Lowe v Phillips
[2010] VCC 1021
•30 July 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-03879
| TERRY KEVAN LOWE | Plaintiff |
| v | |
| LINSDAY GRANT PHILLIPS and | Defendants |
| NORMADIAH PHILLIPS |
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| JUDGE: | Judge Howie |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12-16, 19-23, 27 July 2010 |
| DATE OF JUDGMENT: | 30 July 2010 |
| CASE MAY BE CITED AS: | Lowe v Phillips |
| MEDIUM NEUTRAL | [2010] VCC 1021 |
| CITATION: |
REASONS FOR JUDGMENT
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Catchwords: adverse possession of land; sections 8, 9, 14 and 18 Limitation of Actions Act
1958.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Squirrell | MW Law |
| For the Defendants | Mr R. Edmunds | Dellios West & Co Solicitors |
| HIS HONOUR: |
1 Title Volume 7277 Folio 382, being Lot 216 on Plan of Subdivision 006036. The
The plaintiff is the registered proprietor of the land described in Certificate of side of Williams Road on the corner with Dawson Street. It is a large suburban block with a frontage of 125 links (or 25.15 metres) on Williams Road and a depth of 200 links (or 40.23 metres) and has a downhill gradient to the south and south east. The land has been divided into two parts with a weatherboard dwelling facing Williams Road on the northern portion of the block and a newer brick dwelling facing Dawson Street on the southern portion of the block. Mr Lowe lives in the brick dwelling and his former partner and their children live in the weatherboard house.
2 The defendants are the registered proprietors of the adjoining land to the west, being the land described in Certificate of Title Volume 8182 Folio 556, being Lot 215 on Plan of Subdivision 006036. This property is known as 17 Williams Road and also has a frontage of 125 links (or 25.15 metres) on Williams Road and a depth of 200 links (or 40.23 metres). It is also a large suburban block of land with a weatherboard dwelling. Also located on the land are a shed towards the rear, two disused motor vehicles and several piles of bricks, bluestone blocks and sheets of galvanised iron. There are a number of fruit trees on the land mostly located on the eastern side – a feijoa, mandarin and lemon near the front, another feijoa further to the south, a fig, a mulberry, and further south an almond and a plum.
3 For the purpose of these reasons it is assumed that the relevant section of Williams Road runs east-west and that both properties are on the south side of the road with a northern frontage to Williams Road.
4 Both the plaintiff and the defendants purchased their respective properties in early 1989. In September 2008, some 19 years after purchasing the land, the plaintiff commenced proceedings claiming that he had occupied and used a strip of land on his western boundary to the exclusion of the defendants and that by reason of section 18 of the Limitation of Actions Act 1958 the title of the defendants to the disputed land had been extinguished. The strip of land claimed by the plaintiff is described in the statement of claim as the land shown on the plan annexed (a survey plan prepared by a surveyor, John Raymond Edwards, on 15 February 1994). The claimed land extends the 40.23 length of the plaintiff’s western boundary and the defendants’ eastern boundary with a width of 0.78 metres at the northern end and a width of 1.70 metres at the southern end. This strip of land is outside the plaintiff’s land as described on his Certificate of Title and on the defendants’ land as described on their Certificate of Title. The plaintiff claims this strip of land by adverse possession. He claims that at least since 1989, when he and his father purchased the land, the western boundary of his land and the eastern boundary of the defendants land was divided by a chicken wire and star picket fence located further west than the boundary shown on the Certificate of Title and that he has been in possession of that land since then.
5 The acquisition of land by adverse possession depends on the operation of the Limitation of Actions Act 1958. Section 18 provides that at the expiration of the period prescribed by the Act for any person to bring an action to recover land the title of that person to the land shall be extinguished. Section 8 provides
that no action shall be brought to recover land after the expiration of fifteen
years from the date on which the right of action accrued to him. Section 9(1)
provides that where the person bringing an action to recover land has been in
possession and has while entitled thereto been dispossessed or discontinued
his possession the right of action shall be deemed to have accrued on the date
of dispossession or discontinuance. Section 14(1) provides that 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
(referred to as “adverse possession”).6 As the learned author of Voumard The Sale of Land at [10.290][1] succinctly explained:
[1] 6th edition
The statute does not provide positively that in certain circumstances a title is conferred on a person who has been in possession of another’s land for 15 or even 30 years. Its operation in conferring a title is merely negative, and it rests on the principle that possession of land is prima facie evidence of ownership in fee and that that prima facie evidence becomes absolute when once the right of every other person to challenge it has been extinguished. A person in possession of land in the assumed character of owner and exercising the ordinary rights of ownership has a good title against all the world except any person who can show that he or she is the rightful owner or that he or she has a better title derived from an earlier possession. ..
The general scheme of the legislation is that if certain conditions are fulfilled in respect of land, then at the expiration of the stipulated period the title of the true owner of the land is extinguished. Once the title of the dispossessed former owner is thus extinguished by operation of the statute, the question of the ownership of the land will rest on the common law principles referred to above, and the title of the new owner, gained by the fact of possession, will rest on the infirmity of the right of others to eject her or him. The effect of the statute is to turn into a good title one which was at first bad.
8 claimed land for the period of fifteen years. In the absence of evidence to the
contrary, the defendants as the registered proprietors of the land are deemed
to be in possession of the land, as the persons with the prima facie right to
possession. The plaintiff must prove that he has had both factual possession
of the disputed land and the intention to possess it. In order to prove factual
possession the plaintiff is required to prove that he has had exclusive physical
control of the land. The question of what acts constitute a sufficient degree of
exclusive physical control depends on the circumstances, in particular the
nature of the land and the manner in which land of that nature is commonly
used or enjoyed. The requisite intention is an intention in his own name and
on his own behalf to exclude the world at large, including the defendants.
7 March 1989 and remained in possession of it until 22 March 2004 (15 years
later) and subsequently. It is common ground that the plaintiff and his father
became the registered proprietors of the land at 15 Williams Road on 22
March 1989 and were in possession of the land described in their Certificate of
The plaintiff’s case is that he came into possession of the disputed land on 22 proprietors of 17 Williams Road on 21 April 1989 and were in possession of the land described in their Certificate of Title from that date. Having regard to the close proximity of the respective dates of possession of the two properties, an issue concerning the position of the respective predecessors in title does not arise. The plaintiff’s case is that the defendants have been dispossessed of the disputed land since 21 April 1989 and their right of action to recover the land accrued on that date.
