Guggenheimer v Registrar of Titles
[2002] VSC 124
•22 April 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5804 of 2000
| PAUL VINCENT GUGGENHEIMER MARTIN JOSEPH GUGGENHEIMER THERESA MARY GUGGENHEIMER IRENE GUGGENHEIMER | Plaintiffs |
| V | |
| REGISTRAR OF TITLES | Defendant |
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JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2002 | |
DATE OF JUDGMENT: | 22 April 2002 | |
CASE MAY BE CITED AS: | Guggenheimer v Registrar of Titles | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 124 | |
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CONVEYANCING – application to be registered as joint proprietor – application to remove Queen’s Caveat – application allowed – adverse possession – what constitutes ‘possession’ in a claim of title through adverse possession
Evidence Act 1958 – section 55
Limitation of Actions Act 1958 – sections 8, 9, 18, 23
Transfer of Land Act 1958 – sections 42(2)(b), 106(a)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr R R Boaden | Davis Ford |
| For the Defendant | Mr H J Langmead with Mrs J Tooher | Victorian Government Solicitor |
HER HONOUR:
In this proceeding, commenced by originating motion on 19 June 2000, the plaintiffs claim:
·a declaration that they are entitled to be registered as joint proprietors of Lots 230 to 236 on Plan of Subdivision 11106 (“the subject land”), which is the land remaining untransferred in Certificate of Title Volume 9352 Folio 994.
·a direction to the defendant to remove Queen’s Caveat No N119907Q, lodged by the defendant (“the Registrar”), forbidding the registration of any dealing with that Certificate of Title by William Desmond Caven and Marie Elizabeth Caven (“the Cavens”), who are the present registered proprietors; and
·a direction to the Registrar to register the plaintiffs as joint proprietors of the subject land in substitution for the Cavens.
Mr Boaden, for the plaintiffs, put their claim primarily on the basis of adverse possession. Mr Langmead, for the Registrar, indicated that a claim on that basis was not contested by his client, and the Defence was, by agreement, amended accordingly. Nevertheless, it was not suggested by either counsel that the Court should not consider for itself whether it was satisfied as to the basis of the claim.
Section 42(2)(b) of the Transfer of Land Act 1958 (“the Act”) provides that the land which is included in any folio of the Register or registered instrument shall be subject to “any rights subsisting under any adverse possession of the land”. Section 8 of the Limitation of Actions Act 1958 (“the Limitation Act”) provides that 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 that person. By virtue of section 9 of the Limitation Act, where the person bringing an action to recover land has been in possession thereof and been dispossessed, the right of action is deemed to have accrued on the date of the dispossession. And by virtue of section 18 of the Limitation Act, at the expiration of fifteen years from the date of dispossession, the title of that person to the land shall be extinguished. Section 23 of that Act provides for the extension of the limitation period should the person with a right to recover the land be under a disability. However, that is not the case here.
Thus, for the plaintiffs to succeed, it is necessary for them to show that, for a continuous period of fifteen years, they have possessed the subject land adversely to the person or persons who from time to time had a right to recover that land. The concept of adverse possession is conveniently summarised in Bradbrook et al Australian Real Property Law, 2nd edition, 1997, at paragraph 16.11 as follows:
Under the current Australian legislation, the term “adverse possession” connotes simply, actual possession of the land without the licence of the true owner. The adverse possessor must be able to show that he or she has taken possession and that the true owner no longer enjoys possession. The difficult question is as to what constitutes “possession” in any given instance.
At common law, possession comprises two elements: first, there must be factual possession which demonstrates an appropriate degree of physical control of the land in the circumstances, and secondly, the animus possidendi, the intention to possess, must be present. The courts have not formulated specific rules or definitions that can be applied to any given fact situation such that it is possible to say that the presence or absence of particular factors demonstrate the existence or absence of “possession”.
