Kierford Ridge Pty Ltd v Ward
[2005] VSC 215
•20 June 2005
| 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 strip south of the step but west of the defendants’ land is concerned I could not, as I mentioned to counsel, make a finding of adverse possession without notice to that party. Accordingly I am concerned with the hatched area only insofar as it is land on the paper title of the defendants’ land.
The defendants’ land was brought under the operation of the Transfer of Land Act (the TLA) in 1889 (and is now in certificate of title volume 9439 folio 934). It was not until 25 July 1989 that the plaintiff’s land was brought under the operation of the TLA (in certificate of title volume 9900 folio 922).
The certificate of title to the plaintiff’s land notified two leases as encumbrances, one to Graham Marsh (“Marsh”) for three years from 1 September 1988 and the other to Alpine Insurance Brokers Pty Ltd (“Alpine”) for three years from 1 December 1987. It also included a warning that any dimensions and connecting distance shown is based on the description of the land as contained in the General Law Title and is not based on survey information which has been investigated by the Registrar of Titles.
Parties
The plaintiff is Kierford Ridge Pty Ltd which conducts the business of an insurance broker from the premises at 286 Main Street. The directors are Michael John Wilkinson, who gave evidence, and his wife.
The plaintiff purchased its land from 286 Main Street Pty Ltd by a contract of sale dated 7 October 1996 which was settled on 2 December 1996. The plaintiff was registered as proprietor of the land on 19 December 1996. The contract included a special condition that the vendor cause to be removed the encumbrances constituted by the above two leases notified on the certificate of title. It also included a special condition, for the benefit of the purchaser, that the contract was subject to and conditional upon the purchaser obtaining a satisfactory site survey of the property. In addition, attached to the accompanying statement under s 32 of the Sale of Land Act 1962 were: a copy of the certificate of title but with no statement by the vendor as to any additional land acquired by possession, and a copy of a then current lease to Marsh for a term of three years commencing on 1 September 1994, with an option of a further term of three years, of the first floor of the building at 286 Main Street, Lilydale, with joint use of the kitchen and toilet facilities on the raised ground floor.
The first and second defendants are a married couple, Ronald Charles Ward and Annette Leandra Ali.
The defendants’ land is larger in area and greater in depth than the plaintiff’s land. A hotel known as Dukes Saloon is located upon the defendants’ land, built to the Main Street frontage. The hotel is built to the east boundary of the plaintiff’s land and continues south past the southern boundary of the plaintiff’s land. There are other structures on the defendants’ land. In November 2001 the first and second defendants entered into a contract to purchase the hotel (and the defendant’s land) from FDFS Hotels Group Pty Ltd (“FDFS”). The purchase was settled on 23 January 2002.
It is common ground that the building on the plaintiff’s land and the hotel on the defendants’ land were erected in or about 1860.
The disputed land and its use
The disputed land is entirely built upon by a structure that is attached to and is entered from the building on the plaintiff’s land. As appears on the plan attached hereto, the plaintiff’s land is entirely covered by a brick building save for a small narrow strip at the south-west corner of the land. The front part of the building is double storey reducing to single storey somewhat over halfway to the rear of the block. At the point where the building changes to single storey there are a few steps up to the single storey level. That is a result of the slope of the land which is from the rear of the property down to Main Street. Both levels of the building are used for office purposes.
A kitchen and toilets are located at the rear of the building. The building incorporates the disputed land. There is no wall on the eastern paper boundary of the step. The area in the south-west corner of the building contains the toilets for the premises. There are two toilets, one for women and one for men, together with a vanity unit and basin. They occupy a combination of an area in the south-west corner of the building, the area of the step built upon, and the disputed land. The area in the south west corner of the building (not including the step) is marked out by an internal wall running north on the same line as the internal east wall of the disputed land and then returning to the west wall of the building with a door through the toilet area[1]. Immediately in the south west corner before the step is the first toilet. The toilets are alongside each other separated by a triple thickness brick wall; they are located against the western wall facing east. Each toilet has a door which allows entry from the east. The cubicle of the second toilet includes part of the disputed land. The vanity unit is located on the east wall of the overall area. To aid an appreciation of how small the overall area is, the east paper boundary of the step is appreciably west of the door to and within the southern of the toilet cubicles. Further, the southern 7.16 metre paper boundary of the plaintiff’s land divides the disputed land from the northern side of that cubicle in an east-west direction.
[1]See the diagram marked MW3 to Exhibit A.
The toilet area is entered through the area cross-hatched on the plan, that is the disputed land. As the toilets are placed, the area could not be entered otherwise. Further, if a wall was built on the paper boundary of the step, the southern toilet could not be used. That is because the area could not be entered from the plaintiff’s building assuming proper space for a person or persons for the purpose, and having regard to the east/west brick wall between the toilets, and that if a wall was built on the eastern paper boundary of the step and a person was sitting on the toilet the wall would be about three or four inches away.
Hence, if a wall was built on the southern paper boundary to the east of the step the doorway to the toilet area would be closed off.
Having regard to these matters, Wilkinson said in evidence, and I accept, that if the plaintiff was not entitled to possession of the disputed land, the plaintiff would have to construct toilets and a wash area elsewhere in the building. A quotation for the necessary work in the sum of $44,748 is Exhibit F.
The issues
The plaintiff has the onus of establishing that it and its predecessors in title have possessed the disputed land adversely to the possession of the paper owner and with the intent of excluding the paper owner for the period of 15 years from accrual of the right of action in trespass of the paper owner; see the Limitations of Actions Act 1958, ss 8, 14 and 18. Under s 42(2)(b) of the TLA the paper title of the registered proprietor is subject to any right subsisting under any adverse possession of the land.