The plaintiff has the onus to prove that he has been in possession of the and the intention to possess.[2]
[2] In Whittlesea City Council v Abbatangelo [2009] VSCA 188 at paragraphs [4]-[6] the Court of Appeal has comprehensively summarised the principles of law relating to adverse possession. It has not been necessary to set out these principles at length for the purposes of this judgment.
9 The evidence in this case occupied ten sitting days. Twelve witnesses were called, but Mrs Phillips became unwell when giving evidence, and it was agreed by counsel that no reliance would be placed on her evidence, and no comment made about her not completing her evidence. The surveyor Mr Edwards was not called as a witness. Both counsel advised that he was interstate.
The evidence of Terry Kevan Lowe
10 The plaintiff Terry Lowe purchased the property at 15 Williams Road with his father on 22 March 1989. They purchased it at auction. Prior to the auction they inspected the property. It contained a weatherboard house, a double garage, two bungalows and another garage facing Dawson Street. The property was bounded by a cyclone post and wire fence on the northern boundary with Williams Road with a gap for the garage, a paling fence on the eastern boundary with Dawson Street with a gap for the garage, a star picket and chicken wire fence approximately 6 feet in height on the southern boundary and a star picket and chicken wire fence on the western boundary between his property and the adjoining property. Mr Lowe’s evidence was that approximately 25 metres of the fence on the western boundary from the southern corner was approximately 6 feet high and from that point to the northern corner it was approximately 3 feet high.
11 Mr Lowe was 19 years of age when he purchased the property with his father. He was a carpenter/builder and their intention was to develop the property. At the time of the purchase (Mr Lowe could not recall whether it was before or after the auction) he and his father measured the length of the Williams Road frontage with a tape measure starting at the fence post on the north-east corner, and found that the distance was longer than that shown on the Certificate of Title by approximately 500 to 600 mm. The property they purchased and the adjoining property on the western side were each large blocks of land. Mr Lowe recalled that there were a “a fair number” of trees along the eastern boundary of the adjoining property.
12 After settlement Mr Lowe and his father leased the house and each of the bungalows on the property to three different tenants. The lease of each of the tenants also included one of the garages. Mr Lowe engaged Murray Wallis to mow the grass on the property. One of the tenants was known to Mr Lowe and he visited the property occasionally. In 1993, approximately 12 months prior to his marriage on 8 March 1994, he moved into one of the bungalows.
13 In February 1994 Mr Lowe engaged a surveyor John Edwards to survey his land as he intended to build a second dwelling on the land. Mr Edwards surveyed the property, put survey pegs on the north eastern corner, the north western corner, and the south western corner, and marked the south eastern corner with a paint mark on a stone fence. These pegs were placed on the correct boundary of the land as shown on the Certificate of Title. Mr Edwards prepared a survey plan which he endorsed with a certificate “that this plan correctly represents the occupation on the 15th day of February 1994”.[3] Mr Lowe removed the survey pegs placed in the ground by Mr Edwards. He did this in order to conceal from his neighbours, Mr and Mrs Phillips, the location of the correct boundary and the fact that the wire fence between the two properties was not on the correct boundary.
[3] Exhibit 3
14 Mr Lowe’s father died and on 29 September 1995 Mr Lowe was registered as the sole proprietor of the land.
15 In 1995 Mr Lowe demolished one of the bungalows and the garage facing Dawson Street and relocated the other bungalow on the block. This was preparatory to the building of the new dwelling on the southern portion of his property. In 1996 he excavated the southern portion of the property, removing the slope and levelling the land in preparation for the building of the second dwelling, which he commenced in 1997. The building did not proceed rapidly and it took to 2000 before it was completed to lock up stage, although it still had no kitchen.
16
property into a northern portion and a southern portion. His intention was to
lodge the survey plan in support of an application for a subdivision. The
survey plan dated 23 December 1997 showed the western boundary of each of
In 1997 Mr Lowe had Mr Edwards prepare a survey plan dividing his a depth of 24.86 metres and the southern portion a depth of 15.37 metres. The application for subdivision has not yet been lodged. Mr Lowe said that he still intended to proceed with an application for subdivision. 17 In 1999 or 2000 Mr Lowe laid railway sleepers to create a garden bed immediately adjacent to the chicken wire fence. It was approximately one metre in width and three and a half metres long and located to the side of the weatherboard house. His wife planted a lavender bush in the garden, but it was later removed because it attracted bees and they were concerned that the children would be stung. Photographs 42 and 50,[5] said to be taken in late 2003, show the timber sleepers and garden bed.
[5] Exhibit 7
18 In 2000 Mr Lowe requested the surveyor, Mr Edwards, to survey the dividing boundary between the northern and southern portions of his land for the purpose of the proposed subdivision. In carrying out the survey Mr Edwards placed three survey pegs in the ground to mark the western boundary of the land as shown on the Certificate of Title, one at the northern end, one in the middle and one at the southern end. Mr Lowe removed each of the pegs from the boundary as marked and repositioned each of them close to the chicken wire fence. He did this because he did not want Mr Phillips to see where the correct boundary was located. He frankly admitted that his purpose was to deceive Mr Phillips about the location of the true boundary and conceal the true boundary from him.
19 Shortly after doing this in 2000 Mr Lowe had a conversation with Mr Phillips concerning a boundary fence. Mr Phillips questioned him about the position of the pegs and asked, “Is that where the boundary is?” Mr Phillips was
boundary. He was also aware that the pegs had been moved, and said to Mr
concerned that the chicken wire fence was not located on the correct pegs had not been placed on the boundary of their properties, but positioned to enable him to “get a line” on the fence between the northern and southern portions of his land. Mr Lowe volunteered that in misrepresenting the purpose of the pegs as positioned by Mr Edwards he lied to Mr Phillips. Mr Phillips said to him that he had moved the pegs from the correct boundary line. From 2000 onwards there was disagreement between Mr Lowe and Mr Phillips about the erection of a fence on the boundary of their adjoining properties.
20 In 2000 Mr Lowe constructed a timber retaining wall along the southern portion of his property on the western side. The wall is approximately 15 metres in length and varies in height from approximately 1.2 or 1.4 metres at the northern end to 0.8 metres at the southern end. It was built approximately 0.8 metres west of the western boundary of Mr Lowe’s property as shown on the Certificate of Title. His evidence was that he had no discussion with Mr Phillips about this encroachment into his land, but that Mr Phillips said that he might want to erect a garage at some later stage and the removal of soil might require him to have deeper footings. He said that he told Mr Phillips that when the time came he would pay for the extra concrete if it was necessary. He did not build the retaining wall on the fence line as it was necessary to install a 100 mm drainage pipe covered by scoria behind the wall and he did not want the existing fence to fall over.
