Kleiner v Randall
[2005] NFSC 3
•11 AUGUST 2005
SUPREME COURT OF NORFOLK ISLAND
Kleiner v Randall [2005] NFSC 3
REAL PROPERTY – adverse possession – application for declaration of ownership by personal representative of the estate of the documentary owner – where disputed land maintained, grazed and fenced as part of lands of successive possessors – whether adverse possession established by the successive possessors – whether adverse possession can be gained with respect to a part of the documentary owner’s land - whether estate of the documentary owner under a disability as described by s28 Limitation of Actions (Real Property) Act 1988 (NI) so as to negate the time for the running of the adverse possession claim – standard of proof required for an adverse possession claim
Statutes
Land Titles Act 1966 (NI) s 37
Limitation of Actions (Real Property) Act 1988 (NI) ss 9, 19, 31, 29, 28, 5
Cases
Allen v Roughley (1955) 94 CLR 98 Cited
Briginshaw v Briginshaw (1938) 60 CLR 336 Dist
Buckinghamshire County Council v Moran [1990] 1 Ch 623 Cited
Clement v Jones (1909) 8 CLR 133 Dist
E J Cooke v G L Dunn (1998) 9 BPR 16,489 Cited
Lord Advocate v Lord Lovat (1880) 5 App Cas 27 Cited
McDonell v Giblin (1904) 23 NZLR 660 Cited
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 Applied
Murnane v Findlay (No 2) [1926] VLR 80 Cited
Powell v McFarlane (1979) 38 P & CR 452 Cited
Quach v Marrickville Municipal Council (Nos 1 and 2) (1991) 22 NSWLR 55 Cited
Re Johnson (1999) QSC 197 Cited
Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Cited
Seddon v Smith (1877) 36 LT 168 Cited
Tichborne v Weir (1892) 67 LT 735 Cited
Wata-Ofei v Danquah [1961] 1 WLR 1238 Cited
RICHARD AARON KLEINER v FRANKLIN ERNEST RANDALL and KEVIN RANDALL
SC10 OF 2004
IN THE ESTATE OF JOHN FORRESTER YOUNG, LATE OF LONGRIDGE, NORFOLK ISLAND, FARMER, DECEASED
P5 OF 2004KIEFEL J
11 AUGUST 2005
SYDNEY (HEARD IN NORFOLK ISLAND)
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC10 OF 2004
BETWEEN:
RICHARD AARON KLEINER
PLAINTIFFAND:
FRANKLIN ERNEST RANDALL
FIRST DEFENDANTKEVIN RANDALL
SECOND DEFENDANT
JUDGE:
KIEFEL J
DATE OF ORDER:
11 AUGUST 2005
WHERE MADE:
SYDNEY (HEARD ON NORFOLK ISLAND)
THE COURT DECLARES THAT:
1.The making of further orders and declarations be stood over.
2.The parties file and serve proposed orders and declarations to give effect to these reasons, together with any material upon which they rely, by 22 August 2005.
3.The plaintiff pay the defendants’ costs of the proceedings.
IN THE SUPREME COURT
OF NORFOLK ISLAND
P5 OF 2004
PROBATE JURISDICTION
IN THE ESTATE OF JOHN FORRESTER YOUNG, LATE OF LONGRIDGE, NORFOLK ISLAND, FARMER, DECEASED
BETWEEN:
RICHARD AARON KLEINER
APPLICANTAND:
CURATOR OF ESTATES OF DECEASED PERSONS
RESPONDENT
JUDGE:
KIEFEL J
DATE OF ORDER:
11 AUGUST 2005
WHERE MADE:
SYDNEY (HEARD ON NORFOLK ISLAND)
THE COURT ORDERS THAT:
