KY Enterprises Pty Ltd v Darby

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2012 3261

KY ENTERPRISES PTY LTD (ACN 006 236 022)	Plaintiff
v
KERRY DARBY	Defendant

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JUDGE:	LANSDOWNE As J
WHERE HELD:	Melbourne
DATE OF HEARING:	21-23, 28 May and 3 June 2013; further submissions 4 and 7 June 2013 and 23 August 2013
DATE OF JUDGMENT:	6 September 2013
CASE MAY BE CITED AS:	KY Enterprises Pty Ltd v Darby
MEDIUM NEUTRAL CITATION:	[2013] VSC 484

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REAL PROPERTY – adverse possession – land between two shops – land enclosed with adverse possessor’s land by locked gates – consideration of access to the land by registered owner from a door in the registered owner’s shop – whether adverse possessor abandoned possession by absence of one year – whether use of land by registered proprietor amounted to retaking of possession – significance of adverse possessor granting permission to registered proprietor to use land - Limitation of Actions Act 1958 (Vic) ss 8,9,14, 16 and 18.

REAL PROPERTY – trespass - whether defendant liable for the trespass of his agent or his tenant.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Warren	Lim Whalen & Co, Lawyers
For the Defendant	Mr M. Black	Bullards

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

Outline of the facts............................................................................................................................ 3

Legal principles: adverse possession............................................................................................. 6

The parties contentions in relation to adverse possession...................................................... 11

Defendant’s case for adverse possession................................................................................. 11
Plaintiff’s case against adverse possession.............................................................................. 12

Summary of conclusions................................................................................................................ 14

Issues: adverse possession............................................................................................................. 15

Identification of the disputed land.............................................................................................. 16

When did the defendant commence his occupation of no. 10 Eames Avenue?................... 17

Factual possession prior to 1987.................................................................................................... 23

Discussion and conclusion......................................................................................................... 27

Gates......................................................................................................................................... 28
Access through the rear door of no.8........................................................................................ 30

Intention to possess prior to 1987................................................................................................. 32

Abandonment of possession by travel around Australia?....................................................... 37

Authorities................................................................................................................................... 39
Discussion and conclusion......................................................................................................... 44

Summary and conclusion as to possession prior to the plaintiff’s purchase....................... 46

Start date; no abandonment..................................................................................................... 46
Boundary: possession of the whole?......................................................................................... 47
End date................................................................................................................................... 48

Possession of the disputed land October 1987-March 2011..................................................... 49

Issues and submissions.............................................................................................................. 49
October 1987 –March 1988......................................................................................................... 53
March 1988 to February 1991.................................................................................................... 59
February 1991 to May 1996........................................................................................................ 60
May 1996-March 2011................................................................................................................. 67

Significance of this period and overview.................................................................................. 67
Entry through the gates without a key.................................................................................... 69
Plaintiff’s 2001 survey and letter dated 25 July 2001............................................................ 73
Conversations about the driveway........................................................................................... 77
Internal fencing........................................................................................................................ 78
Plaintiff’s letter dated September 2010.................................................................................... 84

Conclusion as to possession 1987 - March 2011...................................................................... 86

Trespass.............................................................................................................................................. 89

Attempt to erect a fence in March 2011 and subsequent events.......................................... 89
Plaintiff’s claims of trespass...................................................................................................... 92
Relevant law of trespass............................................................................................................. 93
Findings and conclusions in relation to trespass.................................................................... 96

Car and shipping container..................................................................................................... 96
Barrier across the rear door to shop 8...................................................................................... 96

Orders................................................................................................................................................. 98

HER HONOUR:

Introduction

These proceedings concern a portion of land between two commercial premises in Brooklyn, being the land known as 8 Eames Avenue Brooklyn, which is owned by the plaintiff, and the land known as 10 Eames Avenue Brooklyn, which is owned by the defendant. Shops are erected on each of 8 and 10 Eames Avenue. A portion of the vacant land between the two shop structures is on the title of the plaintiff; the balance is on the title of the defendant. For the whole of the period in question, there has been no fence along this title boundary between the two shops. The whole of the land between the two shops has, however, for many years been enclosed from the street by a pair of steel gates placed on the boundary with Eames Avenue, each of the gates being affixed to one of the shops. The defendant caused the gates to be erected when he first took up occupation of his land (which date is in dispute). The defendant says that entry through those gates has always been controlled by him, broadly by the gates being locked in one manner or another. There is one point of access to the land between the two shops from the plaintiff’s land, being the rear door to the shop at no 8.

Dispute between the parties arose in March 2011 when the plaintiff endeavoured to erect a fence on the boundary between its land and the defendant’s land, as that title boundary was shown on a survey the plaintiff had obtained in 2001. For that purpose, the plaintiff caused the steel gate affixed to the wall of Shop 8 (the plaintiff’s shop) to be removed from its hinges. Representatives of the defendant opposed erection of the fence, and it was not constructed. Subsequently, the defendant’s son placed a car, and then a shipping container on the land between the two shops, lengthwise against the wall of Shop 8 and in width across the portion of the land between the shops from which the gate had been removed. In other words, the shipping container was placed at least in part on land recorded as being on the plaintiff’s title. The rear door from the plaintiff’s shop was also blocked at this time, but there is a dispute as to whether the defendant is responsible for this action.

The plaintiff commenced proceedings in the Magistrates’ Court by complaint dated 5 September 2011 seeking damages for trespass and other relief. Subsequently, when the defendant indicated he proposed to claim title to some of the land between the shops by virtue of adverse possession, the proceedings were removed to this Court. The defendant denies the trespass and in a counterclaim seeks a declaration that he has acquired title by possession to a portion of the plaintiff’s land, identified on a survey he has obtained and known in these proceedings as the disputed land, and consequential relief.

The proceedings were referred to me for hearing by Justice Williams by order made 17 May 2013. They were heard over five days, followed by two sets of further written submissions. Oral evidence was given on behalf of the plaintiff by six witnesses, and for the defendant by three.

Outline of the facts

The defendant’s evidence is that he first occupied the land at 10 Eames Avenue in 1971 and he or persons claiming an interest through him have done so continuously ever since. Initially he occupied that land as a tenant, but then entered into a contract to purchase the land on vendor’s terms, which purchase was completed in 1986. He became the registered proprietor of the land, more particularly described as Lot 3 of PS 42335, and Certificate of Title Volume 8171 Folio 847, on 19 March 1986. The defendant has used the land principally for his business as an electrical contractor, which trades as Ker-Dar Electrics. That business is now conducted by his son following the defendant’s retirement. In recent years the business has been relocated to a newer factory, and the land has been tenanted.

The defendant’s case is that since he first took up occupation of his land he has controlled access to the disputed land through the gates. He and businesses associated with him have for many years used the land between the two shops as a driveway, allowing access to the defendant’s land at the rear of his shop. He has used large vehicles in the course of business and if access through the gates was restricted to that land on his paper title, those large vehicles would not have been able to drive onto his land.

The defendant’s land extends for some distance behind the shop fronting Eames Avenue and contains other structures, including a car port and shed. The plaintiff’s land, by contrast, ends to the north (where it abuts a block of units on Millers Road) and the west (where it abuts the defendant’s land) less than two metres on each of those sides from the shop itself. That is, there is no space for a vehicle to park on the land on the plaintiff’s paper title.

The defendant also says that there has been limited access onto the disputed land from the rear door at the plaintiff’s shop, which door has been unusable or the shop empty for long periods. The defendant says that when the plaintiff’s shop was occupied, and access from the door was required by occupants to get to the toilet at the rear of the plaintiff’s shop, the door and that walkway was fenced off from the rest of the land between the two shops.

The plaintiff purchased the land known as 8 Eames Avenue, and more particularly described as Lot 6 on PS 51303 in 1987. There is no evidence as to when the plaintiff entered into a contract to purchase the land, but it became the registered proprietor of it, together with the adjoining lots 3-5 inclusive, upon which shops are also erected, on 12 May 1987. There is no evidence in the plaintiff’s case in relation to the use of the land known as 8 Eames Avenue prior to its purchase of it. The senior director of the plaintiff, Mr The Ky Lu (“Mr Lu Snr”), says that he has asked his lawyers to endeavour to contact the directors of the previous corporate owner, but they are all now dead and the company is deregistered.

The plaintiff concedes that on purchase of its land the steel gates between the two shops were in place, but Mr Lu Snr disputes that they were locked on the day of the auction. At that time the shop at no. 8 was in poor repair. The defendant asserts that access onto the land between the two shops through the rear door at the time the plaintiff purchased his land was not possible, because the door was boarded up from the inside. The plaintiff repaired the shop, including the rear door, to facilitate access to the toilet which is outside the shop in the area between the boundary with the block of units to the north and the boundary to the defendant’s land. The plaintiff commenced using the land to build dim sum trolleys for Vietnamese restaurants in October 1987. The application to the local Council for a permit for that use, prepared by the plaintiff, describes the area between the two shops as a “shared car park”, and the steel gates as “car park’s gates”.

That business was conducted for only a short period, until March 1988. Thereafter the plaintiff’s shop was vacant for three years, until February 1991 when the shop was leased to a Vietnamese bakery. The bakery tenanted the plaintiff’s shop until May 1996. The defendant concedes that the bakery made some use of the land between the two shops in addition to access the toilet at the rear of shop 8, but his case is that this use was with his permission, and controlled by him. In particular, he gave permission for a hot water service to be installed on the land immediately adjacent to the plaintiff’s shop, and he provided the baker with a key to the gates to allow the bakery to use a portion of the land between the two shops (the exact portion is in dispute) to cool bread, but on the basis that the baker obeyed certain rules. The defendant says he became dissatisfied with the use of the land by the bakery and terminated it. He requested the baker to return the key, and, when he did not, secured the gates by a padlock and chain with a different lock, thereby preventing further access through the gates by the bakery and the plaintiff.

Thereafter the plaintiff’s shop was tenanted relatively infrequently and generally for short periods. It was vacant between May 1996 and June 1999, when it was tenanted again for a short period. It was tenanted again in March 2000, June 2001 and October 2004 on each occasion for a few months only; and from August 2010 to early the following year. The parties are in dispute about whether or not the plaintiff was able to access the land between the two shops through the steel gates after the bakery tenancy. Mr Michael Lu for the plaintiff, the son of the original director Mr The Ky Lu, who took over the management of the property from 1994 says that he accessed the land by raising the gate stopper, which allowed him to open the gates; the defendant and his son say this would not have permitted access as the gates were always padlocked unless someone from their business was at the defendant’s shop. There is also dispute about whether and when access was possible onto the land between the two shops from the plaintiff’s shop, which relates to differing contentions as to the state of the rear door to that shop and as to fencing around the door.

