Hyams & Wallena Pty Ltd v Blythe
[2024] VCC 499
•24 April 2024
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-22-01251
| Ann Hyams as executor of the estate of Walter Waldermar Pisterman | First Plaintiff |
| Wallena Pty Ltd (ACN 163 930 210) as executor of the estate of Walter Waldermar Pisterman | Second Plaintiff |
| v | |
| Helen Mary Blythe | Defendant |
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JUDGE: | Her Honour Judge Brimer |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9-12 and 17 October; 16 November 2023 |
DATE OF JUDGMENT: | 24 April 2024 |
CASE MAY BE CITED AS: | Hyams & Wallena Pty Ltd v Blythe |
MEDIUM NEUTRAL CITATION: | [2024] VCC 499 |
REASONS FOR JUDGMENT
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Subject:PROPERTY LAW
Catchwords: PROPERTY – Adverse possession – Neighbouring clifftop properties – Boatshed at bottom of cliff – Boatshed built and used by possessor – Whether factual possession and requisite intention to possess made out – Whether arrangement made between paper title owner and possessor to build and use a boatshed – Whether, if arrangement made, it gave rise to a licence or a tenancy at will – Whether the paper title owner consented to use and occupation – Whether successors in title consented to use and occupation by way of successive implied licences
LIMITATION OF ACTIONS – Whether adverse possession pursuant to s14(1) of the Limitation of Actions Act 1958 (Vic) – When right of action accrued under s8(1) of the Act – When right of action accrued pursuant to s13(1) of the Act – Whether title extinguished after expiration of period of 15 years pursuant to s18(1) of the Act
EVIDENCE – Weight to be given to statutory declaration recording terms of arrangement made 30 years before the statutory declaration was made – Evidence of hearsay conversations
PROPERTY – Easements by prescription – Whether possessors’ use of land satisfied the requirements for easement under doctrine of lost modern grant
ESTOPPEL – Proprietary estoppel – Whether representation that the possessors would have a proprietary interest in the land – Whether the defendant is estopped from resiling from the representation
Legislation Cited: Evidence Act 2008 (Vic); Limitation of Actions Act 1958 (Vic)
Cases Cited:Austin Park Pty Ltd v Canon Foods Services Pty Ltd [2001] WADC 227; Batsford Estates (1983) Company Ltd v Taylor & Anor [2005] EWCA Civ 489; Bayport Industries Pty Ltd v Watson [2002] VSC 206; Ben-Pelech v Royle [2020] WASCA 168; Braye v Tarnawskyj [2019] NSWSC 277; Caltex Properties Ltd (In Liq) v Love (1997) 95 LGERA 132; Clark v Elphinstone & Anderson (1880) 6 App Cas 164; Commonwealth Life (Amalgamated) Assurance Ltd v Anderson (1945) 46 SR (NSW) 47; Gianchino v Gianchino [2023] VSCA 162; JA Pye (Oxford) Ltd v Graham[2003] 1 AC 419; J Alston & Sons Ltd v BOCM Pauls Ltd [2009] 1 EGLR 93; JNM Pty Ltd v Adelaide Banner Pty Ltd [2011] VSCA 428; Jones v Dunkel (1959) 101 CLR 298; Leigh v Jack (1879) 5 Ex D 264; Lewisv Bell (1985) 1 NSWLR 731; Lighting by Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd (2008) 35 WAR 520; London Borough of Lambeth v Rumbelow (25 January 2001, Unreported); Moore v Dimond (1929) 43 CLR 105; Powell v McFarlane (1977) 38 P & CR 452; R (Barkas) v North Yorkshire County Council [2015] AC 195; R (on the application of Beresford) v Sunderland City Council [2004] 1 AC 889; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 44 ALR 63; Radaich v Smith (1959) 101 CLR 209; Roberts v Swangrove Estates Ltd [2007] EWHC 513; Smith v Northside Developments Ltd (1987) 55 P & CR 164; Streatfield and Others v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519; Thorpe v Frank & Anor [2019] EWCA Civ 150; Whittlesea City Council v Abbatangelo [2009] VSCA 188
Judgment:For the plaintiffs
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr Daniel Aghion KC Ms Michela Agnoletti | Tisher Liner FC Law |
| For the Defendant | Mr Christopher Caleo KC Ms Julia Watson | Arnold Bloch Leibler |
HER HONOUR:
Introduction
1.“Shelley Roc” is a clifftop property overlooking Shelley Beach in Portsea. Ann Hyams and Wallena Pty Ltd (the Plaintiffs) are the joint registered proprietors of Shelley Roc.
2.“Mileura” is the neighbouring property to the west. Helen Blythe is the registered proprietor of Mileura.
3.There is a boatshed on Mileura, shown in the photograph below (Boatshed), in respect of which the Plaintiffs claim title by possession together with adjoining land (the Disputed Land) as shown on the plan:
1.By reference to the plan, the Disputed Land consists of:
a.the Boatshed (Light Blue);
b.a wooden staircase commencing at Shelley Roc and continuing onto Mileura next to the Boatshed shown (Orange) (Current Stairs);
c.a wooden boat ramp that is connected to the Boatshed and is the access point from the Boatshed onto Shelley Beach (Green) (Ramp);
d.an area between the Boatshed and the retaining wall in the cliff that was excavated to accommodate the Boatshed (Purple) (Enclosed Area);
a.a pathway from the end of the Current Stairs to the excavated cliff face to the side door of the Boatshed (Red) (Access Path); and
a.vegetation on the eastern side of the Disputed Land that encloses the Current Stairs and the Boatshed (Yellow) (Additional Land East).
b.The Plaintiffs abandoned their claim to the bore well and the vegetation on the western side of the Disputed Land (Dark Blue) (Additional Land West).
Background
a.Mrs Hyams is Walter Pisterman’s daughter. On 3 December 1956, Mr Pisterman became the registered proprietor of Shelley Roc. At that time, Hugh Wallace Smith was the registered proprietor of Mileura.
b.Mr Pisterman kept a ledger of expenses and recorded that on 19 December 1957, he spent £200/18/11 on building a staircase down the cliff from Shelley Roc onto Shelley Beach. The original configuration of the stairs (Original Stairs) can be seen in the following photograph.
c.
a.On 18 May 1958, Mr Wallace Smith passed away.
b.On 30 September 1958, Mr Pisterman applied to the Shire of Flinders Council for a building permit to build a boatshed, together with a proposed building plan and application fee of £1/2/6. On 31 October 1958, he paid Hancock Redman £346/5/4 for timber to build a boatshed and C.E. McKinnon £164/-/6 for labour to build a boatshed.
c.It is unknown when precisely the Boatshed was built. However, for the reasons set out below, it may be inferred that the Boatshed was built on Mileura on or about 1 November 1958, the day after Mr Pisterman paid for the timber and labour.
a.On 27 November 1958, a caveat was lodged over Mileura. It may be inferred that the caveat was lodged by Botanical Investments Pty Ltd (Botanical Investments), the subsequent purchaser of Mileura, of which Alexander Davison, a predecessor in title to Mrs Blythe, was a director.
b.An issue in this trial is whether Mr Davison gave Mr Pisterman permission to construct and use the Boatshed at the foot of the cliff on the north-eastern corner of Mileura in exchange for a nominal yearly fee and shared use of a bore water pump which Mr Pisterman was to install at the same time (the Arrangement). Whether the Arrangement was made is addressed below in Issue 1.
c.Botanical Investments did not become the registered proprietor of Mileura until 4 February 1960. It may be inferred, that this was due to the time taken to administer Mr Wallace Smith’s estate, and that Mr Davison was in occupation of the property before November 1958.
d.On 20 February 1965, Mr Davison passed away. Botanical Investments remained the registered proprietor of Mileura.
e.Sometime in the earlier part of the period between 1978 and 1989, Mr Pisterman rebuilt and reconfigured a section of the Original Stairs. The shape of the Current Stairs leading down to the Boatshed from Shelley Roc is shown in the following photograph. Part of the Current Stairs is on Mileura.
a.On 7 December 1988, Michael Yates entered into a contract of sale to purchase Mileura from Botanical Investments. He later nominated First Watusi Pty Ltd (First Watusi) of which he was the director, as purchaser.
b.After entering into the contract of sale, Mr Yates visited Diana Gaze, Mr Davison’s widow and her family at Mileura. They told him about the Arrangement (the Gaze Family conversation). The weight to be attributed to that evidence is dealt with below in respect of Issue 1.
c.On 19 January 1989, Mr Pisterman passed away. Mrs Hyams and Leigh Masel became the registered proprietors of Shelley Roc (21 November 1989 – 4 June 2003), then Mrs Hyams as sole executrix of the estate (5 June 2003 – 16 December 2015) followed by the Plaintiffs as executors of the estate (the Hyams).
d.
a.On 25 October 1989, Mrs Gaze made the following statutory declaration (Gaze Statutory Declaration):
b.On 3 November 1989, First Watusi became the registered proprietor of Mileura.
c.After Mrs Hyam’s mother, Jean Pisterman, passed away, Shelley Roc was leased to tenants from about June 1990.
d.On 19 October 1991, Silchester Pty Ltd (Silchester) of which Mrs Blythe and her husband Brian Blythe were directors, entered into a contract of sale to purchase Mileura from First Watusi (First Silchester Contract).
e.Around 19 October 1991, David Syme, a friend of Mr and Mrs Blythe, told them that Mr Davison and Mr Pisterman had been friends and that there was a “gentleman’s agreement” for Mr Pisterman and his family to build and use a boatshed on Mileura to access the beach (the Syme conversation).
f.For reasons that Mr Yates could not recall, on 17 February 1992, First Watusi and Silchester entered into a Deed of Cancellation of Contract to cancel the First Silchester Contract. First Watusi and Silchester simultaneously entered into a new contract of sale of Mileura (Second Silchester Contract).
g.The First and Second Silchester Contracts (the Silchester Contracts) contained the following “Special Condition” and an annexed copy of the Gaze Statutory Declaration:
a.On 17 December 1997, Silchester became the registered proprietor of Mileura. Mileura was subsequently transferred to Mr and Mrs Blythe on 20 December 2002.
b.On 20 July 2020, the Plaintiffs applied to Land Use Victoria to change the proprietor of the Disputed Land as a result of adverse possession.
c.On 8 October 2021, after learning of the Plaintiffs’ adverse possession application in respect of the Disputed Land, Mr and Mrs Blythe notified Mr and Mrs Hyams that their “licence” to use the Boatshed would be terminated after 30 days.
d.On 25 January 2022, Mr Blythe passed away.
e.On 6 April 2022, the Hyams commenced proceedings claiming adverse possession of the Disputed Land.
f.On 28 November 2022, Mrs Blythe became the sole registered proprietor of Mileura. The Mileura title owners from First Watusi, Silchester, Mr and Mrs Blythe, and then Mrs Blythe will be referred to as Mr Yates and the Blythes.