1. The application be dismissed.
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC10 OF 2004
BETWEEN:
RICHARD AARON KLEINER
PLAINTIFFAND:
FRANKLIN ERNEST RANDALL
FIRST DEFENDANTKEVIN RANDALL
SECOND DEFENDANTAND:
IN THE SUPREME COURT
OF NORFOLK ISLAND
P5 OF 2004
PROBATE JURISDICTION
IN THE ESTATE OF JOHN FORRESTER YOUNG, LATE OF LONGRIDGE, NORFOLK ISLAND, FARMER, DECEASED
BETWEEN:
RICHARD AARON KLEINER
APPLICANTAND:
CURATOR OF ESTATES OF DECEASED PERSONS
RESPONDENT
JUDGE:
KIEFEL J
DATE:
11 AUGUST 2005
PLACE:
SYDNEY (HEARD ON NORFOLK ISLAND)
REASONS FOR JUDGMENT
By a conveyance recorded and enrolled at the office of the Registrar of Lands, Emily Rachael Young sold and conveyed the estate of John Forrester Young (deceased), lands described as Portions 13p and 13r (also known as Portion 13g) of Section 11, which lands front Cascade Road and Red Road, Norfolk Island. The portions are long narrow blocks of land respectively 8414 square metres and 8781 square metres in size. I shall refer to the lands in these reasons as ‘the disputed lands’. Richard Aaron Kleiner is the great-grandson of the deceased. He seeks an order for the grant of letters of administration of the estate, with the Will annexed in the estate proceedings. In the other proceedings he seeks a declaration that the estate is the owner of the disputed lands.
The first defendant owned lands surrounding the disputed lands from 1968. His Portion 13f adjoined Portion 13p on its eastern boundary and his Portion 13t adjoined Portion 13r and part of Portion 13p on their southern boundaries. His Portion 13v adjoined Portion 13r on its western boundary. The effect is that the disputed lands were surrounded by the first defendant’s lands on all sides save for the northern boundary. The first defendant owned other lands to which reference will be made.
The second defendant has owned Portions 13v and 13t since 1993. The defendants claim that there has been continual use of the disputed lands as grazing land which they, and the first defendant’s parents before him, have fenced and maintained since the 1950s. They counterclaim for a declaration that either or both of them is the owner of the disputed lands.
THE ESTATE AS OWNER
In 1909 Mary Elizabeth Young died. Her Will directed that Portion 13 be subdivided amongst nine beneficiaries. Her grandson, Robert Young, was one of those beneficiaries and became entitled to Portion 13g. Robert Young was the illegitimate son of Emily Rachael Young. He died in 1912, intestate and without issue. His birth was never legitimated. Emily Young’s brother John Forrester Young died in 1913 leaving a Will. Emily Young conveyed Portion 13g to her brother’s estate on 16 July 1929, for a consideration.
In 1935 the Registrar of Titles of Norfolk Island expressed the view in correspondence that Emily Young had no legal interest in the land. Since Robert Young had died intestate and without issue, his property escheated to the Crown. The position concerning Emily Young’s lack of interest was maintained by the Curator of Estates of Deceased Persons until recently, on the basis that an illegitimate person could have no relative to whom property could pass under the intestacy rules then in force. That position is not maintained. The Curator accepts the legal position to be as the plaintiff contends for.
The plaintiff points to sections 6 and 7 of the Inheritance Act 1833 3 & 4 Wm IV cap 106 (Imp), which was re-enacted by the Imperial Acts Adoption Act 7 Wm IV No. 8 (NSW). The latter Act was proclaimed to operate in Norfolk Island on 6 August 1897. The sections permit any lineal ancestor to be capable of being an heir to any of ‘his’ issue. A female ancestor could take by inheritance so long as there was no paternal ancestor. There is no suggestion here that there was such a person living at the date of death. These provisions apply regardless of whether a person had the status of an illegitimate person. Emily Young therefore became entitled to the land upon her son’s death intestate and the transfer to the estate of John Forrester Young was effective. The plaintiff is a person entitled to letters of administration. He has consulted with the other potential beneficiaries and brings these proceedings in effect as a representative of those amongst them who wish to take a benefit from the estate.
The plaintiff first notified the estate’s intention to claim the land in September 2000. Prior to this no person acting on behalf of the estate had done anything with respect to the land for many years. The last action appears to have been an application for subdivision of Portion 13g into Portions 13r and 13p in 1932. The plaintiff brought proceedings for a declaration of the estate’s ownership on 30 September 2004.
THE STATUTORY PROVISIONS
Section 37 of the Land Titles Act 1966 (NI) provides that no person shall gain title by adverse possession. The disputed lands are not however registered under that Act and it has no application. These proceedings fall to be determined by reference to the Limitation of Actions (Real Property) Act 1988 (NI) (‘the Limitation Act’).
Section 9 of the Limitation Act provides:
‘An action to recover land is not maintainable by a person other than the Crown after the expiration of a period of 12 years commencing on the date on which the person first became entitled to bring the action.’
Section 19 provides:
‘(1) Where –
(a)a cause of action would, but for this section, arise under this Act in relation to land on a date; and
(b)the land is not in adverse possession on that date;
the cause of action arises on the date on which the land is first in adverse possession.
