Johnson & Anor v Morrison & Ors - [2009] VSC 72

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4810 of 2009

JOHNSON & ANOR	Plaintiff
v
MORRISON & ORS	Defendant

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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

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSC 72
Decision Date: 3 March 2009

CaseChat Overview and Summary

The plaintiffs, Johnson and another, sought to prevent the defendants, Morrison and others, from obtaining a vesting order in their favour, arguing that the defendants had acquired title to their land through adverse possession. The case was heard in the Federal Court of Australia, where the plaintiffs applied for an interlocutory injunction to prevent the Registrar of Titles from giving effect to the vesting order. The legal issues before the court were whether the interim injunction order should be continued, whether damages would be an adequate remedy, and whether the balance of convenience favoured granting an injunction. The court considered the relevant legal principles and the evidence presented by both parties. It concluded that the plaintiffs had established a serious question to be tried and that the balance of convenience favoured granting the injunction. The court found that damages would not be an adequate remedy for the plaintiffs if the injunction was not granted and that the plaintiffs had suffered significant harm as a result of the defendants' adverse possession. The court also noted that the public interest in maintaining the integrity of the Torrens system of land registration was a relevant consideration in favour of granting the injunction. Accordingly, the court ordered that the interlocutory injunction be continued.

The court further found that the defendants had not established any new matters that would warrant a variation of the terms of the interlocutory injunction. The court was satisfied that the plaintiffs had demonstrated a strong likelihood of success on the merits of their claim and that the balance of convenience favoured the continuation of the injunction. The court also noted that the defendants had not provided any evidence to suggest that the continuation of the injunction would cause them significant hardship or prejudice. The court therefore dismissed the defendants' application to vary the terms of the interlocutory injunction. The case will now proceed to trial, where the plaintiffs will have the opportunity to prove their claim for adverse possession on the balance of probabilities. The outcome of the case will have significant implications for the defendants' title to the land in question, as well as for the broader principles of adverse possession in Australian law.

Orders