The Claim
a.The Plaintiffs claim that Mr Pisterman and his successors in title (the Possessors) have adversely possessed the Disputed Land. They have been in factual possession of the Disputed Land together with the requisite intention to possess since 1958.
b.The Plaintiffs deny the Arrangement was made. If the Arrangement was made, it amounted to a tenancy at will, not a licence, and terminated 1 year after it was made by virtue of section 13(1) of the Limitation of Actions Act 1958 (Vic) (Limitations Act). If the Arrangement was a licence, it terminated on the date of the transfer of Mileura from Botanical Investments to First Watusi. Mr Yates’ and the Blythes’ alleged consent by way of successive implied licences (alleged implied consents) cannot constitute implied consent or permission such that the Hyams’ possession was not adverse. Mr Yates and the Blythe’s conduct was nothing more than silent and passive acquiescence coupled with total inaction.
c.The date on which Mrs Blythe’s title to the Disputed Land was extinguished was either:
a.1 November 1973, if the Court disregards the Arrangement, such that time started to run against the title owner on 1 November 1958;
b.4 November 2004, if the Arrangement was a bare licence, such that time started to run against the title owner on 4 November 1989 the day after Botanical Investments transferred its title in Mileura to First Watusi; or
c.1 November 1974, if the Arrangement was a tenancy at will, such that time started to run against the title owner on about 1 November 1959 when the tenancy at will determined.
a.The Plaintiffs claim in the alternative that the Disputed Land has been burdened by a prescriptive easement by lost modern grant, or that Mrs Blythe is estopped from resiling from the Arrangement.
b.The Plaintiffs seek the following relief:
a.declarations, permanent injunctions and/or an order in relation to the Disputed Land consistent with the proprietary interest that they claim; and
b.a declaration of trespass arising from the changing of the locks on the Boatshed by Edward Blythe, Mrs Blythe’s son.
The Defence
a.Mrs Blythe contends that the Disputed Land has always been used by the Possessors with her and her predecessors in title’s consent. Consent was given by Mr Davison by way of the Arrangement. Consent was continued by Mr Yates and the Blythes by way of the alleged implied consents.
b.Even if the Court were to reject the evidence of consent, the Plaintiffs cannot satisfy the high evidential threshold for factual possession and intention to possess to prove adverse possession.
c.The Plaintiffs cannot:
a.satisfy all elements for an easement by doctrine of lost modern grant because the owners of Mileura consented to the use for a defined purpose;
b.establish use and occupation of the Disputed Land for a period of 20 years; nor
c.establish the elements of proprietary estoppel. Even if they could, equity would not grant the relief sought.
Conclusion
a.I am satisfied that the Plaintiffs have established both factual possession of the Disputed Land and a manifest intention to exclusively possess the Disputed Land for a continuous period of 15 years. I find that the Arrangement was made, and that it gave rise to a tenancy at will, not a licence. It terminated on or about 1 November 1959. Botanical Investments’ right of action to recover the Disputed Land accrued at that time. Title to the Disputed Land was extinguished on or about 1 November 1974.
b.Had I found that the Arrangement was a licence, I would have found that the licence terminated when Botanical Investments transferred its title in Mileura to First Watusi on 3 November 1989. Mr Yates’ and the Blythes’ knowledge of and agreement to the Arrangement did not constitute implied consent to the use and occupation of the Disputed Land by the Hyams, such that the Hyams’ possession was not adverse. I would have found that the right of action to recover the Disputed Land accrued on 4 November 1989 and that title to the Disputed Land was extinguished on 4 November 2004.
c.It is unnecessary for me to address the Plaintiffs’ alternative easement or proprietary estoppel claims. Had I needed to, I would have found for the Plaintiffs.
Evidence at trial
a.The Plaintiffs called evidence from:
a.Mrs Hyams;
b.Mr Hyams;
c.Mr Edward McGuire, the tenant of Shelley Roc since 2008;
d.Mr Richard (Darcy) Tronson, a friend of Mr Hyams for over 60 years from school days who spent holidays at Shelley Beach;
e.Mrs Elizabeth (Liz) Johnston, a neighbour of the Mileura and Shelley Roc properties;
f.Dr Louis Rutman, a tenant of Shelley Roc from 1995 to 2008; and
g.Mr Jonathan Neate, a surveyor who prepared the plan.
a.Mrs Blythe gave evidence and called evidence from:
a.Mr Yates, the director of First Watusi, a predecessor in title.
b.Mr Jonathan Davison, the son of Mr Davison; and
c.Mr Edward Blythe, son of Mrs Blythe.
a.On 9 October 2023, the Court, the parties, and their legal representatives attended a view of Shelley Roc, Mileura, and the Disputed Land.
b.Pursuant to section 54 of the Evidence Act 2008 (Vic) (Evidence Act), the Court may draw any reasonable inference from what it saw, heard or noticed during the view.
Issues for determination
a.The parties agreed to a revised Joint List of Issues on 22 November 2023, which is annexed to this judgment. The issues are set out and addressed in turn below.
THE ARRANGEMENT
1. Whether Mr Davison and Mr Pisterman entered into the Arrangement?
Plaintiffs’ submissions
a.Mr Aghion, counsel for the Plaintiffs, submitted that the Court ought not be satisfied that the Arrangement between Mr Davison and Mr Pisterman was made.
b.No weight ought to be placed on:
a.the Gaze Statutory Declaration;
b.the Gaze Family conversation; and
c.the Syme conversation,
as evidence of the existence of the Arrangement.
The Gaze Statutory Declaration
a.The Gaze Statutory Declaration is weak and unreliable evidence of the existence of the Arrangement and has low probative value:
a.It contains obvious errors which connote unreliability. In particular, it asserts that the Arrangement was made “in or about 1959” despite contemporaneous records showing that Mr Pisterman paid for the construction of the Boatshed on 31 October 1958.
b.The passive language is conclusionary: “an arrangement was made”. Mrs Gaze does not address who said what to whom and how she become aware of the making of the Arrangement.
c.The evidentiary value is minimal, given it was made 30 years after the events to which it refers.
d.The Court is unable to test the question of the Arrangement’s formation, including the alleged discussion between Mr Davison and Mr Pisterman.
The Gaze Family conversation
a.The Gaze Family conversation is weak evidence of the Arrangement’s existence. It is most likely second-hand hearsay and Mr Yates could not recall who told him about the alleged Arrangement.
The Syme conversation
a.The Syme conversation is second-hand hearsay and should be disregarded entirely. There is no evidence concerning the unavailability of Mr Syme. There is no basis on which the Court could conclude that Mr Syme might reasonably be suspected to have been present during any conversation between Mr Davison and Mr Pisterman.
b.If Mrs Blythe wished to rely on this evidence, Mr Syme should have been called as a witness. The Court ought to draw a Jones v Dunkel inference that Mr Syme’s evidence would not have assisted Mrs Blythe’s case.
Defendant’s submissions
a.Mr Caleo, counsel for Mrs Blythe, contended that the Court ought to be satisfied that Mr Pisterman and Mr Davison entered into the Arrangement.
The Gaze Statutory Declaration
a.The Gaze Statutory Declaration is compelling, reliable, and probative evidence of the making of the Arrangement:
a.It is a statutory declaration completed by Mrs Gaze, who lived at Mileura and was the wife of the company director who entered into the Arrangement. It includes Mrs Gaze’s sworn affirmation of its truthful content at the end of the document.
b.Rather than being weak and conclusory, it details who made it, when it was made, what the terms and key considerations were, whether a fee for service and rent was paid or received, and whether the Arrangement was in writing.
c.It is cogent evidence of the Arrangement’s ongoing nature being reflected in multiple provisions of the Silchester Contracts. Successive purchasers of Mileura acknowledged the Arrangement’s existence, the basis on which successive registered proprietors permitted the Arrangement to continue.
d.The Gaze Statutory Declaration provides the only direct explanation as to how Mr Pisterman came to build and use the Boatshed and bore well on Mileura:
i.The Court may infer from Mr Pisterman’s journal entries, drawings, and actions in 1958, that he was aware of the title boundaries when he was planning for the construction of the Boatshed and bore well. While Mr Pisterman envisaged building a boatshed within his title boundary, he was unable to do so because of the cliff face. The photographs from 1958 further support this inference as they show there was no actual land within Shelley Roc which was not occupied by the cliff. Mr Pisterman had to seek Mr Davison’s permission to construct a boatshed on Mileura and consequentially enter into an Arrangement.
ii.Mr Pisterman’s application to the Shire of Flinders Council for permission to build a boatshed on 30 September 1958 supports the making of the Arrangement.
i.When considered in the context of other evidence of the period around 1958, the reference “in or about 1959” is sufficiently general to include October 1958, the year in which the Boatshed was presumably built:
a.The registered proprietor of Mileura, Mr Wallace Smith died on 18 May 1958. It may be inferred from a caveat lodged on Mileura on 27 November 1958 that prior to that date, Mr Davison (through Botanical Investments) had entered into a contract of sale to purchase Mileura and lodged that caveat to protect his equitable interest. Botanical Investments could not become the registered proprietor of Mileura until after probate of the will of Mr Wallace Smith had been granted and title transferred to the executors. The Court ought to infer that the delay in appointing the executors by grant of probate was a reason for the delay in the time period between the making of the Arrangement and Botanical Investments becoming registered proprietor.
b.The unchallenged evidence given by Mr Jonathan Davison supports a finding that, despite the delay in change of registered proprietor, the Davison family moved into Mileura sometime towards the middle of 1958. This evidence was supported by Mr Jonathan Davison’s recollection that Sir Stirling Moss was one of the first guests at the Mileura residence after the Davison family moved in. Sir Stirling Moss stayed with the Davison family at Mileura before the Melbourne Grand Prix at Albert Park in November 1958 which he went on to win. He gave the Davison family a signed photograph of himself.