(2)Subject to subsection (3), where a cause of action arises to recover land from a person in adverse possession of the land, and the land is afterwards in the adverse possession of a second person, whether the second person claims through the first person or not, the cause of action to recover the land from the second person is deemed to have arisen on the same date as the cause of action arose in relation to the adverse possession of the first person.
(3)Where a cause of action to recover land arises and afterwards, but before the cause of action is barred by this Act, the land ceases to be in adverse possession, for the purposes of this Act -
(a)the former adverse possession has no effect; and
(b)a fresh cause of action arises on the date when the land is first again in adverse possession.
(4) For the purposes of this section -
(a)“adverse possession” is possession by a person in whose favour the limitation period can run;
(b)possession of land subject to a rentcharge by a person who does not pay the rent is possession by the person of the rent charge; and
(c)in a case to which section 15 applies, receipt of the rent by a person wrongfully claiming to be entitled to the land subject to the lease is, as against the lessor, adverse possession of the land.’
Section 31 of the Limitation Act provides:
‘At the expiration of the period limited by this Act within which a person may bring an action to recover land, the right and title of that person to the land is extinguished’.
THE FACTS
The first defendant’s parents acquired Portions 13l, 13k, 13j, 13i, 13v, 13o, 13n and 13t in 1951; 13f in 1953 and 13e in 1954. I shall refer to the whole of them as ‘the Randall lands’. These lands, and in particular Portions 13f and 13v, surround the disputed lands, as mentioned earlier. In 1968 the first defendant’s parents conveyed Portions 13j, 13i, 13v, 13o, 13n, 13t, 13f and 13e to him. In December 1993 the first defendant conveyed all but Portions 13f and 13e to his son, the second defendant, and conveyed Portion 13e to his wife. At the time his parents transferred the land to the first defendant they explained to him that they were not the registered owners of the disputed lands, but no one had challenged their use. The land appeared to have been abandoned. They had made enquiries, but had not been able to determine the status of the land. The first defendant’s father said something about holding the land for 30 years. This may have been a reference to the period then necessary for a claim for adverse possession, as the plaintiff contends, but the evidence of the father’s statement is not clear. In any event it would not appear to assist the plaintiff’s case. The first defendant’s parents are now deceased.
The first defendant was born in 1945. The first defendant has early memories of the disputed lands. He recalls his parents buying the Randall lands, although he would have been only six when they first commenced to acquire the lands. He recalls specifically planting pine trees on the disputed lands with his father from about 1954, when he was nine. Some of the trees still remain. He recalls his father always fixing fences and he was ‘always’ with his father. The first defendant recalls the disputed lands being heavily overgrown. The only fencing he can recall of the land was on the northern boundary to Cascade Road and the southern boundary, and they were in a dilapidated state. He recalls that sometime in the 1950s his father put up stock-proof barbed wire fences around the boundaries of the Randall land and that the fence included the north and south boundaries of the disputed lands. The effect was to create one large paddock with a perimeter fence. The disputed lands were effectively enclosed by a combination of the fencing and the Randall lands. I shall refer to the combination of the Randall lands and the disputed lands as ‘the combined lands’. Apart from regular repairs and the maintenance of fences, the first defendant replaced much of the perimeter fencing of the combined lands in 1976 and about half of the entire perimeter in 2000. The fencing has remained in the same position over the years, despite changes in the ownership of the Randall lands, save for the northern boundary to Cascade Road, which includes the frontage of the disputed lands. Here the old fence was left up when it was last replaced. The new fence is about one metre outside the boundary. Some old fence posts, said by the first defendant to be from the 1976 fence, were visible on the inspection undertaken by the Court, near the northern boundary. The entry to the paddock is from the south.
The fencing undertaken by the defendants did not include all of the northern boundary of the disputed lands. At the northern end of Portion 13v is land which has been owned by Mr Horrocks since 1977. This land abuts part of Portion 13r. A fence on the southern side of Mr Horrocks’ land has been erected and it traverses his land, Portion 13u, and Portion 13r. The effect is that he has the use of a small triangular shaped part of Portion 13r. Some sheds which were constructed when he came to live there encroach onto Portion 13r. This has never concerned the defendants. The arrangement between them and Mr Horrocks includes his attending to the fencing of that part of Portion 13r’s northern boundary himself. His southern fence is not on the true boundary and the defendants have had the use of some of his land for many years. The defendants say that if they are successful in their counterclaim, they will have the boundaries adjusted to regularise matters. It was put to the first defendant, and he accepted, that he has effectively allowed Mr Horrocks to take control of that part of the disputed lands. In the balance of these reasons a reference to ‘the disputed lands’ does not include this small triangular part of Portion 13r.
