Humm v Faulkner
[2024] VCC 1535
•4 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-23-02132
| TRACEY HUMM | Plaintiff |
| v | |
| FIONA FAULKNER | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July, 1, 2 and 26 August 2024 | |
DATE OF JUDGMENT: | 4 October 2024 | |
CASE MAY BE CITED AS: | Humm v Faulkner | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1535 | |
REASONS FOR JUDGMENT
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Subject:Adverse possession, trespass and nuisance.
Catchwords: Adverse possession – Disputed boundary – Trespass – Encroaching structure – Residential properties – Survey evidence – Boundary fence – Nuisance – Damages for property damage – Concrete splatter – Return fence damage – Removal of garage – Compensation for rectification costs
Legislation Cited: Limitation of Actions Act 1958 (Vic)
Cases Cited:Hyams & Wallena Pty Ltd v Blythe [2024] VCC 499, Hargrave v Goldman [1963] 110 CLR 40, JNM Pty Ltd v Adelaide Banner Pty Ltd [2011] VSCA 428, Clarke v Elphinstone & Anderson [1880] 6 App Cas 164, Break Fast Investments v PCH Melbourne Pty Ltd (2007) 20 VR 311, Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, Manderson v Wright (No 2) [2018] VSC 162, Whittlesea City Council v Abbatangelo [2009] VSCA 188, Hungry Jack’s Pty Ltd v The Trust Company (Australia) Pty Ltd (No. 3) [2021] WASC 231, Bayport Industries Pty Ltd v Watson [2002] VSC 206, Ben-Pelech v Royle [2020] WASCA 168, March v Baxter (2015) WAR 1
Judgment: For the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Virgona | Coulter Legal Pty Ltd |
| For the Defendant | Ms C Dawes | Resolution Legal Melbourne |
Introduction and conclusions
Background
The disputed fence-line
Chronology
Witnesses
Tracey Jo Humm
Vicki Ann Carruthers
Barry John Castle
Peter Joseph Humm
Fiona Elizabeth Faulkner
Timothy David Martin
Agreed list of Issues
Was the Disputed Land enclosed within Tracey’s property between 3 September 2001 and 3 September 2016? Was the Disputed Land adversely possessed by Tracey? (Issues 1 and 2)
Plaintiff’s Submissions
Defendant’s Submissions
Legal Principles
Consideration
Factual Possession
Intention to Possess
Conclusion on adverse possession
What is the appropriate order in respect of the Garage? (Issue 3)
Plaintiff’s Submissions
Defendant’s Submissions
Consideration
Has the Defendant caused or permitted:
(a) concrete rendering to attach to the dwelling located on the Plaintiff’s Property; or
(b) damage to occur to a 1.2m side fence located on the Plaintiff’s Property?
If so, has such conduct constituted a nuisance and caused damage, and what is the appropriate remedy?
(Issues 4 to 7)
Legal Principles
Consideration
Conclusion
HIS HONOUR:
Introduction and conclusions
1The plaintiff (Tracey) and the defendant (Fiona) own adjoining suburban properties at 16 and 18 Hill Street, Belmont, (16 Hill St and 18 Hill St respectively).
2In 2023, Fiona’s builder (LNX Constructions[1]) removed a section of the dividing fence that separated their properties in order to construct a garage as part of a new dwelling on 18 Hill St.
[1] Fiona has an interest in LNX Constructions Pty Ltd (“LNX”) which is a building company operated by Fiona’s husband, Tim.
3Tracey claims that between 2001 and 2016 the location of the boundary fence between the two properties (Old Fence) was situated on a line between 14cm and approximately 20cm inside the title boundary of 18 Hill St (Disputed Land). She claims in this proceeding that she has obtained title to that strip of land located on 18 Hill St by adverse possession. She therefore alleges that the garage built on part of that strip of land is trespassing on her property.
4Fiona denies that the Disputed Land was adversely possessed and says that she was entitled to build the garage there.
5The parties are in agreement that if the Disputed Strip was adversely possessed, then the garage does trespass on Tracey’s property.
6On the adverse possession claim, the primary issues to be decided in this case therefore are:
(a) Whether between 2001 and 2016 the Old Fence was located between 14cm and approximately 20cm inside the title boundary of 18 Hill St;
(b) If so, whether Tracey has established that she has adversely possessed the Disputed Land;
(c) If “Yes” to (b), what is the appropriate order to be made in respect of the garage?
7Tracey makes an ancillary claim in nuisance for some minor damage that she alleges was caused to her property during the course of the building works. Fiona denies liability and quantum for that claim.
8For the reasons which follow I have concluded that:
(a) Tracey has acquired title to the Disputed Land by adverse possession.
(b) The parties are agreed that Fiona’s garage does encroach on the Disputed Land and therefore trespasses on Tracey’s land.
(c) Having regard to all the circumstances of the case, including the hardship that may be caused to Fiona, Fiona must remove that part of the garage constructed on the Disputed Land and must reinstate the fence between the properties on the line that it was situated before its removal.
(d) Fiona has caused a nuisance to Tracey by causing, during the course of construction of her garage, concrete or composite splatter to splash from her land and adhere to Tracey’s house.
(e) Fiona has caused damage to a small fence return located on Tracey’s land (return fence).
(f) Fiona is required to pay damages to Tracey in the amount of $4,917 being the costs of rectifying that damage referred to in (d) and (e).
Background
The disputed fence-line
9In order to understand the nature of the dispute, it is useful first to describe and depict the fence-lines dividing the properties.
10It is not in dispute that a boundary fence constructed between 16 and 18 Hill Street was located somewhat off the title boundaries of those properties. Its precise location between 2001 and 2016 is the subject of dispute.
11The location of the fence, and therefore the Disputed Land, is shaded green in the following plan (reestablishment survey).[2]
[2] This version of the plan was annexed to the defendant’s written opening submissions filed 26 July 2024.
12The paling fence denoted on the reestablishment survey was constructed in 2016 (2016 fence). It is not disputed that the 2016 fence replaced an earlier fence that stood between the properties for many years (Old Fence).
13There is no survey in evidence that depicts the location of the Old Fence in relation to the title boundaries of the subject properties.
14There are a number of photographs in evidence taken before the replacement of the Old Fence in 2016 which show its location. The photograph below was taken in January 2015.
15Tracey gave unchallenged evidence that the fence depicted in the above photograph was in situ since she purchased the property in 2001.
16The fencer who replaced the Old Fence in 2016 (Barry Castle) gave evidence that he thought that the Old Fence was 25 to 30 years old.
17The reader will notice that the fence terminates at a point some distance back from the Hill St frontages of the properties. From that point until close to the street frontage there is then a garden bed bordered by what appears to be brick or concrete. If one draws a notional line continuing the fence-line to the street frontage, the garden bed would be equally bisected by that line. This was confirmed by the evidence of Ms Carruthers, whose parents owned 18 Hill St until 2019. She said that at some point in time which she was unable to accurately state, an earlier fence (prior to the Old Fence) between 16 and 18 Hill St continued all the way to the street frontage of the properties. At some point thereafter the Old Fence was constructed, which terminated as seen in the photograph above, and the parties each maintained the plants on their own side of the garden bed that had hitherto been on their respective sides of that fence.
18No evidence was given that would suggest that Ms Carruthers’ parents sought to assert some right or ownership to the area of land in the front garden bed that had previously stood on the 16 Hill St side of the Old Fence-line. Indeed, her evidence that each of the owners of 16 and 18 Hill St cared for the plants on their own side of that garden bed allows me to draw the inference that they were quite content to regard the centreline of that garden bed as delineating the boundary of their respective properties at the part of the land represented by that garden bed.
19Tracey gave evidence that the vegetation, including the large trees in the garden bed, formed a sort of natural barrier between the properties that delineated the properties at the garden bed. She was cross-examined about a photograph depicting the front of the properties. The photograph appears below:
20The thrust of the cross-examination did not go directly to undermining Tracey’s evidence that the vegetation formed a natural barrier between the properties, but rather to establish that the vegetation was not in a “straight line.” It seems clear enough that the vegetation is not in a perfect straight line. One would not expect it to be. However, considering this photograph and that appearing at paragraph 14 above, it is my view that the vegetation does constitute a form of barrier delineating the two properties in a fairly straight line.
21It will be recalled that that there is no survey accurately depicting the location of the Old Fence that stood for some 25 to 30 years until it was replaced in 2016. Tracey alleges that the 2016 fence was situated in the same position as the Old Fence. In this way she says that the location of the new fence may be used as a proxy to determine the delineation of the strip of land that she says she has adversely possessed. Whether the 2016 fence was located in the same position as the Old Fence is thus one of the primary issues to be determined in this case.
Chronology
22On 3 September 2001 Tracey became the registered proprietor of 16 Hill St.
23On 1 August 2013 a Licensed Surveyor’s Report was prepared by Paul Treloar, attaching an Abstract of Field Records prepared by St. Quentin dated 9 February 2013.
24On 9 June 2016 Tracey and her husband, Peter Humm, obtained a construction quote from Castle Landscaping to replace the boundary fence between 16 and 18 Hill St.
25In December 2016 the boundary fence was replaced by the new fence. Mr Castle gave evidence as to the method he used to replace the Old Fence with the new. His evidence was that the 2016 fence was placed on the same line as the Old Fence but continued to the front of the properties. Ms Carruthers gave unchallenged evidence that the new fence was placed on the same line as the Old Fence.[3]
[3] The only challenge made was that she could not say where it was placed “to the exact centimetre”:
26On 12 August 2019 Fiona became the registered proprietor of 18 Hill Street.
27On 10 May 2022 Fiona obtained a building permit for the construction of a “dwelling and attached garage”.
28On 17 June 2022 Fiona sent a series of text messages to Alli Lewis, Tracey’s tenant at 16 Hill St. Fiona advised Alli that part of the 2016 fence needed to be removed due to the building works being undertaken at 18 Hill St. Alli advised Fiona that she would “let owners know”.
29On 17 June 2022 Alli sent a text message to Peter advising him that part of the fence between 16 and 18 Hill St would be removed in order to permit the garage to be built.
30On 1 September 2022 Fiona’s husband (Tim Martin) was notified by Alli that Peter had attended 16 Hill St, and raised a query about the location of the garage. The text message read:
“Hey Tim, the owner of our house came around and was wondering if the garage was 100 ml away from our fence line. Have noticed tonight it's bloody close.”