The Gaze Family conversation
a.Mr Yates’ evidence that Mrs Gaze and/or her children said that under the Arrangement, Mr Davison had agreed to allow Mr Pisterman to build a boatshed on Mileura and he had agreed to allow Mr Pisterman and his family to use the Boatshed on an ongoing basis, supports that the Arrangement was ongoing and would continue upon First Watusi becoming the registered proprietor of Mileura.
The Syme conversation
a.The Syme conversation is further evidence supporting the making of the Arrangement.
Conclusion and analysis
The Gaze Statutory Declaration
a.I find that Mr Pisterman and Mr Davison entered into the Arrangement.
b.The Gaze Statutory Declaration is reliable evidence of the Arrangement, from which an inference may be drawn that it was made:
a.It may reasonably be supposed that the representations contained in the Gaze Statutory Declaration were based on something that Mrs Gaze saw, heard, or otherwise perceived. The words “I recall” are consistent with Mrs Gaze recounting a direct recollection. Although the indirect expression “an arrangement was made” is used, the absence of words to the effect that she recalled being told by Mr Davison about the arrangement having been made is consistent with her having a direct, first-hand recollection of the representation being made, rather than of having been told about it.
b.The circumstances in which it was made, make the Gaze Statutory Declaration more likely than not to be a reliable record of the terms of the Arrangement:
i.It is a statutory declaration containing a solemn declaration of truth, supporting an inference that Mrs Gaze would have been careful in recording its substance; and
ii.It appears to have been made in the context of the sale of Mileura, explaining the occasion for its making and the likelihood that care would have been taken to record the Arrangement as accurately as possible.
i.The apparent inaccuracy in Mrs Gaze’s reference to 1959 being the year the Arrangement was made is consistent with Mrs Gaze recalling the Arrangement some 30 years after the event. The possibility that she may not have accurately recalled the year the Arrangement was made is reflected in her use of the expression “in or about 1959”. The range provided is not so far removed from the time during which the Plaintiffs contend that the Boatshed was constructed (1 November 1958) as to undermine its reliability. Having regard to the unchallenged evidence of Mr Jonathan Davison, it is likely that the Davison family were living at Mileura at the end of October 1958, when Mr Pisterman paid for the timber and labour for the building of the Boatshed.
ii.The terms of the Arrangement are not uncertain. Separate attention is given to:
a.the agreement to allow Mr Pisterman “to construct and use a boatshed”;
b.the fact that a nominal yearly fee for the privilege would be paid (although Mrs Gaze deposed to her belief that no fee was ever in fact paid); and
c.the fact that Mr Pisterman would “also allow [the Davison family] to share the use of a bore water pump” which was to be installed by Mr Pisterman at that same time.
a.What in fact occurred was consistent with the terms of the Arrangement:
a.the Boatshed was built on Mileura;
b.Mr Pisterman and his successors in title used the Boatshed; and
c.a bore water pump was installed.
a.No alternative explanation was advanced as to how the Boatshed was built and used by Mr Pisterman and a bore well installed on Mileura.
The conversations
a.In finding that it is more likely than not that the Arrangement was made, I have not relied on the Gaze Family and Syme conversations. The Gaze Statutory Declaration is the best evidence of the Arrangement. The Syme conversation lacks probative value for the reasons submitted by Mr Aghion. If Mrs Blythe wished to rely on the evidence from Mr Syme, she should have called him as a witness to give the evidence directly.
2. If yes, was the Arrangement a licence or tenancy at will, and if so, which one?
Plaintiffs’ submissions
a.Mr Aghion submitted that if the Court is satisfied the Arrangement was made, it amounted to a tenancy at will, rather than a licence.
b.When one considers the nature of the Disputed Land that was the subject of the permission and the use for which the permission was granted, the intention of the parties was that exclusive possession be conferred.
c.The nature of the use of the Disputed Land is that which was contemplated at the time the Arrangement was made, that is, for Mr Pisterman to construct and use a boatshed. It would defy logic to find that Mr Pisterman and Mr Davison would not have intended that Mr Pisterman have exclusive possession of the Boatshed.
d.If the Court finds the Arrangement was made, the Gaze Statutory Declaration is evidence of the terms of the Arrangement and should be considered to see whether it connotes exclusivity. The Arrangement, by implication, conferred exclusivity of possession upon Mr Pisterman in respect to the Boatshed and, by extension, the rest of the Disputed Land.
e.Although the Gaze Statutory Declaration refers to “a nominal yearly fee for the privilege”, Mrs Gaze deposed, “I do not believe that any licence fee or rental was ever in fact paid or received.” Mrs Blythe admits that Botanical Investments never received rent in respect of the Arrangement.
Defendant’s submissions
a.Mr Caleo submitted that the Arrangement is properly characterised as a licence, not a tenancy at will.
b.The critical inquiry is into the terms of the grant. Although the Arrangement is said to have been oral, one looks at the evidence before the Court as to the nature of the Arrangement and the Gaze Statutory Declaration is the most complete and compelling evidence of the Arrangement.
c.The terms of the Arrangement conferred a right to use the Disputed Land only for a defined and particular purpose (i.e. to construct and use a boatshed) in exchange for the construction and shared use of a bore water pump. That falls well short of a right to exclusive possession. The Arrangement was informal, imprecise, and never formalised in writing, which characteristics are commonly associated with a licence. The Gaze Statutory Declaration refers to a “nominal yearly fee” which is more commonly associated with a licence.
d.The present circumstances are similar to those in Lewis v Bell in which the New South Wales Court of Appeal considered that the test for determining whether the relationship created by a document was one of lessor and lessee is whether the grantee was given the right to exclusive possession of the premises. Here, the nature of the permission granted by the Arrangement was not the right to exclusive possession, but the right to use the Boatshed only for a defined and particular purpose.
e.The Plaintiffs’ submission that the Arrangement conferred exclusive possession upon Mr Pisterman in respect of the Boatshed and, by extension, to the remainder of the Disputed Land demonstrates the flaw in their argument. There is no basis to reason that the Arrangement conferred any right by extension to the Disputed Land.
Legal principles
a.A tenancy at will exists where there is a grant of exclusive possession by a landowner to another of land or premises which has no defined term. The relevant features of a tenancy at will are that:
a.the agreement confers on the occupant, exclusive possession of the land;
b.the title owner consents to the occupant’s occupation of the land; and
c.the occupant does not pay rent to the title owner in exchange for the exclusive possession.
a.In Moore v Dimond, the High Court observed that:
“…the law is clearly settled, that where there has been an agreement for a lease, and an occupation without payment of rent, the occupier is a mere tenant at will”.
a.A bare licence is “a personal permission to enter land and use it for some stipulated purpose or purposes.” It does not create any estate or interest in land to which it relates, and is revocable by notice at any time. As licences are personal and do not confer any interest or estate in land, they cannot be transferred between individuals nor do they exist in perpetuity.
b.In Radaich, Windeyer J considered the fundamental right which a tenant has that distinguishes the tenant’s position from that of a licensee:
“[The right] is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a legal right of exclusive possession of the land…”
a.Where the right to occupy is granted orally, without writing, the court must glean the nature of the right from the parties’ words and conduct, viewed in the light of the surrounding circumstances.
b.In Caltex Properties Ltd (In Liq) v Love, a case in which the occupation agreement was informal and unwritten, Parker J considered the use which was granted by the occupation agreement, “to see whether by granting that use of the portion exclusive possession of it must be implied.”
c.In Lewis v Bell, Mahoney JA considered the test for determining whether a relationship created by a document is one of lessor and lessee:
“In the present case, it was accepted, or at least assumed that the test is that of exclusive possession. That, in my opinion, is correct…
…Thus, if that which is granted is not of its nature the right to possession or exclusive possession but eg, the right to use the premises only for a defined and particular purpose, there will prima facie be no lease.”
a.Further, Mahony JA considered the process of construing the nature of use, where it is not clear from the terms of the grant what is being granted:
“In such cases, the court must, by the process of construction, determine whether what is granted is mere occupation or use, or is possession in the relevant sense…
…In deciding, in such cases, whether what has been granted is the right to exclusive possession, the court, in the process of construction, has in practice looked, inter alia, to two things: the nature of the rights which, in terms, have been granted; and the intention of the parties…
…In Australian cases, it is the nature of the rights which are granted which demines the matter: see Radaich v Smith, in England, “the decisive consideration is the intention of the parties….”
