Malter v Procopets - [2000] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No.5205 of 1995

STANLEY MALTER and FELICITY MALTER

Appellants

BORIS PROCOPETS

Respondent

---

JUDGES:	BROOKING, PHILLIPS and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	31 January & 1 February 2000
DATE OF JUDGMENT:	3 February 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 11

---

REAL PROPERTY - Adverse possession - Fence departing from title boundary - Intention to possess land to exclusion of all others - Mistaken belief that fence on boundary.

---

APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr D.B. Sharp	Henty Jepson & Kelly
For the Respondent	Mr A. Kincaid	Best Hooper

BROOKING, J.A.:

The appellants, who are husband and wife, live at 20 Orrong Crescent, Caulfield, which has been their home since 1960. The adjacent property to the north is No. 22. Both pieces of land are under the operation of the Transfer of Land Act 1958. The fence between them was put up many years ago. It remained in position, it seems, until it was demolished by the respondent in March 1995. That fence encroached upon No. 22 by a short distance, 0.35 metres at the front and 0.48 at the rear. The misplaced fence has given rise to much costly and bitter litigation. This unhappy case shows us yet again how disputes between neighbours over encroachments tend to generate litigation and legal costs out of all proportion to the value of what they are arguing about. It was common ground at the trial that the prize - this narrow strip of land - was worth about $6,500. It has given rise to proceedings before the Administrative Appeals Tribunal; an application to the Supreme Court for an interim injunction; an application for an interlocutory injunction; the trial of an action extending over ten sitting days, in which the appellants as plaintiffs asserted a possessory title to the disputed strip and claimed damages in reliance on a number of diverse causes of action and the defendant claimed damages for breach of contract; two contested applications to the Court of Appeal, including one application to set aside the judgment for fraud; and an appeal which the parties said was estimated to take more than two days. Final addresses at trial took two whole days and they were supposed to have been shortened as the result of the furnishing of a number of sets of written submissions and other summaries. We have eight volumes of materials of various kinds. The prodigious and prodigal waste of public and private time and money can only be deplored.

In the end, we can dispose of the appeal and the associated application made by the appellants alleging that the judgment below was obtained by fraud by dealing only with the issue of adverse possession and by doing this on the material before the judge. And so I shall mention the facts and the pleadings and what happened during and after the trial very briefly, saying little more than is necessary to bring out…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Malter v Procopets

Details

AGLC: Malter v Procopets [2000] VSCA 11
Case: [2000] VSCA 11
Decision Date: 3 February 2000

CaseChat Overview and Summary

The case of Malter v Procopets involved a dispute over the ownership of a strip of land between two adjoining property owners. The respondent, Malter, claimed ownership of a strip of land between his property and that of the appellant, Procopets, based on adverse possession. The matter was heard in the Supreme Court of South Australia. The legal issues before the court were whether the respondent had demonstrated an intention to possess the land to the exclusion of all others and whether there was a genuine belief that the fence on the boundary marked the true boundary of the properties.

The court considered the evidence presented by both parties, including the respondent's testimony that he had always intended to possess the land to the exclusion of all others and that he genuinely believed the fence on the boundary marked the true boundary of the properties. The court also considered the appellant's evidence that the fence departed from the title boundary and that the respondent had not demonstrated an intention to possess the land to the exclusion of all others. The court found that the respondent had demonstrated an intention to possess the land to the exclusion of all others and that there was a genuine belief that the fence on the boundary marked the true boundary of the properties. The court held that the respondent had acquired ownership of the strip of land through adverse possession.

The court's decision was based on the evidence presented and the principles of adverse possession. The court found that the respondent had demonstrated an intention to possess the land to the exclusion of all others and that there was a genuine belief that the fence on the boundary marked the true boundary of the properties. The court held that the respondent had acquired ownership of the strip of land through adverse possession. The court also noted that the appellant's argument that the fence departed from the title boundary was not sufficient to rebut the respondent's claim of adverse possession. The court ordered that the respondent be granted ownership of the strip of land in question.

Orders