The submissions of the parties identified two key issues, namely:
(a)Whether there was evidence of continuous, exclusive and adverse possession of the disputed land for 15 years. This raised an issue of fact as to when the disputed land had been built on by the plaintiff or its predecessors.
(b)Whether the occupation of the disputed land was with the intent to possess the land adversely to the defendants and their predecessors in title.
Evidence
The proceeding having been commenced by originating motion the evidence was given by affidavit with a right of cross-examination. In some cases counsel agreed to the tender of an affidavit without the need to call the deponent.
For the plaintiff evidence was given by the following:
(a)Michael John Wilkinson, a director of the plaintiff. The plaintiff conducts business as an insurance broker from the premises at 286 Main Street. He gave evidence of the purchase of the plaintiff’s land, of having renovated the premises including the toilet area in 1999, as part of which a door in the east wall of the disputed land was filled in, and a history of the dispute.
(b)Ian Barclay Godson, a corrosion and remedial engineer who practises as a consultant in the area of concrete and mortar deterioration. He gave evidence of a test he conducted in June 2004 of the carbonation depth of the mortar at two points in the southern brick wall of the step. Based on the estimated age of the mortar in the brick wall, he estimated the age of the brick wall to be 35 to 50 years.
(c)The following affidavits were tendered without the need to call the deponent.
(i)John Edwin Chivers, a licensed surveyor, who prepared the plan attached hereto. He also gave evidence of the history of the plaintiff’s land referring to the general law conveyances.
(ii)Judith Jacona who is now retired but was employed by Alpine at 286 Main Street from approximately 1978 to 1989. She said that the offices were shared with Brian Moore Insurance Brokers Pty Ltd (“Brian Moore”). Four persons worked in the office and shared the facilities including the kitchen and toilets. She was secretary to the proprietor of Alpine. The other persons who worked at the premises were the proprietor of Brian Moore and his secretary Elizabeth Nutbean. She referred to the south-west corner of the building and described a toilet facility and a doorway facing east which led out to a covered area. She revisited the office at 286 Main Street in August 2003 and said that the area at the south-west corner had not been increased by the plaintiff’s renovations. The door facing east had been replaced but the dimensions were the same as she recalled them from when she was employed at the premises.
(iii)Elizabeth Ann Nutbean, presently an insurance broker, who was employed as the secretary to the proprietor of Brian Moore at 286 Main Street from approximately 1976 to 1986. She gave the same evidence as Jacona.
(iv)Richard Charles Wines, an estate agent who was employed by Raine & Horne, real estate agents, at 286 Main Street from 1996 to 1998. In addition to Raine & Horne, a firm of lawyers, Graham J Marsh & Co, occupied the premises. In his affidavit, which he swore on 24 November 2003, he said he had recently inspected the offices of the plaintiff at 286 Main Street and that although the area had been renovated internally, the external area had not been extended.
For the defendants evidence was given by the following:
(a)Ronald Charles Ward, the first defendant, who gave evidence of the purchase of the hotel at 292 Main Street, of a survey undertaken in January 2002 which identified the encroachment on the defendants’ land of the structure attached to the plaintiff’s building, and the history of the dispute.
(b)Frederick Cyril Bramich who owned and operated the hotel at 292 Main Street from 1 January 1973 to 27 February 1994 when he ceased to operate the hotel although he remained the owner until December 2000. As a result of his parents having owned the hotel before him, he resided there between 1961 and February 1994. In 1997 he negotiated with two parties to sell the hotel, one being FDFS which eventually purchased the hotel. In his affidavit he said that Wilkinson enquired about purchasing land of the hotel immediately behind the plaintiff’s land, and said that when he owned and operated the hotel there was no building on the disputed land. I refer more fully to this evidence, and to his oral evidence below.
(c)David John Allison, a director of FDFS which commenced operating the hotel in February 1997, a few months later being granted an option to purchase the defendants’ land (which, I interpolate, clearly was exercised as FDFS became the registered proprietor of the defendants’ land on 9 February 2001 subject to a registered mortgage in favour of the National Australia Bank), and in November 2001 entered into a contract to sell the defendants’ land to the first and second defendants which contract was settled on 23 January 2002. He gave evidence of having personally checked the boundaries of the land, first for the purpose of the bank mortgagee and subsequently when renovations were being considered. On those occasions the extension on the disputed land was not there. He said that the extension to the plaintiff’s toilet area was added between early 1997 and early 2002. He also said that Wilkinson approached him to purchase “the small area of vacant hotel land immediately behind the 286 Main Street, Lilydale building”. He gave a history of events with Wilkinson.
(d) The following affidavits were tendered without the deponent being called.
(i)Lindsay John Perry, a licensed surveyor, who conducted a survey of the defendants’ land at the request of the first defendant in December 2001. He found that the brick structure connected to the buildings at 286 Main Street encroached on the defendants’ land “practically in accordance with the relationship as described in” the plan prepared by Chivers and attached hereto. He commented on matters shown in general law conveyances of the plaintiff’s land, concluding that he was unable to state from the available survey information when the original structure at the south west corner of the building was added. There was no building extension shown on field notes in 1950, and the configuration of the plaintiff’s land in the plaintiff’s certificate of title accorded with the application to bring the land under the TLA. There was no survey or documentary evidence to demonstrate that the disputed structure was erected prior to 1989. Enquiries to Yarra Valley Water and their search of the records of the former Lilydale Sewerage Authority do not provide any evidence of a sewer connection to the structure in the south west corner.
