Kenneth Linton Smith v Central Coast Council - [2024] NSWSC 981

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Smith v Central Coast Council [2024] NSWSC 981
Hearing dates: 29-30 July 2024
Decision date: 08 August 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
See [66]

Catchwords:
LAND LAW — Adverse possession — Possessory application over Torrens title land — Where the plaintiff seeks a declaration that he is the rightful owner of part of the defendants’ rural land by reason of adverse possession for more than 40 years — Whether the acts of the plaintiff and his predecessors in title establish factual possession and intention to possess

Legislation Cited:
Imperial Act Adoption Act 1837 (NSW) (repealed)
Limitation Act 1969 (NSW)
Public Roads Act 1902 (NSW)
Public Roads Act 1897 (NSW) ss 4-5, 7, 19
Real Estate (Limitation of Actions) Act 1837 (NSW) (repealed) ss 17, 34
Real Property Act 1900 (NSW) ss 28U(2), 45C(2), 45D(2)
Roads Act 1993 (NSW)
Roads and Streets Act 1833 (NSW) ss 1-3, 16, 17

Cases Cited:
Australian Retirement Holdings Pty Ltd v Tracey Anne Higgins in her capacity as administrator of the estate of the late Monica Mary Pritchard [2021] NSWSC 1158
Braye v Tarnawskyj [2019] NSWSC 277
Clement v Jones (1909) 8 CLR 133
Cooke v Dunn (1998) 9 BPR 16,489
Powell v McFarlane (1979) 38 P & CR 452
Riley v Penttila [1974] VR 547
Rogers v Registrar General of NSW [2024] NSWSC 590
Sidoti v Hardy (2021) 105 NSWLR 1
Whittlesea City Council v Abbatangelo [2009] VSCA 188

Category: Principal judgment
Parties: Kenneth Linton Smith (Plaintiff)
Central Coast Council (First Defendant)
David John Evans (Second Defendant)
Carolyn Anne Evans (Third Defendant)
Representation:
Counsel:
M Maconachie, M Summerhayes (Plaintiff)
L Chan (Second and Third Defendants)
Solicitors:
Maher Legal (Plaintiff)
Aubrey Brown Lawyers (Second and Third Defendants)

File Number(s): 2023/00191201
Publication restriction: Nil

Judgment

The proceedings concern neighbouring rural land in Ravensdale in New South Wales. Mr Kenneth Smith seeks a declaration that he is entitled to legal title of part of his neighbours’, Mr and Mrs Evans’, land, described as the “contentious land”, by reason of adverse possession for many decades.
It appears that, until very recently, the parties did not realise there was a discrepancy between the way the contentious land had been used and the descriptions on the titles.
In 1946, Mr Smith’s grandfather, Harry Smith, bought Lot 1 and Lot 2 in DP 744640 from Bridgette Perry. In 1963, Harry Smith sold the lots to Keith Smith. On 29 June 1987, the sale by Keith Smith to his nephew, Mr Smith, was stamped.
In 1979, the legal owners of the Evans’ land, Lot 41, were brothers, Leonard and Collin Fernance, who were also Mr Smith’s cousins. They sold Lot 41 to the Evans in 1999. The Evans accept that Mr Smith is entitled to that part of the contentious land, on which the Smith house has been located since 1949, but not otherwise.
To resolve the dispute between Mr Smith and the Evans, it…

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: [2024] NSWSC 981
Decision Date: 08 August 2024

CaseChat Overview and Summary

The case of Kenneth Linton Smith v Central Coast Council involved a dispute over the ownership of a parcel of rural land. Smith, the plaintiff, sought a declaration that he was the rightful owner of a part of the defendant council's land by virtue of adverse possession over a period exceeding 40 years. The dispute centred on whether Smith's actions, and those of his predecessors in title, constituted factual possession and an intention to possess the land, thereby fulfilling the legal requirements for adverse possession.

The primary legal issues before the court were whether Smith had established factual possession and an intention to possess the disputed land. The court needed to determine whether Smith's activities on the land, which included activities such as grazing, farming, and maintaining structures, were sufficient to demonstrate factual possession. Additionally, the court examined whether these activities demonstrated an intention to possess the land as the owner, rather than merely as a possessor or a tenant.

In delivering the judgment, the court found that Smith had failed to demonstrate factual possession and an intention to possess the land as the owner. The court held that Smith's activities did not amount to sufficient control and management of the land to establish factual possession. Furthermore, the court found that the acts of Smith and his predecessors did not demonstrate an intention to possess the land as the owner, as they were consistent with activities of a tenant or possessor rather than an owner. Consequently, the court dismissed Smith's claim for a declaration of ownership by adverse possession.

Orders