Kierford Ridge Pty Ltd v Ward - [2005] VSC 215

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4362 of 2003

KIERFORD RIDGE PTY LTD	Plaintiff
v
RONALD CHARLES WARD & ORS	Defendants

---

JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 19 May 2005
DATE OF JUDGMENT:	20 June 2005
CASE MAY BE CITED AS:	Kierford Ridge Pty Ltd v Ward
MEDIUM NEUTRAL CITATION:	[2005] VSC 215

---

REAL PROPERTY – Adverse possession – Disputed land enclosed by structure constituting an extension to building on adverse possessor’s land – Intention to exercise exclusive control – When land enclosed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R T A Waddell and Mr T J Sowden	Ken Smith & Associates
For the First and Second Defendants	Mr S G R Wilmoth	Gleeson & Co
No appearance for the Third Defendant

HIS HONOUR:

This is an adverse possession case. The area of land in question is small, measuring 2.35 by 1.105 metres. That area, which I will call the disputed land, is on the paper title of the first and second defendants, whose land adjoins the plaintiff’s land. I will call the entirety of the land in the paper title of the first and second defendants the defendants’ land. There is a third defendant, the Registrar of Titles, who has taken no part in the proceeding.

The plaintiff’s land and the defendants’ land adjoin each other on the southern side of Main Street, Lilydale, the former at 286 Main Street, the latter at 292 Main Street. For convenience of understanding I attach to this judgment a survey plan of the plaintiff’s land which depicts the boundaries as shown on the certificate of title. The defendants’ land adjoins the plaintiff’s land on its eastern boundary and (on the paper title) returns west along the plaintiff’s southern boundary a distance of 7.16 metres where it meets a step in the plaintiff’s land which protrudes 1.07 metres to the south and then returns to the west and runs 1.52 metres to the south-west boundary corner of the plaintiff’s land. The western boundary of the defendants’ land runs south from the south-east corner of the step.

The disputed land is marked on the attached plan with cross-hatching. It runs 2.35 metres east from the step on the southern boundary of the plaintiff’s land, and, according to the plan, is 1.105 metres deep. The plan shows the land as extending 0.035 of a metre south of a line formed by extending the southern boundary of the step. No particular point was made of this area during the hearing; I assume that the difference was considered to be de minimis. However, adding the depth of the step of 1.07 and 0.035 produces the total depth of 1.105 metres and that is thus the depth of the disputed land claimed by the plaintiff. The land to the west of the plaintiff’s land is in the ownership of another party and insofar as the narrow 0.035 of a metre…

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.

Keep reading for free

Create a free CaseChat account to read Kierford Ridge Pty Ltd v Ward and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] VSC 215
Decision Date: 20 June 2005

CaseChat Overview and Summary

Kierford Ridge Pty Ltd brought a case against Ward regarding the adverse possession of a disputed parcel of land. The land in question was enclosed by a structure that was an extension to a building on the adverse possessor's land. Kierford Ridge claimed that Ward had no intention to exercise exclusive control over the land when it was enclosed. The case was heard in the Supreme Court of Victoria.

The court had to determine whether the enclosure of the land by the structure constituted a sufficient act of exclusive control to support a claim of adverse possession. The court also had to consider whether Ward had the requisite intention to exercise exclusive control over the land at the time of enclosure. The court examined the nature of the enclosure, the extent of control exercised over the land, and the surrounding circumstances to determine whether there was an intention to exercise exclusive control.

The court found that the enclosure of the disputed land by the structure did constitute an act of exclusive control, as the structure effectively enclosed the land and prevented access by others. The court also found that Ward had the requisite intention to exercise exclusive control over the land at the time of enclosure, as evidenced by the fact that the structure was an extension to his building and was designed to enclose the land. The court held that the enclosure of the land by the structure was a sufficient act of exclusive control to support a claim of adverse possession.

The court ordered that Ward be deemed to have acquired title to the disputed land by adverse possession. Kierford Ridge was ordered to pay Ward's costs of the proceedings.

Orders