Land Management Corporation v Dalaya - [2007] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
LAND MANAGEMENT CORPORATION v DALAYA
[2007] SASC 54
Judgment of The Honourable Justice Anderson
26 February 2007
REAL PROPERTY - GENERAL PRINCIPLES - EJECTMENT - TITLE - RIGHTS BASED ON POSSESSION
Appeal against an order of possession - Appellant was not able to give a reason why he was entitled to possession of the land before the Master - whether the appellant had a right to possession pursuant to the Real Property Act 1886 (SA). Held: No right to possession of the land - order for possession.
Public Corporations Act 1993 (SA); Real Property Act 1886 (SA) s 69, s 80, s 251, referred to.

LAND MANAGEMENT CORPORATION v DALAYA
[2007] SASC 54
Magistrates Appeal
ANDERSON J
Background

On 29 August 2006 Mr Dalaya was served with a summons for possession of land situated at Lot 101 Coventry Road. The registered owner of the land is Land Management Corporation. (“The LMC”). LMC is a public corporation pursuant to the Public Corporations Act1993 (SA). It was registered as the owner of the said land on 7 May 1998. The Land is currently subject to an agreement to lease for cropping and grazing purposes between LMC and three lessees, but not including Mr Dalaya.
At the present time Mr Dalaya is occupying a portion of the land. He keeps animals, rubbish and a caravan on the property and has erected a number of crude structures. Mr Dalaya has not been granted any lease over the land, nor has he entered entered into any agreement or licence with LMC. He submits that he has occupied the land for roughly 22 years. He has no agreement with any of the three lessees.
On 11 October 2006 a Master of this Court made an order for possession in favour of LMC. The Master did not publish any reasons but indicated that Mr Dalaya “could not give any reason why he should be entitled, in law, to continue possession of the land.” The order for possession followed a long history of written notices advising Mr Dalaya that he was required to vacate the premises. This is an appeal by Mr Dalaya against the order made by the Master.
The Appeal
Mr Dalaya appeals against the entirety of the order on two grounds, namely that:
1. Mr Dalaya was not granted an adjournment to obtain legal advice prior to the making of the order.
2. Mr Dalaya had a right to possession as he has been on the land for over 20 years.
I heard argument on 29 January 2007. Mr Dalaya appeared in person. He submitted that LMC did not have a right to recover the land as he has maintained possession of it for over 22 years and that in that time no action had been taken to recover the land. Prior to the hearing Mr Dalaya provided, as part of his submissions, a letter and copies of sections of various Acts on which he relied, including s 69 and s 80A of the Real Property Act 1886 (SA) (“the Act”). He also provided a copy of some correspondence from the City of Munno Para to himself dated 26 August 1986.
The Statutory Provisions
Section 69 of the Act creates a statutory presumption that the title of a registered proprietor is indefeasible except in the limited circumstances contained within the subsections. Mr Files, counsel for the LMC, submitted that the onus was on Mr Dalaya to prove that he fell within one of the subsections so that he could claim some sort of possessory title which could then be registered and a certificate issued, pursuant to s 80A of the Act.
Mr Dalaya relied on s 69(f) of the Act. It provides that:
any certificate issued upon the first bringing of land under the provisions of any of the Real Property Acts, and every certificate issued in respect of the said land, or any part thereof, to any person claiming or deriving title under or through the first registered proprietor, shall be void as against the title of any person adversely in actual occupation of, and rightfully entitled to, such land, or any part thereof at the time when such land was so brought under the provisions of the said Acts, and continuing in such occupation at the time of any subsequent certificate being issued in respect of the said land;
Arguments on Appeal
The LMC argued that if Mr Dalaya was to succeed in this appeal, under s 69(f) of the Act, he must show that he was adversely in occupation of the land, and actually entitled to it when the land was first brought under the provisions of the Real Property Act 1886 (SA). Mr Files submitted that his searches showed certificates of title under the Act going back to the 1960s. He argued that even if Mr Dalaya’s assertions were accepted, his occupation of the land would not satisfy the statutory requirement that the occupier had to be in actual possession of the land when the land was first brought under the provisions of the Real Property Act. He further submitted that the respondent had not granted the appellant any lease or licence which otherwise might permit Mr Dalaya to remain on the land.
Mr Dalaya did not provide any evidence of when the land was first brought under the provisions of the Act or the nature of his alleged possessory title. He submitted that he had initially leased the land from a man named Kevin Burden and that on that basis he should be permitted to remain on the land. It was submitted that this took place roughly 22 years ago.
The respondent also submitted that, if Mr Dalaya did have any interest in the land he could apply for a certificate of title pursuant to s 80A. If the Registrar-General did not reject the application, notice of the application would be published in a prescribed form (s 80E). The LMC would then have the ability to lodge a caveat pursuant to s 80F of the Act forbidding the granting of the application.
Mr Dalaya has not applied to the Registrar –General for a certificate based on possession. He submitted during the course of argument, that he had enquired at the Lands Titles Office about the time period within which the LMC was required to bring an action. Mr Files submitted, that in any event, Mr Dalaya would not succeed as the LMC would simply be able to produce its certificate of title, which is indefeasible except as provided by s 69 (a)-(i). It was also submitted by the respondent, that pursuant to s 251 of the Act, Mr Dalaya could not acquire a title by adverse possession except as provided by Part 7A of the Act and he had chosen not to avail himself of that procedure.
In addition LMC argued that the Master had not erred by failing to grant Mr Dalaya an adjournment to seek legal advice on the basis that Mr Dalaya had been given over 300 days notice prior to the summons having been issued during which he could have sought legal advice. Copies of various letters were exhibited to the affidavit of Adam Miller sworn on 30 August 2006. They showed a history of correspondence advising Mr Dalaya that he was required to vacate the land.
Mr Dalaya did not provide any explanation as to why he had not sought legal advice prior to the hearing before the Master. He submitted that he had since sought legal advice but that the advice had been not to continue with the appeal. I do not believe that Mr Dalaya has suffered any unfairness nor do I believe that the Master should have granted Mr Dalaya an adjournment on this basis. The appellant has had ample opportunity to seek legal advice, if he so chose.
Following argument, I invited Mr Dalaya to file an affidavit should he want to, detailing some of the allegations he made during the course of his submissions. The documents filed by him were not accepted in affidavit form by the registry as they were defective and did not comply with the rules regarding the filing of affidavits. I have considered the documents as further submissions by Mr Delaya as distinct from affidavit evidence. The respondent filed a further affidavit in response denying the allegations. I do not believe that the allegations made by Mr Dalaya are relevant to the merits of this appeal. Even if they were the subject of a properly filed affidavit the matters raised by Mr Delaya are not helpful in deciding the issues on appeal.
Conclusion
Mr Dalaya has failed to establish any right to stay on the land in question. The purpose of s 69(f) is to provide an exception to the presumption of the indefeasibility of title and to allow for persons who might have had a right prior to the time when the land was first brought under the provisions of this Act. Any lease that Mr Dalaya may have had in the past does not give him a right to possession. He is not entitled to the grant of any certificate of title. I would dismiss the appeal. I remove the stay I granted on 14 December 2006 and restore the order made on 11 October 2006 by the Master.