31Tim responded to Alli in a text message that read:
“Hey Ali. It's on the boundary as we want it, the issue is the boundary fence is out and we worked from survey peg on other side. You tell the owner to call me directly. I looked over it a few times as it seemed out, but fence runs out. Probably for a long time.”
32The plaintiff says that this provides contemporaneous evidence that Tim was aware that the boundary fence encroached over the title boundary to 18 Hill St at the time that he constructed the garage.
33Tim gave evidence that when he set out the location of the garage slab, he worked off measurements taken from a survey peg located at the boundary between 16 and 14 Hill St. He says that he took his measurements a week or two before June 2022. He conceded that after having taken his measurements he was aware that the location of the in situ fence-line had encroached between 5cm and 10cm over the title boundary to 18 Hill St. He said that he situated the slab for the garage up against the fence-line because he regarded that as being within his title boundary. He said that the cladding for the wall of the garage would protrude beyond the vertical line of the slab by about 5cm. In the end he accepted that he was aware that part of the structure of the garage would protrude into the property that had been on the Humm’s side of the fence prior to it having been removed.
34Indeed, the fact that the garage does encroach is confirmed by the reestablishment survey depicted at paragraph 12 above, which clearly shows the garage protruding into the green shaded area.
35Under those circumstances, I find that Tim was aware, before he laid the slab on 1 July 2022, that part of the structure of the garage he was constructing (being the slab together with the cladding walls) would necessarily encroach beyond the fence-line and into the property that had been in the possession of the owners of 16 Hill St prior to him having removed the fence.
36On 1 September 2022, Alli sent a number of images by text message to Peter of the garage under construction on 18 Hill St. The image below shows the location of the garage as constructed, which appears to be almost exactly along the line of the 2016 fence, or indeed, somewhat beyond it.
37The image also shows the return fence that connects from the dividing fence to the Humm’s house at 16 Hill St.
38In November 2022 Peter contacted Tim by text message. They then had a phone conversation. Tim said that he understood that the reason Peter was calling was about the location of the garage relative to the title boundaries. He agreed to provide to Peter a site survey that he would obtain.
39A Plan of Survey prepared by Adam O’Halloran & Associates was done on 14 December 2022 and provided to Tim on about 14 January 2023. This plan shows that the 2016 paling fence encroaches about 14cm at the rear and 22cm at the front over the title boundary to 18 Hill St.
40By letter dated 14 January 2023 Tracey demanded that Tim remove the encroaching garage from 16 Hill St and reinstate that the part of the fence that had been removed.
41On 16 January 2023 Tracey sent a letter to Adam McCosh of Coast to Country Building Approvals (the certifying building surveyor) complaining about the construction of the garage.
42On 20 January 2023 Tracey engaged AGS Conveyancing to complete a survey. The resulting survey is the reestablishment survey shown at paragraph 17 above.
43On 29 January 2023 Tracey sent a letter to Fiona demanding that the 2016 fence be reinstated by no later than 1 March 2023.
44On 2 February 2023 Fiona sent a letter to Tracey advising that their builder, LNX Constructions, had discovered that the 2016 fence was not on the title boundary and encroached onto 18 Hill Street Property by approximately 200mm. Tim was the author of 90% of this letter.
45On 20 February 2023 Coulter Legal solicitors wrote to Fiona on behalf of Tracey demanding that construction of the garage be immediately stopped.
46On 30 March 2023 Minerva Law responded to Coulter Legal on Fiona’s behalf. Minerva Law provided the O’Halloran Survey, denied any basis of an adverse possession claim, and requested full particulars of the claim.
47The works on the garage have never been completed. Tim gave evidence that he stopped working on the garage to await the outcome of this dispute.
48This proceeding was commenced by Writ on 8 May 2023.
49During the trial I invited Mr Virgona (counsel for Tracey) to file a slightly amended statement of claim to take account of the possibility that a different decision might be reached on the question of adverse possession in relation to the 2016 fence and the garden bed towards the front of the property. There was no substantial objection to this amendment and an amended statement of claim was filed. In the amended statement of claim Tracey claims that she has adversely possessed the Alternative Disputed Land, being the entirety of the Disputed Land to the end of the Old Fence; this excludes the front garden bed. An amended defence was filed in response, denying this alternative claim.
Witnesses
50The plaintiff called 4 witnesses:
(a) Tracey Humm;
(b) Peter Humm;
(c) Vicky Carruthers; and
(d) Barry Castle.
51The defendant called 2 witnesses:
(a) Fiona Faulkner; and
(b) Tim Martin.
Tracey Jo Humm
52Tracey gave evidence as to her ownership of the property from 2001 and a full renovation that she and her husband carried out in about 2016. She said that her property was tenanted by her sister for much of the time that she owned it. She often visited the property when her sister lived there, and she and Peter performed maintenance work there. Peter did work on the gardens. She said that no work to the dividing fence was done between 2001 and 2016 and that the Old Fence had been there since she purchased the property.
53Tracey gave evidence that Peter arranged for Mr Castle to replace all the fences on the property. She gave evidence about the removal and replacement of the fence separating her property from 18 Hill St. She said that Peter had also organised for the trees and vegetation in the front garden bed to be removed and that he had consulted with the neighbours before doing so. She was present on the day that the fence was replaced. She said that the new fence was replaced in the same location as the Old Fence. She said that the Old Fence posts were removed and new posts were placed in the same holes.
54She said that at the time the fences were replaced, she personally removed the yellow brick pillar located at the front of the property along the boundary with 18 Hill St.
55Fiona’s counsel submitted that this evidence is contradicted by that of Barry Castle, asserting that he had said that he and his workmen demolished this brick pillar. This submission is misplaced.
56Fiona’s counsel challenged Castle in cross-examination about the existence of the brick pillar at the time he replaced the fence. He said that it was in existence at the time he placed a stake in the ground to mark its position. She then asked him whether his employees took down “the fence”. He said that they did, and he saw them do it. The question that Counsel asked Mr Castle and his answer was directed to demolishing “the fence” not “the brick pillar.” When he answered he was referring to the Old Fence.
57A little later in the cross-examination Counsel put to Mr Castle that the brick pillar had to be demolished. He agreed that it did. She asked him whether any jackhammering was done “to the concrete along there.” He agreed that it was. But Counsel never put to Mr Castle that it was his employees who demolished the brick pillar.
58I consider it entirely feasible that Tracey demolished the brick pillar with a hammer – as she said – and that Mr Castle’s employees then jackhammered the concrete plinth as he said they did. There is no contradiction between his evidence and that of Tracey in this respect.
59Tracey said that she was not aware that part of the 2016 fence had been removed and the building at 18 Hill St erected “partially on [her] property” until November 2022. She gave evidence as to what she did after discovering this, including contacting the private certifying building surveyor for the construction, writing correspondence, and ultimately commencing this proceeding.
60I found Tracey to be an impressive witness who gave her evidence in a thoughtful and clear manner.
Vicki Ann Carruthers
61Ms. Vicki Carruthers’s evidence was both clear and compelling. She was independent of the dispute between the parties and I accept her evidence.
62Carruthers’s parents purchased 16 Hill St and built a home there in about 1953. They built the brick pillar fence at the front of the property at the same time. Her parents owned the property until 1918 when it was sold. She lived in the property until 1978 and her parents continued to occupy the property until her father passed away, followed later by her mother. She said that she regularly visited the property, 2 to 3 times per week, after she left.
63She said that, originally, the dividing fence between 16 and 18 Hill Street ran from the very rear of the property until the front of the property. During this time each of 16 and 18 Hill St had a small garden bed on their own side of the fence-line. In her parents’ case, that bed ran from the front of her parents’ property to the garage. That garden bed had a brick perimeter which ran parallel to the paling fence. She said that, at some point after 1978 (when she had moved out of her parents’ home), that fence was replaced by the Old Fence, which did not run as far as the front of the properties. After the Old Fence was erected, the two garden beds that were previously on either side of the Old Fence had no further dividing line between them. But she said that from that point to the front of the property, each of her parents and the occupiers of 16 Hill St maintained the plants on their own side of that garden bed.
64She said that when the Old Fence was in place, there was a small return fence which connected the Old Fence to the wall of her parents’ garage so as to enclose the rear of the property.
65She gave evidence about the replacement of the fence in 2016. She said that the 2016 Fence was rebuilt in the same place as the Old Fence, which was removed. However, the 2016 Fence went from the rear of the property all the way to the front of the property. She was quite clear in her evidence that the new fence was erected along the same line as the fence that was removed.
66She also said that the small return fence, which was perpendicular to the dividing fence and connected to her parents’ garage, was not removed at the time that the 2016 fence was erected.[4] Rather, she said that it remained in situ and that the 2016 fence was connected to it.
[4] This return fence should not be confused with the return fence on 16 Hill St which is referred to in paragraph 37 above.
Barry John Castle
67Mr Castle is the proprietor of Castle Landscape Constructions. His company erected the new fence in 2016 to replace the Old Fence. Mr Castle has been erecting fences since 2000 and obtained certification as a Master Builder in 2004.
68I was impressed with Mr. Castle as a witness. He appeared to me to be experienced in his work and to have a very clear recollection of this particular job. He said that he particularly recalled this job because he was already acquainted with the Humms. He described with clarity what was done. When asked to make an assumption, he was prepared to do that and to answer the question based on the assumption. Overall, I accept his evidence as having been both truthful and accurate.
69He described the condition of the fences and the property as he found them when he quoted for the work in about June 2022. When he quoted, he used a physical tape to measure the property and the fence-lines. He said that although it was not as accurate as a surveyor’s measurement, it was pretty accurate and sufficient for the purposes of fencing.
70He personally carried out the work to replace the fence in December 2016, together with 2 other workmen.
71He described in detail the process he followed. First, he marked the fence-line that was in situ by placing a stake in line with the boundary at the rear of the property and another stake in line with the boundary at the front of the property. In order to place the stake at the front of the property, he took a line from the outer face of the yellow brick pillar at the front of 16 Hill St back to the soil where he was able to place a stake in the garden bed. After the Old Fence was demolished he then ran a string between the 2 stakes to establish the line where the Old Fence had been situated. This was done so as to be able to locate the new fence in the same position as the Old Fence.
72He said that he personally staked the fence-line and, after that, he and his workers removed the fence. They then used a four-wheel-drive jack to take the Old Fenceposts out. He said that they came out leaving a clean hole where the old posts had been.