In relation to the perimeter fence, the defendants added a fifth strand of wire to it, which was electrified in the 1980s when they kept a bull on the property. It remained in use for about ten years.
The first defendant and his father also constructed some internal fences. In 1958 they put up a fence running east to west from Portion 13e to 13l. It effectively bisected the disputed lands. Some two or three posts can be observed on a ridge in the area where the fence is said to have been. It was removed in the 1970s so that they could attend to slashing the paddocks with the tractor they had then acquired.
Another internal fence, an electric tape fence, was put up running in a north-south line almost on the boundary between Portions 13p and 13r and then turning east on Portion 13p in the vicinity of a stand of trees. This occurred in the mid-1980s when the first defendant and his family moved to the house they had constructed on the Cascade Road end of their property and electricity became available. This fence remained in place for another ten years when they rolled it up. Some electric tape was apparent upon inspection in the stand of trees.
It was put to the defendants, by reference to an aerial photograph, that there was another fence constructed in the past on the eastern boundary of Portion 13e. It is not obvious to me what relevance that would have to the disputed lands, which are separated from Portion 13e by Portion 13f, unless it is said to test the defendants’ recollection, which seems an unlikely course. In any event the defendants deny there was such a fence and there is no obvious reason why this area would have been fenced. If it be relevant I do not accept that what appears to be a line on the photograph was a fence.
The first defendant said that he and his father put a concrete water trough on the disputed lands for the cattle. It remains there although it has not been used since the 1980s when they were in a position to use pumps and were able to put a trough closer to the house where the cattle could be observed. Before this they used to siphon water from the well to the water trough. The first defendant measured the trough as being about twenty metres in from the southern boundary of the disputed lands and five or six metres in from the western boundary. His reference point for this purpose was the fence on the southern boundary of the lands where they adjoin Portion 13t (Mr Beadman’s property). He points to hewn coral stones placed on the fence line, which he believes are survey marks. In any event he clearly considers the fence to be on the boundary. He measured the width of Portions 13p and 13r from the corner. The plaintiff did not accept that the boundaries were as the first defendant would have them. One might infer that fences were intended to be put on boundaries, but accuracy could not be assumed. In any event it does not seem to me that much turns upon the water trough actually being on the disputed lands.
The evidence of the defendants’ witnesses was that for a long period the disputed lands have appeared to be well-kept grazing land, with noxious weeds removed and fencing maintained. Mr Christian-Bailey, a relative, has observed it over some 37 years and Mr Beadman for some 17 years. The defendants say that they have slashed the land in the past about three times a year, and more after they purchased a tractor. They have undertaken removal of rocks. And whilst there are pockets of bushes and weeds on the land, they are in areas which are obviously difficult to access. The defendants have on one occasion in the 1980s ripped the soil on the disputed lands by using spring tines pulled by a tractor for the purpose of aerating the disputed lands preparatory to the spread of fertilizer.
The first defendant and his father planted twenty or thirty pines and about the same number of cedars in a gully in the northern section of the disputed lands. This appears to have been undertaken over the years. A few pine trees remain on the ridge of the lands from earlier planting and some remains of pine trees and cedars may be observed in the gully.
The first defendant says that his father kept a small herd of some 10 to 15 cattle, including some dairy cows. The first defendant says that there are always cattle in the combined lands. It would follow that cattle are free to roam over the disputed lands at any time. About six cattle are normally kept in the combined lands, of which two are the second defendant’s, except twice a year when a bull is brought in and a number of people are invited to put their cows to it. On these occasions there may be up to 40 cattle. When questioned about the quality of the land, the first defendant explained that the land could only maintain this number of cattle for a few weeks before it is overgrazed.
The second defendant was born in 1970. He too has early childhood recollections of the use and maintenance of the land. He has had one cow on the land from the 1980s and has had some few cattle graze there with his father’s cattle for some time. He and his father have worked on and maintained the disputed land and its fencing together and continue to do so.