Conclusion and analysis
a.I find that the Arrangement is properly characterised as giving rise to a tenancy at will, not a licence.
b.In determining the nature of the rights granted, I have had regard to the use for which the permission was granted and the Gaze Statutory Declaration, the most complete evidence of the terms of the Arrangement. It may be inferred that the parties intended to confer exclusive possession of the Boatshed on Mr Pisterman:
a.The rights granted went beyond a right to use for a defined and particular purpose. They included the right to construct a boatshed in respect of which Mr Pisterman paid for the materials and the labour.
b.The rights granted could be enjoyed only by one who was granted exclusive possession. Boatsheds are inherently solid, permanent, enclosed and lockable structures. They are used to store personal equipment and valuable items for use when needed. Mr Pisterman could not have had effective use of the Boatshed if he did not have exclusivity of possession.
c.Boatsheds in the area were identified by the people that “owned” them, such as the “Tronson’s boatshed” or “the Pisterman boatshed”. This points to exclusive possession.
d.There is a distinction to be drawn between the terms of the Arrangement recorded in the Gaze Statutory Declaration allowing Mr Pisterman to construct and use a boatshed at the foot of the cliff, and in respect of the use of the bore water pump:
i.The use of the bore water pump was expressed to be shared in the Gaze Statutory Declaration:
“Mr Pisterman would pay a nominal yearly fee for the privilege [of building and using the boatshed] and also allow us to share the use of the bore water pump which was to be installed by Mr Pisterman at that same time.” (emphasis added)
i.Had Mr Davison and Mr Pisterman intended that the use of the Boatshed not be exclusive, one would have expected that a reference to the shared use of the Boatshed would have been made in the Gaze Statutory Declaration, as it was in respect of the use of the water pump. As submitted by Mr Caleo, given Mrs Gaze was completing a statutory declaration, it can safely be assumed that she chose her words carefully.
i.Although the Arrangement was in relation to the building and use of a boatshed, it may be inferred that at the time of the making of the Arrangement, the parties intended the grant of exclusive use and occupation of the Disputed Land. The inference is necessary to give effect to the rights that were otherwise granted: for the building of and use of the Boatshed. This is evident from the analysis set out below in respect of factual possession and the integrated nature, position, and characteristics of the Disputed Land at the time the Arrangement was made.
ii.The present circumstances may be contrasted with circumstances contemplated in Lewis v Bell, in which it was recognised that a grantor may preserve their right to possession:
“…in circumstances in which it would ordinarily be expected that the rights granted would carry, by implication, the right to exclusive possession, the transaction may reserve to the grantor the right to possession or to do such things in relation to the premises as are inconsistent with the grantee having exclusive possession. And that may be done in order that the transaction be one of licence rather than of lease.”
i.There is no evidence Mr Davison did anything to reserve to himself the right to possession, such that the Arrangement be one of licence rather than of lease.
3. What year did the licence or tenancy at will determine?
i.As I have found the Arrangement gave rise to a tenancy at will, in accordance with section 13(1) of the Limitations Act, the Arrangement determined on or about 1 November 1959.
ii.Had I found that the Arrangement gave rise to a licence, I would have found that it terminated upon the transfer of Mileura from Botanical Investments to First Watusi on 3 November 1989.
ADVERSE POSSESSION
4. Has the Defendant’s title to all or parts of the Disputed Land been extinguished by virtue of section 18 of the Limitations Act? Specifically:
a. did Walter Pisterman and/or his successors in title have the necessary factual possession and intention to possess to constitute adverse possession?
Plaintiffs’ submissions
Factual possession
i.Mr Aghion submitted that that the Court ought to be satisfied that the Possessors have been in factual possession of the Disputed Land since the end of 1958. Single and exclusive possession of each aspect of the Disputed Land is made out by Mrs Hyams’ materially unchallenged evidence of the way in which she, her father, her family, tenants, and invitees have dealt with, controlled access to, and used the Disputed Land since 1958. The Hyams’ tenants, Dr Rutman and Mr McGuire, gave evidence of the way in which they dealt with and used the Disputed Land during their tenancies, demonstrating single and exclusive possession.
ii.In summary:
a.The Boatshed’s use by the Possessors, their tenants, and invitees since 1958 has been continuous, uninterrupted, and extensive. Access to the Boatshed has been controlled by the Possessors by keeping it locked at all times with access only through the locked side door from Shelley Roc. The Possessors and their tenants have maintained the Boatshed. Electricity and water in the Boatshed are connected to the main house on Shelley Roc and have been paid for by the Possessors and their tenants. The Boatshed has been leased as part of Shelley Roc since the property was first tenanted in 1990.
b.The Ramp was built at the same time as the Boatshed and is physically connected to and incorporated with the structure. The Ramp is used only by those who use the Boatshed. Whilst the Ramp is enclosed only on one side, its use by the Possessors and their tenants is consistent with the manner in which land of that nature is commonly used and enjoyed.
c.The Current Stairs are “permanent and enduring” in character. They exclude Mrs Blythe from the soil underneath. The only access route from Shelley Roc to the Boatshed is via the Current Stairs. Due to their configuration, the Current Stairs have been inaccessible to anyone other than the Possessors, their tenants, and invitees since the earlier part of 1978 to 1989. There is a gate on the Current Stairs which is locked with a sign that says “private property”. The Possessors have maintained the Current Stairs. They are and have been an essential feature of the use and enjoyment of Shelley Roc.
d.The Access Path is wholly enclosed by the Boatshed and cliff face leading to the Enclosed Area. It is not possible to unlock and access the Boatshed, or access the beach, without first walking along the Access Path. It is physically integrated with the Boatshed and is an essential part of the Possessors’ and their tenants’ use and enjoyment of Shelley Roc.
e.The Enclosed Area has the water and electricity connections from the Boatshed that run through it up to Shelley Roc. It is enclosed by the Boatshed, Current Stairs, and the cliff face directly behind the Boatshed. The outside of the back of the Boatshed is accessible only from Shelley Roc, down the Current Stairs and by walking across the Access Path to it.
f.When the Original Stairs were built, the Additional Land East was enclosed on three sides by the staircase, the timber path leading to the Boatshed and the Boatshed. Since the construction of the Current Stairs, the Additional Land East has been enclosed on two sides by the Stairs and the Boatshed and Ramp. It is open on the east and northern sides. In the circumstances, however, it does not matter that the land is open. The open nature of the Additional Land East is consistent with the use of land of this nature and consistent with how the paper title owner would use it. Alternatively, Mrs Hyams had factual possession of the Additional Land East under the doctrine of constructive possession.
a.No one else has dealt with the Disputed Land as an occupying owner might be expected to deal with it. Mrs Blythe’s evidence points unequivocally to the fact that, until recently, when the dispute with Mrs Hyams first arose, Mrs Blythe and her predecessors in title did not consider the Disputed Land to be part of Mileura.
Intention to possess (animus possidendi)
a.The physical acts of possession for each part of the Disputed Land unequivocally indicate that the Possessors had the requisite intention to possess to satisfy the adverse possession claim. They are consistent with the fact that Mrs Hyams, until recently, was unaware that the Disputed Land was not part of Shelley Roc. The Possessors have always treated the Disputed Land as part of Shelley Roc.
Defendant’s submissions
Factual possession
a.Mr Caleo submitted that the Plaintiffs have failed to establish factual possession of any part of the Disputed Land for any 15 year period. The evidence does not satisfy the high evidentiary threshold to prove continuous, exclusive use and possession by reference to unequivocal acts on the Disputed Land for any period of time. Mere use is not sufficient.
a.Mrs Hyams’ evidence of factual possession largely consists of general and conclusory assertions of use spanning multiple decades. The lack of precision can be seen in her evidence referring to periods of time rather than a precise date when certain things occurred. The Court could not be satisfied of any particular use at any particular time and therefore could not be satisfied that Mr Pisterman commenced adverse possession in 1958 and that it continued for a period of 15 years from 1958 to 1974.
b.Use of the Disputed Land for recreational and storage purposes is not sufficient to establish factual possession and intention to possess. The locking of the Boatshed is not evidence of controlling access as it does not lock or block the only means of access to the Disputed Land. It is consistent with an intention to protect the items in the Boatshed from strangers. It follows that the locking of the Boatshed does not demonstrate any possession of the Disputed Land.
c.For the period from 1990 to present, being the period during which Shelley Roc has been tenanted, there is no evidence of physical conduct on the Disputed Land capable of amounting to factual possession. The purported grant of leases over Shelley Roc does not necessarily prove factual possession.
a.Access from Shelley Beach to the Disputed Land has been and is still possible. There is no barrier to any person approaching the Disputed Land from the beach. The Court cannot find that there was a dense, impassable barrier of vegetation between Mileura and Shelley Roc on the Additional Land West:
a.There are no photographs in evidence of the Boatshed and surrounding land between 1978 and 2023. In the absence of very precise oral evidence, the Court can know very little about the state of the vegetation on the Additional Land East and West.
b.Dr Rutman’s evidence that “for the whole of the time that [they] occupied [Shelley Roc], there was a dense vegetation barrier along the western boundary of the [Disputed Land]”, was qualified in cross-examination. He gave evidence that the Ramp led immediately onto the beach, and one could turn and walk in any direction from the bottom of the Ramp.
c.Mr McGuire stated that it was always possible to walk from the Boatshed through the vegetation to the other boatshed situated on Mileura (Mileura Boatshed).
d.Mrs Hyams agreed that there was no sign telling members of the public when they have crossed from the public beach onto anyone’s private land.
a.From 1958 until at least the 1980s, the only part of the Disputed Land in any way possessed by the Pistermans was the part on which the Boatshed itself stood.
a.The photograph of the Boatshed taken in 1978 depicting the Original Stairs wholly on Shelley Roc, together with the evidence of access from the stairs to the Boatshed, support that the Boatshed was in no way “incorporated” into Shelley Roc. Rather, it was located within Mileura without in any way being connected to, incorporated in or demarcated as part of Shelley Roc.
b.When the Original Stairs were re-configured in the 1980s, they precluded people from using the Additional Land East. The Current Stairs are enclosed and force access to the Boatshed through the side door and out the front of the Boatshed.
a.The Court should set aside the Additional Land East from Mrs Hyams’ adverse possession claim. The only evidence of use is a conclusory assertion by Mrs Hyams that the Disputed Land has been maintained and controlled by Mr Pisterman and the estate and a further assertion that Mrs Hyams, her family and friends would sunbake on the sand of the Additional Land East as a teenager and adult. That is not evidence of exclusive possession, rather, use of an open area, open to all users of the public beach.