There was considerable evidence given about internal fencing from 1991, most of which was either in dispute or not conceded. The defendants contend that the rear door to the plaintiff’s shop was surrounded by a fence whenever the shop was tenanted, effectively fencing it and the access to the toilet off from the rest of the land between the two shops. The plaintiff disputes this. The plaintiff asserts it sent a letter to the defendant in July 2001 which proposed erecting a fence around the rear door to no. 8, although the plaintiff did not proceed with that proposal at that time. It is agreed that a fence of some kind was placed around that rear door in 2004 to prevent the dog belonging to the plaintiff’s then tenant (Mr Allen Ward) from getting onto the defendant’s land, but the parties do not agree as to which of them caused it to erected, or its composition. There is also a dispute about where it was placed, the plaintiff asserting the fence extended onto the disputed land, the defendant contending it did not. The plaintiff’s case is that the plaintiff caused this fence to be re-erected around the rear door in 2010.

Legal principles: adverse possession

The legal principles applicable to competing claims of trespass and adverse possession were broadly not in dispute between the parties. It is clear that if I conclude that the plaintiff’s title to the disputed land has been extinguished by virtue of adverse possession by the defendant, then the plaintiff’s claim for trespass on that land fails. Accordingly the first matter to determine is whether or not the defendant has proved extinguishment of that title. I will return to the question of trespass later in this judgment.

Section 8 of the Limitation of Actions Act 1958 (“ the Act”) relevantly provides:

8. Action to recover land
No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

Section 9 provides when a cause of action for recovery of land accrues. Section 9 relevantly provides:

9. Accrual of right of action in case of present interests in land
(1) Where the person bringing an action to recover land or some person through whom he claims –
(a) has been in possession thereof; and
(b)has while entitled thereto been dispossessed or discontinued his possession –

the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

This section is qualified by s 14 which relevantly provides as follows:

14. Right of action not to accrue or continue unless there is adverse possession

(1)No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as “adverse possession”); and where under the foregoing provisions of this Act any such of right of action is deemed to accrue on a certain date and no person is in adverse possession on that date the right of action shall not be deemed to accrue until adverse possession is taken of the land.
(2)Where a right of action to recover the land has accrued and thereafter before the right is barred the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action be deemed to accrue until the land is again taken into adverse possession.

Interruption to a period of adverse possession which requires restart of the necessary fifteen year period is qualified by s 16 of the Act which relevantly provides:

16.No right of action to be preserved by formal entry or continual claim
For the purposes of this Act no person shall be deemed to have been in possession of any land by reason only of having made a formal entry thereon, and no continual or other claim upon or near any land shall preserve any right of action to recover the land.

The consequence of a continuous period of fifteen years adverse possession is expressed by s 18 of the Act as follows:

18.Extinction of title after expiration of period
Subject to the provisions of s 11 of this Act (here not relevant), at the expiration of the period prescribed by this Act for any person to bring an action to recover land … the title of that person to the land shall be extinguished.

The effect of these provisions is that extinguishment of the paper title of an owner of land requires a continuous period of fifteen years’ possession of that land by another, which possession must be adverse to that of the paper title owner. If there is an interruption to that adverse possession within the fifteen year period (and a mere formal claim by the paper title owner is insufficient to constitute such interruption) then the clock is reset i.e. a new fifteen year period must be proved from the resumption of the adverse possession.

The parties agreed that the relevant principles were recently set out by the Court of Appeal in Whittlesea City Council v Laurice Abbatangelo[1] (“Abbatangelo”). The Court there adopted the comments made by Ashley J (as he then was) in Bayport Industries Pty Ltd v Watson[2], who in turn drew those principles from Powell v McFarlane[3], as follows:
[1][2009] VSCA 188.
[2]
[3]

The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane. Thus, pertinently:
“It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:
(1)In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2)If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).
(3)Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
(4)The animus possidendi, which is also necessary to constitute possession, … involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner.”

To those principles should be added and/or highlighted the following:
·When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804.
·As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn C.J. said in Seddon v. Smith (1877) 36 L.T. 168, 1609: ‘Enclosure is the strongest possible evidence of adverse possession.’ Russell L.J. in George Wimpey & Co. Ltd. v. Sohn [1967] Ch. 487, 511A, similarly observed: ‘Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner.
·It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd. v. Chamberlain, 20 P. & C.R. 633, 642, per Sachs L.J.
·A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession.
·Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed. …
·Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal. …
·At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned.

Aspects of the facts in this case require a more detailed analysis of some the legal principles. This is the case in respect of two issues in particular- as to when a person in adverse possession abandons that possession; and as to what is sufficient at the hands of the registered proprietor to retake possession of land in respect of which the limitation period is running in favour of the adverse possessor. In respect of that issue, consideration is required in particular of the legal principles applicable shared use of the disputed land and use by the registered proprietor with the permission of the person in adverse possession. The parties at trial referred to limited authority in this regard. I have located additional authority and gave them the opportunity to make further submissions.

Powell v McFarlane, from which the principles set out above and ultimately adopted in Abbatangelo were drawn was subsequently approved by the House of Lords in JA Pye (Oxford) Ltd and anor v Graham and anor[4]. That case is helpful in two respects: first in making it clear that the description “adverse” possession does not require any element of aggression, hostility or subterfuge. It is merely used to signify that the possession is adverse to the interests of the registered proprietor i.e. that the adverse possessor has gone into ordinary possession of the land for the requisite period without the consent of the owner.[5] The second respect is of particular relevance here- and that is that it follows from the requirement of exclusivity that only one person can be in possession at any one time.[6] Accordingly, if the defendant was in possession of the land before the plaintiff purchased it, adverse to the interests of the plaintiff’s predecessor in title and so the plaintiff, time continued to run against the plaintiff unless the plaintiff retook possession. I will discuss the additional authorities further as they arise on the facts.
[4][2003] 1 AC 419; [2002] UKHL 30.
[5]Ibid, per Lord Hope of Craighead at [69] and Lord Browne-Wilkinson at [36].
[6]Ibid, per Lord Hope of Craighead at [70]

The parties contentions in relation to adverse possession
Defendant’s case for adverse possession

The factors relied upon by the defendant to establish adverse possession are identified in counsel’s written closing submissions as follows:

(a) erection of the gate across the driveway of the premises to prevent access from the street to the disputed land;

(b) using the disputed land to enable access to the defendant’s property at the rear of 10 Eames Ave;

c) maintaining the disputed land;

(d) erecting a fence when necessary to exclude access to the disputed land by tenants of 8 Eames Ave.[7]

[7]Defendant’s Closing Submissions at [32].

The defendant asserts that his adverse possession of the disputed land commenced in 1971 and has continued uninterrupted ever since. He says there has been no act of the plaintiff or any predecessor in title which amounts to an assertion of rights (so as to stop this period running) until the attempt in 2001 to erect a fence on the boundary as per the plaintiff’s title.[8] In the defendant’s case, by this time the plaintiff’s title had been well and truly extinguished by his adverse possession of the disputed land.
[8]Ibid, at [46].

Plaintiff’s case against adverse possession

The plaintiff disputes all necessary elements of the defendant’s adverse possession claim. First, the plaintiff disputes that the defendant has had factual possession either pre or post the plaintiff’s purchase of its land. The plaintiff accepts that the defendant has had the use of part of the disputed land, to travel across it to gain access to the rear of the defendant’s property, for the whole of the time the plaintiff has owned the land at 8 Eames Avenue. The plaintiff says, however, that this has been mere use falling short of possession, which requires physical control of the land.

Further, in relation to factual possession, the plaintiff denies that the defendant’s control of the land (if proved) was exclusive of the plaintiff and its predecessors in title. In that regard the plaintiff relies on the access to the disputed land from the rear door to the shop at number 8. The plaintiff’s case stresses that:

The emphasis (in the defendant’s case) on the gates is surprising because the gates do not exclude the Plaintiff or his (sic) predecessors in title. They might exclude the rest of the world but the Plaintiff and its predecessors in title have access to the disputed land through their rear door.[9]

[9]Plaintiff’s (closing) Submissions dated 31 May 2013 at [17].

In relation to the period post the plaintiff’s purchase of its land, i.e. post 1987, the plaintiff also relies on evidence of actual use by the plaintiff to deny that any possession of its land by the defendant was exclusive. The plaintiff says that the defendant and the plaintiff both used the disputed land. In particular, the plaintiff relies on use of the land by its bakery tenant in the period 1991- May 1996 to show that there is no continuous period of fifteen years after 1987 of exclusive possession of the land by the defendant, so as to constitute adverse possession. The plaintiff says that it is not to the point that the defendant gave permission to the bakers to use the disputed land. In the plaintiff’s case, unless the plaintiff is excluded from the land the possession is not adverse, and is not made such by purporting to give permission.[10]
[10]Ibid, at [13].

The plaintiff also denies that the defendant has proved the necessary intention to possess the land, so as to exclude the whole world, including the plaintiff and its predecessor in title. The plaintiff says the defendant’s intention, on his own evidence, in erecting the gates was to discourage thieves i.e. to secure his belongings at the rear of his property.[11]
[11]Ibid, at [30].

Next, the plaintiff says that the defendant has not proved a continuous period of fifteen years of adverse possession, which is necessary to extinguish the plaintiff’s title even if the other elements are proved. In relation to the period prior to the plaintiff’s purchase of its land in 1987, the plaintiff says that the defendant has failed to prove that he took up occupation of 10 Eames Avenue in 1971. Even if he did take up occupation then, on his own evidence he travelled around Australia for a year in 1974. The plaintiff says this was an abandonment of possession that means the time period must start again when the defendant returned. If the defendant took up possession again in 1975, then the fifteen years (even if the defendant’s possession was otherwise adverse to the plaintiff) had not expired by May 1987, when the plaintiff became the registered proprietor of the land known as no. 8.

In relation to the period from the plaintiff’s purchase, the plaintiff relies on the evidence given of its use of the disputed land by initially the dim sum trolley business, and significantly by the bakery for five years from February 1991 to May 1996. Fifteen years from May 1996 did not expire until May 2011, and the attempted erection of a fence on the boundary by the plaintiff took place in March 2011. The plaintiff says the defendant has conceded that this attempted construction was an act of possession by the plaintiff (or retaking if that was required).

Finally, the plaintiff challenges whether the defendant can succeed in establishing adverse possession of the whole of the disputed land, given that there is no defined northern boundary to it. The defendant concedes that the northern boundary has been “chosen” to be a point below the rear door to the plaintiff’s shop to allow occupants of the shop to have access to the toilet behind the shop. The plaintiff says that in these circumstances the defendant must show possession of the whole of the disputed land, but has only shown possession of that portion of it used for access by vehicles.

For all these reasons, the plaintiff says that the defendant’s case for adverse possession of the disputed land must fail. I will return to the plaintiff’s claim for trespass later in this judgment.

Summary of conclusions

I have concluded that the defendant has shown that that he first took up occupation of his land and went into possession of the disputed land in 1971. He has shown that his adverse possession of the disputed land continued uninterrupted from that time until the events in March 2011. Accordingly, I have concluded that the title of the plaintiff’s predecessor in title to the disputed land was already extinguished by fifteen years continuous adverse possession by the defendant prior to the purchase of that title by the plaintiff in 1987.

A critical finding in that regard is the defendant did not abandon his possession when he took an extended holiday of one year in 1974 and was not physically in attendance on the land. In the event that finding is incorrect, I have also considered whether or not the plaintiff retook possession of the disputed land, on purchase from its predecessor in title in 1987. If the defendant had abandoned possession in 1974, and his period of adverse possession recommenced in 1975, he was only in adverse possession of the land for twelve years by 1987. If the plaintiff retook possession before the expiration of fifteen years i.e. before 1990, then its title would not be extinguished, unless the defendant subsequently went into adverse possession again for a continuous period of fifteen years.