(ii)Donald Sutton Hunt, a building and pavement consultant, who commented upon the report of Godson. In his opinion, due to the extent of all variables and unknowns, in the initial composition, placement and subsequent conditions to which the mortar in the southern wall (which Godson considered) has been exposed, use of the carbonation test to determine the age of a brick wall by the depth of carbonation within the mortar is inaccurate, unreliable and inappropriate. He did not attend the site or undertake any test of his own to endeavour to determine the age of the structure.
The originating motion
As amended, the originating motion sought various declarations and an order pursuant to s 103 of the TLA that the Registrar of Titles amend the certificate of title to the plaintiff’s land so as to contain a title diagram that corresponded to the dimensions of the land on the plan attached hereto. The declarations were four in number, the first being that the plaintiff has acquired a title by possession to the area cross-hatched on the attached plan. The alternative forms of declaration seem to be to the same effect or have the same result as that declaration. It was, however, explained by counsel for the plaintiff that the second declaration was framed as being appropriate to a case based not upon the occurrence of adverse possession but the conveyancing history establishing that the disputed land truly was part of the plaintiff’s land and held in that ownership. That had been considered to be an alternative way to the same ultimate result of the plaintiff being the owner of and entitled to be registered as the proprietor of the disputed land. However, counsel for the plaintiff did not pursue that alternative basis of relief. The case pressed was based solely on the acquisition of title by adverse possession.
View
During the trial I had a view of the building on the plaintiff’s land, both internally and externally, including of course the disputed land. I also viewed the subject area from the defendants’ land. It was agreed by counsel that the view was not merely to enable me to better understand the evidence but that I could also use what I saw as evidence. For that reason, when the hearing resumed and counsel told me the basis on which they requested me to use the view, I advised counsel of particular matters which I had noticed. They were matters which seemed more directly relevant to matters raised in the evidence to that stage. I now describe in more detail that which is seen on inspection. Of course there will be some matters which I do not mention, not for any particular reason, and I do not repeat the description of the internal toilet area given above. On viewing the toilet area from within the plaintiff’s building, my attention was directed to two strips of black tape placed on the floor in the southern toilet cubicle which, by meeting at a right angle, identified the western and northern alignments of the disputed land. Without such noticeable marking it would not be possible for a person within that area to know where the line was between the area of the step on the plaintiff’s paper title and the disputed land. In the description to which I now proceed, I attempt to mention that which seems directly relevant.
The western side and the rear south-west corner of the plaintiff’s land is not enclosed by a fence. The plaintiff’s building is built to the boundary and a driveway on the neighbouring land runs along the western boundary of the plaintiff’s land. The report of Godson includes a photograph of the west wall and the southern wall of the step[2].
[2]Exhibit G.
Also visible on inspection is a high woven wire or cyclone-type fence on the western boundary of the defendants’ land which runs south from the south-east corner of the step. This fence is depicted in the survey plan attached hereto. The pole for this fence is located within an inch or two of the plaintiff’s brick wall. It is impossible for a person to pass between that wall and the pole of the wire fence.
Then, to the east on the defendants’ land is an old single-storey building with a weatherboard face to the north. The building, which I went into, is obviously of a good age, and in poor condition, indeed dilapidated might be an understatement. The building is marked on the attached plan and the area between it and the building on the disputed land is shown as a mere 0.265 of a metre, a distance which a person could not enter. Indeed, a person wishing to view the bricks and mortar constituting the southern wall of the plaintiff’s building on the disputed land could only do so by putting their face as close to the gap as possible and looking along the wall.
The weatherboard building had a low window facing north about mid-way between the eastern end of the disputed land and the east boundary of the plaintiff’s land if the line of that boundary was extended south. That area is enclosed by the wall of the building on the defendants’ land, and to which the weatherboard building abuts. During the trial the parties referred to this enclosed area as the unoccupied area, and I will do the same. The enclosure of this area is made complete by the fact that the corrugated iron roof on the plaintiff’s toilet area (including the disputed land) extends across and for all practical purpose covers the entire space of the unoccupied area. East of the building on the disputed land, the roof is in the nature of a verandah roof and is supported by three wooden posts supporting a horizontal rail which is supported also, at its western end, by the brick wall of the plaintiff’s building on the disputed land.
The unoccupied area, the roof and its supports, the weatherboard building and the southern brick wall of the plaintiff’s building east of the disputed land are depicted in Exhibit D. Exhibit E is a photograph of the window in the weatherboard building.
Two photographs taken from above and looking along the roof constitute Exhibit B. One is taken from a position on the defendants’ land looking to the west, and the other from the western end of the plaintiff’s land looking east. Each photograph depicts how the unoccupied area is enclosed by the southern brick wall on the plaintiff’s land, the weatherboard building and the defendants’ hotel building on the line of the plaintiff’s eastern boundary. The photograph also shows PVC pipes for the removal of storm water from the roof of the plaintiff’s building. Also visible in the roof above the unoccupied area is a section of clear corrugated plastic. This clear plastic is at a position immediately at the eastern end of the building on the disputed land and above a window on the southern wall of the plaintiff’s building at the corner where that wall meets the east wall of the building on the disputed land. This window is to the kitchen area in the plaintiff’s building, which area itself adjoins the toilet area on the east side.