21 erection of a boundary fence. Mr Lowe wanted a new paling fence. Mr
Phillips proposed the use of second hand material in order to save money. Mr
In 2002 there was discussion between Mr Lowe and Mr Phillips about the more expensive. There was also discussion about the location of the boundary for the fence. Mr Phillips said, “We’ve got to work out the boundary”. Mr Lowe brushed him off, asserting that it had to go where the chicken wire fence was located. Mr Phillips said, “The boundary could be out”.
22 On 28 November 2002 Mr Lowe obtained a quote for a fence and served it on his neighbours. Mr Phillips was concerned that longer posts would be required in the area of the retaining wall and Mr Lowe agreed to pay for the longer posts. They were unable to agree on the type of fence and a fence was not built.
23 In early 2002 Mr Lowe constructed double gates between the western side of the house and the chicken wire fence. The gates were located towards the front of the house in a position shown in photograph 47. The gates were hung on two vertical posts. The western post was positioned up against the chicken wire fence. In 2003 he installed a garden shed in the space between the western side of the house and the chicken wire fence. The shed was close to the double gates. The western wall of the shed was approximately 100 mm from the chicken wire fence. There was no complaint from Mr or Mrs Phillips about the erection of the double gates or the installation of the garden shed. Mr Lowe did not discuss with them the location of the gates or the shed.
24 At about this time, in 2002 or 2003, a plum tree on the Phillips property fell over and into the southern part of Mr Lowe’s property causing several star pickets and part of the chicken wire to lean over. Mr Phillips removed the fallen tree. Throughout the period from 1989 onwards the condition of the chicken wire fence was “fairly good” apart from where the fallen tree had
partially pushed the fence over.
25 In 2006 he had further discussion with Mr Phillips. Quotations were obtained by him and provided to Mr Phillips. Mr Phillips asked, “Where is the fence to go?” and Mr Lowe replied, “Where the old fence is.” They could not agree.
The issue was never settled. It had gone on for years, sometimes with heated exchanges, since 2000.
26 In May 2008 Mr Phillips pulled down part of the fence towards the rear of the properties, removing the chicken wire and star pickets. In August 2008 he removed the remainder of the fence, including a post on the northern boundary from which the fence was strung. He also dismantled that part of the double gates that was on the disputed land, and that part of the garden shed that was on the disputed land.
27 Mr Lowe gave evidence of the contents of the photographs in exhibit 7.
• Photograph 27 shows star pickets from the side fence at the front. •
Photograph 28 – taken in May 2008, showing star pickets on the boundary.
•
Photograph 29 – taken in mid 2008, showing junction of front fences, and side gates between the house and boundary.
•
Photograph 30 – taken in August 2008, showing front fence with pickets removed by Mr Phillips and yellow line marked by him and hole near where the starter post for the side fence was located.
•
Photographs 30(a) and 30(b) – show the arch of concrete garden edges at the front of his property.
•
Photograph 34 – taken after August 2008, showing fence pickets, feijoa tree and remains of shed dismantled by Mr Phillips.
•
Photograph 36 – showing the same area before the shed was dismantled.
•
Photograph 37 – taken prior to 2008, showing the chicken wire of the fence attached to the star picket; the same fence that was there when Mr Lowe when he bought the property.
•
Photograph 38 – showing star pickets of the side fence at the front and sleepers which formed the border of a garden bed.
•
Photograph 39 – taken in 2003, showing the side fence at the rear, in an area thick with long grass, the top of the retaining wall and the lattice-topped fence.
•
Photograph 40 – taken late in 2003, showing the same features relating to the side fence at the rear.
•
Photograph 41 – taken after the paling fence was erected at the back of the properties in 2004/2005.
•
Photographs 42, 44, 50 – taken in late 2003, showing the area where the side fence at the rear joined the side fence at the front, the garden bed and garden shed.
•
Photographs 45 and 46 – showing the side boundary fence at the rear.
•
Photographs 48, 49, 52(e), 52(f) – taken in late 2003, showing the back yard of the Phillips’ property.
28 In cross examination Mr Lowe was unsure whether he had measured the frontage of his property before or after settlement. He was aware that the length of the front fence and the location of the side fence on the western side
was, as he put it, “in our favour”. He knew that the fence line was in their
favour, that they were not “short of land”, but he was not exactly sure by how
much the location of the fence line was in their favour. When he moved the
survey pegs put in place by Mr Edwards he moved them to the fence line.29 The relocation plan was prepared by Mr Edwards in 1994 as he wanted to put a unit in the back yard. It did not require a subdivision. He obtained a planning permit in 1995/1996 and started excavating in 1996. The excavation at the front as shown in photograph 52(d) was done in 1997. He did not agree that the three vertical star pickets shown in that photograph were the pickets of the dog enclosure on the Phillips’ land.
30 Mr Lowe did not agree that the plum tree on the Phillips’ land fell down after the excavations for the retaining wall and before the retaining wall was erected. He said the tree fell over in 2001/2002 and the retaining wall was done prior to 2001. He did not agree that the tree was on his side of the wire fence. He agreed that Mr and Mrs Phillips picked fruit from the trees on their property, but did not see friends picking fruit. He did not know what the trees were. He did not agree that daffodils grew where the concrete garden edges were located. He said he mowed and whipper snipped up to the fence. He said he saw no sign of spraying or the use of weed killer on the Phillips’ property.
31 He agreed that he had a jack for a 4wheel drive vehicle, a kangaroo jack, but did not agree that he had loaned it to Mr Phillips in 1998 or that Mr Phillips had removed the side fence at the rear in 1998 using the jack to lever up the star pickets. He did not agree that the fence shown in photographs 45, 41 and
40 showed a fence that he had re-erected and which had later fallen down. He
said that he did not re-erect the fence. He denied that he had given Mr
Phillips corrugated iron.32 Mr Lowe said that following each survey by Mr Phillips he removed the survey pegs and did so in order to mislead Mr Phillips as to the location of their boundary. He had Mr Edwards prepare the further survey plan on 23 December 1997 as he intended to have two titles. He initially said that he intended to use Mr Edwards survey plan in support of the application for subdivision, but later he said that he was waiting to see whether to add the extra land to the plan. The survey plan shows the boundary of the land as shown on the Certificate of Title.
