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Kleiner v Randall

Kleiner v Randall

Case [2005] NFSC 3 11 August 2005

Jurisdiction

Adverse Possession

Probate

Civil Litigation & Procedure

Probate Law

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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 2004
KIEFEL J
11 AUGUST 2005
SYDNEY (HEARD IN NORFOLK ISLAND)

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC10 OF 2004

BETWEEN:

RICHARD AARON KLEINER
PLAINTIFF

AND:

FRANKLIN ERNEST RANDALL
FIRST DEFENDANT

KEVIN 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
APPLICANT

AND:

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kleiner v Randall

Details

AGLC: Kleiner v Randall [2005] NFSC 3
Case: [2005] NFSC 3
Decision Date: 11 AUGUST 2005

CaseChat Overview and Summary

The plaintiff, Richard Aaron Kleiner, commenced proceedings against the Randalls, Franklin Ernest and Kevin, seeking to recover moneys he claimed were owed by the Randalls. Kleiner also applied to the court for an order to compel the Randalls to provide an account of the estate of John Forrester Young, deceased, of which Franklin was the executor. The second proceeding was in the court's probate jurisdiction. The judge was Kiefel J.
The legal issues before the court were whether Kleiner had standing to compel the Randalls to provide an account of the estate of John Forrester Young and whether Kleiner was owed moneys by the Randalls.
The court found that Kleiner had no standing to compel the Randalls to provide an account of the estate of John Forrester Young as he was not a beneficiary of the estate. The court found that Kleiner had failed to establish a debt against the Randalls. The application was dismissed.

Orders

Orders of the court

1. The application be dismissed.

IN THE SUPREME COURT

OF NORFOLK ISLAND

SC10 OF 2004

BETWEEN:

RICHARD AARON KLEINER

PLAINTIFF

AND:

FRANKLIN ERNEST RANDALL

FIRST DEFENDANT

KEVIN RANDALL

SECOND DEFENDANT

AND:

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

APPLICANT

AND:

CURATOR OF ESTATES OF DECEASED PERSONS

RESPONDENT

JUDGE:

KIEFEL J

DATE:

11 AUGUST 2005

PLACE:

SYDNEY (HEARD ON NORFOLK ISLAND)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kleiner v Randall [2005] NFSC 3

Most Recent Citation

Fisher v Registrar of Titles [2011] VCC 1420

Cases citing this decision · 2 of 2 shown

Braye v Tarnawskyj
[2019] NSWSC 277 Para 50

…se to accurately define the concrete pathway area that it is not included in the possessory title established by the plaintiff (see Kleiner v Randall [2005] NFSC 3 at [54]). Title to the concrete pathway area will remain in the name of Mary King. I note in that regard that no claim for possessory title has been…
Fisher v Registrar of Titles
[2011] VCC 1420

…o earlier authority including: [7] (2009) 259 ALR 56; [2009] VSCA 188 and see Cervi v Letcher [2011] VSC 156, Kleiner v Randall [2005] NFSC 3 per Kiefel J, Kierford Ridge Pty Ltd v Ward [2005] VSC 215, Roy v Lagona [2010] VSC 150 (a) that a person who claims adverse possession must be shown to have both factual…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

R v SLD
[2003] NSWCCA 310 Para 12

…ssession 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…
Abignano v Wenkart
[1998] FCA 1468 Para 20

…ot 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 Dun…
R v Australian Broadcasting Tribunal; Ex Parte Hardiman
[1980] HCA 13 Para 21

…equences 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.…
Allen v Roughley
[1955] HCA 62 Para 20

…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: Mulc…
Briginshaw v Briginshaw
[1938] HCA 36 Para 21

…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 a…
Briginshaw v Briginshaw
[1938] HCA 34 Para 21

…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 a…
Clement v Jones
[1909] HCA 11 Para 24

…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.…
Lord Advocate v Lord Lovat
(1880) 5 App Cas 273 Para 20

…, 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-O…
McDonell v Giblin
(1904) 23 NZLR 660 Para 20

…h 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,…
Lord Advocate v Lord Lovat
(1880) 5 App Cas 27 Para 20

…ch 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
[1961] 1 WLR 1238 Para 20

…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: Buckinghamshi…

Legislation cited in this decision · 2

Inheritance Act 1833 (c.106)
1 mention (from Para 6)
National Companies and Securities Commission v News Corporation Ltd
1 mention (from Para 6)

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC10 OF 2004

JUDGE:	KIEFEL J
DATE OF ORDER:	11 AUGUST 2005
WHERE MADE:	SYDNEY (HEARD ON NORFOLK ISLAND)

IN THE ESTATE OF JOHN FORRESTER YOUNG, LATE OF LONGRIDGE, NORFOLK ISLAND, FARMER, DECEASED
BETWEEN:	RICHARD AARON KLEINER APPLICANT
AND:	CURATOR OF ESTATES OF DECEASED PERSONS RESPONDENT