Exhibit C consists of three photographs taken from within the unoccupied area. They show the kitchen window and the east wall of the building on the disputed land. These photographs also show a small hot water service placed in the unoccupied area below the kitchen window and which provides hot water to the plaintiff’s building, and a PVC drainage pipe running from the plaintiff’s building across the eastern wall. Finally, and importantly, they show, as is apparent from inspection, that the east wall on the disputed land is comprised of bricks of a different (redder) colour and make than the bricks on the southern wall of the plaintiff’s building and, I add, of the bricks on the southern wall of the building on the step and the disputed land. I accept Perry’s evidence that “the eastern wall has been constructed of modern style red wire cut bricks that have three cylindrical holes within each brick”. The workmanship too is of a different standard; that in the east wall is of a rough and unfinished nature indicating it was performed by a different tradesman and at a different time and with different materials compared to the southern walls. The rough and ready nature of the work is apparent in the way that the bricklayer has joined the east wall to the southern wall at the south-east corner. The walls have been joined at some only of the layers of the bricks; this can be seen in the photograph marked 2 b in Exhibit C. In connecting the walls the bricklayer has at several levels placed a brick at the corner but in the line of the southern wall. In each of these instances the connecting brick is of the newer redder variety and only one such brick had been so placed. In other words a line of two or more of such bricks has not been laid into the southern wall.
Finally, on the view, but not in the relevant photographs (Exhibits D and E), it was seen that the defendants have replaced the window in the north wall of the weatherboard building with a door which opens to the unoccupied area.
The unoccupied area
It was apparent from something said during the trial that there are unresolved issues concerning the unoccupied area. However, no issue concerning that area arises for determination in this proceeding.
Facts
It is a feature of the plaintiff’s case, on which counsel for the defendants placed much emphasis, that the plaintiff did not call its predecessors in title or any of the tradesmen that carried out the renovations in 1999 to establish the age of the building on the disputed land. As to the former point, there was no evidence that no such person was able to be called, let alone as to any evidence that any such person might be able to give. Indeed, the plaintiff’s vendor, 286 Main Street Pty Ltd, was said to be controlled by the partners of Wainwright Ryan & Co, a firm of solicitors. But it was also thought that they had not occupied the building. On the relevance and effect of the failure to call such persons to give evidence of relevant matters or to explain the failure to do so, counsel for the defendant relied on the observations of Ashley J in Bayport v Watson[3]. As to the latter matter of the renovation works, the defendants contend that it was only in the course of those works in 1999 that the toilet area was extended over the disputed land. If that is correct, the necessary period of adverse possession of 15 years has not run.
[3][2002] VSC 206 at [26].
It is convenient to emphasise that the case for determination is one of adverse possession on common law principles. Counsel addressed only that case. That was a logical consequence of the plaintiff abandoning the alternative case based on the evidence of Chivers as to what was shown or established by relevant general law conveyances. The consequence of that claim being abandoned, and the plaintiff proceeding only on adverse possession, is that the plaintiff did not challenge the description of its land in its certificate of title but sought to establish that it had acquired by possession a portion of land in the defendants’ certificate of title. Thus was raised the issue of fact: when was the disputed land built upon by the plaintiff or its predecessors? That being the (or one of the) essential issues of fact, the evidence of Chivers and Perry as to the general law conveyances and surveys prior to issue of the plaintiff’s certificate of title did not matter and thus was not referred to by either counsel. At the same time, two things are to be noted about the description of the plaintiff’s land in its certificate of title. First, it gives the dimensions of the step as 1.52 by 1.07 metres. Secondly, it warns as to the accuracy of the stated dimensions.
Other than that, I note, and accept, Perry’s evidence that there is no survey or documentary evidence to demonstrate that the structure built upon the disputed land was erected prior to 1989, and also as to the absence of records of a sewer connection.
Finally, as to Chivers, I note his opinion, expressed in para 18 of his affidavit, based on his inspection of the toilet washroom structure, that that structure on the disputed land is at least 25 years old. He based his opinion on the brickwork and mortar used. When his affidavit was received no objection was taken to this opinion evidence. I consider however that I should not accept the opinion. He does not set out the qualification or experience that would qualify him as a surveyor to be able to give opinion evidence on the matter of the age of a brick wall by reference to the brickwork and mortar contained therein.
I now refer to the evidence commencing with Wilkinson, noting first that he gave no evidence as to whether he had undertaken a site survey as provided for in the special condition in the contract for the purchase of the land. Whether or not such a survey had been undertaken was not raised as an issue in the case.
Wilkinson said that when the plaintiff purchased the land it had two commercial tenants. Raine & Horne had the ground floor and Marsh the upper floor. Those arrangements continued until 1999 when the building was refurbished, since when it has been occupied by the plaintiff. The only toilets in the building were the two adjacent toilets described above and they were used by the tenants.
The area where the toilets were (and are) had a concrete floor and a wooden door leading outside to an undercover verandah. This is the unoccupied area. In the past tenants used the area for storage, gaining access to the area through the door. Real estate agents stored signs there. I note that in their evidence Jacona and Nutbean said that the area was used for storage of old advertising material by the occupants of the building and that they accessed the area two to three times a year. Wines referred to a previous tenant, the Lilydale Express Newspaper, having left printing plates in the area. This accorded with evidence of Wilkinson that he cleaned the area up and that a lot of printing press plates had been left by previous tenants. The area, he said, had been used as “a junk area”. The evidence is also consistent with evidence of Allison who said that when FDFS purchased the hotel there was rubbish in the area, and he referred to what he called the Yarra Valley Express and a lot of printing stuff being in the area and to a real estate agent. Allison said that he and his partners cleaned the area out in January/February 1997 before opening the hotel.
The east door and its associated framing filled the eastern end of the structure on the disputed land. In the renovations performed in 1999 the door was removed and the space (being the entire east face) was bricked in as it now is. The brick wall was laid on the existing concrete floor. Internally the wooden wall was removed, the interior wall was lined with plaster sheeting, and the vanity unit and basin were installed, the vanity unit being partly in the disputed land. The area occupied by the structure was not increased to the east.