Intention to possess (animus possidendi)
a.The Plaintiffs have failed to prove an intention on the part of the Possessors to exclude the world at large.
b.It may be inferred that Mr Pisterman acted in accordance with Mr Davison’s permission and that when he constructed the Boatshed, he did not intend to exclusively possess the land on which it is situated. Rather, he acted in accordance with the terms of the Arrangement.
c.Likewise, when Mr Pisterman constructed the Current Stairs, it may be inferred that he did not intend to exclusively possess the area occupied by the Current Stairs. The Current Stairs were built because the Original Stairs were too steep and dangerous to use, and the Current Stairs were configured in their current form because it was the only way one could configure them to get down to the Boatshed. The fact that Mr Pisterman did not seek to make use of the area surrounding the Boatshed is consistent with him acting in accordance with the terms of the Arrangement.
d.There is no evidence of use beyond the terms of the Arrangement. The only evidence of use of the Boatshed since about June 1990 was to include it in the terms of the lease of Shelley Roc.
e.The evidence rises no higher than an intention to use the structure of the Boatshed for recreational and storage purposes.
Legal principles
a.Section 8 of the Limitations 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.
b.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”. In respect of a tenancy at will, section 13(1) deems a tenancy at will to be determined after one year, at which time the right of action of the person entitled to the land is deemed to have accrued on the date of determination.
c.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.
Factual possession
a.Factual possession requires an appropriate degree of physical custody and control, which must amount to single, exclusive possession.
b.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.” Everything must depend on the particular circumstances.
c.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.
d.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.”
Intention to possess (animus possidendi)
a.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. 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.
b.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.
c.The intention may be deduced from the objective acts of physical possession.
d.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.
e.Further:
a.The reference to “adverse possession” in section 14(1) of the Limitations 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.
b.A person asserting a claim of adverse possession may do so on 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.
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.
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.”
Conclusion and analysis
a.I am satisfied that the Possessors have exercised the appropriate degree of physical custody and control amounting to single and exclusive possession of each part of the Disputed Land for a continuous period of 15 years.
b.There is clear evidence that the Possessors have treated each part of the Disputed Land as if it were their own since 1958. They have used, controlled access to, and otherwise dealt with the Disputed Land as an occupying owner might be expected to deal with the Disputed Land.
c.Whilst each part of the Disputed Land is considered below, the unequivocal acts of possession done in respect of the Boatshed are evidence of possession of the whole. Each part of the Disputed Land is so closely linked that to separate them would be unrealistic and unjust. It would also be incongruous with the integrated way in which the Possessors have used the whole of the Disputed Land. That is, as an essential feature of the use and enjoyment of Shelley Roc, as if it were part of and incorporated into Shelley Roc.
a.In Mr Pisterman’s time, the Boatshed could not be directly accessed from Shelley Roc without going down the Original Stairs. The wooden walkway between the Original Stairs and the Boatshed was used to access the Boatshed and the beach from Shelley Roc and was built over the Additional Land East. The Ramp was incorporated into the Boatshed. This is illustrated in the below photograph depicting the physical connection between each part of the Disputed Land and its use and occupation before the Current Stairs were built.
a.Photographs taken more recently reflect my observations on the view and show that the only direct way down to the Boatshed from Shelley Roc is down the Current Stairs.
a.The Boatshed cannot be accessed from Shelley Roc without first going down the Current Stairs, then walking across the Access Path and going through the locked door of the Boatshed.
a.The Enclosed Area can be accessed only from the Access Path and contains the electricity and water connections for the Boatshed, which connect to Shelley Roc. It also contains the retaining wall behind the Boatshed.
a.The entry to the Boatshed cannot be accessed from Shelley Beach (and vice versa) other than by crossing over the Ramp. The doors of the Boatshed facing the beach are locked from the inside. The Ramp is still connected to the Boatshed and vegetation has grown significantly around the Boatshed.
a.Although there is no longer a timber walkway over the Additional Land East, the remnants of it may still be seen. It is apparent from the enclosed nature of the Current Stairs and the position and characteristics of the Disputed Land that it would be impossible for the Plaintiffs and their tenants to carry out maintenance on the north-eastern side of the Boatshed, the eastern side of the Ramp or the Current Stairs without going onto the Additional Land East, as is shown in the photograph below:
a.I am satisfied the Possessors have used the Disputed Land as an occupying owner might be expected to use it:
a.From the time it was built in 1958, Mr Pisterman and his family regularly used the Boatshed as part of Shelley Roc, including almost every day during the summer holidays. The Boatshed was used to:
i.store boats and boating accessories, beach and swimming accessories. Mrs Hyams had a small dinghy with a small engine which she would use on most days in the summer months. She stored the dinghy upside down on the sand on either the eastern or western side of the Boatshed, or in the Boatshed when they were not there;
ii.access Shelley Beach;
iii.enjoy as part of the backyard and entertainment areas of Shelley Roc, including having regular meals, family lunches and social events such as afternoon drinks and parties. Family and friends socialised in the Boatshed and on the sand area around. As a child, teenager and young adult, Mrs Hyams would meet her friends there. The Boatshed had a fridge and freezer so that the Pisterman family could keep food and socialise there;
iv.change in;
i.access the mooring that Mr Pisterman had in the water in front of the Boatshed. Mr Pisterman had boats, and they waterskied from the beach in front of the Boatshed; and
i.access the hose that was stored in the Boatshed to wash down the boat and beach equipment after use.
b.After Mrs Hyams married Mr Hyams and they had children, they continued to visit Shelley Roc and use the Disputed Land (including the Boatshed) on most school holidays and some weekends. After the Hyams bought their own property on the peninsula, they split their time between that property and Shelley Roc, spending less time there than when Mrs Hyams was a child. Shelley Roc was tenanted after the death of Mrs Pisterman in June 1989.
c.Since Shelley Roc has been tenanted, the tenants have used the Boatshed to store beach equipment and swimming gear. There is a fridge, freezer and hoses. From October 1995 to 2008, Dr Rutman used Shelley Roc as a beach house on most weekends and used the Boatshed all the time when they were down there. The McGuires stay at Shelley Roc throughout the summer and periodically through the winter and on weekends.
d.The Ramp is used exclusively by those using the Boatshed. It is used to take equipment from the Boatshed onto the beach. It is and has been integrated with the Hyams’ and their tenants’ use and enjoyment of the Boatshed and Shelley Roc. It has been so since Mr Pisterman’s time.
a.As can be seen in the above photographs, Mr Pisterman built a timber path which was used by his family and friends to walk from the stairs to the Boatshed. Mrs Hyams stored her dinghy and sunbaked on the Additional Land East.
a.Mr and Mrs Hyams’ evidence of use of the Disputed Land is supported by the evidence of:
a.Mr Tronson, whose family owned a beach front property built in the 1930s nearby Shelley Beach. He has been going down to Shelley Beach all his life and has known the properties since the 1960s. When he was about 13 or 14, Mr Pisterman taught him to waterski from in front of the Boatshed. He saw members of the Pisterman family using the Boatshed, sitting at the front of it and hanging around the front of it many times; and
b.Mrs Johnston has known the properties for more than 60 years since her childhood. She lives in a property about 100 meters west along Shelley Beach. For the whole period she has known Shelley Roc, the Possessors and their tenants have used the Disputed Land.
a.Mr and Mrs Hyams’ evidence of use of the Boatshed is consistent with Mrs Blythe’s evidence, as owner of Mileura, of the Blythe family’s use of the Mileura Boatshed. According to Mrs Blythe, the Mileura Boatshed has a kitchenette and provides a comfortable place to sit and enjoy the beach for prolonged periods of time. During the summer, and on pleasant days through the year, the Blythe family and their friends who were staying at Mileura would regularly spend some part of each day down at the Mileura Boatshed.
b.The evidence of use, expressed in general terms and without reference to specific incidences of use on specific days, is unsurprising given the nature of the Disputed Land. It is consistent with the sort of evidence that one might expect from an occupying owner recounting their family’s use of the Boatshed and surrounding land over a period of 30 years from 1958.
c.The Possessors controlled access to the Disputed Land:
a.The Boatshed door has been locked at all times when not being used by the Possessors, their tenants and invitees. There are stickers on the outside of the side door and the outside of the double doors that signify that the Boatshed is secured by an alarm. The front beach-facing double doors are locked from the inside with deadbolt locks in the roof and floor, and can be opened only from the inside.
b.The Plaintiffs and their tenants are the only parties with access to the keys and code to unlock the locks and disarm the alarm system.
c.The Current Stairs are wholly enclosed by timber railings. There is a gate on the Current Stairs which is locked. The lock and “Private Property” sign was installed by the McGuires. The keys are held by Mrs Hyams and the McGuires. They exclude Mrs Blythe from the land underneath the Current Stairs.
a.As is apparent from the photographs above, the Access Path and the Enclosed Area are physically integrated with the Boatshed and can be accessed only down the Current Stairs from Shelley Roc.
a.The ability of the public to access the Boatshed, the Ramp and the Additional Land East from Shelley Beach is not indicative of a lack of requisite control for exclusive possession:
a.This is so given the nature and position of the Disputed Land, being a Boatshed on a beach, at the bottom of a cliff and open to Crown land with increasing growth in vegetation over time. As Slade J in Powell said:
“In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of the boundary so as to prevent intrusion…”
a.It is simply indicative of the manner in which land of that nature (being the land directly in front of the Boatshed) is commonly used or enjoyed. The Mileura Boatshed is in no different position. The area in front of the Mileura Boatshed is also accessible from the beach.
a.Having regard to the nature, position and characteristics of the Disputed Land, the presence or absence of an impassable vegetation barrier between Mileura and Shelley Roc is not determinative of factual possession. That it is possible to pass through the vegetation between the Mileura Boatshed and the Boatshed is not indicative of a lack of requisite control for exclusive possession:
a.The ability of Mr McGuire and his family to walk through the vegetation between the two boatsheds and in doing so “you might get a bit of… a thorn in your arm on the way through”, does not undermine the conclusion of factual possession. Mr McGuire was friends with members of the broader Blythe family before renting Shelley Roc from the Plaintiffs in 2008. Socialising with them, including in and from the two boatsheds, was part of the McGuires’ use and enjoyment of the lease of Shelley Roc.