73After that, his workmen started to dig out and clean those holes using a petrol driven mechanical auger. Before the workmen started to clear out the holes, he used a paint marker to mark the Old Fence holes to ensure that when they placed the new posts they were in the right position. While his workers were cleaning out the holes he left the property for about an hour to quote another job. By the time he returned, the workers were still clearing out the holes.
74He said that when marking the post holes he also measured the intervals between the posts to ensure they were at lengths of 2.7m. This was to match up with the length of the rails that he was using which were 5.4m. In relation to the garden bed section, where there was no existing fence, he continued to measure along the string line intervals of 2.7m and marked where the new posts would go.
75He said that when using the auger they would start a few inches off the string line in order to accommodate for the profile of the posts together with the profile of the palings so as to ensure that the palings ended up exactly on the boundary line. They then used a scissor shovel to adjust the holes to ensure that the posts ended up in precisely the right spot.
76He was cross-examined by reference to a 2012 Surveyor’s Plan that depicted the a number of the properties in Hill Street. The author of that plan was not called. No expert was called to interpret that surveyor’s plan. Although Mr Castle does have reference to surveyor’s plans in his work, he did not profess to be fully conversant with them. He said that, generally speaking, unless he has been given a surveyor’s report to work from, his job is to remove an Old Fence and to replace it with a new fence in the same position, and that is what he does. As a consequence, surveyors’ marks or pins are usually irrelevant to him.
77The cross-examination sought to establish that the location of the brick pillar at the front of the property from which Mr Castle took his front fence-line was actually located about 15cm from the title boundary rather than the 21cm that the 2016 fence was actually located.[5] He was asked to assume that that was the case, and it was put to him that he had placed the post for the 2016 fence alongside the brick pillar rather than in line with it, and that that accounts for the 2016 fence being 21cm inside the title boundary at the front of the properties rather than 15cm. Mr Castle rejected that suggestion. He said that the profile of a fence post is 75mm x 125mm. So the proposition that was put to him was incorrect. He said that he was pretty sure that the post at the front of the property was placed where the outer edge of the brick pillar had stood.
[5] The 21cm measurement was taken from the reestablishment survey.
78I accept Mr Castle’s evidence. Without hearing from the author of the 2012 surveyor’s report I do not accept that it establishes that in 2012 the brick pillar was located 15cm within the title boundary. Had Fiona wished to establish that, she should have called the author of that report. Even if that was accepted, the profile of a fence post being 75mm x 125mm would not account for the 60mm differential that Ms Dawes (Fiona’s Counsel) put was the product of the fence post being placed alongside the pillar. I therefore do not accept that the fence post was placed by Mr Castle alongside the brick pillar rather than in line with it.
79Having regard to the methodology Mr Castle said he actually applied in this case, I accept his evidence as to how he established the line of the Old Fence and ensured that the 2016 fence was placed where the Old Fence had stood.
Peter Joseph Humm
80Peter Humm gave evidence about his knowledge of 16 Hill St, since it was purchased by his wife. He gave evidence about his role in maintaining the property and the location of vegetation in the front yard, the renovations done to the house in 2016, and obtaining quotes and neighbours’ consent to replacing the fencing in 2016. He said that he told the neighbour at 18 Hill St, at that time Ms Carruthers’s mother, Shirley, that the vegetation in the front garden bed dividing the properties would be removed. Shirley agreed to this.
81His evidence was that the line of the Old Fence dividing the property sat quite in the middle of the front garden bed such that it notionally split the garden bed equally. He also said that the tree and shrubs in the garden bed divided the properties with the large tree on the Humm side and the shrubs and flowers on the 18 Hill St side. His evidence was that the fence was completed in December 2016.
82He gave evidence of having received a text from their then tenant, Ms Alli Lewis, on 19 June 2022 advising that part of the fence adjoining 18 Hill St would be removed to permit a concrete garage to be erected next door. He said that he attended the property and was told by Alli that the builder had said that the fence would go back up the following week. As a consequence, he did not think it necessary to speak to the builder.
83He received a further text from the tenant on 1 September 2022 with a photograph of the garage in situ showing that the garage wall was hard up against the line where the part of the fence had been removed. He said that he did not do anything at that point because the tenant had been advised that the garage wall was on the boundary.
84He gave evidence that by this stage he had received no contact from Fiona or Tim about the building and the fence-lines.
85He said that after Tracey had noticed the erection of the garage apparently encroaching into their property in late November 2022, he spoke to Tim and asked how he could have built over the boundary line of their property without obtaining their consent. Tim said that they had built up to their own title boundary and asserted that the fence-line was incorrect. Peter disputed this. Peter said that Tim was going to get a survey done and provide it to Peter. Tim said that if the fence-lines were incorrect he would remove the garage and put the fence back up.
86He then gave evidence that Tim eventually had a survey done which showed that the fences were off the title boundary. Peter then arranged for their own survey to be done.
87Peter also identified a video he took of the side of the Humm house, showing what appears to be concrete or render splatter adhering to the house. He did not remove the splashes because he was concerned that this would remove the paintwork.
88Peter gave his evidence in a forthright, considered, and clear manner. I generally accept his evidence.
Fiona Elizabeth Faulkner
89Fiona gave evidence as to her ownership of 18 Hill Street from 2019. She said that when the property was purchased there was a paling fence between her property and 16 Hill St. She said that the building works were done by a company (LNX) which was owned by her husband. Her husband told her that part of the dividing fence-line with the next-door property needed to be removed in order to allow the garage to be built. So, on 17 June 2022 she had the following text exchange with Alli Lewis, the tenant of the next-door property whom she had come to know. The primary text read:
Hey Alli how ru? Tim just called to say we are going to have to take down part of the fence that goes between our houses we need to do it for where our garage will be built. So along where your house sits. Temporary fencing will be put up in the mean time, so don't need to worry about the doggies getting out. Give me a call if u want to discuss.
90A further text read, in part:
Yeah our garage has to go near that boundary we were hoping not to have to but we will.
91Alli texted that she would let the owners know. Fiona asserted that she had not said anything to Alli Lewis about when the fence would go back up. She said that the slab for the garage was poured on 1 July 2022.
92She gave evidence about the dispute about the fence and that a survey was obtained in about December 2022 because the Humms were concerned about how close the garage was to the boundary. She never spoke, nor attempted to speak, directly to Mr or Ms Humm about the boundary issue. She said that the work on the garage had never been completed pending the resolution of this dispute.
93She gave evidence that the cladding to the garage was dry cladding and thus (by inference) was unlikely to be the cause of the splatter on the Humm’s house.
94She was challenged in cross-examination that she knew that the boundary fences were out of alignment with the title boundaries when she sent her text to Alli on 17 June 2022. Yet she did not mention this when sending that text. It was put to her that she deliberately withheld that information when sending her text. She denied that this was so and said that she only became aware that the fences did not align with the title boundaries in September 2022. She was taken to a letter sent under her name on 2 February 2023 which said that the June text message was sent after they had realised that the fences were not on the title boundary. She accepted that the letter said that and was misleading but said that it was incorrect. She also identified that her husband was responsible for drafting most of the letter. She accepted that by September 2022 she was aware that the fence did not align with the title boundary. She accepted that by then she knew that the fence could not be replaced in its prior location because the garage now stood there.
95She was heavily cross-examined about when she first knew that the garage would be built partly on land on the Humm side of the existing fence-line. Her evidence as to this moved around during the course of exploration by Mr Virgona (Counsel for Tracey). But she denied that she knew that the garage was built on land that had previously been on the 16 Hill St side of the fence. I do not think that she was being intentionally evasive; however, her evidence as to this was less than convincing.
96She also gave surprising evidence in answer to why she did not contact the Humms about the boundary issues at the time they arose, rather than simply informing their tenant, Alli. She said that she thought that as it was Alli who was living there, she was most affected by this issue, and not the landlord. She accepted that it would have been reasonable to contact the Humms when the issue of taking down the fence first arose but that she did not think of it.
97Although generally Fiona’s evidence was given to the best of her ability, I think that she was prone to some confusion about dates and chronology and was somewhat bamboozled when being heavily cross-examined. This causes me to look for corroborating evidence before relying solely on her recollection of events.
Timothy David Martin
98Tim gave evidence about how he carried out the building project at 18 Hill St, and about his communications with Alli and Peter.
99Taking into account the matters discussed below, I found his evidence at times to be somewhat contrived. While he attempted to answer questions put to him, he was very concerned to advance his own case in his answers. This was most evident in his insistence that the location of the fence-line was essentially irrelevant to his right to build within the title boundaries to 18 Hill St regardless of whether that was over the fence-line. In a number of respects detailed below I found his evidence to be controverted by other evidence. I would not reject his evidence wholesale; however, I would generally look to objective facts to support his evidence.
100He said that when he commenced the building project the fence dividing 16 and 18 Hill St was relatively new. He said that the building work was done by his company LNX. He did not need consent of the next-door owners in order to obtain permits to build.
101When setting out the building works he measured up the site using a surveyor’s peg that had been placed there from a recent build at 14 Hill St. He took the measurements a day or two before 17 June 2022.
102He determined to place the slab for the garage very close to the paling fence that was in situ. He needed to remove a section of the paling fence to construct the slab. He said that the slab itself would not encroach over the fence-line. Under cross-examination he later conceded that at that time he knew that the garage wall itself would encroach over the fence-line.
103He said that it was his intention to reinstate the removed section of the fence. However, he said that, subject to discussions with the adjoining “landlords”, they may elect to leave the garage wall as the fence-line without reinstating the sections of paling fence. Under cross-examination he later accepted that it was impossible for him to replace that section of the fence because he had placed the garage wall hard up against what was formerly the fence-line.
104He said that he had no concern about the possibility that the slab might have encroached over the fence-line. He did think that once he constructed the walls together with the cladding, the structure might have encroached over the fence-line. But he put this down to the fact that fences sway in and out over their length. He was unconcerned about this because he had observed that the set out of his construction together with the overall measurements of the slab and wall profile was still within the title boundaries of 18 Hill St on the plan of subdivision.
105He also gave evidence that after he had taken his measurements from the surveyor’s peg from 14 Hill St, there was a 5-10cm differential between the fence-line and the title boundary. That is, that the fence-line sat off the title boundary by between 5 and 10cm. He also said that the profile of the fence itself might be a total of 15cm, so that, in his view, that profile together with the swaying in and out or zigzagging of the fence, the 5-10cms that the fence was located off the title boundary was insignificant. In other words, I understood his evidence to downplay the significance of having built the garage where he did.