I have found that the plaintiff did not retake possession prior to 1990. In fact, I have found that the plaintiff did not take sufficient action to reclaim possession at any time until the attempt to erect the fence in March 2011. This was despite the directors of the plaintiff being aware, at least from July 2001, of the boundary line which meant that the defendant’s gates enclosed from the street land on the plaintiff’s title as well as land on the defendant’s title. Indeed, the plaintiff acted to a degree inconsistently with its subsequent assertion of title by causing a fence to be erected in 2004 and 2010 around the rear door of the plaintiff’s shop, rather than along the whole of the boundary line. The effect of that fence was to prevent access otherwise available to the plaintiff to the bulk of the disputed land.

As a consequence of my findings in relation to the extinguishment of the plaintiff’s title, the plaintiff has not established any trespass by the defendant (assuming for the moment he to have been responsible for the acts of his son) in respect of the car or shipping container. This is because I accept the evidence in the defendant’s case that they were wholly contained within the disputed land and the defendant’s land. I find that the obstruction to the rear door to the plaintiff’s shop was a trespass. Even if it was, as the plaintiff asserts, the defendant’s son who caused that obstruction, I do not consider, however, that the plaintiff has shown that that act should be attributed to the defendant so as to make him liable for that trespass. Vicarious liability in trespass requires more than the degree of authority of an agent that is sufficient to attribute liability to a principal in contract. The plaintiff has accordingly failed entirely in its case.

I now turn to a more detailed examination of the evidence and explanation of my findings and conclusions.

Issues: adverse possession

The first matter to be determined in relation to the defendant’s adverse possession claim is the identification of the land to which the defendant lays claim by adverse possession. The ultimate issue then is whether there is any fifteen year period of continuous adverse possession of that land prior to March 2011 proved by the defendant.

Consideration of the ultimate issue will in turn require consideration of the following disputed issues of fact:

(a)When did the defendant commence his tenancy of the land known as 10 Eames Avenue (which he subsequently purchased) and erect the gates between that land and the shop known as No. 8 Eames Avenue?

and in relation to the periods prior to the plaintiff’s purchase and after:
(b)Did the defendant exercise exclusive physical control over the disputed land so as to constitute factual possession?
(c)If so, was that possession accompanied by the necessary intention to possess the disputed land?
(d)Was there any interruption to this possession from that date (within s 14 of the Act as modified by s 16) constituted by
(i)the defendant’s trip around Australia in 1974; or
(ii)any act of the plaintiff or a tenant of the plaintiff after the plaintiff acquired title to its land, prior to the attempted erection of a fence on the boundary in March 2011.

Identification of the disputed land

Annexed to these reasons is a copy of the survey obtained by the defendant on 28 February 2013, which was used as an agreed plan of the land in question and became Exhibit A. It shows the defendant’s land as per his title (marked as Lot A), and the disputed land (marked as Lot B). The title boundary between the plaintiff’s and the defendant’s land according to this survey runs slightly east of north in a straight line from Eames Avenue. The boundary is parallel to the shop wall of no 8, and some 1.86 metres to the west of it. The defendant’s land known as no 10 extends substantially further north than the plaintiff’s land at no 8. Their common boundary ends at a point that appears to be about 1-2 metres north of the north western corner of the plaintiff’s shop, where that boundary meets the northern boundary to the plaintiff’s land. The plaintiff’s land at no 8 is bounded on the north, and the defendant’s on the east, by a block of units constructed off Millers Road. The boundary between the plaintiff’s land and this block of units is estimated to be represented by the line marked “Steel Sheet”. The plaintiff also owns the land known as 2, 4 and 6 Eames Avenue, which are also shops running in a line towards Millers Road, and are also bounded to the north by the block of units. The eastern boundary of the defendant’s land north of the steel sheet is more or less represented by a paling fence between the defendant’s land and the block of units.

The disputed land is a portion of the land running north along the wall of the shop at number 8 from the Eames Avenue boundary to a point just below the rear door opening out from the shop. The disputed land runs out from the shop wall to the title boundary, which as indicated is 1.86 metres towards the defendant’s land. The disputed land contains an easement noted on the plaintiff’s title.

The written closing submissions by counsel for the defendant tacitly acknowledge that there is a degree of arbitrariness in the northern boundary of the disputed land which, unlike the southern and western boundaries does not lie on a title boundary, and is not marked by any external physical feature, such as the eastern boundary, which is the wall of the plaintiff’s shop. The submissions state that:

The northern boundary has been chosen because it is a point which allows the occupier of 8 Eames Ave to exit through the rear door and still have access to the toilet located behind the shop at 8 Eames Ave. The defendant has never sought to exercise control over the entirety of the vacant land to the west and north of the shop at 8 Eames Ave (the land to the north being where the toilet is located).[12]

[12]Defendant’s Closing Submissions at [13].

I will return later in this judgment to discussion of the significance, if any, of the absence of any clear physical northern barrier to the disputed land.

When did the defendant commence his occupation of no. 10 Eames Avenue?

In his original notice of defence, filed 10 November 2011 in the Magistrates’ Court at Sunshine, the defendant pleaded that he had been in occupation of his land since “approximately the mid 1970’s”. This remained his case as to when he took up occupation until his answers to the plaintiff’s interrogatories sworn 5 October 2012 when he deposed that he first took up occupation in 1971, at which time he also erected the gates. He formally amended his plea in this regard in the further amended defence and counterclaim filed at the commencement of the trial, on 21 May 2013. The change in date is significant, because if his original occupation was not earlier than May 1972 he cannot rely on fifteen years possession completed by the time the plaintiff acquired its registered title in May 1987.

The defendant’s oral evidence is that he first took up occupation in 1971. He said he dated occupation of the shop as being a few months before his daughter’s birth, and he had made a mistake in his earlier documents because he thought she was born in 1974. On discussion with “others in the family” he realised or was told that his daughter was born in 1971. When put to him that his first memory (mid 1970s) may be true he denied it, adding in this next question and answer :

Q: It's very difficult to remember so far back isn't it?
A: Well, when you associate it with the birth of a child and others in the family, saying the birth of the child and when we moved from Corrigan Avenue into a smaller house and we couldn't - and we got the shop prior to that, it all fitted in place, but obviously when I first said, I said mid 70s. But if I've said that I said it, but I was wrong, OK?[13]

[13]Cross examination at T 272 ll 1-8

The defendant frankly conceded that he has a poor memory for dates. There were major discrepancies between his evidence and those of his other two witnesses, his son Adrian Darby, and his former wife Lesley Auditore, as to the dates of key events. Most strikingly, he and his former wife differed by ten years as to when they separated- the defendant saying it was in 1998, and his wife saying it was 1988. The defendant and his son differed as to when the defendant retired and moved to Tasmania (the defendant saying this was in 1998 and his son saying it was 2000), as to when another former employee a Mr Martin Spiteri who is or was married to the defendant’s daughter commenced with the defendant’s business, and as to when the business moved to its new factory and no. 10 became tenanted (the defendant’s evidence was the tenant moved in five years before the dispute about the fence i.e. 2006, but his son said the move to the new factory did not take place until 2007). I will return to the dates of these events as required, but mention the discrepancies now as they bear on whether or not the defendant’s evidence that the correct date as to when he first took up occupation should be accepted.

In my view, the defendant has proved that his first occupation was in 1971 having regard to the evidence of his former wife. She impressed me as a very careful witness, far more likely to be accurate in relation to dates than the defendant. She gave detailed evidence as to the significant events in their early married life, being when they married, where they lived, and when their children were born. She tied the tenancy of shop 10 to these events in a convincing way, and also to the external event of the collapse of the Westgate Bridge. Further, her evidence was supported in relation to some events by entries made in the business ledger, Exhibit F. Ms Auditore had some involvement in the financial affairs of the business, doing the accounts and invoices[14], although she did not personally make the entries in the ledger.[15] I set out my detailed analysis of her evidence below.
[14]Defendant in chief T 196 l 1
[15]Ms Auditore T 301 l 31 to T 302 l 2, T 303 ll 11-15

Ms Auditore’s evidence in chief was that the business took up the tenancy of no. 10 Eames Ave in the middle of 1971. In chief she related this event to the birth of her second daughter, Colleen, in December 1971 on the basis that the family had moved into their purchased home at Couch St, Sunshine shortly before the birth of Colleen and had the shop at that time.[16] She also related the renting of the shop to certain entries in the ledger, which I will address shortly. Ms Auditore was cross examined extensively about the entries in the ledger and her evidence as to the date of first occupation of the shop, and while her evidence in relation to the ledger entries changed in some respects, her evidence as to the date of first occupation based on its relationship to other events in their married life did not change. In fact, she reinforced it by reference to other events, being the dates between which she and the defendant moved to Brooklyn from her flat in Chapel St and rented a house at 37 Corrigan Ave (from late 1970 to late 1971) and the date on which the defendant went into business on his own after finishing his apprenticeship (about 1970 or 1971)[17].
[16]In chief, at T300 l 23-T 301 l 2.
[17]Cross examination T308 l 19 to T310 l 24.

In re-examination, this evidence was tied together. Ms Auditore’s evidence was that she and the defendant rented a home from a Mrs Kirchner at 37 Corrigan Ave, Brooklyn from about four months after their first daughter Louise was born (which was in June 1970). She said that they got the shop (number 10) after they had been at Corrigan Ave “a little while” and volunteered that they were living at Corrigan Ave “when the Westgate fell down”, which she could remember was October.[18] The parties did not object to me confirming by external enquiry that that Westgate Bridge collapse occurred in October 1970. In summary, Ms Auditore’s evidence was that the defendant acquired the shop during the one year that the family lived at 37 Corrigan Ave, which was between (at its latest) October 1970 and late October, early November 1971, and did so some time after they first rented at Corrigan Ave.
[18]Re-examination, at T 314 ll 19-21; T 349 ll 10-23; T 363 l 21; T 367 l 13- T 368

Ms Auditore’s evidence is supported in part by entries in the ledger. The first entries in the ledger are dated by month only, not year. Ms Auditore initially suggested that the first entries dated from 1969, but she later changed this evidence and said that they must date from 1970. If this is correct, the first physical entry in the ledger is 3 December 1970. That month, and the following entries in the same handwriting to April (1971 according to Ms Auditore), record, amongst other entries, rent paid to Mrs Kirchner i.e. for 37 Corrigan St. The ledger is not a straightforward document, however, because in a different hand on the fourth double page entries commence which were apparently contemporaneously dated May 1970. These record, amongst other entries, rent to Williams & Co, which according to Ms Auditore was for the flat in Chapel St that she and the defendant occupied prior to moving to Corrigan St. The entries in that hand unambiguously run from May 1970 to 23 December 1970. They include rent paid to Mrs Kirchner for Corrigan Ave from 19 October 1970, consistent with Ms Auditore’s evidence.

