Johnson & Anor v Morrison & Ors
[2009] VSC 72
•3 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 4810 of 2009
| JOHNSON & ANOR | Plaintiff |
| v | |
| MORRISON & ORS | Defendant |
---
JUDGE: | WARREN CJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2009 | |
DATE OF JUDGMENT: | 3 March 2009 | |
CASE MAY BE CITED AS: | Johnson v Morrison | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 72 | |
---
PRACTICE AND PROCEDURE – Adverse possession - Interlocutory injunction - Registrar of Titles restrained from giving effect to a vesting order in favour of the defendants – Whether interim injunction order should be continued - Whether damages an adequate remedy – Whether the balance of convenience favours granting of an injunction.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr D C Harrison | |
| For the First and Second Defendants | Mr S A Lowry |
HER HONOUR:
In this proceeding the plaintiffs seek an interim injunction restraining the Registrar of Titles from giving effect to a vesting order in favour of the first and second defendants.
The plaintiffs, the Johnsons, are the registered proprietors of the property at 77 Garsed Street, Bendigo, described in Certificate of Title Volume 7418 Folio 465. The Morrisons, the defendants in the proceeding, are the registered proprietors of the property next door at 79 Garsed Street, Bendigo described in Certificate of Title Volume 6429 Folio 692.
The south-western boundary of the Johnsons' property adjoins the north-eastern boundary of the Morrisons' property (‘disputed boundary’). Until approximately mid 2008, there seems to have existed a galvanised iron and paling fence which ran roughly parallel to the disputed boundary, approximately one metre inside the Johnsons' property and part of the way along the disputed boundary. The fence partially enclosed an area of the Johnsons' property of approximately 30.9 square metres. This strip of land is the disputed land the subject of these proceedings. It is, it seems, not disputed between the parties that the land has a value in the order of less than $5,000.
In approximately mid 2008, the relevant fence was removed. At some time in mid to late 2008, the Morrisons lodged an application under section 60(1) of the Transfer of Land Act 1958 (‘Act’) seeking title by adverse possession of the strip of land. On about 23 December 2008, the Johnsons lodged a caveat with the Registrar of Titles pursuant to s.61 of the Act purporting to prohibit the granting of the application but without stating a specific interest. Subsequently a further caveat was lodged on 2 February 2009. Issues were raised as to the efficacy of the second caveat but I need not deal with these for present purposes.
The Johnsons claim they are entitled to a declaration that they are the legal and beneficial owners of the disputed strip of land.
There are disputes between the plaintiffs and the defendants as to the nature of the fence, the precise date of its removal, and whether or not there was exclusive possession of the Johnsons' land and in particular the disputed strip of land.
In an affidavit filed in the proceeding, the first plaintiff, Mr Johnson, deposed that the plaintiffs are the owners of the property, that they came to be the owners since on or about 28 June 2007, and that previously their land was owned by their son from about 1987.
He deposes that from about 1987 until the present, the Johnson property had an old weatherboard house erected on it which was rented out to various tenants for most of the period. Mr Johnson deposes that he attended the property from time to time, cleaning it between tenancies, performing renovations and mowing lawns.
At the time the Johnson property was purchased by the son, the next door property, the Morrisons' property, was owned by another person and it apparently had a run down weatherboard house on it. In about 1988 the weatherboard house on the Morrisons' property was demolished and the debris cleared. That property remained without any permanent building upon it from that time until the present. Some temporary buildings were put there in about late 2007.
Mr Johnson deposes that after the house on the Morrisons' property was demolished, he rarely saw the previous owners or subsequently the Morrisons. He believed that at most he may have seen the owners possibly as little as once a year. He also deposes that the Morrisons' property is readily accessible, it being open to the street. He deposed that sometimes he would go on to the Morrisons' property and place grass clippings on it and from time to time park his car and trailer on the land. He also deposed that in recent years he has seen workers from nearby factories parking their car on the Morrisons' property during working hours.
Importantly, Mr Johnson deposed that since at least 1987 he believes that there has never been a fence on or about the shared boundary from the far north-western point of the shared boundary on Garsed Street to a point about 14 metres heading south-east along the shared boundary. Secondly, from that point, about 14 metres south-east along the shared boundary, to the far south-east end of the shared boundary, there has until about mid 2008 been a type of fence along that length of the boundary described as the disputed fence; and thirdly, that there has never been a fence at the front of the Morrisons' property where it borders Garsed Street.
Mr Johnson also deposes that the disputed fence was pulled down in about mid 2008 following damage by a flow of water. About six weeks later, a temporary fence was erected by the Morrisons or their interest. The latter fence was placed approximately parallel to the former subject fence but approximately half a metre further inside the boundary of the Johnsons' property than the earlier fence had been located.