106I found this lack of concern difficult to reconcile with his evidence that he had placed the slab such that after its wall and cladding were attached, it was probable that the garage wall would encroach over the fence-line. For a builder of Tim’s experience (he became a registered builder in 2015), to build a structure encroaching over a fence-line that had been in situ in the knowledge that it was off the title boundary by 5-10cms must at least have raised serious issues. He would have needed to reconcile this with the adjoining landowner and the possibility that they would claim that the fence was in its correct position, or that they had acquired the adjoining strip of land by adverse possession.[6]
[6] Although it was not put to Tim, I note that two of the three surveys in evidence contain a boilerplate warning that if fences do not match with title boundaries, a possibility of adverse possession might arise, and that fences should not be removed without discussing with the adjoining landowner:
107He was cross-examined about the fact that, notwithstanding his knowledge before he took down the fence in June 2022 that the fence-line was improperly situated relative to the title boundary, he did not draw this to the attention of Alli or the adjoining landowners at that time. He said that he did not feel the need to do this as he was building within the title boundaries of 18 Hill St and he would be reinstating the fence after the works were complete. But as noted at paragraph 103 above, he was quite unable to reinstate the fence as the garage would necessarily encroach over the fence-line.
108He was also closely cross-examined about his specific recollection of where his described swaying or zigzagging of the fence was and by how much it had swayed. At times his evidence was unspecific about how much the fence had zigzagged or swayed although he did say that this occurred at various points along the boundary that he described. He ultimately suggested that the extent of the swaying might have been between 75-100mm. I found this evidence to be quite unconvincing. I observed Tim quite closely during this exchange. I was left with the impression that the evidence he gave was not the product of true recollection but rather was given to rationalise the conduct of having built in the manner that he did.
109This was reinforced by the O’Halloran Survey that was commissioned by Tim. The O’Halloran Survey shows the 2016 fence to be in a straight line rather than showing any swaying or zigzagging. It noted two pegs placed at the title boundary at each remaining end of the fence where the section had been removed. Those pegs showed that the fence was situated 20cm within the title boundary of 18 Hill St at both ends of the remaining fence. This strongly suggests that the fence was actually in a straight line without any swaying or zigzagging at the points where the fence was removed. This was put to Tim, but he rejected this conclusion. He said that the fence was unsupported at those points and at the time that the measurements were taken. Although he did accept that the 22cm measurement of the fence at the front of the property was probably correct. He did not accept that the 22cm measurement was in keeping with the fence being fairly straight and thus that the 20cm measurements at the points where the section had been removed were likely to be correct. He also made reference to satellite images that he said showed that the fence-line took a steep diagonal back towards 16 Hill St.
110In re-examination Tim was taken to an aerial photograph of the properties when 18 Hill St was under construction which he said demonstrated that the fence zigzagged quite markedly. This was an aerial shot which appeared to show part of the fence adjacent to and forward of the garage slab to be somewhat on an angle to the balance of the fence. Although such a feature can be discerned, I do not accept that the photograph shows what Tim asserts. The aerial shot must be compared to photos showing the true state of the fence at that time. That is, after the section of fencing had been removed adjacent to the garage slab. The photos were taken when there was a temporary steel frame and wire fence propped at an angle to the remaining paling fence to form a temporary barrier. Although taken some time later, this can be seen in photographs at CB170-171. The aerial shot does not show the state of the fence before a section was removed demonstrating a steep diagonal back towards 16 Hill St.
111It was put to Tim in cross-examination that his attitude was that as long as he was building within the title boundaries of 18 Hill St, he was not concerned that he was building over the pre-existing fence-line. His answer was:
There isn't any reason for concern when it's up to that fence and we were still within our title boundary, as confirmed by, for instance, the building surveyor's information and what he relayed on to us.
112He gave evidence that he made no contact with the Humms at all until November 2022 and that all of his communications (some of which were mediated through Fiona) were with Alli whom he knew to be the tenant of 16 Hill St. He was content for this to be the line of communication because Alli had said that she would contact the owners when the first text was sent by Fiona to Alli on 17 June 2022.
113He gave evidence about the text exchanges on 1 September 2022 when the owner of 16 Hill St was concerned about how close the garage was to the boundary. His response was to tell Alli to give his details to the Humms to contact him if they had any concerns.[7] He said that because he was building within 18 Hill St’s title boundaries he did not feel that he needed to take the initiative to contact the owners of 16 Hill St.
[7] See paragraphs 30 - 31 above.
114Tim also gave evidence that when he carried out his measurements to set out the slab he had regard to an Existing Conditions Plan dated 6 October 2021. This Plan contained a disclaimer that read as follows:
DISCLAIMER: THIS IS NOT A TITLE SURVEY. Boundaries shown on this plan are approximate only. Title dimensions have been overlaid based on existing fencing. Offsets and Easements are approximately only. A re-establishment survey has not been completed as part of this survey.
115He said that the side wall of the garage was an aerated concrete product that comes with its surface finish already applied.
116He also said that he did not make any changes to the small return fence on Tracey’s property.
117After having received the text from Alli on 1 September 2022 he did not hear further from the Humms until about 30 November 2022. He had a telephone conversation with Peter. He said that the call was respectful. He said that he assumed that Peter was calling to talk about the garage on the boundary. He said that Peter asked for a site plan and he agreed to send it through to him by email. He said that he sent that site plan through to Peter, although the plan was not in evidence.
118Tim was cross-examined about this conversation. He said that the conversation was about whether the building was erected over the title boundary. He agreed that he did not clarify with Peter that the reason he was able to build over the fence-line was because the fence was placed partially within the title boundary to 18 Hill St. He said that the conversation was about whether the garage was built over the title boundary. Tim agreed that he had told Peter that if it was found that he was building on Peter’s land, he would remove the encroachment and put the fence back up.
119Tim gave evidence that at that time he had engaged Adam O’Halloran, land surveyor, to do a site reestablishment survey. That survey, dated 14 December 2022, showed that the 2-year-old paling fence formed in a straight line encroached by 14cm at the rear of the properties and 22cm at the front of the properties into the title boundary of 18 Hill St.
120Tim also gave evidence that he spoke to the surveyor at about the time he did his measurements and was told that the garage was entirely within the title boundary of 18 Hill St. He said that the surveyor did not say anything about the paling fences. This evidence is surprising, although Tim was not challenged on this.
121He gave evidence that a few days after he spoke to the surveyor, he looked at the surveyor’s marks that he been left at the property. This made apparent to him for the first time that the paling fence encroached into the title boundary of 18 Hill St.
122Tim received Tracey’s letter, dated 13 January 2023, which demanded that he remove buildings encroaching on 16 Hill St and reinstate the fencing that had been removed. He did not respond to it immediately. He said that he was waiting to obtain legal advice.
123He also received the O’Halloran survey plan on 16 January 2023. He provided a copy of it to the certifying building surveyor who advised him that as the garage was built within the title boundary to 18 Hill St, he would lift the stop work order within 1m of the title boundary that he had previously orally applied.
124On 16 January 2023 he received an email from the certifying building surveyor to Tracey advising that as the garage was within the title boundaries as measured on the survey plan, he would take no further enforcement action in the matter. The email also said this:
Again, the civil matter of fence removal, evidence of ‘crown boundary’/legal title boundary legitimacy via any potential adverse possession claim is and remains a civil matter between the owners of no16 & no18 at the present time and not an enforcement consideration currently for Coast to Country Building Approvals.
125He gave evidence of Fiona having received a letter of demand from Tracey on 29 January 2023 and of his substantial involvement in drafting a response for Fiona on 2 February 2023.
126He said the he never sent the O’Halloran survey to the Humms until Fiona’s lawyers did so.
127He gave evidence that he did not know how the splattering on the house might have gotten there. He said that he did use a compound over the dry cladded product to cover over joins and fixing holes. He said that to remediate the splatter he would have pressure-washed the side of the house and then used a bucket with soap and water to clean.
128Tim agreed under cross-examination that the size of the garage constructed was about 1.5 times the minimum standard for a single car garage. He said that it also made provision for storage.
129He gave evidence that to remove the encroaching garage he would make structural and wall changes at a cost of about $15,000 and that this work would take about 3 weeks.
130Tim also gave evidence about the correspondence that passed between the parties leading to the issue of these proceedings.
131Tim was taken in cross-examination to the letter dated 2 February 2023, from Fiona to Tracey and particularly the following passage:
·During the construction of our family home at 18 Hill Street Belmont. Our builder discovered that the fence dividing the boundary was not on the title boundary and encroached on the property 18 Hill Street by approximately 200mm.
·Post discovery of boundary misalignment on 17/6/2022 we notified the tenant of 16 Hill Street a part of the fencing would have to be removed to make way for the garage under construction within the title boundary of 18 Hill Street.
132Tim explained that although the letter says that he knew that the fence was out of alignment with the boundary by 200mm in June 2022, he did not know this at that time. He says that at that time he knew it was out of alignment by about 10cm and not 20cm.
133He accepted in cross-examination that the damage to the return fence was done by some of his workmen.
134He also accepted that the splatters adhering to the Humms’ house was likely to be concrete or the filling compound used on the dry wall cladding on the garage and to have come from his construction works.
Agreed list of Issues
135The parties agreed that the following issues were required to be determined.
1.Was there, between 3 September 2001 and 3 September 2016, enclosed within the Plaintiff’s Property a portion of the Defendant’s Property which was located between the registered title boundary and a line running from:
(a)14cm within the registered title boundary of the Defendant’s Property at the western boundary of the properties; and
(b)21cm within the registered title boundary of the Defendant’s Property at the eastern boundary of the properties?
(Disputed Strip)
2.If yes to Issue 1, has the Plaintiff established adverse possession of the Disputed Strip?
Note: it is accepted that, if (which is denied) adverse possession of the Disputed Strip has been established between 3 September 2001 and 3 September 2016, then:
(a) title of the Defendant’s predecessor/s in title to the Disputed Strip was extinguished by no later than 3 September 2016; and
(b) to the extent that the garage constructed by the Defendant in late 2022/early 2023 (Garage) encroaches onto the Disputed Strip, a trespass has occurred.
3.If yes to Issues 1 and 2, what is the appropriate order in respect of the Garage?