33 He said that in discussions that he had with Mr Phillips about construction of a boundary fence Mr Phillip’s position was unswerving that the boundary line was as he currently asserts, that is, the certificate of title boundary. He said that in discussion he fobbed Mr Phillips off. He did not agree that Mr Phillips told him that he had to remove the retaining wall. After Mr Phillips served notices to fence and quotations in February and March 2006, Mr Phillips said he wanted the fence on the title boundary line and they argued about where the fence was going to go.
34 The Darebin Community Legal Centre wrote to Mr Lowe on behalf of Mr Phillips on 20 September 2007. John Pastro & Co wrote to Mr and Mrs Phillips on his behalf on 5 May 2008. By letter dated 20 May 2008 Danny Hick, municipal building surveyor at Banyule City Council, wrote to John Pastro & Co regarding the retaining wall and shed construction and advised that the council would only accept the retaining wall and shed if it was located within the title boundary, or a written agreement with the adjoining property owners to retain the retaining wall and shed as constructed and to amend the allotment titles was submitted. Mr Lowe had no permit or authority to erect the retaining wall or the shed.
35 He did not agree that photographs 52 and 53[6] showed an area by the top of the retaining wall that had been sprayed with weed killer. After Mr Phillips erected a paling fence on the title boundary there was confrontation which led
[6] Exhibit J
to the involvement of police.
36 On 23 May 1996 Mr Lowe obtained a building permit for the proposed dual occupancy. He submitted plans drawn by an architect in 1992 which did not include the disputed land.
37 In 2000, after Mr Lowe moved the pegs put in by Mr Edwards, in the discussion he had with Mr Phillips, Mr Phillips said to him that he (Mr Lowe) had moved the pegs from the correct boundary line.
38 Photographs 52(g) and 52(h) were taken in 2001 after Aaron’s first birthday
Mr Lowe was recalled and three additional photographs tendered. recall seeing a dead tree at the junction of his front fence with the Phillips’ front fence. He did not agree that there was a gap of 500 to 600 mm between the two front fences.
39 Mr Lowe was recalled again at the close of the defendants’ case to have the opportunity to answer matters stated by Mr Phillips in his evidence that had not been put to him in cross examination.
•
After erecting the picket fence at the front as shown in photograph 29 he had no conversation with Mr Phillips about any extension of the picket fence.
•
Between 1994 and 1996 he had no discussion with Mr Phillips about the location of survey pegs or about survey pegs being moved.
•
He had discussion with Mr Phillips in 1996 about erection of a boundary fence. Mr Phillips suggested buying posts and rails and palings and he would put it up. Mr Lowe wanted someone to put up a new fence. He did not agree that Mr Phillips wanted him to put the survey peg back, or that there was any reference to the survey peg. He agreed that between 1996 and 2000 there was discussion about a new fence a couple of times, but not that Mr Phillips wanted him to do something about the survey pegs.
•
He agreed that in 2000 after he put up the retaining wall there was a meeting at the site with Mr Phillips and a representative of Banyule City Council. Mr Phillips asked “the bloke” whether he had a permit to put up the retaining wall. He was “sooking about” the foundations of the garage which he wanted to build at the rear of his property. He said nothing about the wall going into his property. Mr Lowe said that if he had to go deeper with his footings he would contribute to the concrete.
•
The side gates were erected in 2002. They went right up against the chicken wire fence. At no stage was there any discussion with Mr Phillips about the location of the post for the gates.
•
He did not have corrugated iron stacked on the Dawson Street nature strip and did not offer to give corrugated iron to Mr Phillips and Mr Phillips did not carry corrugated iron from Mr Lowe’s property to his property.
The evidence of Clinton Charles Buckwell
40 Mr Buckwell is a friend of Terry Lowe. They have known each other for 20 years. In a period of four or five months from November 1994 to March 1995 he resided with Mr Lowe at 15 Williams Road. He lived in the main house and paid rent. Each day he walked in and out of the property from the back door, then located on the southern side of the house, using the path on the western side. There was a fence on the western boundary between the property of Mr Lowe and the neighbouring property. The fence was made of star pickets with wire through the star pickets and attached chicken wire. It was roughly three feet high on the northern part of the property and six feet high on the southern part. There were no gaps in the fence. It appeared to be an old fence. It was upright, rusty, and not in pristine condition. It was similar in appearance to the fence shown in photographs 37, 39, 40 (save that the fence was upright and not leaning over as shown in the photograph), 41 (with the same qualification), and 42. He never inspected the fence. He observed it as he walked down the side of the house everyday.
41 Mr Buckwell observed several vehicle wrecks and parts, and lots of building material, corrugated iron, piles of bluestone blocks and bricks, in the neighbouring property. The grass was tall and it appeared to be unmaintained. He also observed what appeared to be a dog kennel or chicken coup in the rear (south-east) corner. It was made of chicken wire and was approximately three metres by three metres. There was a gap of 2-3 feet between the wire enclosure and the fence. It was located in the area where the vehicle covered by the blue tarpaulin as shown in photograph 52(f).
42 In cross examination Mr Buckwell said that since ceasing to reside at 15 Williams Road in March 1995, he has visited Mr Lowe there regularly at least once a month. It was put to him that between 1998 and 2002 the fence was taken down and he was asked, “Can you recall that?”. He replied, “No”. He said that he could not recall the fence not being there. The fence was 5 to 6 feet high. The lower part was overgrown. He never walked up and down the fence. He never inspected it. He went to and from the back door, which was located on the back wall of the weatherboard house where he was living, up the side of the house to the front.
fence. He could not recall any retaining wall. Asked to look at photograph
43 He said he saw no indication of grass on the neighbouring property having been poisoned.
The evidence of Murray John Wallis
44 from approximately 1994/1995 to approximately 1997. He did this every
three weeks. He used a whipper snipper for the edges and a motor mower for
Mr Wallis mowed the lawns at 15 Williams Road for 2 or 3 years for Mr Lowe property. He could not recall the height of the fence. He recalled dense shrubbery towards the front of the property that prevented him mowing to the fence line and requiring him to use the whipper snipper there. The growth thinned out towards the rear of the property and he could mow there up to the wire fence.
45 He recalled the neighbouring property as being very unkempt with an amount of debris, bluestone blocks and building materials there. He saw no indication of grass on this property having been poisoned. There was a wire mesh fence three or four feet high in the area shown in photograph PCB 29. The fence shown in photographs PCB 39 and 44 was similar to the fence that was there, except that he did not know how high it was.
46 In cross examination Mr Wallis could not recall whether the lattice fence was on the property. He could not recall seeing piles or stacks of bricks or tin on the neighbouring property. He had no records and was uncertain as to the
years he worked at Mr Lowe’s property. He could not recall the height of the the fence was similar to or different from that shown in the photograph. He could not recall any type of tree on the neighbouring land, saying, “I only mow lawns.”