At paragraphs 16.27 to 16.28 the authors go on to consider “two particular acts that are often relied upon to aid in proof in cases concerning adverse possession”, as to which they say:
The enclosure of an area of land by fencing is clearly a method by which a person can demonstrate that he or she intends to dispossess and has taken possession of the land. In fact, enclosure has been said to be the strongest possible evidence of adverse possession. . . .
The payment of rates by a person who is not the true owner, but is in occupation, may be significant in relation to the issue of adverse possession.
I do not believe the relevant facts in this matter, in so far as they are known with any certainty, to be in dispute. On 22 February 1929 the subject land, together with nine other lots on the same subdivision, Lots 237 to 241 and 437 to 440, was transferred by Southern Developments Pty Ltd (“Southern”) to one Minns. On the same day Minns transferred his interest in the subject land and the nine other lots to a Mrs Hoar, who mortgaged that land to a Miss O’Brien. Lot 239 was transferred out in 1929, and there is no evidence as to the subsequent history of the title to that lot. The remaining eight of the nine other lots (“the eight lots”) together with the subject land are conveniently referred to as “the disputed land”. Southern retained a substantial area of land adjoining the disputed land.
At various dates in the 1930s, 1950s and 1960s, fences were erected by Southern in such a way that the disputed land was fenced in with other land owned by it and used, together with the other land, for agricultural purposes. In 1961 Southern became aware that the Council of the Shire of Flinders was seeking payment of outstanding rates, in default of which the land would be sold at public auction. A notice to pay rates, sent to Mrs Hoar’s last known address, had been returned through the dead letter office. The outstanding rates were then paid by Southern, which continued to pay the rates until 1980. In April 1980 Dr Bean, a director of Southern, noticed that a fence had been interfered with and marker posts and a “land for sale” sign placed on the disputed land. Southern caused a caveat to be lodged on the title to the disputed land on 15 April 1980. All of this evidence derives from an statement made by Dr Bean to the police in the context of the criminal proceeding referred to in [10] below. Dr Bean is now dead, and I accept the submission of Mr Boaden that the statement is admissible by virtue of section 55 of the Evidence Act 1958.
By 1980 the mortgage from Mrs Hoar, the registered proprietor of the disputed land, to Miss O’Brien had passed through the hands of several successive personal representatives. In 1956 it was transferred to Josephine Killeen, and in 1979 to Morven Bond, her executor. Mr Norman Guggenheimer, the father of the first three plaintiffs and husband of the fourth, was employed at the Office of Titles. In conjunction with a fellow employee (“Dillon”) he arranged with Bond to acquire the mortgage for a payment of $4,000. A transfer of the mortgage was executed in favour of “Christopher John Stafford”, that name being an alias of Mr Guggenheimer, under which he already operated a bank account. A transfer of the disputed land, said to be in exercise of the power of sale under the mortgage, was executed by “Stafford” in favour of Milosav Spasic and Dobrila Spasic (“the Spasics”) and was registered on 12 October 1979. Mr Guggenheimer deposes that there were no such persons as the Spasics, although in oral evidence he said that he did not know whether that was so. He deposed that those names were used because he and Dillon did not wish their personal affairs to be known at the Titles Office where they were employed. A transfer of the disputed land expressed to be from the Spasics to the Cavens, who did exist, and were old friends of Mr Guggenheimer (Mr Caven being his bank manager), was registered on 21 March 1980, three weeks before the lodging of the caveat by Southern.
It is not necessary for me to make any finding as to the legal effect of the dealings initiated by Mr Guggenheimer and Dillon which are described in the preceding paragraph and I do not do so. I am concerned here merely to record them.
Litigation in this Court followed, being proceeding Number 10271 of 1980, in which Southern claimed to have established by adverse possession a title to the disputed land. That litigation was resolved by a consent order made by Marks J on 1 December 1983, to the effect that Southern was entitled to be registered as proprietor of the eight lots in substitution for the Cavens. The orders were not acted upon until 1997 and the transfer of the eight lots to Southern was registered on 4 August 1997. The Certificate of Title which issued to Southern has since been cancelled as a result of the transfer out of all of the eight lots.