4.Has the Defendant caused or permitted:
(a) concrete rendering to attach to the dwelling located on the Plaintiff’s Property; or
(b) damage to occur to a 1.2m side fence located on the Plaintiff’s Property?
5. If yes to Issue 4(a):
(a) has such conduct constituted a nuisance; and
(b) if yes to Issue 5(a), has such conduct caused damage?
6.If yes to Issues 5(a) and 5(b), what is the appropriate order?
7.If yes to Issue 4(b):
(a) has such conduct constituted a nuisance; and
(b) if yes to Issue 5(a), has such conduct caused damage? If yes to Issues 7(a) and 7(b), what is the appropriate order?
136I will address each of the issues in turn.
Was the Disputed Land enclosed within Tracey’s property between 3 September 2001 and 3 September 2016? Was the Disputed Land adversely possessed by Tracey? (Issues 1 and 2)
Plaintiff’s Submissions
137Tracey says that by reason of the existence of the Old Fence and the vegetation in the garden bed at the front of the properties, the Disputed Land was enclosed within Tracey’s property for the requisite period of 15 years.
138She says that having regard to the nature and characteristics of the land in this case, the fact of enclosure by the Old Fence and the natural barrier created by the line of vegetation in the front garden bed, Tracey was in factual possession of the entirety of the Disputed Land.
139She says that no different treatment at law is required to the assessment of the front garden bed than is given to the balance of the Disputed Land. She relies on a passage in Abbotangelo[8] to support her claim that the vegetation in the front garden bed served as a signal to the world that the line of vegetation was a boundary which marked that part of the land that was hers from that which was part of 18 Hill St. The assessment in this respect must be “… whether it could be inferred from all of her acts that she intended to exercise custody and control of the land on her own behalf and for her own benefit.”[9]
[8] See footnote 57 below at [95].
[9] Ibid.
140Tracey says that the evidence demonstrates that each of Tracey and Ms Carruthers’s mother cared for the vegetation on their respective sides of the garden bed as objective evidence that they regarded the line split by the middle of the garden bed as delineating their respective ownership of the properties.
141She says further that the intention to possess is demonstrated by both the fact of enclosure, including in respect of the front garden bed, as well as the evidence of how she and Ms Carruthers’s mother treated the front garden bed in fact.
142Finally, she says that if the Court finds against her in respect of the front garden bed, then she nevertheless has established her adverse possession claim in respect of the Disputed Land up to the point that the paling fence terminates at the commencement of the front garden bed.
Defendant’s Submissions
143In closing submissions Fiona emphasised the following matters in defence of the adverse possession claim:
(a) That there is no reliable evidence of where the original fence-line sat in 2001.
(b) There is evidence that the land at the site was volatile and resulted in the Old Fence “curving” and the brick pillar at the street front having moved around. There was also evidence that the foundations to the Humm’s house had shifted.
(c) Because of these things, Fiona says that Tracey, who bears the onus, has failed to establish the location of the Old Fence and that it sat over the paper boundary line and to what extent.
(d) She also says that Mr Castle’s evidence that he placed the 2016 fence on the same line as the Old Fence is unreliable and should not be accepted.
(e) As to the garden bed, she rejects that there is evidence that this was used or possessed by Tracey or that she demonstrated the intention to possess that part of the garden bed that stood over the paper boundary line. She rejects that there was any boundary evident by the vegetation located upon that garden bed.
(f) As to the intention to possess, she submits that Tracey has failed to call evidence from the tenant of 16 Hill St as to their subjective intention to use and possess the Disputed Land, and that there is no objective evidence as what they factually did to make the intention clear to the world at large.
(g) She asks the Court to draw a Jones v Dunkel inference that the evidence of Tracey’s tenants would not have assisted her case.
(h) She also submits that there is no admissible evidence that Ms Carruthers’s mother considered the middle of the garden bed to be the boundary line between the two properties.
(i) Fiona says that if adverse possession is made out, then the prima facie rule that an injunction ought to be granted requiring removal of the garage should not be applied in this case. She says that this is so because:
(i)Tracey has, by her delay in commencing this proceeding, disentitled herself from any remedy except damages;
(ii)That the injury to Tracey by Fiona’s trespass is small;
(iii)Disproportionate hardship would be occasioned to Fiona if she was required to remove the encroaching part of the garage;
(iv)The invasion of Tracey’s rights would be adequately compensated for by an award of nominal damages.
(v)She asserts that she and Mr Martin conducted themselves openly and in good faith and essentially believing themselves to be building in accordance with their legal rights. She says that they behaved properly in communicating with the tenant of the property rather than the adjoining owner.
(vi)By contrast she asserts that Tracey delayed her response to being told that part of the fence would be removed to permit the garage to be built, and didn’t assert any adverse possession claim until January or February 2023.
Legal Principles
144The principles to be applied in adverse possession claims are well settled. They were recently set out by Judge Brimer in Hyams & Wallena Pty Ltd v Blythe[10] in the following terms. In my view this is an accurate statement of the principles to be applied which I respectfully adopt.
[10] [2024] VCC 499.
“[104]Section 8 of the Limitation [of Actions] Act provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action accrued. Section 18 provides that at the expiration of that period, the person’s title to the land shall be extinguished.
[105]Section 14(1) provides that “[n]o 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”.
…
[106]The general principles relating to adverse possession are not in dispute. To adversely possess land, the alleged adverse possessor must be shown to have both factual possession and the requisite intention to possess.[11]
[11] Whittlesea City Council v Abbatangelo [2009] VSCA 188 (Abbatangelo).
Factual possession
[107]Factual possession requires an appropriate degree of physical custody and control, which must amount to single, exclusive possession.[12]
[12]Ibid at [5], citing Bayport Industries Pty Ltd v Watson [2002] VSC 206 (Ashley J) (Bayport), quoting Powell (Slade J).
[108]The clearest evidence of exclusive possession is enclosure, but what will amount to a sufficient degree of exclusive physical control will depend on the circumstances, which include “the nature, position and characteristics of the land, the uses that are available, and the course of conduct that an owner might be expected to follow. Each case must be decided on its own particular facts… [and] mere use falling short of possession will not suffice.”[13] Everything must depend on the particular circumstances.[14]
[13] Abbatangelo at [6].
[14]Ibid at [5] citing Bayport, quoting Powell; Thorpe v Frank at [38].
[109]Broadly speaking, the alleged adverse possessor must be shown to have been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.[15]
[15]Abbatangelo at [5] citing Bayport, quoting Powell.
[110]The doctrine of constructive possession was considered by Harper JA in JNM Pty Ltd v Adelaide Banner Pty Ltd:
“The doctrine of constructive possession holds that, in appropriate circumstances, possession of part carries with it possession of the whole. The qualifying circumstances apply when the whole is so closely linked to the part that it would be unrealistic or unjust to separate them. In Clarke v Elphinstone & Anderson the Privy Council expressed the position in the following words:
There is no doubt that in many cases acts done upon parts of a district of land may be evidence of the possession of the whole. If a large field is surrounded by hedges, acts done in one part of it would be evidence of the possession of the whole.” [16]
[16]JNM Pty Ltd at [20], quoting Clark v Elphinstone & Anderson (1880) 6 App Cas 164.
Intention to possess (animus possidendi)
[111]Intention to possess requires an intention, in one’s own name and on one’s own behalf, to exclude the world at large including the paper title owner.[17] There must be clear and affirmative evidence that the alleged adverse possessor not only had the requisite intention to possess but made that intention clear to the world.[18]
[112]That does not mean there must be an intention to exclude the paper title owner, rather, an intention to exercise exclusive control. The alleged adverse possessor actually believing themselves to be the true owner of the land is quite sufficient.[19]
[113]The intention may be deduced from the objective acts of physical possession.[20]
[114]The burden of proof with respect to intention is high. It is “no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner… compelling evidence of intention to possess” is required.[21]
[115]Further:
(a)The reference to “adverse possession” in section 14(1) of the Limitation [of Actions] Act is to possession by a person in whose favour time can run and not to the nature of the possession. The question is simply whether the putative adverse possessor has dispossessed the paper title owner by going into possession of the land for the requisite period without the consent of the owner, with the word “possession” being given its ordinary meaning. Whether or not the paper owner realises that dispossession has taken place is irrelevant.[22]
(b)A person asserting a claim of adverse possession may do so in reliance on the factual possession and intention to possess of their predecessors in title. Periods of possession may be aggregated, as long as there is no gap in possession.[23]
(c)Acts of possession with respect to part of land claimed may in all the circumstances constitute possession with respect to all of the land claimed.[24]
(d)Possession cannot be relevantly adverse where the possession is with the consent of the true owner. That is because consent “means that time did not start to run against the owner – a person who consents to another occupying or possessing land they own has no claim to eject the other [or no right to recover the land], unless and until they withdraw the consent.”[25]
[17]Abbatangelo at [4].
[18] Ibid at [5(4)].
[19] Abbatangelo at [5(4)].
[20]Ibid.
[21] Ibid at [5].
[22] Ibid at [6].
[23] Ibid at [5(4)].
[24] Ibid at [5(4)].
[25] Ben-Pelech v Royle [2020] WASCA 168 (Ben-Pelech) at [56].
Consideration
Factual Possession
145I am satisfied that the evidence establishes that at the time of its construction the 2016 fence was built along the same line as the Old Fence. This means that the 2016 fence provides an adequate proxy for where the Old Fence stood. Thus there is evidence of where the Old Fence stood.
146Barry Castle’s evidence about the method that he used to ensure that he erected the new fence along the same line as the Old Fence is compelling.
147He staked the line of the Old Fence carefully at the rear of the property before he commenced demolishing the Old Fence. He staked the fence line at the front of the property in line with the face of the brick pillar that formed the boundary between the properties. He removed the fence posts and marked their locations with paint so as to ensure that he placed the new fence posts in the same positions as the old ones. He ran a string line between the stakes at the front and rear of the properties so as to have a clear indication of the line and location of the Old Fence where he had to situate the new fence. Where there were no existing fence posts he measured the relevant intervals of 2.7m and marked those places along the string line. When he used an auger to clean out the fence post holes, he offset it sufficiently to accommodate for the profile of the fence post and palings so that the first paling sat exactly on the boundary as indicated by the string line.
148None of this evidence was really challenged in cross-examination and I accept it. The only significant challenge was around the proposition that he had placed the fence posts at the front of the property alongside the front brick pillar instead of in line with it. For the reasons given above I reject that proposition.