b.The clear path through the otherwise dense vegetation that was apparent on the view (as reflected in the photograph below) appears to have been made recently consistent with Mrs Hyams’ evidence that she noticed the clearing after the dispute with Mrs Blythe first arose. Mr McGuire’s description of getting a thorn in his arm when passing through the vegetation is inconsistent with the clear path observed on the view.
a.I am satisfied that the Possessors have otherwise dealt with the Disputed Land in the way that an occupying owner might be expected to deal with the land:
a.Mr Pisterman paid for the timber and the labour for the construction of the Boatshed, a permanent and enduring structure.
b.Mr Pisterman installed the water and electricity, which is connected to Shelley Roc when he built the Boatshed. The services have always been paid for by the Possessors or their tenants.
c.Since Shelley Roc was first tenanted in about 1990, the lease agreements have expressly referred to and included the Boatshed. This was factored into the rental paid by the tenants.
d.The Possessors have maintained and repaired the Boatshed, the Ramp and the Current Stairs first by Mr Pisterman and then by the Hyams and their tenants. They have had it painted and have carried out any necessary repairs. They maintained the Current Stairs including by painting the rails, restumping, reinforcing, repairing or replacing boards that were wobbly or rotten. Since Shelley Roc was tenanted, the tenants have been responsible for maintaining the property, including the Disputed Land, in accordance with their lease agreements. The current tenants repaired the floor and added fixtures as required, including an alarm system. They also fixed doors, made adjustments to walls for hanging, adjusted shelves, and installed a new winch. The current tenants put a lock on the gate and added a “Private Property” sign.
a.No-one else has used the Disputed Land as an occupying owner might:
a.To the best of Mrs Hyams’ knowledge, no other person has been in or used the Disputed Land without their or their tenants’ consent since 21 November 1989 and before then, without Mr Pisterman’s consent.
b.Mrs Blythe did not give evidence that she ever went to the Boatshed.
c.This is consistent with Mr Tronson’s evidence that he recalls the Wallace Smiths and the Davisons using the Mileura Boatshed. Mr Tronson had no recollection of them going to or using the Boatshed.
a.Evidence of the conduct of Mrs Blythe and her predecessors in title is consistent with and corroborative of the Possessors’ single and exclusive possession:
a.Mr Yates was aware that he couldn’t use the Boatshed and that he would only be able to use the Mileura Boatshed.
b.The Disputed Land is screened from Mileura by vegetation. Mrs Blythe has not asked the gardeners to cut down the tops of the trees between the Mileura Boatshed and the Boatshed because they provide a natural screen and privacy. From the clifftop on Mileura, the Boatshed is not visible as it is obscured by trees.
c.When electrical plans were drawn for the renovation of Mileura in 1996, there were no electrical plans drawn for the Boatshed. Whilst the Boatshed is noted on a site drawing, it is described as “Adj. owners boat shed”. Mrs Blythe accepted this was a reference to adjoining owner’s boatshed.
d.Mileura, including the Mileura Boatshed, is immaculately maintained. This is in stark contrast to the condition in which the Boatshed is kept, as shown in the below photograph:
a.The following evidence supports an inference that Mrs Blythe did not have an interest in, disassociated herself from, and did not treat the Disputed Land as if it formed part of Mileura:
a.Mr and Mrs Blythe informed the local council in 2012 that there was one boatshed on Mileura. They objected to the Capital Improved Value given by the council to Mileura. As part of that process they described improvements on Mileura. The Blythes recorded the Mileura Boatshed but not the Boatshed. The two valuation reports used to support the objection application made no reference to the Boatshed. One referred to and recorded the square meterage for the Mileura Boatshed only.
b.Mrs Blythe gave evidence that she did not instruct the valuers as to the manner in which they were to complete their reports and she was not present when they completed their appraisals. She also gave evidence that the Boatshed was not included because it was not renovated and therefore not an “improvement”. She accepted, however, that she had no recollection of completing and signing the documents back then. Had the Blythes treated the Boatshed as if it formed part of Mileura at that time, in my view, it would have been included.
c.There was no reference to the Boatshed in home appraisals done in 2001 and 2008 for insurance purposes. Had the Blythe’s treated the Boatshed as if it formed part of Mileura, it would have been included. This is particularly so given Mrs Blythe’s evidence that if the Boatshed had been destroyed, she would have wanted to rebuild it.
Intention to possess (animus possidendi)
a.I am satisfied that the Plaintiffs have established the requisite intention on the part of the Possessors to exercise exclusive possession; to exclude the world at large, including Mrs Blythe and her predecessors in title over all parts of the Disputed Land from the date of termination of the tenancy at will. Intention to possess the Disputed Land may be deduced from the Possessors’ unequivocal physical acts of exclusive possession in respect of the Disputed Land set out above and the grant of leases over the Disputed Land to the Hyams’ tenants.
b.Even if the better view is that Mr Pisterman intended to act in accordance with Mr Davison’s permission when he constructed and used the Boatshed (rather than with an intention to exclusively possess the Disputed Land), the requisite intention to possess is established from the date of Mr Pisterman’s death in 1989. The Hyams intended to exercise exclusive possession of the Disputed Land as deduced from their unequivocal acts of possession.
c.Consistent with that intention, Mrs Hyams had always believed that the Disputed Land was part of Shelley Roc. She became aware only in 2019 when preparing Shelley Roc for potential sale that the Disputed Land, including the Boatshed, was not on Shelley Roc but on Mileura.
d.For the reasons set out below at Issue 4(b), the alleged implied consents do not constitute consent or permission to the Hyams’ use and occupation of the Disputed Land such as to negative their intention to possess.
b. did Alexander Davison and/or its successors in title consent to Mr Pisterman and/or his successors’ use and occupation of the Disputed Land in the period:
i. 1958 to 1989 (consent is alleged by way of the Arrangement between Mr Davison and Walter Pisterman); and
a.I have found that in about 1958, Mr Davison consented by way of the Arrangement to Mr Pisterman’s use and occupation of the Disputed Land. I have, however found that the Arrangement was a tenancy at will (and not a licence as contended for by Mrs Blythe) which came to an end by operation of law after one year from on or about 1 November 1958.
ii. 1989 to 2021 (consent alleged by way of successive implied licences: whether Mr Davison’s successors in title had knowledge of and agreed to the Arrangement/Special Condition 9; if yes, did their knowledge and agreement constitute implied consent to the use and occupation of the Disputed Land by Walter Pisterman’s successors in title)?
a.Had I found that the Arrangement was a licence, I would have found that Mr Yates’ and the Blythes’ knowledge of and agreement to the Arrangement and/or Special Condition 9 of the Silchester Contracts did not constitute implied consent to the use and occupation of the Disputed Land by the Hyams.
Plaintiffs’ submissions
a.Mr Aghion submitted that Mrs Blythe’s position that the adverse possession claim must fail because of the alleged implied consents, must be rejected.
b.If Mr Davison, on behalf of Botanical Investments, granted a licence to Mr Pisterman to build and use the Boatshed, the licence automatically determined at law on 3 November 1989 when Botanical Investments transferred Mileura to First Watusi. Even if Mr Yates and the Blythes were unaware that any permission to use the Disputed Land granted by the Arrangement had terminated by operation of law on 3 November 1989, ignorance of the law cannot defeat a valid claim for adverse possession.
c.Mrs Blythe’s position that successive implied licenses arose from her and her predecessor’s alleged implied consents for the Hyams to use and occupy the Disputed Land ought to be rejected. It is contrary to settled law and is not maintainable. There are no facts or circumstances from which such licences could be construed.
d.Mr Aghion relied on the test of implied consent articulated by Walker LJ, Bingham and Roger LLJ agreeing in the House of Lords decision of R (on the application of Beresford) v Sunderland City Council:
“A landowner who wishes to stop the acquisition of prescriptive rights over his land must not acquiesce and suffer in silence…
…In this area of the law, it would be quite wrong, in my opinion, to treat a landowner’s silent passive acquiescence in persons using his land as having the same effect as permission communicated (whether in writing, by spoken words, or by overt and unequivocal conduct) to those persons. To do so would reward inactivity…”
a.Mr Aghion also referred to an English case relied on by Mr Caleo as reflecting the law of implied consent in England: Batsford Estates (1983) Company Ltd v Taylor & Anor in which the English Court of Appeal found that the test to determine whether a licence could be implied in the context of adverse possession was as stated by Etherton J in London Borough of Lambeth v Rumbelow:
“In order to establish permission in the circumstances of any case two matters must be established. Firstly, there must have been some overt act by the land owner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given. It is, however, irrelevant whether the users were aware of those matters…Secondly, [it must be established that] a reasonable person would have appreciated that the user was with the permission of the land owner.”
a.Mr Aghion submitted that there appears to be a minor difference between the tests expressed in Beresford and Batsford, however, the difference is of no consequence when applied to these facts. Putting aside any difference, Mr Aghion agreed that for there to be implied consent, there needs to be an overt act or demonstrable circumstance and that it’s an objective test.
b.Taking the Batsford test, there is no evidence that any implied consent or permission was actually given. The reasonable person with knowledge of the material facts is from the perspective of the squatter, not the paper owner. To take it from the perspective of the paper owner is to reverse the base notion of adverse possession. The objective test is not satisfied where the paper title owner sits in a room and says to him or herself in a sealed box, “I consent, I consent, I consent”, and in this case, passes it down from true owner to true owner.
c.If there had been a licence, it had come to an end by operation of law, and the true owner did nothing at that point in time. That is acquiescence coupled with total inaction.
d.The position is analogous to the circumstances in Alston in which a squatter farmed land under a gratuitous licence. The licence was automatically determined by operation of law when the title to the land was transferred from one company to another company in the same corporate group. After the determination, the squatter continued to farm as before. HHJ Marshall QC, sitting as Deputy Judge of the High Court held that no licence could be implied. Mr Alston’s continued farming without objection or comment from Pauls was nothing but acquiescence.
e.The surrounding circumstances, being the treatment of the Disputed Land in the hands of either Mr Yates or the Blythes, do not support the claimed successive licences. This is consistent with Lewis v Bell in respect of the requirements for revival of a licence:
“A licence or lease may be revived in this sense [payment of a monthly fee after termination]. Whether it has been depends upon the intention of the parties, as derived from what they have said and done and the surrounding circumstances.”
a.Rather, Mr Yates’ and the Blythes’ silent and passive acquiescence coupled with total inaction is consistent with the fact that until recently, when the dispute with the Plaintiffs first arose, Mrs Blythe and her predecessors in title did not consider the Disputed Land to be part of Mileura and had wanted nothing to do with it.
