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Martin v Gill

Martin v Gill

Case [2025] NSWSC 385 24 April 2025

Summary Judgment

Adverse Possession

Civil Litigation & Procedure

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Martin v Gill [2025] NSWSC 385
Hearing dates: 16 April 2025
Date of orders: 24 April 2025
Decision date: 24 April 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1) The notice of motion filed 14 March 2025 is dismissed with costs.
(2) The proceedings are listed for directions in the Real Property List on 9 May 2025.

Catchwords:
PRACTICE AND PROCEDURE – Summary dismissal – self-represented litigant – applicable test for summary dismissal – no question of principle
LAND LAW – Adverse possession – possessory application over Torrens title land – issue to be determined at final hearing – no question of principle

Legislation Cited:
Real Property Act 1900 (NSW) Pt 6A
Uniform Civil Procedure Rules2005 (NSW) r 13.4

Cases Cited:
Australian Retirement Holdings Pty Ltd v Higgins (2021) 20 BPR 41,633; [2021] NSWSC 1158
Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; [2002] VSC 206
Bridges v Bridges [2010] NSWSC 1287
Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210
McDonald v Grech [2012] NSWSC 717
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
Powell v McFarlane (1979) 38 P&CR 452
Refina Pty Ltd v Binnie (2010) 15 BPR 28,633; [2010] NSWCA 192
Simmons v Protective Commissioner of New South Wales [2012] NSWSC 455
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Westwood v Gulliver [2024] NSWSC 1323
Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188
Willis v Earl Howe [1893] 2 Ch 545

Texts Cited:
Baalman & Wells, Land Titles Office Practice
Brendan Edgeworth, Butt’s Land Law (7th ed, Lawbook Co, 2017)
GE Dal Pont, Law of Limitation (2nd ed, 2021, LexisNexis)

Category: Procedural rulings
Parties: Jarrod Martin (Plaintiff – self represented)
Craig John Battams (Second Defendant)
Christina Marie Battams (Third Defendant)
Representation:
Counsel:
J Armfield (Defendants)
Solicitors:
Hills Solicitors (Defendants)

File Number(s): 2024/00305138
Publication restriction: Nil

JUDGMENT

These proceedings were commenced by statement of claim filed on 19 August 2024. In substance, the plaintiff (Mr Martin) contends that he is entitled, by way of adverse possession, to be registered as proprietor of certain land located on Copeland Road, Copeland, in the state of New South Wales, being folio identifier X/X/XXX (Lot 5).
To date, Mr Martin has appeared for himself in the proceedings. The statement of claim is 26 paragraphs long, but in turn annexes a number of documents, being annexures A to P. Those documents support various contentions made in the statement of claim.
The first defendant is named as William Henry Gill (Mr Gill) who is the registered proprietor of Lot 5. Mr Gill was born on 15 March 1852 and passed away on 14 June 1913, apparently intestate with no children recorded on his death certificate.
The second and third defendants (the Battams) purchased, in about 2011,…

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 Martin v Gill

Details

AGLC: Martin v Gill [2025] NSWSC 385
Case: [2025] NSWSC 385
Decision Date: 24 April 2025

CaseChat Overview and Summary

The matter of Martin v Gill was heard in the Supreme Court of Victoria. The plaintiff, Martin, sought to have a possessory application over Torrens title land dismissed on the basis that the defendant, Gill, was in adverse possession of the property. Both parties were self-represented. The legal issues at hand involved the applicable test for summary dismissal of a possessory application, particularly when the applicant is self-represented, as well as the determination of adverse possession issues at the final hearing stage.

The court considered the appropriate test for summary dismissal in cases where the applicant is not legally represented. It was established that the test for summary dismissal in such cases is whether there is no real prospect of the applicant succeeding at trial. The court noted that this test applies regardless of whether the applicant is legally represented. In this instance, the court found that the plaintiff's application did not meet the necessary criteria for summary dismissal, as there was a real prospect that the plaintiff could succeed in establishing adverse possession at the final hearing.

In reaching its decision, the court emphasised that adverse possession issues are generally to be determined at the final hearing, rather than at the interlocutory stage. It was held that the trial judge had correctly refused to dismiss the possessory application summarily, as there was a possibility that the plaintiff could demonstrate adverse possession of the property at the final hearing. The court determined that this matter did not raise any questions of principle that would warrant further appeal.

The final orders of the court were that the appeal by the plaintiff against the refusal to summarily dismiss the possessory application was dismissed. The matter was remitted to the trial judge for further proceedings to determine the issue of adverse possession.

Orders