The refurbishment works included re-roofing the area of the toilet and wash area and the entire width of the verandah. The clear roofing was installed at the same time to let light into the kitchen. The toilet pans were replaced and connected to very old cast iron pipes at the immediate exterior of the west wall of the toilets and water was run to the basin. As mentioned earlier, plaster board was placed internally, tiles were placed on the floor, and there was associated carpentry and painting work. Contractors were engaged to perform the works none of whom could be located for the purpose of giving evidence. Wilkinson said that the bricklayer he engaged to lay the east wall was called Steve. Steve had laid the wall in an afternoon, been paid in beer, not given a receipt and left a mobile telephone number which was disconnected when Wilkinson tried to contact him for the purpose of this case. Wilkinson had no other means of contacting Steve.
Wilkinson said that consideration had been given to calling as witnesses those of the tradesmen who could testify as to whether the works extended the building east in the disputed land. Apart from Steve there were the plasterers but they could not be located. The carpenter who fixed such things as the architraves and skirtings could not testify as to the extension aspect and nor could other tradespeople.
Wilkinson then described the course of his dealings with the owners of the defendants’ land commencing with Allison. In early 2002 Allison told him that FDFS had contracted to sell the land to the first and second defendants. A difficulty had arisen in that the first defendant had surveyed the land and found that the toilet structure addition to the plaintiff’s building encroached on the defendants’ land. Allison requested the plaintiff sign an acknowledgement of such encroachment[4]. Wilkinson refused on the basis that the land belonged to the plaintiff or it was unreasonable to require the plaintiff to either purchase the land or demolish the structure.
[4]The acknowledgment is Exhibit MW4 to Exhibit A.
On 14 March 2002 FDFS wrote to the plaintiff threatening to remove bricks and property of the plaintiff situated on the disputed land in the next seven days. That was followed, on 6 June 2002, by a request from Eastside Financial Services acting for the first and second defendants, to abandon the claim to the disputed land and remove the encroachment, neither of which the plaintiff did.
On 11 September 2002 the first and second defendants commenced a proceeding in the Magistrates’ Court at Ringwood for an order that the plaintiff remove its building on the defendants’ land and restore the defendants’ land to a reasonable condition, and claiming damages and mesne profits. The plaintiff filed a defence and counterclaim in which it raised the claim of adverse possession and sought a declaration as to its right, and injunctions to restrain disturbance.
On 4 February 2003 the plaintiff commenced a proceeding in this Court as the more appropriate jurisdiction for determination of the adverse possession claim. The proceeding in the Magistrates’ Court has been stood over pending the determination of this case.
I now refer to certain further matters that were put to Wilkinson in his oral evidence.
One matter concerned evidence of the first defendant, Bramich and Allison in their affidavits as to conversations with Wilkinson. These concerned, first, when the extension to the disputed land was built and, secondly, Wilkinson discussing acquiring an area of the defendants’ land. Wilkinson denied that he had said to the first defendant on 6 February 2002 that he had built the extension four or five years earlier and that it only measured two feet by three feet and was built under the overhanging roof that had existed for 50 or 60 years. A little later, in relation to para 18 of Allison’s affidavit, Wilkinson said that he would have denied that the toilet had been erected in 1997 or later because that was not true. He denied evidence of Allison (in para 5 of his affidavit) that in 1997 he asked Allison if he could purchase the small area of vacant hotel land immediately behind the plaintiff’s land. Rather, Wilkinson said, he asked to purchase the weatherboard dwelling on the defendants’ land with the intention of doing an extension.
Then, in relation to para 3 of Bramich’s affidavit, where Bramich said that in early 1997 Wilkinson inquired about purchasing the small strip of vacant hotel land immediately behind the plaintiff’s land, and that Wilkinson described that land “as measuring a few feet deep by the width of [the plaintiff’s building] which includes the area now in dispute which was owned by me [Bramich]”, Wilkinson said that the inquiry was not to purchase the small strip of land but rather the weatherboard dwelling at the rear. Wilkinson said that he offered $15,000 to purchase it and that Bramich said that he should take the matter up with Allison.
In cross-examination Wilkinson explained that he approached Allison and Bramich in an attempt to purchase the weatherboard dwelling at the rear for the purpose of an addition, not to expand the existing toilet area. The expansion, he said, was to get access to the upstairs floor occupied by Marsh. The number of staff employed by Wilkinson was such that he was prevented from occupying the building.
Later in cross-examination Wilkinson said that in his conversations with Bramich the “strip of land” was not raised at all. There was no need to extend the toilet, it was not cramped. What he “was trying to purchase was the derelict weatherboard building behind my building so I could actually extend for further office space”.
At this point he was asked about evidence in an affidavit sworn by Daniel William Jackson, a former employee at the hotel, and filed on behalf of the first and second defendants. He denied Jackson’s evidence (in para 4 of the latter’s affidavit) that there was no structure built on the disputed land in 1997/1998. I interpolate that, as it transpired, Jackson was not called to give evidence.
Godson occupied little time in the witness box, the cross-examination covering only five pages of transcript. He said that it was an unusual use of the carbon testing technology to establish the age of a brick wall. He applied the carbon test on the mortar as old bricks can be used to make a new wall. In this case the bricks looked old and he tested the mortar to estimate its age. He described by reference to his report where and how he took the tests on the southern wall west of the wire fence on the defendants’ boundary. He said that “the wall appeared to be identical both inside and outside”, meaning by that inside and outside the wire fence. At the eastern end of “this wall where there was apparently an old doorway there was clearly a new brick wall there, virtually like bricking up the doorway at that eastern end of this extension. I asked about that. It was clearly of modern brick, a more modern construction. I asked about that and I was advised that that was just filling in an old timber doorway that had basically failed and had deteriorated”. He did not investigate that further. It was difficult to access that particular wall (meaning the eastern end). “It was clearly new, relatively new, but it was clearly just the eastern end of the wall as far as I was concerned”. He did not take a mortar sample from the eastern end of the southern wall. The new red brick section was clearly just a doorway at the end that had been bricked in. He could see where the new bricks were. The southern wall by contrast “was all of the old red brick”. The eastern wall where the doorway was was not of the same type of brick extension as the southern wall.