The plaintiff has resided on Norfolk Island since 1997 and has taken an interest in the land since April 1998. He has lived in various localities in the Cascade area, in the vicinity of the disputed lands, from 2002 to May 2004 when he commenced to reside in his present home which is a short distance to the east from the lands in question. He does not suggest that he is able to see the disputed lands from his house but says that they may be seen from Cascade Road. Prior to May 2004 he viewed the disputed lands from the road three to five times a week. He has had daily inspections since May 2004 from this point. On six occasions he has walked over the land. He estimates that there are only cattle present on the land for two to three days at a time on four occasions a year. He later said that it was only since 17 September 2000 that he noticed for the first time cattle grazing on the disputed lands, mostly on weekends.
The plaintiff’s witnesses do not deny the presence of cattle in the paddock. They do not suggest this presence to be infrequent, although they both say that it has only been in recent times, in the year 2000 and in May 2005, that they have seen large numbers of cattle being herded to the paddock. These observations may well coincide with the use of the bull. It is not the defendants’ case that large numbers of cattle have been and are now present in the paddock continuously. I would not in any event draw an inference from these observations that the defendants have only recently undertaken this practice as an endeavour to bolster their claim.
Each of the plaintiff’s witnesses, Ms Christian and Ms Kilbourne, also say that they used to walk through the defendants’ lands, including the disputed lands, when they walked to school – Ms Christian from 1936 to 1940 and for some unspecified period thereafter and Ms Kilbourne between 1949 to 1959. Ms Christian says the land was cleared from 1936 and can recall fencing around Portion 13g. Not much changed later. Ms Kilbourne likewise recalls the land being cleared.
The first defendant does not recall ever seeing Ms Kilbourne on the disputed lands, nor does Mr Horrocks whose property would also be traversed by the path she took. Likewise the first defendant says that he has not seen the plaintiff on the lands at any time.
The evidence does not permit a conclusion to be drawn about the state of the disputed lands in 1936. I have no reason to doubt the evidence of the first defendant that he recalls, from an early point in his childhood, that the land was overgrown and that there were only remnant fences. I would not be prepared to infer to the contrary based upon the very general recollections of the plaintiff’s witnesses, particularly where they have not been asked to cast their mind back to the time of the first defendant’s parents purchase of the Randall lands. The first defendant’s parents maintained the disputed lands and the fences from some time in the mid to late 1950s. The lack of change to the lands the witnesses have observed from this point was brought about by their work.
The plaintiff’s evidence of cattle not being observed on the disputed lands, as distinct from other parts of the combined lands, is not of assistance. It is not the defendant’s case that cattle are kept only on the disputed lands. It is not fenced separately. Their case is that the cattle have access to all the combined lands, including the disputed lands. It is by reference to this action and others, such as fencing and maintenance of the paddock, that the plaintiffs say they have treated the disputed lands as their own.
I add that I found no reason to doubt the veracity of the defendants. Both of them impressed me as witnesses. In particular the first defendant made concessions not in his interests and the second defendant was a cooperative and forthright witness.
There was some evidence put forward by the plaintiff to suggest that the defendants had no belief in their claim and only undertook the fencing in the year 2000 in order to assist their claim.
The notice prepared by the plaintiff claiming the land, on behalf of the estate of John Forrester Young, was circulated to residents of the Norfolk Island as an attachment to the local newspaper on 2 September 2000. He says that he telephoned the first defendant prior to its publication to advise him of the intended claim. The first defendant does not recall this occurring. If it had it would not seem to me to have been likely to have meant much to him at that point. It was about this time that the defendants renewed a substantial portion of the perimeter fence, although the first defendant thinks they may have started prior to the notice. Nothing turns on these matters since it is plain enough that the preparations for fencing, the ordering in of substantial materials, including one kilometre of fencing, and the organisation of a workforce, would have taken some time. The first defendant says it was arranged some months before. It could hardly be said to have been undertaken to meet the estate’s claim.
The plaintiff also suggests that the first defendant said to him words to the effect that he had wished he had repaired the fence years ago, when the plaintiff observed the work that had been undertaken. It is not clear that the first defendant knew of the claim made by the plaintiff at this stage and in any event the statement is equivocal. It is just as apt to refer to the fence having needed repair or replacement at a much earlier point.
The plaintiff says that the first defendant approached him in mid-September 2000. He referred to the estate’s claim as ‘awkward’ and asked whether the plaintiff’s family would sell it to him. The plaintiff explained that it was likely that his cousins would want to keep it in the family but that a swap of land might be possible. This is relied upon to show that the first defendant was not certain of his rights with respect to the land and was not asserting any. The first defendant says that his enquiries were directed to ascertaining what the plaintiff’s intentions were when the claim was sorted out and whether he would then sell it. I understood his enquiry to assume the plaintiff might be successful. It is not apparent whether he had received legal advice at this point. In any event the first defendant’s enquiries would not have much bearing upon what happened over the many years up to this point.