The first plaintiff, Mr Morrison, has filed an affidavit in opposition in which he sets out history as to his knowledge of the erection of the subject fence and the circumstances of its ultimate demolition. He also deposed that a temporary security fence was erected along the same line. Mr Morrison deposes that there was a witness to the temporary security fence being erected along the same line as the original fence followed. There are photographs exhibited to Mr Morrison's affidavit relating to these events. In addition, Mr Morrison deposed and exhibited materials relating to a survey conducted of the relevant land and also information he obtained from the Greater Bendigo City Council in relation to an easement running along the Johnsons' property and the fact that the subject land is not affected by that easement.
Mr Morrison also deposes as to discussions that have occurred between the Johnsons and the Morrisons concerning the ownership and ultimate acquisition of the disputed land. These matters are not relevant for present purposes. Notably, as already adverted to, it is estimated in fact by Mr Morrison that the value of the disputed land is no more than $5,000. This is not disputed it seems by the plaintiffs.
The question for me to determine for present purposes is whether an interim injunction earlier granted by a judge of this court should be continued until further order pending trial or whether the order should be dissolved.
The applicable principles relating to adverse possession applications and the relevant law were conveniently stated by Ashley J in Bayport Industries Pty Ltd v Watson.[1] His Honour there cited the principles summarised by Slade J in Powell v McFarlane,[2] principally raising the issues of actual possession, requisite intention and related matters. Ashley J also set out the other relevant principles, in particular that there must be a conscious intention to exclude the true owner and that what is required is an intention to exercise exclusive control and other matters.[3]
[1][2002] VSC 206, [39].
[2](1979) 38 P and CRL 452, 470-72; cited with approval in Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163, 167.
[3][2002] VSC 206, [40].
A convenient repository of the principles relating to adverse possession are also contained in Halsbury's Laws of Australia.[4] Another consideration of the relevant principles is set out by Gillard J in Riley v Pentilla.[5] Having considered the relevant principles for present purposes, I am satisfied that there is a serious question to be tried.
[4]Butterworths, Halsbury’s Laws of Australia, vol 16 (at 3 March 2009) 255 Limitation of Actions, ‘II Recovery of Land’ [255-235].
[5][1974] VR 547, 561-2.
It is apparent from the examination of the respective affidavits of Mr Johnson and Mr Morrison that there are disputed questions of fact that need to be determined at trial. They are not matters that I might appropriately determine. It may be that at trial the parties would wish to have the deponents cross‑examined. The question of possession and intention are matters of fact and it will be necessary for a judge to determine those matters.
Having formed the view in accordance with the principles where an interlocutory injunction is to be granted, that a serious question is to be tried, I turn then to the second question as to whether or not damages will be an adequate remedy.
This is of itself a difficult question. On the one hand it might be said that given the low value of the land, it is merely a question of damages being assessed if needs be at a future date. On the other hand, it is apparent from the affidavit material that the land has a special value and it may be that damages would not be an adequate remedy. I find myself in the position of being somewhat constrained notwithstanding a qualified valuation of the land. I cannot be satisfied that damages would be an adequate remedy in this case and accordingly the second aspect of the burden that lies on the plaintiffs has been made out for present purposes.
I turn then to whether the balance of convenience favours the granting of an injunction. Counsel for the first and second defendants properly referred me to the Court of Appeal judgment in Bradto v State of Victoria.[6]. Ultimately, their Honours in that case held that it is the justice of the case that must be taken into account in determining where the balance lies.
[6](2006) 15 VR 65.
In light of the disputes of fact between the affidavits of Mr Johnson and Mr Morrison, it seems to me that it is arguable that the justice of the matter lies with granting an interim injunction pending the trial of the proceeding. If it transpires that the Johnsons were to make out their interest in the disputed land and meanwhile the land had been built upon, then there may be other consequences for the Johnsons’ interest. It seems to me, on balance at this time, to favour the granting of the interlocutory injunction as sought.
Accordingly, I am satisfied that it is appropriate to continue the orders made previously subject to the proffering of an undertaking by the plaintiffs in the usual way.
The matter then arises as to the future disposition of this proceeding. It was suggested by the parties that a desirable course would be to remit the proceeding to the County Court pursuant to s 30 of the Courts Case Transfer Act 1991. Under the amendments made recently, order 77 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005, it is open now for this proceeding to be referred for trial before an Associate Justice. It seems to me that this is an eminently appropriate matter for an Associate Justice of this court to determine at trial. There is the further added advantage that the parties would have the benefit of a prompt date. I am satisfied it is appropriate therefore that this proceeding be referred for trial before an Associate Justice on a date to be fixed. I would do so on an estimate of one to two days.
I will make orders accordingly.
‑ ‑ -
0
3
0