149I also accept the evidence of Ms Carruthers that the 2016 fence was placed in the same line as the Old Fence. She visited her parents often at the property and her recollection was clear and essentially unchallenged.
150The consequence is that I find that the 2016 fence was placed in the same position as the Old Fence that existed throughout the claimed period of September 2001 to September 2016.
151Now, Fiona submits that there is no sufficient evidence of the location of the Old Fence relative to the paper boundary to establish that the Disputed Land was enclosed within Tracey’s property during the period September 2001 to September 2016. She relies on the fact that the land was apparently reactive and susceptible to movement. To support that proposition she relies in part on the evidence of Tracey that their house foundations and the brick pillar at the front of the property experienced movement. She also relies on statements in Tracey’s evidence that the property “sat on a clay base” and experienced “a lot of movement prior to 2016”. She further relies on a series of statements in Tracey’s evidence about the state of the house and fences.
152I should say that I do not rely on Tracey’s statement that the land sat on a “clay base”. She is not an expert. She can only have given that evidence on the basis of what some other person – likely an expert – has told her.
153Fiona also relied on a Geotechnical Report that was in evidence as part of the document suite utilised in building Fiona’s house. The reliance on this report in the way that Fiona has done is misplaced. The effect of relying on the specialised opinions stated within that geotechnical report is for Fiona to introduce expert evidence – no doubt, based upon boreholes taken and analysed by the author of the report. Had Fiona wished to rely on that evidence she should have called the author and complied with the Court’s Rules and Practice Notes related to the admission of expert evidence. Not having done so, she is not permitted to rely on that report. I will therefore disregard that report and the submissions founded upon it.
154Fiona submits that Tracey’s evidence supports the proposition that the Old Fence is likely to have significantly moved since it was first erected. As a result, she says that it cannot be said with certainty that the site of the Old Fence in 2001 accorded with the site of the 2016 fence. Therefore, she submits that the location of the Old Fence in 2001 relative to the paper boundary cannot be located with accuracy.
155I do not accept that submission. In making any assessment of the location of the Old Fence the Court must take account of the location and characteristics of the land concerned. It must assess the evidence before it in accordance with inherent probabilities and the logic of events.
156In this case the land concerned is that strip of land bordering two residential and suburban house properties. Ms Carruthers gave evidence that after the house was built at 18 Hill St, there was an original paling fence that ran between the properties from the rear boundary to the street front. It was there until after she left her parents’ home in 1978.
157At some point after that, the original fence was replaced by the Old Fence that stood until 2016. The Old Fence ran the full distance from the rear of the properties to a point short of the front boundary to leave a section that is described in this case as the front garden bed. Although no evidence was given of the reason for this, one can infer that it was done for aesthetic reasons – and the separate garden beds that were located on either side of the fence were no longer separated by a fence. There is no other evidence of the Old Fence having been replaced, repaired, relocated, or rebuilt. Indeed, Tracey said that no such works had been done since she has owned the house from 2001 until 2016.
158Absent any evidence of significant fence movement, the Court would readily infer that the location of the Old Fence, as it was when replaced in 2016, was its location from the time of its construction.
159I note that Ms Carruthers gave evidence about the location of the Old Fence relative to the garden bed. She did so by reference to the following photograph.
160The photograph depicts the 2016 fence. But Ms Carruthers gave evidence about the location of the garden bed relative to the paling fence during the subsistence of the Old Fence. She said:
“Yes, that edge there went the whole way down and it was parallel to the dividing fence and when it gets down to this particular part down the bottom [meaning front of the garden bed], there were bricks going across to the dividing fence and they never changed.”
“MR VIRGONA: Do I take it then that your evidence is that this brick edging or concrete edging remained consistent, in terms of the distance from the fence, from the start to the very end, as far as you can recall?---Yes.”
161I understood Ms Carruthers’s evidence to be that for so long as she could remember, the garden bed on her parents’ side of the dividing fence ran parallel to the old dividing fence.
162This evidence, together with Mr Castle’s evidence that he placed the 2016 fence on the same line as the Old Fence assists in situating the Old Fence by reference to the 2016 fence. If it is the case that to Ms Carruthers’s memory the garden bed was always parallel to the Old Fence, and still is parallel to the 2016 fence, then this is an objective indicator that the 2016 fence runs along the same line as the Old Fence as it was in 2016.
163Now, it is common ground that the fence posts of the Old Fence were not concreted into the ground. They were said to have come out quite easily when removed in 2016. I understand Fiona’s submission to be that I should infer that those posts (which carry the structure of the rails and palings) have somehow moved laterally, either within the surrounding ground or along with it, so as to have accounted for the encroaching location of the fence in 2016. I understand the inference that I am asked to draw is that the fence posts have moved in a relatively consistent way so as to lead to a relatively straight line of encroachment of 14cm at the rear boundary and 21cm at the front.
164I find it difficult to understand how this might have occurred. I find this particularly difficult to understand given Ms Carruthers’s evidence that for her entire memory the perimeter of garden bed remained parallel to the Old Fence and the 2016 fence. If the fence moved laterally over the entire length of the fence I find it hard to understand how this would occur in a consistent manner so as to lead to a relatively straight fence-line over its length and to have maintained the perimeter of the garden bed as well.
165I say “relatively” straight because there are photographs that show some bowing of the Old Fence. But it is shown at the top of the fence rather than at the ground level. The same photograph does not suggest or allow me to infer that the fence-posts have moved laterally in the ground as Fiona submits.
166Fiona places emphasis on the fact that in some photographs the Old Fence is seen to be propped up. While this is so, it again says nothing about whether the fence posts at ground level and below have moved laterally so as to encroach into 18 Hill St.
167Ms Carruthers also gave evidence of a return fence located on her parents’ side of the dividing fence that ran perpendicular to the dividing fence from her parents’ garage to the dividing fence itself. She gave evidence that that return fence was original dating back to the Old Fence and was re-used when the 2016 fence was erected. She said that it “had never changed”. This is further independent evidence that there has not been lateral movement of the fence posts within the ground in the way Fiona posits. Unless Fiona also suggests that the garage itself also moved in the same way (which she did not do), if there had been such movement, either a gap would have opened up in this perpendicular return at 18 Hill St, so that it would no longer have connected to the garage and the 2016 fence, or the aperture between the garage and the fence would have become too small for it to fit. That they were able to reuse that return fence in 2016 suggests that the dividing fence – at least at that point – was in the same location as it was relative to the garage when the Old Fence was constructed.
168Fiona relies on evidence from Tracey that “that pillar looks like its moved a little bit over the years.” She also said that “over the course of the years the actual concrete and all that had moved because it was on a clay base, so that the actual pillar had moved away from that little bit of a square bit there.”
169From this evidence Fiona’s counsel submits that upon her estimate from looking at the photograph the brick pillar has moved 10cm from its original location. She submits that this is “significant movement” and not just “a little bit”. She asks me to draw the inference that if a concreted brick pillar could move 10cm, the unconcreted fence-posts must have been affected even more dramatically.
170I do not accept this submission.
171First, Tracey is not an expert of any sort to give this evidence. Her evidence is merely her own conclusion of what has happened to the brick pillar based on what she has observed. The proper conclusion to be drawn from her observations is susceptible to different conclusions. I do not accept that Tracey’s conclusion that the pillar itself has “moved” is necessarily correct.
172Secondly, the proper conclusion to draw may well be that some concrete has subsided away from the brick pillar leaving a gap between it and the pillar, but that the pillar itself has remained essentially where it was.
173Thirdly, I do not accept the estimation of 10cm movement given by Fiona’s counsel. From the photographs, I find myself quite unable to make any estimation in centimetres of what amount of concrete at ground level might have subsided away from the brick pillar (if that is what occurred), much less conclude how much the pillar itself may have moved (if that is what occurred).
174Fourthly, even if the pillar has subsided to some unmeasured degree, that does not explain the supposed lateral movement of the fence along its entire length, particularly in the face of Ms Carruthers’s evidence that the garden bed has remained parallel to the dividing fence. For this to have occurred it seems to me that whole structures such as the fence posts, the garden beds, the perpendicular return fence that connected the garage at 18 Hill St to the dividing fence, possibly the garage at 18 Hill St itself, and the brick pillar all would have to have moved laterally in the same way and to the same degree over a substantial length of the properties.
175No expert evidence has been called by Fiona to explain how this might have occurred. Absent such expert evidence I find that proposition difficult to accept.
176Without such evidence to explain how this might have occurred, the prima facie position that the Old Fence was located in the same position that it was when first erected and certainly between 2001 and 2016,[26] is not displaced by the inconclusive evidence related to the brick pillar.
[26] See paragraph 158 above.
177In my view the evidence also establishes that the line of vegetation in the front garden bed served as a sufficient indication to the world that the line it followed delineated the ownership of the two properties on either side of it. Taking into account the nature of this land, being two suburban lots next door to each other, the fact that at its end point the Old Fence stood on the midway line of the garden bed, and the line of vegetation formed a rough continuation of the obvious delineation that the fence line formed, was a clear indicator to the world that the midline of that garden bed marked the boundary between the two properties.
178This evidence establishes that the Disputed Land was enclosed within Tracey’s property by the Old Fence together with line created by the vegetation in the middle of the garden bed and continuing down to the face of the brick pillar at the front of the property sufficient to constitute factual possession.
179I also find that these characteristics engage the doctrine of constructive possession as articulated in JNM Pty Ltd.[27] The enclosure of the Disputed Land behind the Old Fence constituting factual possession must be applied in similar fashion to the vegetation line in the garden bed so as to constitute factual possession of that part of the Disputed Land within the garden bed as well.
[27] See paragraph 144 above; and Abbatangelo at [5(4)].
180Now, Fiona submits that the mere tending of plants by Tracey in the garden bed on her side of the former fence line dividing the garden bed does not constitute the appropriate and sufficient degree of physical custody and control amounting to single and exclusive possession.
181The authorities are clear that when considering whether the putative adverse possessor has factual possession, a court has regard to all the circumstances of the case including “the nature, position and characteristics of the land, the uses that are available, and the course of conduct that an owner might be expected to follow.”[28]
[28] Abbatangelo at [6(c)].
182I deal further with the conduct of the parties in relation to the garden bed at paragraphs 187 to 195 below and refer to those matters here.