No further communication between the plaintiff and the defendants appears to have occurred until April 2002. The defendants had a bobcat operator working on the disputed lands for the purpose of removing rocks. The plaintiff telephoned him and advised that he did not have permission to do the work on the land. The operator ceased work. It was put to the second defendant that he and his father should have required the operator to continue if they were confident of their right to possession. It is understandable that at this point they were not, and they are not in any event aggressive personalities. Their reaction to the plaintiff was one of politeness.
WHETHER ADVERSE POSSESSION ESTABLISHED
The action to which s 9 of the Limitation Act refers is an action to recover possession of land. The cause of action, pursuant to s 19(1), arises on the date when the land is first in adverse possession. Possession by a person other than the documentary owner which will cause time to run under the Act is possession which is ‘open, not secret; peaceful, not by force; and adverse, not by consent of the true owner’: Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475 [D] (‘Mulcahy v Curramore’). If the owner dies and the person next entitled does not take possession, time will begin to run as soon as adverse possession is taken: Re Johnson (1999) QSC 197 at [16]. Where two persons successively and continuously hold the land in adverse possession, the cause of action with respect to the second person is taken to be that which arose in relation to the adverse possession of the first, by virtue of s 19(2). This mirrors the common law: Mulcahy v Curramore at 476 [C]-[D]. And although the section refers only to two such persons, there would seem to be no reason in principle why it should not extend to others. Where the period limited by s 9, 12 years, has expired without the bringing of an action to recover the land, the true owner’s right and title is extinguished by virtue of s 31 of the Act.
The defendants’ case includes reference to acts of adverse possession on the part of the first defendant’s parents. It may well be that the estate’s right to recover possession arose in the 1950s and time began to run from that point. No limitation period at law or under a statute in force prior to the Limitation Act is however relied upon by the defendants. Their case for adverse possession is brought only by reference to the Act which was assented to on 15 December 1988. It is therefore to acts of possession from this time that attention must be directed. The history of possession prior to this time nevertheless has some relevance, as it supports the fact of the defendants’ continuation of possession.
The plaintiff’s first argument against the prospects of adverse possession arising relies upon s 29 of the Limitation Act, which provides that time does not run for the purposes of the Act while a person is under a disability. Section 28 provides that a person is under a disability if:
‘(a) the person has not attained the age of 18 years;
(b)the person is found, under the Lunacy Act, 1898 of the State of New South Wales in its application to Norfolk Island, to be incapable of managing the person’s affairs; or
(c)the person is incapable of, or substantially impeded in, managing the person’s affairs because of -
(i)disease or impairment of the person’s physical or mental condition;
(ii) war or warlike operations; or
(iii) lawful or unlawful restraint of the person.’
It is submitted that the estate was under a disability and was incapable of managing its affairs because it was under a lawful or unlawful restraint, within the meaning of par (c)(iii). The unlawful restraint the plaintiff identifies is the wrongly-based claim by the Registrar of Titles and the Curator of Estates that title could not have passed to the estate and had gone to the Crown by escheat, which is to say by way of reversion to the Crown. I take it that escheat was not replaced in the laws of Norfolk Island by the principle that the Crown took bona vacantia with respect to estates to which there was no person entitled. It is not necessary to determine that question. The point the plaintiff makes would be the same either way.
Section 28 is concerned with persons. It would not extend to a collection of assets, rights and liabilities which combines to be the estate of a deceased person. It might conceivably apply to the personal representative of an estate, but that is not the plaintiff’s case. Moreover a lawful or unlawful restraint of a person is not apt to refer to someone holding a legal opinion adverse to them. It refers to a person being held in such a manner as to prevent the management of their affairs. This might refer to incarceration in prison or in some other institution. The section is not applicable.
The plaintiff’s second argument relies upon s 5 of the Limitation Act, which is in these terms:
‘Where in this Act a period of time is limited for the bringing of an action, that period of limitation also applies to the making of a counterclaim and, for the purpose of determining whether or not a period of limitation has expired, the date of the filing of a pleading asserting the counterclaim is deemed to be the date of the bringing of an action based on the matter of the counterclaim.’
