Gibson v The Estate of James Allard (No 2)
[2018] VSC 101
•8 March 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LAW
S CI 2016 05198
| BENJAMIN JOHN GIBSON | First Plaintiff |
| AARON GLENN HANSEN | Second Plaintiff |
| v | |
| THE ESTATE OF JAMES ALLARD | First Defendant |
| REGISTRAR OF TITLES | Second Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF JUDGMENT: | 8 March 2018 |
CASE MAY BE CITED AS: | Gibson and anor v The Estate of James Allard and anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 101 |
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REAL PROPERTY – Final reasons in respect of claim for adverse possession – Interim judgment delivered 20 December 2017 as Gibson and anor v The Estate of James Allard and anor [2017] VSC 788 - Claimed land consists of two portions – The owner of one portion joined as a defendant – The current representative of that owner traced and does not object to the application – The other portion of the claimed land consists of ‘excess land’ being land in a Crown grant not included in a subsequent subdivision – No identification or joinder of the current owner of the excess land – Application adjourned for further evidence and submissions as to joinder of owner of the excess land – Further submissions from the second defendant adopted by first defendant to the effect that the plaintiffs are the owners of the excess land – Declaration now sought only as to the other portion of the claimed land – Declaration made accordingly - Limitation of Actions Act 1958 (Vic) ss 8, 9,14,16,18,102
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr W. Rimmer | Best Hooper |
| For the Defendants | No appearance |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Views expressed by the Registrar of Titles................................................................................... 3
Plaintiffs’ further submissions........................................................................................................ 4
Conclusion........................................................................................................................................... 5
HER HONOUR:
Introduction
The plaintiffs are the registered proprietors of land known as 18 George Street, Brunswick. This proceeding concerns their claim that they have acquired title by adverse possession to a narrow strip of land (the Claimed Land), less than 1.5 metres in width, and approximately five square metres in area, between the weatherboard cottage erected on their land and the weatherboard cottage erected on the adjoining property, known as 16 George Street, Brunswick.
I delivered an interim judgment on the application on 20 December 2017 in reasons published as Gibson and anor v The Estate of James Allard and anor (Interim Judgment).[1] I adjourned the application for further evidence and submissions. I now set out the reasons for my final determination.
[1][2017] VSC 788.
It is first important to repeat that this is an unusual application for title by adverse possession. In the common case, the dispute is between two adjoining registered proprietors in respect of land that is in the title of one, but has been in the possession of the other. That is not this case. Here the Claimed Land is not within the title of the adjoining land at 16 George St. The Claimed Land consists of two portions, and there are unusual aspects to each of those portions.
The smaller portion of the Claimed Land (Reserved Land) remains registered in the names of its registered proprietors as at 1885, both of whom have since died. The estate of the survivor of those joint registered proprietors is the only substantive defendant to this proceeding. The plaintiffs ascertained the current proper representative of those registered proprietors and appropriately served that representative. That representative did not oppose the application.
The plaintiffs contend that that larger portion of the Claimed Land (Excess Land) is land included in the original Crown Allotment 105 but not included in its subsequent subdivision. They rely on evidence from a surveyor to the effect that there is no registered proprietor in respect of the Excess Land, and have not joined any person as a defendant to be notified of the application in respect of the Excess Land.
In my Interim Judgment I was satisfied that the representative of the registered proprietors of the Reserved Land was properly identified and served and did not oppose the application. I further held:
On the evidence currently before me the plaintiffs have established that they and their predecessors in title have been in possession of the Claimed Land with the intention of excluding all others for in excess of 15 years. I do not consider (it) appropriate, however, at this stage to finally determine that issue. This is because the plaintiffs have not identified the current owner of the Excess Land, joined that person, and served him or her, or sought to dispense with those requirements.[2]
[2]Ibid [6].
The Interim Judgment proceeded on the assumption that the Excess Land was likely to have remained in the ownership of a Mr Alfred Cornwall and thence his estate on his death as registered proprietor.[3] I reached this tentative conclusion on the basis that Mr Cornwall became the registered proprietor of a large portion of Crown Allotment 105 to the southern boundary of the Allotment in 1871. His title included the land that ultimately became the plaintiffs’ land. On the evidence before me the land in Mr Cornwall’s ownership was first subdivided by LP 92 in 1872 and that subdivision did not include the Excess Land.[4] LP 92 was subsequently further subdivided and a portion abutting the southern boundary of LP 92 ultimately became the plaintiff’s land.[5]
[3]Ibid [47]-[49].
[4]Ibid [31], [35].
[5]Ibid [29]-[32].
