applicants, that did

not mean that they were situated on the applicants'

property and further, although the bore was used by

the applicants, that was done with some form of

implied licence.

In the Full Court, Your Honours,

Mr Justice Rowland dealt with the evidence and the

conclusions reached by the learned trial judge and

if I could direct Your Honours to two particular

passages, the first on page 54 of the application

book. His Honour said:

The evidence is clear that each was

mistaken as to the position of the surveyed

line. But it seems to me that there was very

little mistake as between the parties as to

the land which each owned. His Honour seems

to have found that each had given the other

some form of licence to traverse the others

land for the purpose of tending trees. To an

extent, and a very minor extent, that may be

correct but it cannot, in my view, alter the

fact that each believed that the boundary line

between their properties was to be found on

the ground at least 2 metres south of the true

surveyed line -

The other passage to which I would refer

Your Honours deals with the question as to the certainty of the boundary line. If I could refer

Your Honours to page 61 of the application book,

and the bottom of that page:

In my view, the farming acts undertaken

on the disputed land by the appellants are

consistent only with the appellants' ownership

of this strip of land and them giving to the

registered owners from time to time a licence
to enter for the purpose of turning their

vehicles.

It may be difficult to define the area of

land in dispute with the precision that would
please a surveyor who will usually only

consider straight lines. But in my opinion a

strip of land 2 metres into Lot 12 and

parallel with the surveyed boundary has been

Ghilarducci 4 16/10/92

substantially and relevant possessed by the

appellants -

Now, Your Honours, what the applicants say is that, as I mentioned earlier, the law in this State

is settled by two cases to which reference has been

made, the first, Mcwhirter v Emmerson-Elliott and

the second, Middleton v Young. Now, in both of

those cases, without going to the facts, the

evidence as to the use made of the lot indicated

first that there was not use of the entire lot by
the claimants and secondly, that in both instances

the user was aware that the lot belonged to another

party and did not, at least in Middleton v Young,

occupy the land with the express intent of

adversely possessing.

Now, what the applicants say, Your Honour, is

that this split decision of the Full Court calls

into question the certainty that would otherwise

prevail, in this State at least, as to when acts of

user amount to adverse possession.

The second point that we say is raised by this

application is the question of the certainty of the

boundary. Not much attention is directed to that

either by the judge at first instance or by the
Full Court but reference is made to Higgs v

Nassauvain. It is the applicants' submission that that case says nothing whatever that would impact

upon the facts in this case. This was not a

boundary dispute. Both parties, although mistaken,

were fairly certain of where the boundary lay.

They simply operated under a mistake. They

believed that the boundary was other than where it

finally proved to be.

Your Honours, they are the applicants'

submissions.

MASON CJ:  The Court need not trouble you, Mr Monaco.

This application raises no question of general

principle.	The outcome of the case turns on its own
peculiar facts.	The application for special leave

to appeal is therefore refused.

MR MONACO:  May it please the Court, I move that the

application be refused and that the appellants pay

the respondents' costs.

MASON CJ:  Yes. You do not oppose an order for costs,

Mr Sanderson?

Ghilarducci 16/10/92

MR SANDERSON:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 12.18 PM THE MATTER WAS ADJOURNED SINE DIE

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