183In assessing the question of factual possession, I must take account of the fact that the Disputed Land at that point lies in a garden bed that was previously separated by a dividing fence with plants on either side of the fence, a paling fence terminating at the midpoint of the garden bed at one end and the notional midline continuing to the outer face of a brick pillar at the front of the property. Given those matters, one would expect the owner of the Disputed Land in the garden bed to use that land as a garden bed. One would expect the owner to maintain the vegetation on their own side of the midline but not necessarily do anything to the vegetation on the other side of the midline. Aside from anything else, this would serve to provide a rough delineation to the world of their respective ownership of the Disputed Land, but also serves as evidence of their own exercise of possession of that land. As set out in paragraphs 187 to 195 below this is what actually occurred.
184I therefore reject Fiona’s submission and find that the manner in which Tracey used the Disputed Land in the garden bed does constitute the appropriate and sufficient degree of physical custody and control amounting to single and exclusive possession.
Intention to Possess
185As to the intention to possess, the Court may infer the intention to possess from the objective acts that establish factual possession.[29]
[29] Abbotangelo [6(b)]; Hungry Jack’s Pty Ltd v The Trust Company (Australia) Pty Ltd (No.3) [2021] WASC 231 at [23] citing J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at [40]
186I find that Tracey at all times treated the Disputed Land as her own. I comfortably reach that conclusion from the facts that establish enclosure of the Disputed Land behind the Old Fence.
187I also accept the independent evidence of Ms Carruthers in relation to the garden bed on her parents’ side of the original fence, that after the original fence came down:
“I think the people - our neighbours had a garden bed there as well but they were never combined, they were still their own garden beds.”
“After that part of the fence came down. They were never joined, as such, the gardens; both parties maintained their own stretch of the garden.”
188This is another factor indicating that Tracey had the intention to possess the Disputed Land in the garden bed.
189Now, Ms Carruthers was not challenged on this evidence which necessarily includes how the garden bed was treated during the period that Tracey had tenants in possession of 16 Hill St. Ms Carruthers’s evidence speaks to what occurred during that period. I also note that Peter gave evidence that during the period that Tracey’s sister was their tenant, he attended the property regularly and worked on Tracey’s side of the garden bed.
190Under those circumstances, and contrary to Fiona’s submission, I do not consider that it was incumbent on Tracey to have called her tenants during the relevant period to have given evidence as to their own subjective intentions as to possession. No Jones v Dunkel inference arises.
191One final matter speaks most eloquently of Tracey’s intention to possess. When the Old Fence was removed in 2016, and the 2016 fence was erected, it was continued along the midline of the garden bed all the way to the front of the properties. Tracey arranged for the 2016 fence to be erected. This is an objective indication that she believed that she owned the Disputed Land at the garden bed and intended to continue to possess it to the exclusion of all others including her neighbour, as she had always done since she purchased the property in 2001.
192Now, Fiona’s counsel submitted that the evidence that the neighbours on either side of the garden bed tended to the plants and trees on their respective sides of the property was equivocal and insufficient to establish the necessary exercise of control by Tracey to the exclusion of all others as required to found the intention to possess. I reject this submission.
193Tottle J in Hungry Jack’s Pty Ltd v The Trust Company (Australia) Pty Ltd (No.3)[30] recently held that use of the land by an adverse possessor (in this case an area of land used as a garden patch within a larger shopping centre area) in the manner that an ordinary owner of the land would do, is sufficient exercise of control to found the both factual possession[31] and intention to possess.[32] And to the extent that such use was established for a part of the 15 year period, the court could infer that such use was continued throughout that period.[33]
[30] [2021] WASC 231.
[31] Ibid at [175] – [179].
[32] Ibid at [23] – [24].
[33] Ibid at [132].
194The patch of ground at the front of the properties was most naturally used as a garden bed. It was so used by each of the occupiers of the respective properties before the original fence was removed and the Old Fence erected. The use by Tracey of that part of the garden bed that was on her side of the notional dividing line was exactly how one would expect it to be used. Such use was not equivocal and was quite sufficient to demonstrate the degree of control that was appropriate to this particular use of the land.
195The earliest documentary evidence in the record of the garden bed after 2001 is a photograph of the properties in November 2007. This shows that the garden bed was being used as such, with a large tree and some lower shrubs in the front part of the bed. Although it is not of terribly high resolution I am to conclude that it shows that the garden bed was being tended as such.
196The photograph, together with Ms Carruthers’s evidence of how her mother and Tracey tended to their own portions of the garden bed from at least 2001 to 2016 is sufficient to permit me to conclude that the garden bed was tended as she described throughout the relevant period.
Conclusion on adverse possession
197As a consequence, I am satisfied that having regard to “the nature, position and characteristics of the land, the uses that are available, and the course of conduct that an owner might be expected to follow” Tracey’s enclosure of the Disputed Land (which includes then garden bed) by the Old Fence, and her treatment of the garden bed itself, evidences that she has exercised factual possession of that land between September 2001 and September 2016.
198I am also satisfied that Tracey had the requisite intention in that period to possess the Disputed Land on her own behalf and in her own name to the exclusion of the rest of the world including Fiona.
199In the result I find that Tracey has adversely possessed the Disputed Land as against Fiona for the requisite period of 15 years.
200Having regard to my decision on the primary claim, it is strictly unnecessary for me to determine the claim to the Alternative Disputed Land. If am wrong as to my conclusions on the adverse possession claim in respect of the garden bed, then for the same reasons that I have given above in respect of the balance of the Disputed Land, I would find that Tracey has adversely possessed the Alternative Disputed Land.
What is the appropriate order in respect of the Garage? (Issue 3)
201Fiona concedes that if the Court finds, as I have, that the Disputed Land has been adversely possessed by Tracey then the garage does encroach on the Disputed Land and therefore constitutes a “technical trespass” on Tracey’s land.
Plaintiff’s Submissions
202Tracey submits that at law she is prima facie entitled to have the encroaching garage removed from her land save for exceptional cases of disproportionate hardship constituting oppression of the trespasser.[34]
[34] Applying the rule in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 (Shelfer’s Case).
203She notes the Court of Appeal decision in Break Fast Investments v PCH Melbourne Pty Ltd[35] which considered the “good working rule” as to when an injunction might be refused in these circumstances. That rule was stated in Shelfer’s case as follows:
[35] (2007) 20 VR 311.
“In my opinion, it may be stated as a good working rule that –
(1) If the injury to the plaintiff’s legal rights is small,
(2) And is one which is capable of being estimated in money,
(3) And is one which can be adequately compensated by a small money payment,
(4) And the case is one in which would be oppressive to the defendant to grant an injunction;
then damages in substitution for an injunction may be given.”
204Tracey also relies on a passage in Manderson v Wright (No 2)[36] in which J Dixon J noted the Court of Appeal’s criticisms of the “good working rule” in Break Fast and synthesised a number of other statements of principle that now apply.
(a) Although the “good working rule” in Shelfer is still to be regarded as a useful guide to the factors to be taken in to account, the enquiry is essentially whether it would be unjust to do more than make an award of damages in the circumstances of the particular case.
(b) The court should give primary consideration to the questions of whether there is only a small injury done to the plaintiff, and that a disproportionate hardship constituting oppression would be done to the defendant if an injunction was to be granted.
(c) The court must also consider whether the hardship that a defendant would suffer if an injunction is granted would significantly outweigh the remedy that the plaintiff would obtain by way of an injunction.
(d) Unless the remedy is out of all proportion to the invasion of the plaintiff’s rights, they should not be compelled to receive a monetary award in exchange for the loss of their property at the behest of the wrongdoer.
(e) Consideration must be given to whether the plaintiff had stood by and allowed the wrongdoer to build on the land.
(f) Whether the remedy of injunction would be oppressive to the defendant is a factual enquiry which should not be confused with a balance of convenience test. All of the circumstances of the case must be considered.
(g) This includes whether the defendant acted openly and in good faith, believing themselves permitted to do what they have done.
(h) Conversely, whether the defendant acted in disregard of the plaintiff’s rights of which they were aware in order to present the court with a fait accompli so as to avoid the remedy of an injunction.
[36] [2018] VSC 162 at [199].
205She submits that while the parties’ conduct is relevant to the enquiry, the primary consideration is whether the defendant would suffer significantly disproportionate harm if required to remove the trespass.
206She submits that Tim’s evidence that he could remove the garage at a cost of $15,000 and three weeks of work forecloses any argument that the harm Fiona would suffer may be considered oppressive.
Defendant’s Submissions
207Although couched slightly differently, and whilst relying on the same and some additional authorities, Fiona makes common cause with Tracey as to the principles to be applied.
208She gives specific emphasis to the following matters:
(a) Whether the injury to the plaintiff is small;
(b) Whether the defendant acted openly and in good faith and in ignorance of the plaintiff’s rights;
(c) Whether the plaintiff has engaged in such acts of delay as to disentitle them to the remedy of injunction;
(d) Whether it would be disproportionate to grant injunctive relief.
209She submits that the ultimate question for the Court is whether it would be oppressive to the defendant in all the circumstances of the case to grant injunctive relief.
210I do not accept Fiona’s submission as to the ultimate question set out in paragraph 209 above. This places the emphasis solely on the effect that an injunction would have on Fiona. As is apparent from the principles set out at paragraphs 203 to 204 above, the legal enquiry is multifaceted and must take into account all of the circumstances of the case including the interrelationship between the extent of the injury to Tracey, the extent of the hardship to Fiona if an injunction was granted, the benefit to Fiona if an injunction is not granted and the benefit to Tracey if it is. I also have to take into account the conduct of both parties.
Consideration
211Dealing first with the injury to Tracey. In my view the injury suffered by Tracey by the encroachment of the garage onto the land she has acquired by adverse possession is substantial. In this case it is not to be measured solely in money’s worth of the value of the land upon which the encroachment sits.
212It is also to be measured in terms of the proximity of the garage wall to Tracey’s house which sits adjacent to that garage. Tim’s evidence was that as long as the gutter to the garage wall did not stand proud of it (which he said it would not) then he needed to provide no setback of the garage wall from the boundary.
213In the context of two adjoining suburban blocks without a setback, the amenity of Tracey’s block is necessarily substantially compromised by the encroachment over the boundary of a sheer structure such as a garage wall up to its full height. The nearer to her property that the garage wall sits, the greater the compromise to the amenity of her property.