49 2008. There was damage to it when a tree fell onto the back house. The tree
that fell was on Mr Phillips’ side of the fence. She did not see the tree fall or
the fallen tree. No one removed the chicken wire fence at the rear until
2007/2008. She did not see who took it down and Mr Lowe did not erect
another chicken wire fence. It was always as it was until finally taken down.
The evidence of Dawn Louise Boyce
47 Ms Boyce has resided at 15 Williams Road since April 1999, save for a period of 3 months from December 2000 to March 2001. She and Mr Lowe have three children, a daughter, Taylor and two sons, Aaron born on 12 July 2000 and Ben born on 23 January 2002. She now lives separately from Mr Lowe in the weatherboard house at the front and he lives in the house at the rear.
48 When she moved to 15 Williams Road there was a fence between the property and the neighbouring property. It was a chicken wire and star picket fence and ran from the picket fence to the rear. It was just under a metre high to a point near the back door, where it was 6 feet high to the end of the property. Double gates were erected from the house to the wire fence just after Aaron was born to enclose a play area for the children. In 2003 a garden shed was installed on the same side of the house. It was right up to the fence. At the time the retaining wall was constructed timber sleepers were used to make a garden bed next to the fence. Three lavender bushes were planted in the garden bed. They were removed because a wasp nest was found in one of the lavender bushes. The building of the retaining wall was commenced after the birth of Aaron (July 2000) and completed before his first birthday (July 2001).
There was no change in the chicken wire fence until it was removed in 2007 or the wire fence was attached to a pillar supporting a gate on the property at the rear.
50 From 1999 to 2008 and to the present time she and Mr Lowe did the gardening. He did the mowing. She is not a gardener. She pulled out weeds. The three lavender bushes were not there long. They were planted in 2008. After they were removed nothing else was planted in the garden bed. She never saw Mr or Mrs Phillips come on her side of the fence to pick fruit. She never saw anyone on the Phillips’ land spraying to kill grass or signs of grass having been sprayed. She saw the Phillips’ land mowed occasionally and the whipper snipper used around the building structure. The chicken wire fence that was in existence while she lived at 15 Williams Road in the period from 1999 to 2008 is shown in photographs 34, 37, 38, 39, 40, 41, 42, 44, 45 and 46.
51 In 2007 or 2008 Mr Phillips dismantled the fence, part of the garden shed, and part of the side gate. Police were called on more than one occasion. She or Mr Lowe called the police on the first occasion after half of the shed was
dismantled. She had been at work and came home to find it dismantled. She ask, “How can he take my shed down without my approval and could I press charges?” Mr Phillips said that it was his property and he could do what he liked on it.
52 In cross examination Ms Boyce did not agree that the Phillips property was sprayed, that there was no fence, or that there was access from Phillips’ property to her property. Her recollection was that Mr Phillips dismantled the shed first, then the low fence, then the high fence. She could not recall when part of the gate was taken down. It occurred over a period of 3 months. She had thought it was in 2007, but accepted that it occurred in 2008. In the 3 month period that she was away from the property (December 2000 to March 2001) the retaining wall was constructed, the fence dividing Mr Lowe’s property was constructed and the tree fell down. She did not see the tree fall, but it fell from Phillips’ side of the fence. She did not agree that Mr Lowe, or someone engaged by him, erected the chicken wire fence in 2002. She did not agree that photographs 44 and 50 showed rolled up chicken wire used by Mr Lowe. She did not agree that a Mr Hogan was able to access Phillips’ property by coming into the rear of Lowe’s property beside the high wire fence and crossing over at the end of the high wire fence.
53 In re-examination Ms Boyce said that she went into the front garden daily. Her half of the property is at the front and Mr Lowe’s half is at the back. She did not know what sort of trees were in the Phillips’ property in the boundary area. Mr Robinson and his daughter came to collect fruit from a tree half way down the property.
The evidence of Steven Neville James
54 Mr James, who was born in September 1967, lived at 25 Williams Road as a young person until being married in 1991 or 1992. In the mid 1980’s, when he was a teenager, he frequently visited a friend at 15 Williams Road as they shared an interest in boats. He also recalled an elderly couple living at 17 Williams Road who kept an immaculate garden and had two miniature poodles. Sometimes he played with the dogs.
55 In this period of time, mid 1980’s to early 1990’s, the properties at 15 and 17 Williams Road each had cyclone fencing at the front and a mesh wire dividing fence. The fence between the properties ran south from the intersection of the two cyclone fences. Mr James remembered it as being waist high. He did not go into the rear of 15 Williams Road. He did not recall there being a gap between the cyclone fences at the front of the two properties.
56 In cross examination he said that he did not recall the structures on the property at 17 Williams Road, the sheds and the garage. He did not recall the type of trees or shrubs on the property.
The evidence of Tasman Harold Robinson
57 Mr Robinson has lived at 19 Williams Road since 1994. He has friendly relations with his neighbours Mr and Mrs Phillips and with Mr Lowe. He has gone on to the Phillips’ property from time to time. Since about 1998 or 1999 he has regularly gone on to Mr Lowe’s property in order to collect feijoas from where they have fallen on the western side off the weatherboard house.
58 There was a chicken wire fence between the Lowe property and the Phillips property. It was approximately one metre high at the front of the properties and increased in height towards the rear. It was an old fence. The feijoa tree is located about 25 feet from the front fence. The tree is on the Phillips’ side of
the wire fence and the ripe fruit fell to the ground, including on the Lowe side the two properties was higher going towards the rear. There were no gaps in the fence. The feijoa tree is shown in photograph 36. Photographs 37, 39, 40, 41, 42, 44, 45 and 46 show the boundary fence. The fence was there from 1994 to 2008. In that period there was no time when the fence was not on the boundary.
of the wire fence, where he would gather it. He would usually knock on the
door to ask about gathering the fruit, but if there was no answer he would still
get the fruit. He would have to go through the side gate and past the shed.59 He saw the tree that came down on the rear fence. It was on Phillips’ side of the fence. He thought it was an almond tree. The tree was uprooted but still in the ground. It was leaning on the top of the wire. The top of the tree rested
against the spouting of the house. He could not remember whether the
retaining wall was in place.The evidence of Maxwell Ernest Ewart
60 Mr Ewart is an upholsterer who resides at 18 Williams Road. He moved there in 1988. He often crossed the road and walked on the southern side of the street when taking his children to the park, there being no footpath on the northern side. He came to know Terry Lowe. They socialised. He also came to know Mr and Mrs Phillips.