It is not entirely clear to me what support the plaintiff seeks to gain from this section. The cause of action relevant in the proceedings in connexion with s 9 is the plaintiff’s claim to recover possession, assuming for present purposes that his claim to a declaration of ownership can be so characterised. Section 5 would have effect if the claim had been made in a counterclaim. The bringing of the defendant’s counterclaim has no relevance to the application of s 9.
The third contention of the plaintiff may be dealt with shortly. It is that there is a ‘strong presumption’ that the reckoning of time does not begin until the Court makes a grant of letters of administration, which is to say there is a person recognised as the deceased’s personal representative. Section 9 however contains no such limitation and it cannot reasonably be implied in the section. It would cut across the certainty concerning land which the Act seeks to attain.
Adverse possession will not be attributed to a claimant against a documentary owner unless both factual possession and an intention to possess are shown: E J Cooke v G L Dunn (1998) 9 BPR 16,489 at 16,501 (‘Cooke v Dunn’); Buckinghamshire County Council v Moran [1990] 1 Ch 623 (‘Buckinghamshire County Council v Moran’). In Cooke v Dunn, Santow J drew from the decided cases a series of principles concerning the nature of adverse possession (at 16,501 - 16, 502). Included amongst them are (in summary):
(1)whether or not adverse possession has been established is a question of fact: Quach v Marrickville Municipal Council, with the onus being on the claimant to establish the claim on the balance of probabilities: Allen v Roughley (1955) 94 CLR 98; McDonell v Giblin (1904) 23 NZLR 660 at 662 (‘McDonell v Giblin’);
(2)Adverse possession must be peaceful, open and not by consent of the true owner: Mulcahy v Curramore; it must be ‘actual, open and manifest, exclusive and continuous’: McDonnell v Giblin at 662;
(3)The claimant must demonstrate both actual physical control of the property and an intention to possess the land not only to the exclusion of the documentary owner but also the rest of the world: Buckinghamshire County Council v Moran;
(4)When considering a claim for adverse possession regard should be had to the particular circumstances and characteristics of the land, including its character and value, the natural mode of using it, the course of conduct which a proprietor might reasonably be expected to follow in their own interests and any other relevant fact: Lord Advocate v Lord Lovat (1880) 5 App Cas 27; Murnane v Findlay (No 2) [1926] VLR 80;
(5)The extent of ‘physical possession’ which must be demonstrated depends on the nature of the property: Wata-Ofei v Danquah [1961] 1 WLR 1238;
(6)The relevant intention to exclude is that of the claimant, and must extend to persons claiming through the documentary owner and to the world at large: Buckinghamshire County Council v Moran; Powell v McFarlane (1979) 38 P & CR 452.
The plaintiff contends that the level of satisfaction the Court should have about the elements of adverse possession is high, and that the approach referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, should be applied. That case concerned the question whether the criminal standard of proof, beyond a reasonable doubt, should be applied to allegations of adultery in divorce proceedings. It was held that it should not and the civil standard of proof and level of satisfaction were appropriate. Dixon J however pointed out that that standard will require that an allegation be made out to the reasonable satisfaction of the Court; and that the nature of the allegation affects the process by which reasonable satisfaction is attained (at pp 362, 363). The seriousness of the allegation, the gravity of the consequences flowing from a particular finding and the inherent likelihood of the occurrence alleged are all matters which may affect the question whether the issue has been proved (at 362). Examples of cases where this attention is given to proof would include those involving fraud and changes of moral wrongdoing and the commission of a criminal offence. The grave consequences of deportation are an example where a decision-maker should not be lightly persuaded: Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at p 255.
The claim of adverse possession has consequences which a documentary owner may regard as serious, but it is not serious in the sense referred to in Briginshaw v Briginshaw. It is a claim to title to land. There is nothing which sets it apart from any other claim to property. There is no special characteristic of it which would require the process of persuasion of which Briginshaw v Briginshaw speaks.
I have earlier explained that ‘the disputed lands’ claimed by the defendants would not appear to extend to the small triangular portion on which Mr Horrocks has some improvements and the northern boundary of which he fences. The defendants do not suggest they have been in actual possession of it. This may affect the terms of any order to be made in these proceedings. The fact that the defendants do not possess and lay claim to all the documentary owner’s lands is not fatal to their claim, as the plaintiff contends. Adverse possession can be gained with respect to part of a documentary owner’s lands: Quach v Marrickville Municipal Council (Nos 1 and 2) (1991) 22 NSWLR 55 at 67 [E] and [F].