214It must also be remembered that the encroachment is to land. The injury to Tracey’s interest in the land is not confined to the current use to which the land is put. She might well demolish the current house that stands there at some time in the future and wish to construct another larger dwelling there. To the extent that the encroaching garage is permitted to remain there, it may well constrain her ability to do so as she wishes. She might wish to install a window to that side of her house that sits adjacent to the garage wall. The closer the garage sits to her property the more constrained she will be in her ability to use the land in that way.
215As to whether Fiona (particularly through her husband and builder Tim) acted openly and in good faith and in ignorance of Tracey’s rights, I conclude that they did not do so.
(a) First, Tim knew full well from before he laid the slab to the garage that the fences encroached over the title boundaries. Notwithstanding this he determined to build right up to and beyond the fence line.
(b) Secondly, I consider that Tim (a builder of 7 years’ experience) must have known of the risk that Tracey might have an adverse possession claim in respect of the land enclosed by the 2016 fence. In response to a question from me as to whether he knew what “adverse possession” was, despite initially evading the question, his said that he did. I can only conclude that he took the risk of situating the garage as he did in the hope that Tracey would not claim that she had adversely possessed that land.
(c) Thirdly, I do not consider that Tim and Fiona acted openly and in good faith towards Tracey with regard to their communications. I consider them to have been strategic in confining their communications to Alli (the tenant of 16 Hill St) in relation to building hard up to, and necessarily over, the Old Fence line. It is obvious that the landowner has the most substantial interest in this issue. To have not engaged with Tracey on the issue was discourteous at best, and likely done in the hope that, having been presented with a fait accompli of a built garage, Tracey would simply accept the situation. An open and good faith approach required Tim and Fiona to have approached Tracey, told her that the fence was in the wrong place and that consequently Tim intended to place the garage slightly encroaching over the fence line – but still within the paper boundary – and sought their agreement.
(d) Fourthly, when the issue first arose in September, after the garage slab was down and the walls had largely been constructed, he again took no initiative to contact Tracey and simply told Alli that she could get the owners to ring him if they wished.
(e) Fifthly, I also note that when Tim discussed the issue with Peter in November 2022 and he asserted to Peter for the first time that the fence was mislocated, Peter’s first response was to reject the assertion and obtain a land survey. I consider this to have been the likely response that Tim was hoping to avoid by not broaching the issue openly with Tracey.
(f) None of this constitutes an open and good faith approach in ignorance of Tracey’s rights.
216I do not consider that Tracey has engaged in such acts of delay as to disentitle her to the remedy of an injunction.
(a) The first that Tracey and Peter were told of the matter was that Fiona’s builder would be removing a part of the fence so as to facilitate the erection of the garage. This was by way of a text from Alli on 17 June 2022 following a text from Fiona. They were not told that the fence was located off the title boundary and that the garage would encroach over the fence line but within the paper boundary, as Tim knew it would.
(b) When the issue arose again on 1 September 2022, the garage and its walls were already erected. Again, Tim took no steps to discuss the matter directly with Tracey or Peter. It is noteworthy that Tim himself did not tell Tracey or Peter directly that the fence line was off the paper boundary. Tim did text this to Alii, but she seems not to have passed this on to Peter. Alii texted Peter photos of the garage wall hard up against the fence line and said:
(i)“Have a look at this”
(ii)“There is no fence line??”
(iii)“Up to you if you want to question it”
(iv)“He said it’s on the boundary line so I suppose that is all good.”
(c) The risk that Tim took in not communicating directly with Tracey was that Alli would not communicate fully the information that he had provided. Indeed this is exactly what occurred. She did not faithfully transmit the entirety of his text including that the “boundary fence is out” and “probably for a long time.” This may have put a different complexion in what was told to Tracey and Peter.
(d) Under those circumstances, it is not surprising that Peter was left with the impression that the garage was built entirely within the boundary of 18 Hill St and did not encroach.
(e) Neither he nor Tracey were yet told that Fiona would assert that that the encroachment was permissible because the fence was off the title boundary, and any encroachment was within the paper title boundary.
(f) As is apparent from the September photographs, the garage structure was largely in place. As a consequence I infer that any delay by Tracey from this point on was not productive of any substantial loss to Fiona.
(g) Under those circumstances I do not consider that any delay by Tracey disentitles her from being granted injunctive relief.
217I do not consider that it would be disproportionate to grant injunctive relief.
(a) Tim candidly gave evidence that if he were required to remove the encroaching part of the garage, the cost would be $15,000 and would take three weeks’ work.
(b) In the context of the construction of the house and garage I consider this to be a minor expense and inconvenience.
(c) In the conversation between Tim and Peter in November 2022, when Tim asserted that the fence was mislocated, Tim said that if this was incorrect and he had bult over the title boundary, he would remove the encroachment and would put the fence back up. It is evident that Tim did not consider this remedy to be onerous or inappropriate.
218I do not consider that the cost and inconvenience to Fiona outweighs the benefit to Tracey of having the encroachment removed from her land.
219Taking all of these matters into account, I do not consider that it would be oppressive or unjust to Fiona to grant injunctive relief requiring her to remove the encroaching part of the garage from Tracey’s land and to reinstate the fence.
Has the Defendant caused or permitted:
(a) concrete rendering to attach to the dwelling located on the Plaintiff’s Property; or
(b) damage to occur to a 1.2m side fence located on the Plaintiff’s Property?
If so, has such conduct constituted a nuisance and caused damage, and what is the appropriate remedy?
(Issues 4 to 7)
220Fiona has denied this claim in her Defence. In his evidence in chief, Tim denied that it was his construction work that caused the concrete splatter or the damage to the side fence. Notwithstanding this, in cross-examination he conceded that it was likely that his construction work caused both elements of damage.
221Fiona’s Counsel submitted as follows:
(a) She notes that Mr Martin accepted that the splatter evident on the Humm’s house was likely concrete splatter from the building works;
(b) She notes that Mr Martin accepted that the side fence was likely removed during construction – but says that as it has been re-erected, it is not evident that any damage has been caused.
(c) She submits that the damage caused is too insubstantial and insignificant to constitute an unreasonable interference with the Tracey’s proprietary right in her property.
(d) She submits that the quote relied upon by Tracey to remove the concrete splatter is excessive in that it calls for sanding and full repainting of the side of the house. Rather, she relies on the evidence of Mr Martin that this splatter can be washed off.
(e) She also submits that the quotation from Mr Castle to replace the side fence return fence is $297, not $4,210.35 as claimed by Tracey.
Legal Principles
222There is no disagreement between the parties as to what constitutes an actionable private nuisance. Tracey must establish:
(a) that there has been a substantial and unreasonable interference;
(b) that the interference is with a proprietary right; and
(c) proof of the alleged damage.[37]
[37] March v Baxter (2015) WAR 1 (WASCCA) [242] – [245]
223Similarly, the Court is guided by the ruling of Windeyer J in the case of Hargrave v Goldman[38] whereby his Honour stated that “In nuisance liability is founded upon a state of affairs, created, adopted or continued by one person (otherwise than in the reasonable and convenient use by him of his own land) which, to a substantial degree, harms another person (an owner or occupier of land) in his enjoyment of his land.’
[38] (1963) 110 CLR 40 at [62].
Consideration
224Given that Fiona accepts that Tim (on her behalf) has engaged in the acts complained of, there are really two matters I have to decide:
(a) whether the damage caused was too insubstantial or trivial to meet the legal requirement of a “substantial and unreasonable” interference with Tracey’s enjoyment of her property; and
(b) what is the proper amount of damages.
225As to the first matter, I do not agree that, objectively assessed, either the concrete splatter or the damage done to the side fence was trivial.
226The Court was played a video depicting the splatter. The concrete splatter is evident and unsightly. It is not transient. It is self-evident that concrete is intended to adhere to what it comes into contact with. This splatter has done just that. It is not a trivial matter such as the escape of dust from one property onto another might be – to the extent that it will likely wash off in the next rain. This splatter has been there since the concrete slab went down in July 2022 and is still there.
227As to the method of remediating the damage, Mr Humm put into evidence a quote to repair that requires sanding down of the wall upon which the splatter is present and repainting. I consider this to be a reasonable method and cost of remediation. No competing evidence of the cost to remediate in this way was put forward by Fiona.
228I do not accept Tim’s evidence that in order to have remediated all that would be required is to have power washed the affected area followed by a sponge with soap water. That may have been the case if the splatter was still wet – but having dried, I am not prepared to accept that removal of the splatters in this way would not have damaged the paintwork requiring repainting.
229Further, Fiona did not advance any evidence of the cost to remediate as Tim suggested.
230Under those circumstances the only evidence that I have before me of the cost to remediate is the quote put into evidence by Tracey.
231Fiona will be ordered to pay damages in the sum of $4,620 in respect of this item.
232As to the side fence that was damaged, I also find that this is not a trivial injury. It is evident that Tim’s workmen damaged the side fence and attempted to fix it with a makeshift addition to the fence. It is unsightly and has in no way brought that side fence back to the state it was before it was damaged. This is a substantial and unreasonable interference with Tracey’s land. It should not have occurred at all and the attempt to fix it was done without any regard to her rights.
233Fiona’s submission that the wrong done was that the side fence was removed and as it has now been rehung no damage has been suffered, misses the true issue. The true issue is that Tim’s workmen broke the side fence when they removed it and performed an unsightly and makeshift repair. I reject Fiona’s submission that the damage to the side fence has been adequately remediated.
234It was accepted by both parties that the cost to properly remediate is $297.
235Fiona will be ordered to pay damages in the sum of $297 in respect of this item.
Conclusion
236In conclusion, Tracey has succeeded in her claim that she has adversely possessed the Disputed Land. She will be entitled to a declaration to that effect and that Fiona’s title to that land has been extinguished.
237She has also succeeded in establishing that Fiona’s garage trespasses on her property and that she is entitled to an injunction requiring that this trespass cease. She will be entitled to ancillary relief so as to facilitate the abatement of the trespass.
238Tracey has also established her claims in nuisance and will be entitled to an award of damages.
239The parties are directed to submit a Minute of Orders by consent within 14 days that give effect to these reasons and to deal with costs.
240As to costs, it is my preliminary view that Fiona should pay Tracey’s costs of the proceeding including reserved costs on a standard basis.
241If they cannot agree on orders, or should any party wish to agitate some other costs order, they should notify my Chambers in which case further directions will be given to resolve any outstanding issues.
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