61 The evidence of Mr Ewart was that there has always been a side fence was a chicken wire fence hard up against the trees at the front. It was the same type of fence that was at his house, a waist high low cut fence. The chicken wire was attached to star pickets. From the front you could see that the fence went half way down the block. He could not recall any breaks in the fence.
62 the rear of Mr Lowe’s property. It is Lot 186 on the Plan of Subdivision.
There was no fence then between this property and Lowe’s property. When
he went to speak to the young chap at this property he saw that there was a
high chicken wire fence between the Lowe property and the Phillips property.
Eight or nine years ago Mr Ewart was interested in purchasing the property at Phillips’ property between that property and lot 186 there was a timber fence. On lot 186 there was a side gate that hung from a post of some sort and the high chicken wire fence dividing the Lowe and Phillips properties came all the way to that post.
63 Approximately 8 years ago in 2002 Mr Ewart went to a barbecue at Mr Lowe’s home. The retaining wall had been built and there was grass on the area next to the retaining wall. He saw the high chicken wire fence again on that
occasion. It was the same fence that he had seen earlier. It was nearly head
height and went to the back corner. Mr Ewart said that it would be incorrect
to say that there was a fence of star pickets and loose wire located where the
yellow line has been marked as shown in photographs 30 and 30b. The fence
shown in photographs 37, 39, 40, 41 and 42 was the same fence that he had
seen in 2002.64 In cross examination Mr Ewart did not agree that he was mistaken in his recollection of the dividing fence at the front part of the properties and that at best what he saw was a some posts and wires along the ground. He said that it was a chicken wire fence that was hard up against the trees. He had no recollection of Mr Phillips taking down the fence at the back in 1998 or of Mr Lowe putting the fence back up.
tree, a mandarin tree, a Chinese lantern bush, a mulberry tree. Daffodils and
jonquils also grew in this area.67 commencing at the northern end with a star picket close to and in line with
The evidence of Lindsay Grant Phillips
65 Mr and Mrs Phillips bought 17 Williams Road in early 1989. At the front there tree and a survey peg between their fence and the neighbour’s fence, which was of a similar type. The survey peg was painted white with a small nail in the top and placed slightly in front of the fence line. Within 2 or 3 weeks of taking possession Mr Phillips removed the tree, leaving a gap of about 500 mm between the two fences.
66 The eastern area of their property was heavily vegetated. There were a number of trees, including a large grape fruit tree, a feijoa (or pineapple guava), a large plum tree, a camellia, a NZ hebe, a large lilly pilly, a lemon
There was a star picket and plain wire fence on the eastern boundary fence ran about 20 metres to the south. It was about 900 mm high and comprised three strands of wire through about nine one metre star pickets about 2 or 2.4 metres apart. It was weather worn and rusty, but it was tight. They could easily walk between the tree line and the fence, except at the trunk of the large lilly pilly. There were several intersecting fences running east- west across the eastern part of the property to the boundary fence. They were made of chicken wire on wooden posts and were about 1.2 metres high.
68 At the southern end of the three wire fence, but inset from the boundary into their property about 1.5 metres there was a chicken wire fence, about 8 feet high, running south to a point about 3 metres from the back fence. Mr Phillips thought that it was part of a dog enclosure, but now thinks it may have been a chook enclosure. The chicken wire was attached to star pickets that were themselves attached to star pickets driven into the ground. At the dog leg gap between the southern end of the three wire fence and the high fence of the enclosure there was a piece of timber attached by hinges to a star picket acting, Mr Phillips assumed, as a door.
69 checked the boundary of the property. He took a reading from the front
paling fence of 19 Williams Road to the other side of the tree where the star
picket was located and the three wire fence commenced. He took another
measure across the middle of the property and another at the back. He found
Before purchasing the property Mr Phillips obtained a copy of the title and He said he knew where the boundary was. There was no survey mark at the southern end of the boundary.
70 Later in his evidence in chief Mr Phillips was shown a letter dated 2 March 1989 addressed to him and Mrs Phillips from Vernons, the solicitors acting for them regarding the purchase of the property. The letter advised them to measure the land as accurately as possible to determine whether the measurements and location to the nearest boundary corresponded with those set out in the Certificate of Title. Mr Phillips said that he measured the property on the day he took possession.
71 The structure that Mr Philips thought had been a dog or chook enclosure consisted of a fence on the eastern side approximately 2 or 2.5 metres high and 2 short fences of the same height approximately one and a half metres long on the north and south ends. There were two wooden posts to the west. In about June 1989 Mr Phillips removed the two wooden posts and the two short fences, leaving the 17 metre fence on the eastern side. He was assisted by a friend Ivan Randell. In 1989, after removing those parts of the dog enclosure, he moved the bluestone to the property. He was required to move it from the property he had sold.
72 In 1989 he also disconnected the three wire strands of the front fence. The wire was dropped to the ground and left there. He later said that the wire was gradually taken down and that most of it was out by 1995.
73 The three wire fence was located as shown by the yellow line in photograph 30. The fence did not abut the bushes. He could walk between the bushes and the fence, except where the trunk of the lilly pilly was located. He used the whipper snipper in that area when it was needed. They mulched the area, pruned the trees and picked the fruit – cherry plums in summer, guava in April, almonds of one type in late summer and figs in summer. They also picked windfall fruit walking right around the trees.
74 He told Terry Lowe that he intended to erect a stone column at the front eastern corner of his property.
75 In 1994, after the Edwards survey and before the survey peg at the rear disappeared, Mr Phillips discussed with Mr Lowe the erection of a boundary fence. They each wanted a standard paling fence. They agreed to pay half each. They agreed that it should be erected on the boundary as shown by the survey peg at the back.
76 After that discussion the survey peg at the rear was removed. After it was removed Mr Phillips mentioned to Mr Lowe that the peg had been removed and asked whether he had anything to do with removing the peg. Mr Lowe said he had nothing to do with the removal of the peg. After that, when there was a conversation as Mr Lowe was working on his house and Mr Phillips was in his backyard, the conversations they had were brief and Mr Low was always in a hurry and hard to pin down.