The entries dated May to December 1970 are immediately followed by entries in perhaps the same hand as the first physical entries, commencing 1 May to 24 June, but without year. This is immediately followed by what is apparently an end of year analysis. Ms Auditore suggests that these entries are for May and June 1971. She suggests that the first and third set of physical entries are for the continuous period December 1970 to June 1971, physically interrupted in the ledger book by the second set of entries contemporaneously dated May to December 1970. In other words, the second set of entries were in fact the first entries by time of event, but not entered on the first pages of the ledger. That the first and third sets of entries run on is consistent with the cheque number (898) for the last entry for April (year undated) and the first cheque number (899) for May (year undated). This explanation would have the ledger recording two sets of entries for December 1970. Counsel suggests that two lots of entries for December could be explicable perhaps by multiple cheque books.

If this explanation is correct, then there are ledger entries for 1971 until June of that year. The defendant says he took up occupation in “mid 1971”. There is no entry in ledger that the defendant or Ms Auditore identifies as relating to occupation of 10 Eames Ave, but there are no entries for 1971 after June. The next entries in the ledger are apparently contemporaneously dated 1972-1973. In other words, there is no ledger in evidence for the period 1971-1972 from which an entry may corroborate occupation of 10 Eames Ave in “mid 1971”, but after June.

There is in fact no entry in the ledger that Ms Auditore says is related to the tenancy of the shop until an entry dated 22 August 1972 which reads “Footscray City Council- Shop Electric”. There are similarly described entries on 21 December 1972, 13 March 1973 and 29 June 1973 i.e. broadly at quarterly intervals. These entries appear in the portion of the ledger apparently contemporaneously dated 1972-1973. Ms Auditore says that these entries are for payment of the electricity at the shop, which was at that time paid to Footscray City Council, despite being a utility bill rather than rate bill, and despite the shop being in Sunshine Council. She was unshaken in this assertion despite vigorous cross examination on it. I accept her evidence. It supports only, however, that the defendant was in occupation by, at the earliest, three months or so prior to August 1972 (assuming electricity bills to have been quarterly and in arrears). It does not corroborate the assertion that the rental of no. 10 Eames Ave commenced in mid 1971. There is an entry recorded as payment to Footscray City Council on 17 May (which Ms Auditore suggests was May 1971) but it is for a much larger sum than the electricity entries, is differently described and is not identified as being for “power and heat” as are the other Footscray City Council entries. Ms Auditore does not rely on it as proof of payment of electricity, saying that she does not know to what it relates.[19]
[19]Cross examination at T 365 l 13 to T 366 l 31.

It is also curious that there is no record of any rental payment for no. 10 Eames Ave until an entry dated 10 August 1982, which was shortly before the defendant entered into a terms contract to purchase the land, on 23 December 1982. Ms Auditore’s explanation in cross examination for the absence of any record of the payment of rent was that perhaps rent was paid in cash. This is not an entirely satisfactory explanation, but I accept that it is a possible one, and there are multiple entries for “cash”, apparently referring to cheques payable to cash, in the ledger.

Despite the absence of a record in the ledger corroborating occupation in 1971, on balance I accept the defendant’s case that he took up occupation in 1971. I do so on the basis of Ms Auditore’s recall of associated family events, being the two residential moves from Chapel St to Corrigan Ave, and then from Corrigan Ave to Crouch St; the associated births of their two daughters in June 1970 and December 1971; and the commencement of the business in 1970/71. The ledger supports this evidence by rental entries related to the residential moves, but not by any entry specifically related to no. 10 Eames Ave in 1971 to June 1971. That is, to the extent there are entries, the ledger is consistent with Ms Auditore’s personal recall. It is only the absence of entries confirming the tenancy that could be seen as inconsistent, and in the absence of any ledger for 1971-1972 I cannot find that the ledger is inconsistent with Ms Auditore’s personal recall.

The plaintiff invites me to conclude that the defendant has failed to prove his case of adverse possession prior to 1987 because he did not call witnesses from the classes identified by the plaintiff in final submissions to corroborate the evidence given by him and his former wife. I do not accept this submission. The defendant and his former wife, Ms Auditore, were the persons, other than the defendant’s co purchaser Mr Cole, best placed to give evidence about the defendant’s occupation of the land prior to 1987. An explanation was provided for the absence of Mr Cole. The defendant’s case, as opposed to the plaintiff’s, is that he as an individual was in personal occupation of his land, and in possession of the disputed land. Had the evidence of the defendant and Ms Auditore been insufficient, then, in the absence of additional witnesses, the defendant would have failed to prove his case. Their evidence has, however, been sufficient. In those circumstances, the absence of additional witnesses to the same events is immaterial. Further, the parties are under an obligation under s 24 of the Civil Procedure Act 2010 to ensure that the costs of litigation are reasonable and proportionate to the complexity or importance of the issues in dispute, and the amount in dispute. The issues in dispute cover a lengthy time period, but the facts are not complex. There is no evidence as to the value of the disputed land, but it is small in area. It is possible that the calling of additional witnesses may have been disproportionate to the dispute.

I find that the defendant took up occupation of no. 10 Eames Ave as a tenant at some point in 1971 prior to November 1971 (when the family moved from Corrigan Ave), and probably after June 1971 (there being no ledger entry recording the tenancy to June 1971). This is more than fifteen years before the plaintiff became the registered title owner of the disputed land in May 1987 and started its own business there in October 1987. It follows that, if the defendant establishes factual possession without interruption and the necessary intention to possess the disputed land, the title of the plaintiff’s predecessor in title to the disputed land had already been extinguished by May 1987. The plaintiff accordingly never acquired title to the disputed land.

Factual possession prior to 1987

The factors relied upon by the defendant to establish factual possession of the disputed land prior to the plaintiff taking up occupation are control of entry through the gates; use of the land for entry by vehicles; and maintaining the land by mowing the grass. The defendant also relies on the absence of use of the land by any predecessor in title to the plaintiff due to the state of the rear door. If the rear door was unusable, then the only access by the plaintiff’s predecessors in title to the disputed land was through the gates, which access the defendant says he controlled. The plaintiff was unable to adduce any evidence in relation to the period prior to May 1987 and so the defendant’s evidence in relation to this time period is unopposed. I now assess that evidence.

The defendant at this time was a tenant of the registered proprietor of 10 Eames Ave. There is no evidence of any consent by the registered proprietor of shop 8 to his use of and enclosure of the disputed land. The whole of the defendant’s evidence is inconsistent with consent having been sought or given. I infer the defendant’s possession of the disputed land, if otherwise proved, was without the consent of the registered proprietor of no 8 Eames Ave, and so adverse to the interests of that proprietor.

The defendant’s evidence in chief is that he caused the gates to be erected across the gap between shops 8 and 10 a couple of weeks after he tenanted shop 10.[20] The gates were secured by a deadlock keyed from both sides, to prevent the gates being opened by someone climbing over them and opening from the inside.[21] The evidence of the defendant is that unless he was at the shop the gates were always locked. He said that to use the gates to collect work vehicles he had to unlock them, move the gates to the side, drive out and then re-lock them.[22] The defendant said that generally when he was at his shop he would leave the gates open and attached to their respective walls, to prevent them blowing open.[23] The defendant said the gates were locked by the deadlock on the day of the auction of no. 8.[24] This was disputed by Mr Lu snr.[25] Ms Auditore confirmed the defendant’s evidence as to the construction of the gates and says that as far as she can remember they were always locked.[26] She attended the shop from time to time in the early 1970’s to do the bookwork and in conjunction with the business that she and the defendant operated between 1970 and 1974 of selling goods stored at the shop at markets.
[20]T 190
[21]T 193 l 28 to T 194 l 4
[22]T 192 ll 4-6
[23]T 217 ll 21-23
[24]T 197 ll14-15
[25]ADD REF
[26]T 301 ll 23-25, T 307 l 5

The defendant says that he did not receive a request from anyone to take down the gates prior to the plaintiff acquiring no. 8, and not from the plaintiff until 2011.[27] The clear implication from his evidence is that the gates remained in place continuously from construction in 1971 until the plaintiff caused the gate attached to no. 8 to be removed in March 2011, and throughout that period were locked unless in actual use or he or an employee was at his shop.
[27]T 192

In addition to the goods for market, the defendant stored equipment and vehicles for his electrical business at the rear of no. 10. In the course of his business he has used trucks, excavators and electrician’s vans i.e. vehicles bigger than a car and would not have been able to drive those vehicles to the rear of no. 10 through the gap between shops 8 and 10 without using the disputed land.[28]
[28]T 191

In relation to maintenance of the land, the defendant says that he personally maintained the land between the two shops, including the strip of land now identified as the disputed land, in the 1970’s and 1980’s. He identified what he did as keeping the disputed land clear, putting the gravel down so the land between the shops could be used as a driveway and generally maintaining the land between the two shops in conjunction with maintenance of the rest of the property.[29] It seems that at one point at least he employed a person to mow lawns because it is his evidence that this person was the only person to ask for a key to the gates in the 1970s.[30] In cross examination he clarified that the gravel he laid covered the whole of the land between the two shops when first laid, but later grass grew on the disputed land.[31] The photographs in evidence show grass on the disputed land.[32]
[29]Defendant in chief, T 196
[30]T 192 l29 to T 193 l 1
[31]T 248 ll 17-19
[32]Exhibit E

Adrian Darby’s evidence confirms that of his father, the defendant, in relation to the presence of and access through the gates. His evidence is that he attended the premises with his father, the defendant, from an early age and that as far back as he can recall the area between the shops was enclosed by big steel gates that were always locked. He was born in 1977, and so was ten when the plaintiff bought its shop. He said he had attended the defendant’s premises even before that time. He was present as a child when the gates were opened, and observed that a key was necessary, and had his own keys from the age of about sixteen i.e. about 1993. It was necessary to unlock the deadlock on the gate from both sides.[33] He began working with his father about that time.
[33]T 371-373

In relation to use of the driveway, Mr Adrian Darby confirmed that it was necessary to have the full width of the driveway at the street entrance available for entry by the large vehicles used by the business, being a tilt tray truck and an excavator.[34] He indicated on a copy of the survey the path used by vehicles to enter through the gates and access the rear of the defendant’s premises. His marking shows a path using most of the entrance to the street, and some, but not all, of the disputed land.[35]
[34]T 374-376
[35]Exhibit G

In relation to maintenance, Mr Adrian Darby’s evidence is that he started mowing the disputed land when he was about fifteen i.e. about 1992, and that since that time he has not observed any one other than himself or one of his employees maintaining that area.[36]
[36]T 376-377

The defendant says there was no tenant at no. 8 for a long time after he took up occupation of no. 10. In the whole of the time between his first occupation of no. 10 (1971) to the plaintiff’s acquisition of no. 8 in 1987 the defendant says there were “probably” only two tenants of no. 8, one for about a month and the other for about two months. When cross examined on this point, he said he could only recall two tenants and the shop at no. 8 was “generally empty”, because “the shop was in such a condition that you couldn’t tenant it and the tenants that went in didn’t care”.[37] The first tenant he could recall used the premises as a brothel until closed by the police after about a month. At that time the defendant’s evidence is that the front door was unlockable and the back window boarded up. The second tenant he recalled used the premises to store stolen car parts and was in possession for a couple of months. He was told by neighbours that that tenant was arrested by police and the parts removed from the shop.
[37]T 239 at l 25 to T 240 l 7.