On and from 1988 cattle were grazed on the disputed lands. It is said that the fact of running cattle by itself is equivocal: Clement v Jones (1909) 8 CLR 133 at p 139. It may be difficult to infer the requisite intention to possess from it. Intention should be clear from the acts themselves.
More importantly, the disputed lands were fenced with the Randall lands and have remained fenced. The effect of the perimeter fencing, which was again recently replaced by the defendants, was to combine the disputed lands with the Randall lands for their use to the exclusion of others. Fencing has been said to be good evidence of occupation to the exclusion of others: Mulcahy v Curramore at p 475 [E]. The effect of enclosure has been described as the strongest evidence of adverse possession: Seddon v Smith (1877) 36 LT 168 at p 169.
The decision in Clements v Jones may be seen to stand apart from these decisions. The lands in question were included with a large quantity of other land, some 2000 acres, and all the lands were surrounded by a ring fence. Griffith CJ pointed out that it was not unusual in Australia for land within an external fence to belong to various persons (at p 139). Little weight was therefore given to the fencing. The case however turns upon its own facts. It speaks of a practice at the turn of the last century. There is nothing to suggest it has any application to the conditions of Norfolk Island. In the present case the parcels of land in question are small.
The defendants have had actual possession of the land since 1988. They have acted in concert at all times. In addition to the maintenance and replacement of fencing, they have maintained the disputed lands by clearing noxious weeds, slashing the land, removing rocks and planting trees. They have segregated the lands and their own land by a temporary electric fence. They have issued invitations to others to use the land on two occasions a year. These are acts of possession such as may be expected by an owner from which an intention to exclude others may be inferred. The strongest evidence however in that regard is the fencing of the lands in combination with the Randall lands. These acts, in connexion with the disputed lands, have been open for the world to see, including the documentary owner.
The defendants have established a case of adverse possession for a period in excess of fifteen years. The estate’s right to recover the disputed land was barred before the plaintiff brought his claim. The estate’s right, title and interest is extinguished and the second defendant as occupant gains title: Cooke v Dunn at 16,501 referring to Tichborne v Weir (1892) 67 LT 735.
Any declaration to be made cannot however refer to the whole of Portion 13r. The ‘disputed lands’ claimed by the defendants do not include the triangular part controlled by Mr Horrocks. Mr Horrocks has also arguably had possession adverse to the estate for the requisite period. He has not made a claim and no orders can be made with respect to that part save by the consent of the estate. It would be a simple course to make a declaration with respect to the whole of portion 13r, on the defendants’ undertaking to regularise matters with Mr Horrocks. This would however assume a finding of adverse possession in Mr Horrocks favour. There is no detailed description of that small triangular part so to exclude it from the operation of an order, nor a description of how much of Portion 13r is within the defendants’ claim.
I would make orders declaring the estate’s right and title in the disputed lands to be extinguished and that the defendants are the owners of Portion 13p and that part of Portion 13r when it is properly described. I will allow the parties until 22 August 2005 to put forward orders with an appropriate description. If it is possible, the matter could be dealt with on the papers. If the orders are not agreed, the defendants may need to consider whether further evidence is necessary.
It follows that the plaintiff should pay the defendants’ costs of the proceedings. The defendants foreshadowed the possibility of also making orders for costs from the prospective beneficiaries of the estate for whom the plaintiff acted, in a sense, in a representative capacity. There are difficulties attendant upon such an application. If however the defendants wish to pursue this course they may file written submissions by 17 August 2005 and the plaintiff respond in writing by 22 August 2005. The matter will then be determined on the papers.
There will be no order for costs in the estate proceedings. The application for letters of administration was only for the purpose of dealing with the lands. It will be dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate:
Dated: 11 August 2005
IN THE MATTER SC10 OF 2004
Counsel for the Plaintiffs: Mr M J Cohen Solicitor for the Plaintiff: Yandell Wright Stell Lawyers Counsel for the Defendant: Mr G F Crow Solicitor for the Defendant: McIntyres Lawyers Date of Hearing: 20 and 21 July 2005 Date of Judgment: 11 August 2005 IN THE MATTER OF P5 OF 2004
Counsel for the Applicant: Mr M J Cohen Solicitor for the Applicant: Yandell Wright Stell Lawyers Counsel for the Respondent: Mr G Rhead Solicitor for the Respondent: The Administration of Norfolk Island Date of Hearing: 20 and 21 July 2005 Date of Judgment: 11 August 2005
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