81 77 In 1995 he moved the sheets of tin (galvanised iron) on to his property. They had been on Mr Lowe’s property near Dawson Road. Mr Lowe offered them to him asking, “Do you want some second hand corrugated iron?” to which
he replied, “Yes, it might come in handy some day.” Mr Lowe offered to
drive it around to his property in his ute, but Mr Phillips said that it would be
easier for him to carry it up to his place. That is what he did, carrying the 30
three metre sheets, walking from Mr Lowe’s property to his property.78 He planted a monstera in the rear south east corner of his property as shown in photograph 52(f). He regularly bagged up the wandering Jew that grew in that area from 1995-1996 and mulched the area. It was his intention to build a four car garage in that corner up to the eastern boundary.
79 at the rear of his property. In order to do so he borrowed a large 4WD jack
from Mr Lowe which he used to lever the lower star pickets forming the
enclosure vertically out of the ground. The chicken wire remained attached.
The fence lay on the ground for two years or so and was covered with jasmine
In 1998 Mr Phillips pulled down the eastern panel of the dog/chook enclosure The next he knew the fence had been propped up again. He did not know who had done that.
80 In 1998 the fence was not like it is shown in photographs 52g and 52l. It was then leaning the other way.
When the plum tree fell the wire fence had already been taken down. The tree caused the tree to fall down. When it fell it touched the spouting on Mr Lowe’s house. Mr Phillips said to Mr Lowe, “This is what happens when you dig into the land.” Mr Lowe said, “Don’t worry. I’ll fix it up.” Mr Phillips assumed that Mr Lowe cut up the tree and put it over the fence. Mr Phillips did not have a chain saw.
82 At about the time when Mr Lowe carried out the excavation for the retaining wall (in 2000) he kept asking Mr Phillips about putting up a fence. Mr Phillips responded by saying, “Sure. Put back the survey peg and we’ll put the fence where marked.” Mr Phillips considered the matter “pretty well agreed”, that the fence should go on the boundary shown by the survey peg. The discussions were brief and Mr Lowe would walk away. Mr Phillips was frustrated by his response.
83 The excavation for the retaining wall was carried out in 2000 when Mr and Mrs Phillips were away on holidays at Beechworth. When he returned from holidays and found that the excavation had been carried out Mr Phillips telephoned Banyule City Council because of the excavation into his land. A meeting with the municipal building surveyor was arranged. It took place at the rear of Mr Lowe’s property. Mr Lowe, Mr Phillips and the building surveyor were present. Mr Phillips said that Mr Lowe had dug into his land and he asked whether he had the appropriate permit. The building surveyor said it was, “OK”, and when Mr Phillips asked, “Would you sign off on it?”, he walked away. After that the retaining wall was erected.
84 In 2002 Mr Phillips had a severe accident at work, herniated some discs in his back, and was unable to work for 18 months. Later in his evidence in chief Mr Phillips produced two radiological reports of CT scans taken of his lumbar
spine, one dated 5 May 1999 and one dated 29 January 2001, and said that
from 1999 to 2002 he was unable to do much at all because of pain in his back.85 In 2002 Mr Phillips noticed that the high fence at the rear which he had pulled down had been re-erected. He did not know who re-erected it. It later fell over by itself. After it fell over, during 2002 and 2003, he gradually dismantled the fence. He bundled up the wire and lay it on the bluestone and then took it away. By 2004 it had been removed.
86 In about 2004 Mr Lowe put up a garden shed and a side gate. By that time there was no wire in the fence. Mr Phillips told Mr Lowe that the gate post was intruding into his land. Later in his evidence in chief Mr Phillips said
that the shed was erected in 2003 and 6 to 9 months after the shed went up he
removed the wire from the fence.87 At some point Mr Phillips dismantled part of the garden shed. He took off about 650 mm of the shed which was protruding into his land. He placed the dismantled parts against the weatherboard house and folded the blue plastic liner of the shed over the contents inside it, laid the carpet which had been on the floor of the shed over it, and weighed it down. He disagreed with the allegation that he had left the contents of the shed in the open. After he dismantled the shed he dug some holes for posts which were filled in.
88 erecting a fence. Mr Phillips said that he would do the front half and Mr
In 2006 there was an exchange of fencing quotations and discussion about do the front half and Mr Lowe would do the back half. There was never agreement about where the fence should be erected. Mr Phillips gathered the materials and started building the fence at the front in 2006. An argument started with Mr Lowe saying, “What are you doing?”, “You can’t do that” and saying he would see his lawyers. After that nothing happened and time slipped by.
89 The evidence in chief of Mr Phillips was not given in as ordered a fashion as this summary might suggest. At times it appeared muddled and unclear and at times he gave answers that differed from what he had said earlier. He had a tendency to respond to questions in a rambling fashion and to provide a good deal of information not sought by the question, at times in response to open ended or unfocused questions. It was apparent from the evidence in chief of Mr Phillips that there were a number of factual matters asserted by him which had not been put to Mr Lowe in cross examination.
90 Mr Squirrel commenced cross examination of Mr Phillips at 3.25pm on Monday 19 July. At 4.20pm or thereabouts that day he advised that he expected to cross-examine Mr Phillips the following day and that all of the
evidence would be concluded on Wednesday 21 July. Mr Squirrel cross-
examined Mr Phillips all of Tuesday 20 July. Mr Phillips had a tendency to
give rambling answers and to be argumentative. The cross examination was
at times argumentative, unfocused and of uncertain relevance (such as the
criticism of Mr Phillips for not knowing that the common name of the plant
wandering Jew is tradescantia flaminensis). At 3.40pm on Tuesday 20 July Mr
Squirrel was advised that he would be permitted to cross-examine Mr Phillips
for a further hour and a half and required to complete his cross examination
of Mr Phillips by 11.30am the following day. It was completed by 11.45am.91 The cross examination of Mr Phillips did expose inconsistencies between his testimony and matters of fact alleged in his written defences.
• denied that there was a fence delineating the two properties either as
In clause 3 of the defence filed on 19 November 2008 the defendants bought the property in 1989 there was a fence comprising star pickets and three strands of wire on the true boundary for 20 metres. In the same clause the defence alleged that there was a garage “roughly one metre within” the defendants’ land. Mr Phillips acknowledged that the garage that had been on this property was not one metre from the boundary. These matters continued to be alleged in the amended defence filed on 13 April 2010 and the defence filed on 19 July 2010.