On 5 November 1986 Dillon and Mr Guggenheimer pleaded guilty to one count of obtaining a financial advantage by deception and two counts of fraudulently procuring a certificate of title under section 119(1)(d) of the Act, arising out of their dealings with the disputed land.
The Queen’s Caveat was lodged by the Registrar on 5 November 1987, pursuant to section 106(a) of the Act, which reads:
The Registrar¾
(a) may lodge a caveat, on behalf of Her Majesty or of any person under the disability of minority unsoundness of mind or absence from Victoria, to prohibit any transfer or dealing with any land belonging or supposed to belong to any such person, or to prohibit dealing with any land in any case in which it appears that an error has been made by misdescription of such land or otherwise in any folio of the Register or instrument or for the prevention of any fraud or improper dealing;
The Queen’s Caveat is expressed to affect the whole of the land in Certificate of Title 9352 Folio 994, but must have been lifted to allow the transfer of the eight lots to Southern in 1997.
A transfer of the subject land from the Cavens to the plaintiffs was executed in July 1986; Mr Guggenheimer deposes that the Cavens held the land as trustees for the plaintiffs. That transfer has not been registered. I was informed by counsel for the plaintiffs that the Registrar was unwilling to withdraw the Queen’s Caveat and allow the transfer to be registered without an order of the Court.
In his affidavit of 6 June 2000 Mr Guggenheimer deposes that he and his family have resided on, been in possession of, used and enjoyed the subject land for the last twenty years, and that he has paid all rates, charges, road construction charges and for all other services related to the land during this time.
In oral evidence Mr Guggenheimer said that the family entered into possession of the disputed land in March or April 1980, and arranged to have post and wire fences erected around it. They kept a caravan there, and would visit once or twice a year, and have the bracken slashed once a year. When the roads were made the contractor knocked some of the fences down and Mr Guggenheimer caused them to be re-erected. In about 1989 or 1990 they moved a house on to the subject land, and he and his wife have lived there since. However, until 1997 or 1998, when Southern served a notice requiring them to pull their fences down, the Guggenheimers had continued to occupy the whole of the disputed land. A paling fence between the subject land and Lot 237, the adjoining one of the eight lots, was built when Lot 237 was sold by Southern in 1999. This evidence was supported by affidavits sworn by each of the plaintiffs.
A rate notice in respect of the subject land from the Mornington Peninsula Shire, successor to the Shire of Flinders, addressed to “PV Guggenheimer, MJ Guggenheimer and 2 others”, together with a statement headed Rated Owner P, N, T & R Guggenheimer” in respect of the same property was before the Court, from which I am satisfied that the rates on the subject land have been paid by the Guggenheimer family since the rate year 1980-1981.
While Mr Guggenheimer’s history does not give confidence in his credibility, his evidence was not challenged, and is supported by the evidence of the plaintiffs and by the statement from the Mornington Peninsula Shire.
It is clear that, by occupying the subject land and paying the rates on it, Southern for a number of years possessed that land adversely to Mrs Hoar, or to to any person taking from her, or to any other person claiming title. However, the evidence is that it ceased to pay the rates in 1980, and that about the same time was dispossessed by the entry of the Guggenheimer family upon the land.
I am satisfied, on the balance of probabilities, by the evidence set out in [12] to [15] above, that the plaintiffs, with Mr Guggenheimer, have occupied the subject land since about 1980, that is, for more than fifteen years since the dispossession, with the intention and effect of excluding all others, and in particular Southern, and thus that the right of Southern to recover the land has thereby been extinguished. That being so, it is not necessary for me to consider the effect of the dealings with the title to the subject land which are described in [7] above.
There will be judgment for the plaintiffs. I invite submissions from counsel as to the orders to be made and as to costs.
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CERTIFICATE
I certify that this and the 7 preceding pages are a true copy of the reasons for Judgment of Balmford J of the Supreme Court of Victoria delivered on 22 April 2002.
DATED this Nineteenth day of April 2002.
Thomas Mah
Associate to Justice Balmford
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