I noted that these assumptions were preliminary, and subject to further evidence and submissions, and suggested that the plaintiffs consult with the Registrar of Titles in relation to the issues I raised as to the ownership of the Excess Land.[6] The Registrar had not, to that point, played any active role in the proceeding other than to require that the plaintiffs obtain a judgment supported by findings on evidence, and not just on the averments in the statement of claim, notwithstanding that it was a judgment in default of appearance.
[6]Ibid [46], [7].
The plaintiffs duly made enquiry of the Registrar in relation to the issues raised in the Interim Judgment. I will set out in detail shortly the contentions in the reply from the Registrar. In summary, the Registrar now considers that the Excess Land is already in the ownership of the plaintiffs and so he no longer requires the plaintiffs to obtain a binding declaration to that effect from the Court. The Registrar indicates that if the Court finds that the plaintiffs have acquired title by possession to the Reserved Land that will be sufficient for the Registrar to include the Excess Land in the folio for the Reserved Land pursuant to s 102 of the Transfer of Land Act 1958 (TLA). The plaintiffs adopt the Registrar’s approach, and have added further submissions in support. They now seek a declaration as to adverse possession in respect of the Reserved Land only.
For the reasons set out below I will make that declaration.
Views expressed by the Registrar of Titles
The reply from the Registrar is to the following effect:[7]
[7]Letter dated 7 February 2018 to the solicitors for the plaintiffs.
i) The Excess Land was included in the Crown survey for the original Crown grant, although not in the original Crown grant itself.
ii) By virtue of s 268 of the Property Law Act 1958, the Crown survey boundary is deemed to be the true boundary of the Crown grant and so the Excess Land was included in the land conveyed in the Crown grant.
iii) It follows that the Excess Land is not unalienated Crown land.
iv) There is, however, no paper title or folio of the Register for the Excess Land and never has been.
v) This is because the Excess Land was not included in the terms of the Crown grant.
vi) As it is deemed to be part of the title of the Crown grant, however, any dealing with or disposition of that land will also be a dealing or disposition of the Excess Land.
vii) It follows that when part of the relevant Crown grant, Crown Portion 105, was converted into Torrens title in 1865, the Excess Land was also converted.
viii) ‘Similarly, the Excess Land was transferred when it was first transferred by the original grantee and subsequently’ and ‘the Registrar considers excess land to be conveyed with a conveyance of the land containing it, subject to the exceptions provided for in section 42 of the TLA (for example, where there has been adverse possession of the excess land)’.
ix) ‘The legal owners of the Excess Land are the Plaintiffs’.
x) As the Registrar considers that the Plaintiffs are the legal owners of the Excess Land, it is not necessary for the Court to make a binding declaration of fact in this regard.
Plaintiffs’ further submissions
The contentions that I have summarised as points (i)-(iv), and (vii) above are consistent with the evidence before me and my findings in the Interim Judgment. I accept contention (v) as being within the expert knowledge of the Registrar. The approach that the Registrar has indicated he will take if the Court makes a declaration of adverse possession in respect of the Reserved Land is a matter as between the Registrar and the plaintiffs, in the absence of any opposition to that approach. However, with respect, I am not persuaded that the Registrar has fully explained his reasons for taking that approach, and in particular his reasons for the contentions numbered (vi), (viii), (ix) and (x). In particular, these contentions do not appear to have engaged with the discussion and analysis in the Interim Judgment.
My concern in this regard has, however, been sufficiently addressed by the further submissions from the plaintiffs. Counsel for the plaintiffs has helpfully expanded on the Registrar’s contentions. Counsel’s submission is that the Registrar must be taken to have meant that because the plaintiffs’ land abuts the Excess Land (which in turn abuts the Reserved Land) the various transfers of what ultimately became the plaintiffs’ land to their predecessors in title necessarily included the Excess Land. Counsel expresses it this way:
Implicit in the reasoning is that the transfer of that part of Crown Portion 105 that by title adjoined the Excess Land and each subsequent transfer also conveyed with it the Excess Land. In other words, a subset of all the transfers of parts of Crown Portion 105 carried with them the Excess Land, that subset being all of the transfers to each of the Plaintiffs’ predecessors in title (See Judgment [35] for a history of those predecessors).[8]
[8]Gibson and Hansen, ‘Submissions for the Plaintiffs in Response to Interim Judgment of the Court’, Submission in Gibson and anor v The Estate of James Allard and anor, S CI 2016 05198, 23 February 2018, [13].
I accept these submissions. They are consistent with the views expressed by the Registrar, and give meaning to those views.
Conclusion
Consistently with the findings in my Interim Judgment I will make the declaration now sought by the plaintiffs that they have obtained title by adverse possession to the Reserved Land. I note that on the basis of the Registrar’s views, as elaborated by counsel for the plaintiffs, this will be sufficient for the plaintiffs to obtain title to the whole of the Claimed Land.
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