The defendant was cross examined at some length in relation to his knowledge of the use of the disputed land adjacent to no. 8 by the plaintiff’s predecessor in title or its tenants.[38] The defendant said that he used the premises at no. 10 as a base for his business, attended there every day to drop off his car, collect the vans and go to work and conceded that he did the bulk of his work at the premises of his customers. He said he also had a workshop at the rear of his shop where he did some repair work. He agreed with counsel for the plaintiff that he was generally not at the shop in the evenings and that there is no window inside his shop from which he could have viewed the driveway, including the disputed land. When he was then asked how he could know whether or not a tenant of no. 8 was using that land he answered that there was no access from the rear door of the shop at no. 8 because that door was nailed up from inside. He could see this because the door was broken and smashed and he could see through it to the boards nailed across it from the inside to hold it shut. Further, the toilet outside no. 8 was not usable because the brickwork surrounding it had fallen over. He said that he believed the toilet was in this state until Mr Lu snr fixed it after the plaintiff purchased the property and he noticed no change to the state of the rear door until the plaintiff purchased no. 8.
[38]T 239- T 243.

Discussion and conclusion

The extracts from Powell v McFarlane cited in Abbatangelo and quoted earlier establish that proof of factual possession requires proof of “a sufficient degree of exclusive physical control” over the land. What is “sufficient” will depend on all the circumstances, but broadly the person claiming this possession must show that he “has been dealing with the land …as an occupying owner might have been expected to deal with it and that no-one else has done so”.

Enclosure of land is not essential to a successful claim of possession of that land adverse to the interests of the registered proprietor, but it is a powerful factor in support of both factual possession and the intent to possess.[39] Control of the entry to land is clear, arguably the best, evidence of exclusive physical control over the land in fact, and the intention to exert that control.
[39]Powell v McFarlane (1979) 38 P & CR 452 at 477-478.

Gates

I accept the evidence of the defendant that he caused the gates between the two shops to be erected shortly after he took up occupation of the land and that they were thereafter locked while he was in occupation unless the gates were in use or he was at the shop, at least until the plaintiff acquired the land. I will consider the position during the defendant’s trip around Australia and after the plaintiff took up occupation of its land shortly. The defendant’s evidence in this regard was detailed, consistent, unshaken by cross examination and is supported by Ms Auditore. I have noted earlier that the defendant’s recall of dates was poor, but I do not consider that his general recall of events was unreliable. Further, there is no evidence to the contrary from the plaintiff, other than the dispute as to whether or not the gates were locked on the date of the auction.

It is difficult to make any finding as to whether or not the gates were locked on the day of the auction, given the state of the evidence. Mr Lu snr’s evidence is that he was told by the auctioneer that the area between the two shops was a driveway and that he proceeded with the purchase on that basis. This evidence was admitted not as to the truth of what was asserted, but as to Mr Lu snr’s state of mind.[40] Mr Lu snr was recalled so that it could be put to him in cross examination that the gates were locked on the day of the auction. It was first put to him that the gates were closed. He denied this. He elaborated by referring specifically to the toilet at the rear of no. 8 saying:

Like you come out, you see the car park. And then you turn and that is where you see where the toilet is. The driveway.[41]

[40]As to the objection T34 l 9- T35 l 17, and T 36 ll 5-22; as to the evidence T 35 ll 19-25.

[41]T 333, ll 15-27.

It was then put to Mr Lu snr that the gates were closed and locked, and he denied this as well, without elaboration. In re-examination Mr Lu snr said that he walked around the four shops and that the real estate agent took him to “walk out from the driveway”, which he described as a shared driveway.

The difficulty with the evidence of Mr Lu snr is that, while it gives a factual context and basis for his assertion about the gates, it is not clear whether he came onto the “driveway” from the front door or the rear door. If the rear door, then that may be inconsistent with the defendant’s evidence that the rear door was not usable, but it means access through the gates was not required to see the “car park” and turn to see the toilet. If the front door, then the toilet could only be seen if the gates were open or could be opened.

The defendant’s evidence that the gates were locked on the day of the auction was simply that, without further elaboration as to the basis for his assertion, and indeed may be capable of being understood as that the gates were lockable, rather than in fact locked.[42] He had also given evidence that on occasion the gates were open, or not locked, when he was at his shop, as he was on this day.
[42]He was asked what “the state of locking of the gates” was on that day, not whether they were locked-T 197 ll 14-15.

On balance, I conclude that Mr Lu snr’s evidence was more likely reliable, given its greater detail and the likely greater significance to the plaintiff than to the defendant of the day of the auction. As I say, that evidence is not necessarily inconsistent with the general tenor of the defendant’s evidence that the gates may have been open or not locked on a day he was in attendance at the shop, as he was on that day, given that he also attended the auction. For this reason, I do not consider the possibility that the gates were not locked on the day of the auction to be fatal to the defendant’s case for adverse possession prior to the plaintiff’s purchase.

The consequence of the locked gates was to exclude persons other than those the defendant permitted to enter (for example, by giving a key to the man to mow the lawn or by permitting access if present at his shop) from the disputed land, including the plaintiff’s predecessor in title, unless the plaintiff’s predecessor in title or tenants could access the disputed land via the rear door to no. 8.

Access through the rear door of no.8

The defendant’s evidence in this regard was not entirely consistent. In chief, he said that as at the date of the auction of no. 8 that shop was “pretty well run down”, meaning that the “the front door wouldn’t lock and the back door wasn’t locked and you could walk in and it was just empty.”[43] When asked specifically about the rear door of no. 8 on its purchase by the plaintiff the following exchange occurred:

Q: After the plaintiff purchases Shop Number 8 in 1987 or at the time they purchased that shop what was the situation with the rear door of Shop Number 8?
A: You couldn't close it. It was broken.
Q: When you opened that door and exited from Shop 8 where were you able to access?
A: Straight onto the disputed land.[44]

[43]T 197, ll 21- 25

[44]T 201, ll 25- 30

The implication from this evidence is that access onto the disputed land was possible via the rear door of no. 8 i.e. that the door could not be closed, but that did not prevent access, indeed may have facilitated it. It was only in cross examination that the defendant gave the evidence to which I referred earlier that access through the door was not possible because it was barred from inside by boards nailed across it. In answer to a question from me, the defendant confirmed this evidence and said that the rear door was replaced by Mr Lu snr after the plaintiff purchased no. 8.[45] In re-examination he confirmed that the boards were on the inside of the door.[46]
[45]T 295, ll 7-20
[46]T 298 ll 12-16

The defendant was consistent in his evidence that no. 8 was rarely tenanted, and only on two occasions he could recall for short periods. His evidence that the outside toilet was unusable (and so a prime reason to use the rear door was absent) was not put to Mr Lu snr (who had given evidence earlier in the proceedings) but nor was there any objection taken or request to recall Mr Lu snr on that basis, although there was such objection taken as previously discussed in respect of Mr Darby’s evidence that the gates were locked on the day of the auction. Mr Lu snr gave no other evidence other than that set out above about the state of the rear door or the toilet on his purchase of no. 8, but he did agree in cross examination that the shop was “fairly run down”, windows were broken and the front door was in poor condition.[47]
[47]T 44 l 29 to T 45 l 1

Given that Mr Lu snr confirmed the poor state of no. 8, I do not consider there is sufficient inconsistency between the answers given by the defendant in chief and his evidence in cross examination (that access through the rear door of no. 8 was not possible and would serve no purpose in terms of access to the toilet) to justify rejecting that more detailed evidence. I find that there was no access to the land from the rear door of no. 8 due to its state of disrepair prior to the plaintiff’s repair of the shop after its purchase.

This conclusion is made more plausible by the defendant’s evidence that there were only two tenants of no. 8 after he took up occupation in 1971 prior to the plaintiff’s purchase in 1987 (with the possible exception of 1974 to be discussed shortly). I accept that evidence and what he says about the nature of those tenancies. The defendant attended the premises each working day and so was in a position to observe signs of occupation of shop 8, and what occurred on the disputed land at least twice a day (when he collected a work vehicle, and when he returned it). Clearly he did not, and was not able to, keep shop 8 or the disputed land under constant observation, but given his frequent attendance at the premises and his evidence about the nature of these tenancies I conclude that it was unlikely there was any use of the disputed land by tenants of the owner of no. 8 prior to the plaintiff.

It follows that, subject to consideration of the defendant’s travel around Australia in 1974, I find that from the time the defendant erected the gates in 1971 until the plaintiff purchased its land in 1987 the defendant was in exclusive factual possession of the disputed land, adverse to the interests of the registered proprietor. The gates excluded the whole world from that land, including the plaintiff’s predecessor in title, because there was no access taken in fact nor possible from the rear door.

This lack of access was due to actions of the plaintiff’s predecessor in title, because the defendant’s evidence is that the boards were on the inside of the door, but it is not necessary in the establishment of physical or factual possession that it be the defendant who prevented access to the land through this means. This is clear from Cervi v Letcher (“Cervi”)[48] which is discussed in detail in the next section of this judgment. The factual consequence of the registered title owner’s failure to maintain access through the door was that the gates, erected by the defendant, were sufficient to exclude the registered title owner. Similarly, nor is it material that it was within the power of the plaintiff’s predecessor in title to reclaim that access given I find that the paper title owner did not so reclaim that access until the plaintiff purchased the land and repaired or replaced the door to make it usable.
[48][2011] VSC 156

Intention to possess prior to 1987

It is not enough to establish possession for the purpose of a claim to title that the claimant was in factual possession of the land. The claimant must also possess the necessary intention. This is the intention to exclude all others i.e. the world at large including the true owner.[49] As noted earlier in the extract from Bayport, the decision of Ashley J (as he then was) relied upon by the Court of Appeal in Abbatangelo, it is not necessary that there be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control. On that basis, an intention to control the land the adverse possessor actually believing himself to be the true owner may be sufficient. Further, enclosure by itself prima facie indicates the necessary intention.[50]
[49]Abbatangelo, op cit, and Cervi ibid.
[50]Powell v McFarlane, op cit, at 477-478.

This significance of an intention to possess as a distinct element is shown clearly in Cervi, on which the plaintiff here relies. In that case, Dixon J found that the claimant defendant was in factual possession of the land there in question, which was a driveway across the paper title owner’s land over which the claimant had a right of way by easement. He held that this was established because the claimant had been dealing with the driveway “as an occupying owner might have been expected to deal with it”.[51] In particular, he based this conclusion on the fact that the land was enclosed by fencing and a gate to the street, access through which was controlled by the claimant. Somewhat analogously to the facts in this case, the fence on the driveway which physically excluded access from the balance of the plaintiff paper title owner’s land to the driveway was erected and maintained by the paper title owner. I say analogously because here (leaving aside questions of fencing around the rear door of no. 8) access to the disputed land from shop 8 by its rear door was in the control of the plaintiff.
[51]Ibid, at [60].