Godson was asked about Hunt’s report. Godson said that the mortar in the wall was strong, sound and not cracked as Hunt referred to in his report. The presence of cracks would increase the rate of carbonation. He estimated that it would take quite some considerable time to carbonate to 80 millimetres in depth, which is the depth he tested to, and that was basically why he estimated the age as he did.
Finally, Godson explained that he did not test at the eastern end of the southern wall because the fence denied access. Nor could he see any relevance in testing further along the wall. The wall “appeared to be all of a very similar construction”, the bricks were identical and the mortar appeared identical.
As mentioned earlier, Jacona, Nutbean and Wines were not cross-examined. I have sufficiently referred to their evidence.
I now refer to the evidence in support of the first and second defendants’ case, commencing with Ward. In doing so I refer also to evidence of Allison.
Ward is an accountant. He had no personal knowledge of the site until he and his wife purchased the hotel in 2001. In January 2002 Perry, who he had engaged to survey the hotel land, advised him that the hotel land was encroached upon by a structure attached to the plaintiff’s building. Ward advised Allison of this prior to settlement of the purchase from FDFS. They then viewed the encroachment together. In his affidavit, with which Ward agreed, Allison identified the encroachment as being “erected on part of the strip of previously vacant land behind the 286 Main Street building which is shown red on the plan” prepared by Perry and which Allison produced as an exhibit to his affidavit. This is the same plan as was exhibited to Bramich’s affidavit. The area marked red is the area of the building east of the boundary of the step on the plaintiff’s paper title.
According to Allison and Ward, on the view Allison “assured” Ward that “this structure was erected after we commenced operation of the hotel in February 1997”. Allison said that he would contact Wilkinson and request him to sign an acknowledgement that the land on which “this recently erected structure was built was owned by the hotel”. He assured Ward that the plaintiff could not have any valid claim to the subject land as the structure was erected after 1997.
True to his word, Allison took the matter up with Wilkinson, it would seem on 6 February 2002. Wilkinson refused to sign the acknowledgement. Allison deposed that he “asserted [to Wilkinson] that he knew he obviously had no valid legal claim to the subject land as the subject structure was erected in 1997 or later which was after [FDFS] refused to sell the vacant land on which the subject structure is now located”. Allison proceeded in the next paragraph in his affidavit to say that Wilkinson did not deny or try to correct “my” statements that the structure had been erected in 1997 or later, and did not say that the plaintiff had any claim on the subject land. Wilkinson told him that he would contact Ward and offer to purchase the subject land. Wilkinson also advised that if he could not purchase the land he would oppose any planning applications lodged by the hotel.
At this point I return to Ward’s evidence. On 6 February 2002 Wilkinson rang and told him that he had spoken to Allison that day and that his solicitor had advised him not to sign an acknowledgement that the disputed land was owned by the hotel as it would allow Ward to demolish the structure upon it.
Ward said (in para 5 of his affidavit) that Wilkinson told him he had built the extension four to five years earlier, that it only measured two feet by three feet and was built under a roof overhang that had existed for 50 to 60 years, that his solicitor had advised that an adverse possession claim would succeed and that he would instruct his solicitor to prepare legal documentation to transfer the disputed land to him. Ward said that he told Wilkinson he would not sell such a small piece of land; he planned to redevelop the area to the boundary and it would increase building costs to build around the structure.
Ward said that at his request Wilkinson stated his position as being:
·He would not acknowledge that the encroachment was part of the hotel title.
·Removing the structure was not an option.
·He will pursue an adverse possession claim or Ward could accept his offer of $2,000 to purchase the disputed land.
·He would provide evidence of adverse possession.
I interpolate that the first and second defendants would not accept $2,000. Ward explained that it would cost more to build around the disputed structure.
Later in February and in March 2002 there were further discussions. Ward involved Allison who on 14 March 2002 wrote to the plaintiff on the letterhead of FDFS a letter which I have referred to earlier and in which he stated that:
“Regrettably I am left with no alternative other than to inform you that we will be removing your bricks and other pieces of property that belong to you situated on our property in the next seven days. However if you have resolved this matter with Mr Ward please advise by close of business Friday the 15th March 2002.
As you are aware I have an obligation under the terms of Contract of Sale to pass over to Mr Ward all of the property described on Certificate of Title Vol: 9439 Fol: 934 …”
On 16 March the plaintiff’s solicitor sent a facsimile to Allison confirming that an adverse possession claim is currently being made on behalf of the plaintiff. On 19 March 2002 the plaintiff’s solicitors wrote to Allison in relation to his 14 March letter. The solicitors gave notice that any attempt to remove any property belonging to the plaintiff will be reported to the police and dealt with as theft. The letter advised that an adverse possession claim had been commenced. In fact, however, no such claim had been commenced.
Ultimately, after further correspondence, the first and second defendants commenced their proceeding in the Magistrates’ Court.
I note that neither Allison nor the first and second defendants have attempted self-help as threatened by Allison.
As I have referred to so much of Allison’s evidence it is convenient to complete the references to his affidavit although he gave evidence after Bramich and was in fact the last witness. He gave evidence by video link from Queensland.