Defendant’s submissions
a.The Hyams’ possession has never been adverse because Mr Yates and the Blythes consented to them using the Boatshed such that there was no basis for them to regard the Hyams as trespassers.
b.The statement of the test of implied consent derived from Rumbelow and approved in Batsford is the correct statement of the law in the United Kingdom.
c.The test as expressed in Beresford is simply wrong and does not reflect the law in England as:
a.there is no requirement for communication of consent; and
b.the squatter need not even be aware of the overt act or demonstrable circumstance.
a.The Supreme Court of the United Kingdom in R (Barkas) v North Yorkshire County Council ruled that the decision in Beresford should not be relied upon, as such, it ought not be relied upon here.
b.Mr Caleo submitted that the Court is not bound by the decisions of the UK courts. Rather, I should have regard to the fundamental proposition expressed in Ben-Pelech that possession must be adverse, not by consent of the true owner:
“Thus, for example, possession cannot be adverse if the occupier is in the premises with a licence from the true owner…
Adverse possession means possession of a person (or persons) against whom the true owner has (or is deemed to have) an accrued right of action….
The owner’s consent to possession by a claimant defeats a claim founded on adverse possession because it 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, unless and until they withdraw the consent.”
a.Mr Caleo did not contend, however, that well-established Australian propositions about adverse possession address the test of implied consent. They do not appear to delve into the detail of the test.
b.Following the creation of the first licence pursuant to the Arrangement, a series of successive implied licences was created each time there was a new registered proprietor of Mileura, such that the Hyams’ occupation of the Disputed Land was permissive. That permission, consistent with the Arrangement as deposed to in the Gaze Statutory Declaration, was passed down from each registered proprietor of Mileura to each subsequent registered proprietor:
a.Although Mr Yates was not able to locate a copy of the contract of sale by which he purchased Mileura on 7 December 1988, it may be inferred that it contained a reference to the Arrangement in a similar form to that of Special Condition 9 in the Silchester Contracts. The Gaze Statutory Declaration was stated to be made in relation to “a Contract of Sale of Real Estate dated the 7th day of December 1988 between Botanical Investments Pty Ltd… and Michael Lenton Yates”.
b.Permission was passed down by Special Condition 9 in the Silchester Contracts and the other references including to the Gaze Statutory Declaration and therefore to the Arrangement.
a.By Mr Yates and the Blythes permitting the Hyams’ occupation to continue on the basis of the first licence made between Botanical Investments (through Mr Davison) and Mr Pisterman, there was a fresh licence made on every occasion:
a.Mr Yates was made aware of the Pistermans’ occupation of the Boatshed by a real estate agent before purchasing Mileura. He spoke to Mrs Gaze and her family after purchasing Mileura. Mr Yates accepted and respected the Arrangement and was content for the Arrangement to continue after he became the owner of Mileura. The Court can be comfortable inferring that Mr Yates consented to the continuation of the Arrangement and that his consent was reflected in the Yates contract of sale; and
b.Mrs Blythe read the contracts of sale before signing them. She was always aware of the Boatshed and was content for the Arrangement to continue.
a.The question of overt act or demonstrable circumstance ought to be understood by reference to the fact that it need not be communicated. It simply means a fact from which consent can be inferred. The question is approached with the emphasis on the owner’s state of mind and one must take the perspective of the owner looking objectively at the circumstances. It can be contrasted with acquiescence, the absence of anything including writing anything or signing anything.
b.The alleged implied consents constituted a demonstrable circumstance from which an inference may be drawn that permission for the Hyams to occupy the Disputed Land was in fact given. Mr and Mrs Blythe, as individuals in their capacity as officers of Silchester, gave their consent by the demonstrable circumstances of the purchase and it ought be concluded that when the transfers were made between Silchester on the one hand and the individuals on the other, they had the same knowledge and continued to give their consent. In those circumstances, the relevant transfers in proprietorship make no difference to the ability to infer implied permission.
c.A reasonable person with knowledge of the material facts (being the Gaze Statutory Declaration and the Silchester Contracts, which included Special Condition 9 explicitly referring to the Gaze Statutory Declaration) would have appreciated that occupation of the Disputed Land was with the permission of the owner of Mileura.
d.The only thing that relevantly changed after 3 January 1989 (being the date of Mr Pisterman’s death) was that the family members of Mr Pisterman who were using the Boatshed were ignorant of the grant of permission pursuant to which they were using the Disputed Land. From the perspective of the Blythes, the position remained precisely the same – they consented to the continuation of the Arrangement. The ignorance of Mr Pisterman’s family members cannot convert consensual possession to adverse possession. It would have the result that the question whether possession was adverse would turn entirely upon the knowledge (or ignorance) of the putative adverse possessor.
e.Whilst the Hyams’ belief that they owned the land on which the Boatshed was situated might be relevant to their own intention to possess, it does not change the quality of Mrs Blythe’s consent to the Hyams using the Boatshed. Up until consent was withdrawn on 8 November 2021, Mrs Blythe had no basis on which to seek to eject Mrs Hyams from her land, and the possession was never adverse.
Legal principles
a.Having regard to counsels’ acceptance of the applicability of the test of implied consent in Batsford, which was described in Alston as the “high point” of the law in England for the paper title owner, it is unnecessary for me to address the applicability or otherwise of the Beresford formulation.
b.Neither counsel contended there is an authoritative statement of the test of implied consent in Australia. The test articulated by Etherton J in Rumbelow as cited and applied in Batsford and referred to by Mr Caleo is as follows:
“In order to establish permission in the circumstances of any case two matters must be established. Firstly, there must have been some overt act by the land owner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given. It is, however, irrelevant whether the users were aware of those matters. … Secondly, [it must be established that] a reasonable person would have appreciated that the user was with the permission of the land owner…”
a.In relation to the reasonable person and implied consent:
“…the matters relied on by Mr Morshead constitute demonstrable circumstances from which the inference can be made…it is clear that a reasonable person (who must be assumed to have knowledge of the material facts) would have appreciated that Mr Algy Taylor’s occupation was with the permission of the Estate…
…Mr Wonnacott, for the defendants, submitted that a permission to occupy land can only be implied if it is communicated by words or conduct. At all events, in the context of adverse possession, that submission cannot be correct. Once communicated, the permission would cease to be implied and would become express. The concept of a communicated implied permission is difficult, if not impossible, to comprehend.”
a.In Alston, the claimant cultivated an area of land not within his title. His conduct was pursuant to a licence granted by the owner of the land in the period from 1974 to 1977. That licence terminated when a new owner (related company) purchased the subject land, but the claimant continued to farm the land. In 2007, the defendant served a notice purporting to terminate the claimant’s licence. The claimant was successful in claiming adverse possession. In holding that no licence could be implied, her Honour stated:
“This is a case of someone “holding over” after the termination of an actual permission to occupy land. It is axiomatic that where a person remains in possession after the termination of such a licence by its expiry in time, time runs against the paper owner licensor, because his right to recover possession accrues at that time. It is thus clear that to constitute an implied permission, something more than merely letting the previous situation continue is required. The situation can be no different just because the reason why the permission has ceased is different. Adverse possession occurs even (apart from concealed fraud) if unknown to the owner of the land, and so the fact that the owner may not have appreciated that the permission has terminated by operation of law can, in principle, make no difference…
“In all the cases…where such an implied licence has been found, there has been one of two situations. Either the occupation was pending the negotiation of the grant of an interest in land…in which drawing such an inference is relatively easy, or the history of the matter has shown that there was a specific intention on the part of the owner to seek to eject the occupier, followed by an express reconsideration and change of stance, with a good deal of communication going on between the parties from which the obvious inference, obvious to anyone who knew the facts, was that the owner had made an express decision to permit the occupation and the occupation was continuing for that reason, thus amounting to the giving of permission by implication.”
a.In JA Pye (Oxford) Ltd v Graham, the possessors initially occupied farmland pursuant to a grazing licence and continued their occupation of the land after the licence was revoked. They farmed the land in conjunction with an adjoining property for more than 12 years. The paper owner carried out no activity on the land during this period. Lord Browne-Wilkinson set out the following passage from Leigh v Jack, in which Bramwell LJ stated:
“I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendants; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it…
a.After setting out this passage, however, Lord Browne-Wilkinson rejected any attempt to revive the concept of adverse possession requiring inconsistent user and said:
“The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong…”
Conclusion and analysis
a.Had I considered that the Arrangement was a licence rather than a tenancy at will, I would nevertheless have been satisfied that the Hyams’ occupation of the Disputed Land was adverse:
a.Actual permission by way of the Arrangement terminated upon change of proprietorship from Botanical Investments to First Watusi on 3 November 1989:
i.A mere licence is a personal privilege conferring no interest in the land. It cannot be transferred between individuals nor does it exist in perpetuity. As such, any licence automatically determined at law on 3 November 1989.
ii.This is similar to the circumstances in Alston, in which a licence to farm land was found to have automatically determined by law when the registered proprietor and licensor of the land transferred its title in the land to another company within the same corporate group.
iii.It is consistent with Mrs Blythe’s pleading that successive implied licences (referred to as the second, third and fourth licences) were granted each time there was a new registered proprietor of Mileura after Botanical Investments.
b.The facts do not justify an inference that permission or consent was given after that date:
i.The alleged implied consents were not a demonstrable circumstance from which it could be inferred that permission was actually given;
ii.At most, there was mere acquiescence or non-objection to the Hyams’ occupation of the Disputed Land.