Dixon J held, however, that this factual or physical possession was insufficient to establish title because it was not accompanied for the necessary fifteen year period by the necessary intention to exclude the paper title owner. His Honour held that until a period of time shortly before the litigation the claimant exercised his physical possession of the driveway with the intention only of best exercising his easement rights to use the land as a driveway. In the circumstances of that case, enclosure of the disputed land was equivocal only as regards the claimant’s intention to exclude the true owner. In this regard, Dixon J relied on, amongst other matters, the fact that the claimant did not assert that he intended to exclude the paper title owner from the driveway by control of the gate, but only strangers; and that the barrier between the paper title owner’s land and the disputed land, the fence along the driveway, was in fact erected by the paper title owner.[52]
[52]Ibid, at [62]-[63].

This latter factor is replicated in this case in relation to access onto the disputed land by the plaintiff’s predecessors in title through the rear door of no. 8. By analogy with Cervi, this lack of access may assist in establishing factual possession of the disputed land, but where it is occasioned not by the claimant but by the paper title owner, it is equivocal at most in relation to intention to exclude the paper title owner. Each case must, however, be decided on its own facts, and a compelling distinction between the facts in Cervi and this case is that there the claimant had a right to use the disputed land in any event under the easement. In those circumstances, evidence of physical possession was less clearly evidence of an intent to possess, as opposed to use. Further, the claimant’s conduct in giving evidence and in relation to the dispute with the paper title owner that preceded the litigation was such that the judge held it precluded the drawing of an inference of intention.[53]
[53]Ibid, at [64]-[70].

Here the defendant’s own evidence as to intention is that he always thought the disputed land was in fact his land.[54] I accept this evidence. It was volunteered in the context of answering a question in chief as to what he did in relation to the disputed land, and in response to the characterisation of the land in question as “disputed”. His exact evidence was:

When you say disputed land, I always thought it was my land. I never ever thought we would be disputing anything.

[54]T 196, ll 13-15

In the context, the statement did not appear to me to be gratuitous or deliberately self serving, but an honest statement of his position. It was not put squarely to the defendant in cross examination that this statement was incorrect. Indeed, in answer to another question using the phrase “disputed land”, the defendant repeated his evidence that “I never ever thought it was disputed. It’s only just become disputed…” and the plaintiff’s counsel did not challenge this evidence by any question directed to it. In this cross examination, the defendant agreed that his intention in constructing the gate was to secure items he kept at the rear of his property. It was put to him that he only wanted to use the disputed land to drive over it, and the defendant agreed that “it’s mainly a driveway”.[55]
[55]Quotes at T 246 l 31 to T 247 l 1 and T 248 l 11. For the whole of the cross examination see T 245 l 30 to T 248 l 19.

Taking this approach, I consider the evidence of Mr Adrian Darby and his father more reliable than that of Mr Lu in relation to there being a cyclone wire fence used over a number of years. Mr Adrian Darby gave a detailed description of the cyclone wire fence, and he had occasion himself to move it. I find that there was a cyclone wire fence around the rear door of shop 8 over a number of years, which was broadly in place when the shop was tenanted, at least until 2004. I accept the evidence in the defendant’s case that it was placed north of the disputed land. The fence accordingly prevented access to the disputed land, and the defendant’s land, from shop 8. I am unable to find when the fence was first put in place, and in particular do not attach any weight to the evidence of Mr Adrian Darby that the fence was there during the bakery tenancy. This proposition was not put to the person in the best position to comment on it, being Mr Chung, and may be inconsistent with his evidence as to use of the disputed land. Further, a different proposition was put to Mr Michael Lu in cross examination. Mr Michael Lu says that from his admittedly limited personal observation he could not recall an internal fence at least in the period 1996-1999. This is not necessarily inconsistent with Mr Darby’s evidence, as shop 8 was not tenanted during this period, and Mr Darby said during those periods the fence was folded against the wall.

The major conflict on the evidence is in relation to the fence placed around the rear door of no. 8 in 2004 and again in 2010. Mr Lu’s evidence that he sourced and constructed this fence in 2004 was detailed. As the representative of the plaintiff, the construction of a fence on the plaintiff’s land in relation to use by the plaintiff’s tenant was his responsibility and a matter of direct concern to him. On the other hand, Mr Adrian Darby maintained his evidence under cross examination that the fence placed around the door was the existing cyclone wire fence, which was replaced after being moved by Mr Ward, and he not Mr Lu did this work.[166]
[166]T 399

Their evidence in relation to the 2004 fence needs to be considered in light of the evidence in relation to the fence across the land between the two shops, erected by the defendant’s tenant, and what the parties say occurred in relation to fencing in 2010. Consistently with his evidence that the fence around the rear door was erected by him, and there was no other fence, Mr Lu says that the defendant’s tenant used components of this fence to build the fence shown on the aerial photograph, and he Mr Lu returned the components to their original position at the request of his tenant in 2010. Mr Adrian Darby said in answer to direct question by his counsel[167] that he was not aware whether or not Mr Lu constructed that fence. In cross examination he said he could identify on that photograph (taken at a time when shop 8 was vacant) the panels of the cyclone wire fence, one of which was placed between the corner of shop 8 and the steel sheet fence on the northern boundary of the plaintiff’s land to stop the tenant’s dogs from getting into the toilet, and the other two panels of which he said were leaning against the wall of shop 8, shown by the slight bulges along that wall. The photograph with his markings to this effect is Exhibit K.[168] It would follow from this evidence that there were two fences on site by this time- one the cyclone wire fence, at this time removed from around the door, and the fence Mr Bloomer constructed from different components i.e. not from the fence around the door in 2004.
[167]T 395
[168]T 408-409

This interpretation of the photograph was not put to Mr Lu in cross examination, perhaps because it emerged in cross examination of Mr Darby by the plaintiff’s counsel. Further, neither Mr Bloomer, the glazier tenant of the defendant, nor the fencing contractor of the plaintiff were called. The photograph shows structures only from above. Accordingly, I do not consider I can find that what is shown on the photograph are, as Mr Darby says, the panels of the cyclone wire fence. Nevertheless, the photograph clearly shows a barrier of some sort running from the north west corner of the shop to the northern fence of the plaintiff’s land. Thus the only independent evidence that is available supports that there was an additional barrier or fence to that erected by the defendant’s tenant. On the basis of the photograph, there was at the same time on site the fence erected by the defendant’s tenant, and at least another fence or barrier on the plaintiff’s land between the north west corner of the shop and the northern boundary, and, on Mr Darby’s evidence, other similar components of a fence leaning against the wall. This is inconsistent with the evidence of Mr Michael Lu that there was only one fence, being the fence he constructed in 2004, moved by the defendant’s tenant by 12 October 2009, and moved back into position around the rear door in 2010.

This may cast doubt on Mr Lu’s evidence as to the 2004 fence. His evidence about sourcing the components of and constructing the fence in 2004 around the rear door is, however, very detailed and it would seem difficult to confuse a metal fence with one constructed of cyclone wire, even given both consisted of panels and were secured in place by star pickets.

I have concluded that it was Mr Lu who constructed the 2004 fence, which was a metal fence distinct from the cyclone wire fence, and took its place, and that the defendant’s tenant constructed the fence running horizontally across the land from different materials. Mr Darby identified a panel of this fence as the cream coloured panel shown in the photograph at p 252 of the court book, which became part of Exhibit E.[169] I find that Mr Lu caused a fence around the rear door to be replaced in 2010, but not from the fence the glazier had constructed. I find that the panel fence around the rear door erected by Mr Lu in 2004 had been removed prior to 2010, but to allow Mr Darby or his employees to mow the grass while the plaintiff’s shop was untenanted (from 2005 to 2010). It may that it is these metal panels that are shown in the 2009 photograph. It is most likely that it was these panels, which were from the fence that Mr Lu erected in 2004, that he caused to be replaced around the door in 2010.
[169]T 414-415

It seems from the reference to a fence Mr Lu constructed in 2004 in the reply and the plaintiff’s oral final submissions that the plaintiff contends that the 2004 fence is a demonstration of possession of the disputed land. On Mr Lu’s evidence the 2004 fence extended into the disputed land. At most, I consider placing a fence inside the disputed land to be an equivocal act. It was not accompanied by any statement of intent to exclude the defendant, or to assert title. Far from it- the purpose was to keep in the tenant’s dog, not keep out the defendant. Further, the fence prevented access by the plaintiff’s tenant to the bulk of the disputed land (except by moving the fence). Significantly, the plaintiff took this action to erect a fence in 2004 and again in 2010 not along the full length of the boundary line, but only around the rear door, at a time when the plaintiff knew from the 2001 survey that its land on title extended further south. In other words, internal fencing by means both of the cyclone wire fence and the metal fence Mr Lu erected reinforced the defendant’s factual possession of the whole or the bulk of the disputed land whenever there might otherwise be access to it from the rear door i.e. when the plaintiff’s shop was tenanted. When it was the defendant who erected or replaced the fence, or required it to be done, it further shows the defendant’s intention to exclude all others, including the plaintiff, from the disputed land. When it was the plaintiff who caused the fence to be erected, but not along the full boundary, it demonstrates acquiescence to the defendant’s possession of the balance of the land on the plaintiff’s title.

Plaintiff’s letter dated September 2010

The next letter the plaintiff wrote to the defendant about the disputed land was dated 8 September 2010, addressed to the defendant at 77 Couch St, Sunshine (the former matrimonial home). This letter became part of Exhibit 11. Mr Michael Lu and his sister agree that she wrote this letter, while he was in the United States on an extended trip from early September 2010 to November 2010. The defendant says that he personally did not receive this letter- he was in Tasmania at this time- and was not responsible for engaging the solicitors who replied. Ms Lu said she also sent the letter to no. 10 Eames Ave and Mr Adrian Darby confirms that that was how the letter came to his attention. He caused solicitors to reply by letter dated 23 September 2010.

The plaintiff’s letter refers to the land between the two shops as “shared land” and specifically states that a portion of 1.83 metres of that land “falls within our title”. It purports to confer a licence on the defendant to “enter onto our land” for $1 per month. The letter concludes with a warning that if no reply is received within 30 days, any entry by the defendant onto the plaintiff’s land “would be considered an illegal trespass”. The final sentence notes that “we may also act to erect fencing on our title boundary”. The reply from the solicitors for the defendant dated 23 September 2010 asserts that the land has been adversely possessed by the defendant “for a period exceeding twenty (20) years, without any objection or claim being made by you, or any predecessor in title, until receipt of your letter”. The letter further asserts that the defendant will take steps to claim the land by formal adverse possession application. The solicitors for the plaintiff acknowledged receipt of this letter on 5 October 2010 advising that the director in charge (agreed by the plaintiff to be Mr Michael Lu) was overseas, and denying the claim. There was no further correspondence between the parties prior to the plaintiff seeking to erect a fence on the boundary line shown on its 2001 survey in March 2011.