In his affidavit and oral evidence Allison referred to checks of the title boundary. I summarised this evidence at [20](c) above, where I also referred to Allison’s evidence (in para 6 of his affidavit) that a few months after execution of the option Wilkinson approached him wanting to purchase “the small area of vacant hotel land immediately behind the 286 Main Street, Lilydale building”. On this occasion Allison and Wilkinson met at the hotel. Allison said that Wilkinson offered to pay the costs of the transfer, with the price of the land to be determined by FDFS. The directors of FDFS rejected the proposal.
I note that in the preceding paragraph of his affidavit (para 5) Allison referred to the area that Wilkinson was interested in as “the small strip of vacant land” behind the 286 Main Street building.
Allison said that Wilkinson spoke to him a couple more times about purchasing “the subject land”. Allison also said that he asked Wilkinson if the plaintiff would sell its land to FDFS, Wilkinson then apparently being interested in purchasing another building in Main Street. That other building was sold and negotiations to purchase 286 Main Street did not proceed.
In his oral evidence in chief Allison said that the red bricks used in the encroachment on the hotel land were on the hotel property and purchased from the hotel by the “guy [who] was doing some building work for Wilkinson”. In cross-examination Allison said that these bricks did not have cylindrical hollow holes. He said that the same bricks may be seen as used at the back of the hotel. In this evidence as to bricks it is important to note that Allison was distinguishing between the bricks used in the southern wall of the extension and the brighter red bricks that do have cylindrical holes in them used in the eastern wall of the extension.
Further in his oral evidence in chief, Allison said that Wilkinson never discussed purchasing any part of the hotel’s land other than “the small strip of vacant land”. He never referred to the storerooms west of the hotel’s kitchen. A freezer was located there and there was no way he would have sold that. A little later he said that Wilkinson never mentioned the outbuildings in any conversation in which he spoke about purchasing “the subject land”.
Referring to the meeting at the hotel referred to in para 6 of his affidavit, Allison said that they looked through the window in the storeroom and that Wilkinson said that that was the piece of land he wanted. He did not say why he wanted it.
In cross-examination Allison said that the measurements he took could be in a file somewhere but he did not have access to them. He agreed there was always a toilet attached to the plaintiff’s building but it was a very small section and he accessed the strip between the properties through the window in the weatherboard building.
Allison said that when Ward showed him the area he was “amazed to see the building there”. There was, he said, no doubt that an addition was made to the toilet on the plaintiff’s property between early 1997 and early 2002. He did not have “a clue when it was put on”, he ran another business and had a manager at the hotel.
Then, in concluding an answer as to why he had sent the letter on 14 March 2002 when FDFS no longer owned the hotel, Allison said that “we would have had to have compensated Mr Ward if we hadn’t given him the land that he purchased”. He said that he had not discussed that with Ward. His interest was to ensure that FDFS delivered to the first and second defendants that which they had paid for.
I now deal with the evidence of Bramich.
Further to the note of his evidence at [20](b) above, it is necessary to set out more fully what he said in his affidavit. In para 3 he said that Wilkinson telephoned on two or three occasions and inquired about purchasing “the small strip of vacant Hotel land immediately and directly behind [the plaintiff’s land], described by Michael Wilkinson as measuring a few feet deep by the width of the building at 286 Main Street, Lilydale which includes the area now in dispute, which was owned by me”. In para 4 Bramich said that Wilkinson explained that he had just recently purchased the 286 Main Street property, that Marsh “would not vacate the top floor of the building and that he required the additional land to enable his ground floor business to operate in the manner that he wanted”. Bramich said that he advised Wilkinson he was negotiating to sell the entire hotel land, that he did not intend to sell the land separately, and advised him to contact one of the potential purchasers, whose name he provided, about purchasing the land.
Bramich concluded his affidavit with the following paragraph:
“7. On Saturday 25 January 2003 I met Ronald Charles Ward one of the new owners of the Hotel at the Hotel premises at 292 Main Street, Lilydale and was shown the survey plan prepared by L.J. Perry & Associates Pty. Ltd. and personally viewed the portion of the building that is in dispute and say that while I owned and operated the Hotel up to and including 27 February 1994, there was no building on the area coloured red on the plan exhibited hereto but I cannot indicate further the actual date of construction as I was no longer involved with the Hotel. Now produced and shown to me and marked with the letters ‘FCB1’ is the plan referred to herein.”
It is important to refer to Bramich’s oral evidence. He was asked a few questions in chief to clarify his evidence as to “the small strip” of land that Wilkinson inquired about purchasing. It was, he said, “in terms of buying so many feet”. He could not say “exactly how many feet, but I think that was the general drift of it all”. He was then asked and answered as follows:
“A number of feet where precisely? --- Well, immediately south of his building line, sort of thing. Immediately at the back of his property that fronts the Main Street. At the back.
What approximate area did you understand Mr Wilkinson to be referring to? --- The line taken sort of in a southerly direction might have been 16 feet or something like that, that way, and that would have been by the width of his existing building. Something of that order, as I recall.”
That completed his evidence in chief.
Cross-examination of Bramich was concerned only with his evidence in para 7 of his affidavit. That is to say it was concerned only with the matter of the extension at the rear of the plaintiff’s land. In summary, it may be said that Bramich did not swear up to para 7 but the evidence is revealing and it should be referred to. In short, para 7, in the same way as the glib reference to “the small strip” in para 3, misrepresented the true situation.