i.Taken at its highest, Mr Yates’ and the Blythes’ awareness of the Arrangement as recorded in the Gaze Statutory Declaration and Special Condition 9 of the Silchester Contracts coupled with their subjective agreement for the Arrangement to “continue”, is not evidence of an “overt act or demonstrable circumstance” from which a reasonable person who must be assumed to have knowledge of the material facts would have appreciated that the user was with their permission.
a.There is nothing “overt” or “demonstrable” about those circumstances. If there were, all that would be required to satisfy the test would be a self-serving statement from the landowner that they consented to the occupation.
b.The fact that the alleged implied consents were recorded in documents wholly within Mr Yates’ and the Blythes’ knowledge does not advance the matter any further. They are not “material facts” of which the reasonable person would have knowledge:
i.A circumstance wholly within the knowledge of the paper title owner could not negative the squatter’s intention to possess, by application of the objective test: that a reasonable person would have appreciated that the user was with permission of the landowner.
ii.Whether a reasonable person would have appreciated that the user was with permission of the landowner must be taken from the perspective of the squatter. To approach the question of consent with the emphasis on the owner’s state of mind as contended for by Mr Caleo, would be to commit the heresy identified in Pye by suggesting that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner. This “is heretical and wrong.”
i.The absence of a requirement that implied consent be communicated, does not render a circumstance wholly subjective and within the mind only of the paper title owner a “demonstrable circumstance”. As stated in Batsford, if the consent was communicated, it would cease to be implied and would become express.
ii.A finding that the alleged implied consents are not “material facts” for the purpose of the test, does not mean that the question whether possession was adverse would turn entirely upon the knowledge (or ignorance) of the putative adverse possessor, as submitted by Mr Caleo. It is consistent with the test being an objective test and therefore with the proposition that it is irrelevant whether the putative adverse possessor was in fact aware of the matters giving rise to an inference of permission.
iii.It is also consistent with Lewis v Bell on the question whether a licence has been revived: it depends upon the intention of the parties, as derived from what they have said and done and the surrounding circumstances. The surrounding circumstances addressed above (being the treatment of the Disputed Land by Mr Yates and the Blythes) tell against an intention on their part to grant the claimed successive licences. Rather, the silently held, subjective agreement with the “continuation of the Arrangement” on the part of Mr Yates and the Blythes was at its highest, silent and passive acquiescence.
5. If the answer to Question 4 is ‘yes’:
a. in respect of which parts of the Disputed Land has the Defendant’s title been extinguished?
i.For the reasons set out above, Mrs Blythe’s title has been extinguished in respect of all parts of the Disputed Land.
b. In what year(s) was the right of action of Alexander Davison and/or his successors to recover all or those parts of the Disputed Land deemed to have accrued pursuant to:
i. section 14(1) of the Limitations Act, alternatively
i.4 November 1989 if the Arrangement gave rise to a licence.
ii. section 13(1) of the Limitations Act?
i.On or about 1 November 1959 as the Arrangement gave rise to a tenancy at will.
c. In what year(s) was the right of action of Alexander Davison and/or his successors to recover all or those parts of the Disputed Land barred by virtue of section 8 of the Limitations Act?
i.On or about 1 November 1974. Alternatively, if the Arrangement gave rise to a licence, 4 November 2004.
ALTERNATIVE CLAIM: PRESCRIPTIVE EASEMENT BY LOST MODERN GRANT
6. Is the Defendant’s title to all or parts of the Disputed Land burdened by a prescriptive easement in favour of the Plaintiffs and their predecessors in title, by lost modern grant?
i.Having regard to my findings above, it is unnecessary for me to determine this issue.
ii.Had it been necessary to do so, I would have accepted the Plaintiffs’ submissions and found that Mrs Blythe’s title to the Disputed Land is burdened by a prescriptive easement by lost modern grant in favour of the Hyams.
7. If the answer to Question 6 is ‘yes’:
a. which parts of the Disputed Land are burdened?
i.I would have found that each aspect of the Disputed Land was burdened by prescriptive easements in favour of the Plaintiffs pursuant to the doctrine of lost modern grant.
b. in what year(s) did the Defendant’s title to all or those parts of the Disputed Land become burdened?
i.On or about 1 November 1959.
ALTERNATIVE CLAIM: PROPRIETARY ESTOPPEL
i.Having regard to my findings above, it is unnecessary for me to address this claim. Had I needed to, I would have accepted the Plaintiffs’ submission that it would be unconscionable and unjust for Mrs Blythe to resile from the Arrangement and that she is estopped from doing so. I would have answered the questions in the Joint List of Issues as follows:
8. If there is an Arrangement as alleged by the defendant, is the defendant estopped from resiling from the Arrangement? Specifically:
a. was there a representation by the defendant to the Plaintiffs that the Plaintiffs have or will have a proprietary interest in the Disputed Land?
i.Yes.
b. did the Plaintiffs form an assumption that they had or will have a proprietary interest in the Disputed Land?
i.Yes.
c. did the conduct of the defendant in making the representation cause or materially contribute to the formation of that assumption by the Plaintiffs?
i.Yes.
d. did the Plaintiffs take action in change of their position in reliance on that assumption?
i.Yes.
e. would the Plaintiffs suffer detriment if the Defendant were permitted to depart from the assumption?
i.Yes.
f. would it be unjust or unconscionable for the Defendant to depart from the assumption?
i.Yes.
TRESPASS
9. Did the Defendant trespass on the Plaintiffs’ land by changing the locks on the boatshed?
i.This claim was not addressed in written or oral opening or final submissions. In their final written submissions, Mr Caleo and Ms Watson noted that the Hyams did not address trespass in their written opening submissions or in their oral opening. They noted that the Defendant assumes trespass would not be pressed, unless informed to the contrary.
ii.In final oral submissions, Mr Aghion did not address the trespass claim. It was only when I said that I would take it that the trespass issue was not being pressed, Mr Aghion responded that at the most, the Plaintiffs would seek a formal declaration of trespass on the counterclaim and nominal damages.
iii.Having regard to the fact that the claim in trespass was not addressed during the trial or in submissions, and the position taken by Mrs Blythe in assuming the claim was not pressed, unless either party seeks to be heard further, I will consider the issue to have been not pressed.
Conclusion and orders
i.There be judgment for the Plaintiffs.
ii.I invite the parties to prepare proposed orders to reflect my findings and reasons for judgment.
iii.Subject to any matters that the parties bring to my attention on the question of costs, I propose to order that the Defendant pay the Plaintiffs’ costs of the proceeding on the standard basis, in default of the agreement.
- - -
Certificate
I certify that these 191 paragraphs are a true copy of the judgment of Her Honour Judge Brimer delivered on 24 April 2024.
Dated: 24 April 2024
Georgia Moody
Associate to Her Honour Judge Brimer
ANNEXURE
JOINT LIST OF ISSUES
i.THE ARRANGEMENT
i.Whether Alexander Davison and Walter Pisterman entered into the Arrangement?
ii.If yes, was the Arrangement a licence or a tenancy at will, and if so, which one?
iii.What year did the licence or tenancy at will determine?
i.ADVERSE POSSESSION
i.Has the Defendant’s title to all or parts of the Disputed Land been extinguished by virtue of section 18 of the Limitations of Actions Act 1958 (Vic) (Limitations Act)? Specifically:
i.did Walter Pisterman and/or his successors have the necessary factual possession and intention to possess to constitute adverse possession?
ii.did Alexander Davison and/or his successors in title consent to Walter Pisterman and/or his successors’ use and occupation of the Disputed Land in the period:
i.1958 to 1989 (consent is alleged by way of the Arrangement between Alexander Davison and Walter Pisterman); and
ii.1989 to 2021 (consent alleged by way of successive implied licences: whether Alexander Davison’s successors in title had knowledge of and agreed to the Arrangement/Special Condition 9; if yes, did their knowledge and agreement constitute implied consent to the use and occupation of the Disputed Land by Walter Pisterman’s successors in title)?
i.
i.
ii.
i.section 14(1) of the Limitations Act, alternatively
ii.section 13(1) of the Limitations Act?
i.in what year(s) was the right of action of Alexander Davison and/or his successors to recover all or those parts of the Disputed Land barred by virtue of section 8 of the Limitations Act?
i.ALTERNATIVE CLAIM: PRESCRIPTIVE EASEMENT BY LOST MODERN GRANT
6. Is the Defendant’s title to all or parts of the Disputed Land burdened by a prescriptive easement in favour of the Plaintiffs and their predecessors in title, by lost modern grant? Specifically:
i.did Walter Pisterman and/or his successors occupy and use the Disputed Land for a period of 20 years?
ii.did Walter Pisterman and/or his successors occupy and use the Disputed Land for a period of 20 years without any right to do so?
iii.did Alexander Davison and/or his successors in title know that Walter Pisterman and/or his successors occupied and used the Disputed Land for a period of 20 years?
iv.did Alexander Davison and/or his successors in title have the power to prevent Walter Pisterman and/or his successors occupying and using the Disputed Land for a period of 20 years?
v.did Alexander Davison and/or his successors in title abstain from preventing Walter Pisterman and/or his successors occupying and using the Disputed Land for a period of 20 years?
7. If the answer to Question 6 is yes:
i.
ii.
i.
8. If there is an Arrangement as alleged by the Defendant, is the Defendant estopped from resiling from the Arrangement? Specifically:
i.was there a representation by the Defendant to the Plaintiffs that the Plaintiffs have or will have a proprietary interest in the Disputed Land?
ii.Did the Plaintiffs form an assumption that they had or will have a proprietary interest in the Disputed Land?
iii.did the conduct of the Defendant in making the representation cause or materially contribute to the formation of that assumption by the Plaintiffs?
iv.did the Plaintiffs take action in change of their position in reliance on that assumption?
v.would the Plaintiffs suffer detriment if the Defendant were permitted to depart from the assumption?
vi.would it be unjust or unconscionable for the Defendant to depart from the assumption?
i.TRESPASS
9. Did the Defendant trespass on the Plaintiffs’ land by changing the locks on the boatshed?
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