Ms Lu’s account of the genesis of this letter, which I accept, is that she visited shop 8 shortly before the letter was written because her brother had gone overseas and she had taken over some of this duties, including inspecting the plaintiff’s rental properties. Mr Michael Lu says that she contacted him while he was overseas after that visit to enquire about a fence she observed around the rear door to no. 8, and he told her it was a fence he had erected. This corresponds to his evidence that he caused the fence he first erected in 2004 to be re-erected around the rear door in 2010 at the commencement of Mr Brown’s tenancy, which commenced in August 2010. Ms Lu agrees that this letter and the 2001 letter, also written by her, are the only two attempts by the plaintiff to record in writing any arrangement between the plaintiff and the defendant in relation to the land between the two shops.[170]
[170]T 176 ll 19-22.

The plaintiff did not make express reliance on this letter as reclaiming possession from the defendant, perhaps because it is the plaintiff’s case that the defendant was not in possession of the disputed land at all. I do not consider that correct, and so in fairness to the plaintiff have considered whether this letter was sufficient to interrupt the defendant’s adverse possession, if the plaintiff’s title had not already been extinguished. On its face, this letter is a clear assertion of title to that portion of the driveway on the plaintiff’s title. As set out earlier, however, a mere assertion of title is insufficient to retake possession. It must be accompanied by action, and this assertion of title was not until March 2011.

The letter of September 2010 confirms in my view the plaintiff’s knowledge of the 2001 survey. It refers to the portion of the combined driveway that falls within the plaintiff’s title as being 1.83 metres wide. This is the width shown on the 2001 survey that the plaintiff obtained. It was also this survey that Mr Michael Lu relied on when instructing his fencer in March 2011 where to build the fence.

Conclusion as to possession 1987 - March 2011

According to the principles adopted in Abbatangelo, the paper title owner or registered owner is deemed to be in possession of land only in the absence of evidence to the contrary. Here there is substantial evidence to the contrary, and I have found that the defendant was in factual possession of the disputed land at the time the plaintiff became registered proprietor of it. If I am correct in my findings that the defendant first went into possession in 1971 and did not abandon possession while on his trip around Australia in 1974, the title of the plaintiff’s predecessor to the disputed land had already been extinguished by the time the plaintiff bought its land. Thus the plaintiff never acquired title to the disputed land- a vendor cannot sell a title it no longer has. If the defendant did abandon possession in 1974, and resumed possession in 1975, the period for adverse possession was required to run for fifteen years from that date i.e. to 1990. I have found that the period continued to run, because nothing the plaintiff did in that time period constituted retaking of possession. On this scenario, the plaintiff acquired registered title to the disputed land, but lost it in 1990 due to the fifteen year period of adverse possession to that date.

I have also found that, if the period of adverse possession by the defendant had not already been sufficient to extinguish the plaintiff’s title to the disputed land by 1991 and the bakery tenancy, the use by the plaintiff’s tenant of the land during that tenancy, 1991-1996, was not such as to constitute retaking of possession. The defendant’s adverse possession continued to run.

In respect of the period after this tenancy, from May 1996-March 2011 I have concluded that although the plaintiff did take some steps during this period in relation to its title, those steps were not sufficient to retake possession (if the plaintiff’s title had not already been extinguished). First, the plaintiff’s shop was infrequently tenanted after the bakers left, and not at all between May 2005 and August 2010. On the whole of Mr Michael Lu’s evidence I find that he visited the site on only a few occasions after May 1996. By contrast, the defendant or his tenant Mr Bloomer were in daily occupation.

Factual possession of, and the intention to so possess the disputed land on the part of the defendant is shown through the whole of the defendant’s occupation of its land by the practice of the defendant and his son to ensure that the gates to the street remained locked unless they were on site, first by the deadlock and subsequently by the chain and padlock. If there were occasions when this was not the case, this was a departure from their intention. Control of the gates was for practical purposes control over the disputed land when the plaintiff’s shop was not tenanted, because during these periods no access to the disputed land would be sought via the rear door to shop 8. When the plaintiff’s shop was tenanted, on at least some occasions the rear door was fenced off from the defendant’s land and the disputed land by a cyclone wire fence. While the evidence does not allow me to make a finding as to when exactly this occurred, at least during the last two tenancies of the plaintiff’s shop, by Mr Ward in 2004 and by Mr Brown in 2010, a fence was erected around the rear door to no. 8 that would have prevented access to most of the disputed land from the rear door. Mr Lu’s evidence, which I have accepted, is that he erected these fences. There was reference by Ms Lu to a door in the proposed 2001 fence, but Mr Lu did not make any mention of a door in the fence he constructed in 2004 and caused to be re-erected in 2010, and his description of the fence is inconsistent with any such door.

The plaintiff was on notice from the date of the survey in 2001, that its paper title included land which the defendant had fenced in with his own land. Notwithstanding that knowledge, the plaintiff did not take any clear steps to assert title to that land until the letter of 8 September 2010. The earlier letter of 2001, sent after the survey, makes at best only oblique reference to the boundary lying within the “shared” driveway, and does not make a clear and unequivocal claim to the land on the plaintiff’s title. Nor has the plaintiff proved any clear oral communication of an assertion of title prior to the letter of 8 September 2010. To all external appearances, the plaintiff acquiesced in the defendant’s adverse possession of the disputed land until its letter of 8 September 2010, and did so with knowledge of the true boundary from at least July 2001.

That letter was a paper assertion of title, and applying Symes v Pitt insufficient in itself to retake possession. I accept the defendant’s submission that the first occasion on which the plaintiff sought effectively to retake possession was by attempted construction of the fence along that boundary in March 2011. Although this date is less than fifteen years from the end of the bakery tenancy, that in itself is of no consequence given my finding that the defendant remained in possession throughout that tenancy. On any of the various permutations of the necessary fifteen year period of adverse possession, I find that the plaintiff either never acquired title to the disputed land, or its title to the disputed land has been extinguished.

Trespass
Attempt to erect a fence in March 2011 and subsequent events

It is agreed on the pleadings that the attempt to construct the fence occurred on or about 15 March 2011. Mr Lu attended with the fencer. They removed the smaller gate attached to the wall of shop 8 by removing the hinges. They also removed the fencing around the rear door to no. 8. Mr Lu says that a person on site, whose name he did not know, physically prevented the fence being erected by standing where it was to be placed. Work stopped, and the police were called. Later that day Mr Lu saw a car parked adjacent to the wall of shop 8 without his permission, and some days later he saw that the car had been replaced by a shipping container. A letter from the plaintiff’s solicitors to the defendant’s then solicitor dated 18 March 2011 refers to the shipping container, and requires its removal, so I find that it was in place at least by 18 March 2011.

Mr Lu says that he went into shop 8 about a week after the attempt to build the fence to look at the container from behind, and found the rear door barred from the outside. He says when he opened the rear door all he could see was an “advertising hoarding”. He tried kicking and shoving it, but there was no give in it. His evidence is that the container was in place for up to a year before being removed, and the “advertising hoarding” remained in place for the same period of time. At some point later he noticed a fence constructed around the rear door to no.8 which was constructed without his permission. A letter from the solicitors for the plaintiff to the solicitors for the defendant dated 3 October 2011 states that the container as at that date had not been removed. By its pleading in reply dated 29 November 2011 the plaintiff asserted that the barrier across the door had been removed. A subsequent letter from the solicitors for the plaintiff to the solicitors for the defendant dated 10 April 2012 notes that the defendant has erected a fence around the rear door to no.8.

In cross examination Mr Lu agreed that he took away the fencing around the rear door on the day he and the fencer attended and remembered, when reminded, that there were dogs on site. He said that he could only see the container from the front of the premises so did not know how far back it reached. He said that what he observed when he opened the rear door to no. 8 was “ a sheet metal type wall directly blocking the doorway with no light or no gaps”.[171] In answer to a question from me as to what caused him to describe this object as an advertising hoarding, he said he did so because it was a thin sheet of metal with writing on the inside, which he assumed from its size was advertising. He did not see it at any time from the other side.[172] He denied the suggestion put to him in cross examination that at this time the rear door to no. 8 was in a fairly dilapidated state, and said that it was a brand new door, replaced by the plaintiff before the tenancy of Mr Brown, which commenced in August 2010.
[171]T 155 ll 7-8
[172]T 158 ll 15-25

Mr Adrian Darby’s evidence is that there were two attempts at the hands of the plaintiff to put up a fence in March 2011. On the first occasion, the fencers removed the fence around the rear door to no. 8 (which he described as the cyclone wire fence); he was called to the site by his tenant; one of the owners of no. 8 was called; he, Mr Darby, called the police; and the police asked the fencers to leave. On that occasion, Mr Adrian Darby locked the gates again, so I infer the gate attached to the wall of shop 8 was not removed at that time. The fencers returned on the second occasion; Mr Darby was called to the property by Mr Bloomer his tenant again; called the police again; and after the fencers left he put a container on the land to stop anything happening when he wasn’t around. The photographs show the gate affixed to the wall of shop 10 padlocked to the cross arm of the container. In Mr Darby’s evidence the container was 20 feet long. The photograph marked up by Mr Darby to show how far back along the wall of shop 8 the container extended, which became Exhibit J, indicates it finished well short of the rear door.

Mr Adrian Darby says that the rear door to no. 8 was “pretty rotten” at this time, and “it wouldn’t have taken much to fall over”. He says he was asked by his tenant Craig (Bloomer) how he, the tenant, was going to keep his dogs in because he was concerned they may get into shop 8 and hurt someone, and he, Mr Darby, said to him “Just do what you have to do until we sort this out” or “you do what you have to do to make it safe” . He was then told by Mr Bloomer that he had affixed an old sign across the back door to prevent the dogs being able to get in. Mr Adrian Darby says he himself did not fix the sign to the door, nor see it there.[173]
[173]T 393-394

Both Mr Adrian Darby and the defendant, his father, agree that after the defendant moved to Tasmania, Mr Adrian Darby was free to manage the defendant’s land as he saw fit.[174] The defendant was away overseas from March 2011 to September of that year. His evidence is his son rang him to tell him about the plaintiff’s attempt to erect the fence at the time it occurred. He saw the container shortly after he got back from overseas. He said in chief that he first became aware of what he described as a board over the rear door of no. 8 after his tenant left, which he said was at the end of 2011 or beginning of 2012. About two months later, after cleaning up after the tenant, he caused the container to be removed, rehung the front gate affixed to the wall of no. 8, removed the board across the rear door to no. 8 and built a paling fence around that door, which he said was in the same location as the fence earlier constructed by Mr Michael Lu. The defendant’s evidence is that he did all these things within a week of each other.
[174]T 405 (Adrian Darby); T 255-256, 257-258 (the defendant)

His evidence is that the “board” across the rear door looked like waterproof chipboard or flooring board and there was a gap at the top and the bottom through which he could see the door. He said this was very weathered and broken. The board had been affixed by roofing bolts into the architrave of the door. At the time he rehung the gate he noticed that a new door had been fitted to the rear door of the plaintiff’s shop and so removed the board.[175]
[175]T 224-229

In cross examination the defendant was taken to sworn answers he had given to interrogatories about the removal of the container and advertising sign. His answers, in October 2012, were that the container was removed on 1 May 2012 and on several earlier dates, and the sign was also removed on 1 May 2012. I do not consider these dates can be correct. In relation to the sign, they conflict with the plaintiff’s own assertion in its reply that the sign had by that date (29 November 2011) been removed. The defendant’s evidence is quite at odds with this, but the plaintiff cannot go beyond the case it pleaded. In relation to the shipping container and the fence, the dates given by the defendant are later than the letter dated 10 April 2012 from the solicitors for the plaintiff complaining, amongst other things, about the erection of the paling fence around the rear door. Further, it is nonsensical to say the shipping container was removed on multiple days.