The first thing to note concerns the survey plan referred to in para 7. Bramich was asked if that was the same as the plan exhibited to his affidavit. He said that the plan was produced to him at a meeting he attended with Ward and the first and second defendants’ solicitor at which he was told that in Ward’s view there had been a recent encroachment on the hotel’s land by some additional building. He believed what he was told. The meeting occurred in a rush as he was going overseas later that day, and while he thought the survey plan would be the plan exhibited to his affidavit, he did not “know for sure” because it was nearly two years ago.
The next thing to note is that whereas para 7 states that he “personally viewed the portion of the building that is in dispute” the fact is, as he ultimately conceded and I find to be the fact, he did not view the building at that time. The explanation for this false statement may have been that the affidavit was drawn in a rush in view of Bramich’s imminent departure and perhaps thinking that he would have had time to view the building. But he did not view the building and in consequence the affidavit was misleading. It was apparent to me, observing Bramich and attending to his answers, that he appreciated this error in the affidavit, and that he did so at the time. He said that following his return to Australia in November 2004, in April 2005 he viewed the building because he wanted to make sure he was not in error in any way. He had “to verify before I came [to court] because otherwise I might have had to resile from my affidavit”.
Hence, Bramich had sworn an affidavit committing himself to a position, and swearing falsely as to a view, when he had not had a chance to view the relevant building and area. In truth, all that Bramich did on 25 January 2003 was view a survey plan.
I turn then to Bramich’s evidence as to what he saw on the inspection in April 2005. When he viewed the building a door had replaced the window in the weatherboard building on the hotel land. Before that “it was difficult to actually look at it”, to actually stand in there and examine the area. He said that he was not really totally satisfied about this question of the extension until about a month ago.
He was then asked about the east wall of the disputed building and agreed, correctly, that the bricks are a reddish colour. He agreed that the bricks fill in the eastern wall and added:
“… we are saying there is an extension if that’s what you are saying. That’s what this is all about. We are saying it’s an extension.”
A little later Bramich said in relation to the south wall that “Our view is that there is new work”.
This use of the words “we” and “our” was concerning, and resulted, in my view, from a misguided sense that his role was to aid the first and second defendants establish their case. That was apparent from his evidence. At the same time, he was, he said, a friend of both parties and embarrassed, and he thought he had never seen anything as stupid as the case because he felt it could be resolved by the sale of the land and fixed up for a few dollars.
Returning to the locality of the new work and the red bricks, Bramich disputed a suggestion that there were no red bricks in the south wall of the extension, saying that “it appears that there is new work and the new work comprises these red bricks and you would certainly see all of the [east] red wall and if you went along the southern face starting at the east you would see some again”. You would see some of the red bricks around the corner. I interpolate that what Bramich was referring to here were the red bricks to be seen in the east wall some of which are also seen, he said, around the corner. Bramich said that he had not taken measurements but “it looks like there has been an add-on to what was there before”. He was then asked what was the proportion of the add-on, and answered “I would say a few feet”. In summary, he agreed that the east wall was one colour brick, but as to whether there were one or two or a very small number of such bricks scattered among older bricks in the southern wall he found it “a bit difficult to answer. It appears to be new work for a few feet along the south wall starting from the east wall”.
Bramich then said that “to get it right before I came here today” he had inspected the site with a bricklayer whose wife had formerly run the kitchen in the hotel. The kitchen referred to was located in the weatherboard building on the hotel land immediately south of the plaintiff’s land. The bricklayer was the deponent Jackson some evidence of whom had been put to Wilkinson in his cross-examination. Bramich said that he had inspected the property with Jackson “about a month ago”. That, I find, was the inspection in April which Bramich referred to earlier in his evidence. He arranged the inspection “because I wanted to come here today being totally sure of what I was talking about. I thought that he had the expertise to know the position”. So he looked at the east and south wall with Jackson, having entered the unoccupied area through the doorway in the weatherboard building.
On inspection in that area Bramich had the impression that there were red bricks in the south wall. But, he said, he “would have to go back and have a look to be one hundred per cent”. His impression was that there was new work “on [the] end” of the south wall “and it seemed to go along to some extent”. He said that Jackson agreed, and that Jackson was able to say where the bricks had come from.
He said that you really needed Jackson “to be here today rather than me”.
Some further evidence of Bramich indicated that he had little recollection of the area between the hotel and the plaintiff’s building, which he described as a bit of no-man’s land. He knew what was there “to some extent” but had to familiarise himself with the situation “as it is now”. He then agreed that he had no recollection of what was there in the past because he had taken no particular notice of what was there. He had to check out the situation “as I found it now”. He then agreed that he probably could not compare the past with the present, repeating that it was a little bit of no-man’s land, and stating that the situation was ridiculous. He then agreed that his evidence that the plaintiff had increased the area occupied was not based on his recollection of what was there before but his opinion of what had happened in 1999.
In concluding his cross-examination Bramich said that in his time of operating the hotel which was 21 years he never set foot in the area. The area, he said, “was pretty inconsequential, actually, and it wasn’t accessible”. He would have had to put a door in to access it.
That Bramich had no independent recollection of the area occupied by the plaintiff’s building in relation to the area between the two properties, and that in reality to justify his evidence in para 7 he had to rely on what Jackson told him at the inspection in April 2005, was made clear in re-examination when Bramich said that he relied on “Jackson’s knowledge to a large extent to indicate what was new and what was not because my memory of it all was pretty vague”. He added that when Jackson pointed things out to him he “was inclined to believe what he said, when he said ‘this is new and that’s new’ …”. He then said that when he was “looking at it” at the inspection he had no recollection of the dimensions of the building as had existed before the new work was done. He added that he was “pretty vague” about what was there before.
In these circumstances the conclusion is that the plaintiff has established the claim of title by adverse possession of the disputed land. There will be a declaration accordingly. I will hear counsel on the terms of the orders and as to costs.
6