•
In clause 3(e) of the amended defence filed on 13 April 201 the defendants alleged that in autumn 2002 the plaintiff erected a chicken wire fence that extended for a distance of approximately 20
metres, that it fell over in 2006/2007 and that the defendants
removed it during 2007. In his evidence Mr Phillips said that in 1998
he pulled down a fence or panel of the former dog or chook
enclosure, that it was 17 metres long, that in 2002 he noticed that it
had been re-erected, that it fell down in 2003 and that he cut it up
and had carted it away completely by 2004.•
The meaning of clause 3(f) of the amended defence filed on 13 April 2010 is not free from ambiguity. Insofar as it appears to assert that by 22 March 1989 all that remained of a steel star post and wire fence was a few old steel star posts and wiring on the ground and there was no fence along the disputed land, it is inconsistent with Mr Phillips’ testimony that in April 1989 when he took possession of the land there was a star picket and three wire fence for 20 metres on the boundary and that he cut the wire.
92 As earlier mentioned, the evidence of Mr Phillips was at times rambling and muddled. It did not always address the question asked. This was particularly so in cross examination. It meant that his answers were at times unclear. As I am disinclined to regard him as a reliable historian on matters not supported by the evidence of others, it does not assist to attempt to summarise any further the cross examination of him.
The evidence of Ivan Robert Randall
93 Mr Randall is a builder who lives in Langford, Tasmania. He has known Mr Phillips for 40 years as a work colleague and friend. He is familiar with the properties at 15 and 17 Williams Road. He visited 15 Williams Road in 1976 with his father in law who wanted his comments as a builder on the house and two outbuildings. The rear bungalow, which faced Dawson Street, had no fence behind it. He walked around the property. There was a wire fence partly along the side next to number 17.
94 In 1989 Grant Phillips was working for him. He told him that he had purchased a house at 17 Williams Road. He went to have a look and walked around the property. There was a chain wire and pipe fence at the front with gates and trees on the left side extending behind the garage. There was a variety of fruit trees – feijoas, guavas, plums. Behind the garage there was a chook enclosure that was open on the west side. There was a side fence of star stakes and two or three strands of wire. He could not recall any chicken wire on it.
95 In 1989 he gave Mr Phillips a hand to pull down the chicken enclosure. It was located about 4 or 5 metres behind the garage and 4 or 5 metres from the back fence. They took down the side of the enclosure closest to the garage and the side closest to the back fence. They were each about 4 metres long. It left the eastern fence of the enclosure still standing. It was about 6 metres long and
parallel to the boundary. The southern end was about 4 or 5 metres from the back fence. The enclosure was old and he doubted that chooks could be kept in it.
96 They also pulled down the garage in 1989. They took down the garage and enclosure to enable a load of bluestone to be moved on to the property. Between the garage and the adjoining property there was a short fence. He could not remember too much about it. There was a dead plum tree at the front which Mr Phillips took out in 1989.
97 Mr Randall went back to the property from time to time over the next few years. He was always interested to see what building materials Mr Phillips had acquired. They shared a common interest in building materials. In 1998 there were more bricks and trusses. Mr Phillips had pulled down the wire fence that was part of the previous chook enclosure. It was pulled out of the ground and lay on the bluestones at the back. He helped Mr Phillips take it down and does not know what happened to it after that. In 2001 he saw the excavation dug into the back of the land. It was quite deep and well into the boundary line. He saw it from Mr Phillips’ side and could not recollect seeing the retaining wall.
98 There were a number of fruit trees on the property in 1989 – a lemon, two feijoas, guavas, a plum, an almond between the enclosure and the boundary, another plum at the rear, a large lemon. The plum tree at the rear was in the eastern side of the enclosure, pretty close to the boundary. It was undermined by the excavation and removed. There was a magnolia at the back of the garage which had fallen over and was removed in 1992.
99 The wire fence running north-south was in the vicinity of the area shown in photograph 30. The fence was of star stakes and two or three plain wire strands. It ran to about the back of the garage, a bit less than half of that side of the property. He could not remember ever seeing a fence going to the back fence as shown in photograph 41. The fence panel of the enclosure was a lot closer to Mr Phillips’ house than the chicken wire shown in photograph 40. He did not see fencing like that shown in photographs 44 or 45.
100 In cross examination Mr Randall acknowledged that while he could not recall there being chicken wire in the front boundary fence, the neighbours who gave evidence of the 3 feet chicken wire fence could be right.
101 The chook enclosure was about 6 metres long on the east side with wings of about 4 metres on the north and south sides. It was about 2 metres high. It was free standing and situated behind the garage and a bit to the east. The panels were removed by cutting down the chicken wire. Mr Phillips disposed
of it. It was not there when he helped him move in the bluestone.
135 There are a number of other factual issues that are a matter of contention between the plaintiff and the defendants. Having regard to the finding that the defendants and others such as Mr Randall, Mr Cook, Mr Scroggie and Mr Hogan had access to the disputed land between the chicken wire fence on the defendant’s land and the true boundary of the plaintiff’s and defendants’ land, it is unnecessary to resolve these issues or make findings of fact about them.
Conclusions
136 In his final submissions on behalf of the plaintiff his counsel Mr Squirrell submitted that there is one issue that is to be determined in this case – was there a continuous fence between the plaintiff’s land and the defendants’ land for a period of 15 years before the commencement of proceedings in September 2008? The assertion that there was a continuous fence between the two properties is the foundation of the plaintiff’s claim of adverse possession. If there was a continuous fence separating the land claimed by the plaintiff from the defendants’ land then, Mr Squirrell submitted, the finding should be made that the plaintiff had exclusive possession of the land and had the requisite intention to possess the land. If there was not a continuous fence, he acknowledged that the plaintiff’s claim must fail.
137 As I have indicated in the findings made, I am not satisfied that there was a continuous fence between the plaintiff’s land and the defendants’ land for a period of 15 years before September 2008. I am satisfied that the high chicken
wire fence between the rear of the two properties and located on the
defendants’ land did not prevent the defendants or others from accessing the
defendants’ land between that fence and the true boundary of their land.138 While the excavation by the plaintiff of part of the defendants’ land in 1996 and the building of the retaining wall in 2000 dispossessed the defendants of that part of their land, a period of 15 years has not expired since those acts and the defendants are not prevented from bringing action to recover that land. A period of 15 years has not expired since the erection of the side gates and garden shed in 2002 and 2003.
139 Accordingly, the plaintiff’s claim to the land on the basis of adverse possession fails and the defendants are not prevented by the Limitation of Actions Act 1958 from bringing action to recover the land up to the true boundary between their land and the land of the plaintiff.
140 The orders sought by the defendants are an order directing the plaintiff to remove the retaining wall erected by him on the disputed land, a declaration that the defendants are entitled to possession of the disputed land, and an injunction restraining the plaintiff, his servants and agents from entering the defendants’ land including the disputed land and costs.
141 I shall hear the parties on the precise terms of the orders and costs.
Exhibit 6
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