By comparing the defendant’s evidence in chief and the date of the solicitor’s letter, and limiting the plaintiff’s case to the case it asserted in its pleading, I find that the barrier across the door had been removed by 29 November 2011 and the defendant removed the shipping container and erected the paling fence at some point after his tenant left at the end of 2011 or beginning of 2012 and before 10 April 2012.

Plaintiff’s claims of trespass

Four possible trespasses by the defendant were alleged or sought to be alleged by the plaintiff. In its statement of claim the plaintiff alleges trespass by placement of a car and then the shipping container on the land adjacent to the plaintiff’s shop.[176] The shipping container was alleged in the particulars to that plea to be 8’ wide and 40’ in length.
[176]Complaint and statement of claim dated 5 September 2011 as filed in the Magistrates’ Court at Sunshine, at paragraph 8.

I granted leave to the plaintiff at the commencement of the trial to amend paragraph 8 of its statement of claim to add a further particular, constituting the third trespass alleged. The added claim is that “the defendant through his servants and agents placed an advertising billboard across the rear door of the plaintiff’s premises in March 2011.” The assertion that this act constituted a trespass had been at issue between the parties at least from the service of the plaintiff’s reply, which is dated 29 November 2011. That reply asserts in paragraph 2, in response to a plea in the defendant’s defence that the door was no longer blocked, that what is described in the reply as a “billboard” covering the door to the toilet was removed at some date after issue of the plaintiff’s proceedings. This claim of trespass accepts that the defendant himself did not personally obstruct the door. It does not, however, allege who did, nor does it plead the facts supporting the asserted agency.

The plaintiff also sought to adduce evidence from the defendant in support of a fourth claimed trespass, being the trespass constituted by construction of that portion of the paling fence put up by the defendant around the rear door of shop 8 that is shown on Exhibit A as crossing the plaintiff’s land. I disallowed that evidence on the basis that such a trespass was not pleaded, and refused leave to amend the statement of claim to plead it, broadly because of the then late stage of the trial.[177]
[177]T 276-294

Relevant law of trespass

The parties addressed me at some length in relation to damages in trespass, but did not address me in any detail as to the constituent elements of trespass. The authors of a leading Australian text state that a person has trespassed on the land of another if he negligently or intentionally enters, or remains upon, or directly causes any physical matter to come in contact with land in the possession of that other.[178] Trespass is actionable in itself i.e. it is not necessary to show that the person who suffered the trespass has suffered any actual loss as a result.[179]
[178]Balkin and Davis, Law of Torts, 4^th edn Lexis Nexus Butterworths Australia 2009 at [5.1]. In particular, see [5.3] for instances of physical matter coming into contact with another’s land as a trespass, including driving nails into the wall of the other’s building.
[179]Plenty v Dillon (1991) 171 CLR 635

The defendant’s evidence that he was overseas at the time the shipping container was placed next to shop 8 and the door blocked, is not disputed. Accordingly, the issue arises as to whether he is liable in trespass for these acts if committed by others. The defendant’s case is that the rear door to shop 8 was barred not by the defendant or Mr Adrian Darby, but by the defendant’s tenant. The plaintiff’s case is that I should infer that in fact the act was done by Mr Adrian Darby, who was for that purpose his father’s agent. There was evidence from both the defendant and Mr Adrian Darby that Mr Adrian Darby was authorised in a general way to manage the defendant’s land. The plaintiff did not, however, plead the basis on which this agency is said to be exist. More particularly, the plaintiff did not plead the basis on which any agency was sufficient for the purposes of attributing responsibility in trespass (as opposed to, for example, contract) to the defendant for the acts of another, and made no submissions in that regard.

Vicarious liability for the torts of others is usually confined to liability of an employer for the tortious act of his or her employee, the critical distinction being between employees and independent contractors. According to the authors of the same text noted above, liability for the tortious acts of agents is limited.[180] In the specific case of trespass, those authors state that it is insufficient to establish liability in a person that the trespass is committed in that person’s interests and he takes the benefit of it, unless he personally took part or authorised it.[181] In support of that proposition, the text cites Doolan v Hill.[182] In that 1879 case, the court held that a person was not liable for the trespass of another unless he was present at and took part in the trespass, or “authorised or instigated others to commit it for him”.
[180]Ibid, at [26.12]
[181]Ibid, at [5.10]-[5.11].
[182](1879) 5 VLR 290 (L)

What is sufficient to make a person liable in trespass for the act of his independent contractor was considered by the High Court in Stoneman v Lyons[183] (“Stoneman”). In that case, the High Court held that an owner of land was not liable for the trespass onto the land of a neighbour committed by his builder, who was an independent contractor. Mason J, in the majority, held that:

For the purposes of trespass the act of an independent contractor does not become the direct act of the defendant unless he orders to be done the act which constitutes the trespass, some act which comprises that act or some act which leads by physical necessity to the trespass.[184] (emphasis added)

[183](1975) 133 CLR 550

[184]Ibid, at 573-574

In reaching this conclusion, Mason J relied upon the discussion by Kitto J of liability for trespass in Darling Island Stevedoring and Lighterage Co Ltd v Long[185], a case which concerned not an independent contractor but master and servant. Kitto J there exposed that liability for what he described as “the old action of trespass” was confined to instances of the direct application of force. Accordingly, liability of a master for the act of his servant in trespass was limited to acts done at the master’s specific command- it was insufficient to show that the act was done in the course of the work for which the servant was employed. Thus while Mason J in Stoneman may arguably have extended the ambit of liability for trespass beyond the acts of a servant, to the acts of an independent contractor, he held that this extension is subject to the same narrow set of circumstances. A specific order is required, not merely an act within the general scope of authority. As Stephen J, also in the majority in Stoneman, observed, if a person would not be liable for the trespass committed by his employee because he did not order the act in question, he could not be liable for the same act committed by an independent contractor.[186]
[185](1957) 97 CLR 36, at 64-65.
[186] Stoneman, op cit, at 562.

I was not referred by either counsel to any authority in relation to the liability of a landlord for a trespass committed by his tenant. It seems to me unlikely that any liability of a landlord could exceed that of a person for the act of his or her independent contractor.

Applying these principles to these facts, I conclude that it would be necessary for the plaintiff to show that the defendant directed his son, or his tenant, to obstruct the rear door to the plaintiff’s shop, or to undertake some act that necessitated that obstruction, for him to be liable in trespass for that obstruction.

Findings and conclusions in relation to trespass
Car and shipping container

I accept the evidence of Mr Adrian Darby and his father as to the size of the container, in particular that it was 20 feet long, and ended at a point substantially before the rear door to shop 8. There is no evidence to the contrary. Accordingly, I find that the length of the container was contained within the length of the disputed land (shown on Exhibit A as 11.5 m in length). It was placed against the side wall of shop 8, and thus it extended in width across the disputed land and, if wider than 1.86 m, onto the defendant’s land. Accordingly, given my findings that the plaintiff’s title to the disputed land had been extinguished by March 2011 these claims for trespass fail.

Barrier across the rear door to shop 8

There is no direct evidence of personal conduct or by observation as to who placed the barrier across the door. The defendant’s evidence is that he was overseas at the time, and the plaintiff does not cavil with this. Mr Adrian Darby says it was not him, but the tenant, on the basis of the tenant’s expressed concerns as to stopping his dogs from getting into the shop, and what he subsequently told Mr Adrian Darby he had done. This contention is supported by the evidence of Mr Adrian Darby and the defendant that the door to the shop was dilapidated at this time, and so in the absence of the fencing around the door, removed by the contractor, there was a risk of the dogs entering the shop. The defendant says that a tenant is not without more the servant or agent of the landlord defendant, and the plaintiff has failed to prove a trespass by the defendant.[187]
[187]Defendant’s closing submissions dated 28 May 2013 at [56]-[57]/

The plaintiff’s case is that it was Mr Adrian Darby who affixed the sign to the door, and, on the basis of evidence that he was free to manage the land as he saw fit, he did so as his father’s agent. The plaintiff says that the Court should reach this conclusion on the basis of an adverse inference against the defendant drawn on the basis that Mr Bloomer the tenant was not called, and no reason was advanced to explain his non appearance.[188]
[188]Plaintiff’s (Closing) Submissions dated 31 May 2013 at [57]-[58].

It is correct that no explanation was afforded for the failure to call Mr Bloomer, as opposed, for example to the absence of the co purchaser with the defendant of the land. In the broadest of terms, this may lay the foundation for an inference that his evidence would not have assisted the defendant. The difficulty lies in determining in what respects, and whether such an inference entitles the Court to go one step further and positively find that Mr Adrian Darby’s evidence is false. There were a number of areas where Mr Bloomer’s evidence may have been of assistance to the defendant- for example, as to locking of the gates; the nature of internal fencing; and the attempted construction of a fence by the plaintiff in March 2011- in addition to the question as to who placed this barrier across the rear door of shop 8. Mr Bloomer’s evidence in relation to the earlier matters would have been corroborative only. By contrast, in relation to who placed the barrier across the door, it was critical, as it was said in the defendant’s case that it was he, Mr Bloomer, if anyone, who had committed a trespass by so doing. Thus, the absence of his evidence in this regard may lay a stronger foundation for an inference that his evidence would not have assisted the defendant. That is not sufficient, however, without more for me to reject Mr Adrian Darby’s evidence that he did not fix the sign to the door and find that he did. The cross examination of Mr Adrian Darby in this respect was brief and he maintained his evidence that he did not fix the sign to the door personally.

If a finding as to who, other than the defendant, affixed the sign was critical I would go on to consider the conflicting evidence of the defendant and Mr Adrian Darby on the one hand, and Mr Michael Lu on the other, as to the state of the door. This evidence bears on whether or not an additional barrier was necessary to prevent entry by the tenant’s dogs once the external fence had been removed. In my view, it is not necessary to undertake this exercise. Even if it was Mr Adrian Darby who affixed the sign, it is not pleaded that he was directed by the defendant to do so, or to undertake some act that necessitated the obstruction, and there is no evidence at all to that effect. Similarly, at its highest, the evidence of Mr Adrian Darby is that he permitted the tenant to obstruct the door, and was not there when the tenant did so. In other words, it was not the defendant who permitted the act, but his son; and the act was permitted, not directed or participated in. The plaintiff has not shown that the defendant is liable in trespass for this act, whether committed by his son or his tenant.

I conclude that the plaintiff has failed to establish any trespass by the defendant.

Orders

I will ask the parties to prepare orders in accordance with these reasons, and hear them further in relation to those orders and costs if required. In particular, there was discussion and submissions were made at the trial in relation to the appropriateness of some of the orders sought by the defendant in its second further amended defence and counterclaim filed in court on 22 May 2013. I ask the parties to pay particular regard to those matters in formulating orders in accordance with these reasons.

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[2013] VSC 484

6 September 2013