Matusik v Maher Farms Pty Ltd
[2022] VCC 393
•11 April 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-20-02185
| Julie Angela Matusik in her capacity as Executrix of the Estate of Norman Eric Suckling | Plaintiff |
| V | |
| Maher Farms Pty Ltd (ACN 615 818 436) & Ors (according to the Schedule attached) | First defendant |
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JUDGE: | Judge A Ryan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 22 and 23 April 2021 | |
DATE OF JUDGMENT: | 11 April 2022 | |
CASE MAY BE CITED AS: | Matusik v Maher Farms Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 393 | |
REASONS FOR JUDGMENT
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Subject:REAL PROPERTY - ADVERSE POSSESSION
Catchwords: ADVERSE POSSESSION – whether plaintiff and her predecessors in title entitled to adverse possession of a parcel of farming land – whether acts of repossession occurred – effect of leases granted by previous paper title holders – whether time ceases to run against a freehold owner whilst tenant in possession
Legislation Cited: Limitation of Actions Act 1958; Landlord and Tenant Act 1958; Transfer of Land Act 1958
Cases Cited:Butler v Dickson [2018] VCC 610; Cobham v Joseph Frett (British Virgin Islands) [2000] UKPC 49; Ghilarducci v Ghilarducci [1992] WASC 385; KY Enterprises Pty Ltd v Darby [2013] VSC 484; Laming v Jennings [2017] VCC 1223; Radaich v Smith (1959) 101 CLR 209; Robertson v Butler [1915] VLR 31; Simpson v The Council of North West County District (1978) 4 BPR 9277; Tecbild Limited v Chamberlain [1969] EWCA Civ J 0212.6; Whittlesea City Council v Abbatangelo [2009] VSCA 188
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr P Bender | Coulter Roache |
| For the First and Second Defendants | Mr P Duggan | Harwood Andrews |
| For the Third Defendant | No appearance |
SCHEDULE OF PARTIES
BETWEEN
| Julie Angela Matusik in her capacity as Executrix of the Estate of Norman Eric Suckling | Plaintiff |
| V | |
| Maher Farms Pty Ltd (ACN 615 818 436) | First defendant |
| and | |
| Daniel Patrick Maher | Second defendant |
| and | |
| Registrar of Titles | Third defendant |
Table of Contents
Introduction and summary
Description of the parties’ land and the disputed land
Background
The plaintiff’s land
Maher Land
Issues in Dispute
Legal principles regarding adverse possession
The Relevant Possession Periods
The first period: 8 February 1996 to 7 February 2011
The alternative period: December 2003 to December 2018
Did Murray May and Mr Suckling adversely possess the disputed land or part thereof?
Murray May’s use of the disputed land (8 February 1996 to May 2013)
Plaintiff’s submissions on Murray May’s use of the disputed land
Defendants’ submissions on Murray May’s use of the disputed land
Conclusion as to possession from February 1996 to May 2013
Mr Suckling’s use of the disputed land (May 2013 to present)
Plaintiff’s submissions as to Mr Suckling’s use of the disputed land
Defendants’ submissions as to Mr Suckling’s use of the disputed land
Offer to purchase at a Christmas party in 2018
Conclusion as to possession from May 2013 to present
Conclusion as to Possession
Did the Kelly siblings or the defendants (as registered proprietors of the disputed land) retake possession of the disputed land or part thereof?
(a) Was the disputed land included in the area of the May-Kelly lease?
(b) What is the effect of the Precision leases on time running in the adverse possession claim?
Plaintiff’s Submissions
Defendants’ Submissions
Analysis
(c) Were the Precision leases in substance a lease or a licence?
Physical Acts of Repossession
Conclusion as to repossession
Conclusion
HER HONOUR:
Introduction and summary
1The plaintiff and the first defendant are registered proprietors of neighbouring farming properties in Dean. The plaintiff is the executrix of the estate of her late brother, Norman Eric Suckling (“Mr Suckling”). The second defendant, Daniel Maher, is the sole director and shareholder of the first defendant, Maher Farms Pty Ltd.
2The issue for determination is whether the plaintiff and her predecessors in title have adversely possessed a small parcel of farming land owned by the first defendant (“the disputed land”). The defendants contend the plaintiff cannot prove the requisite 15 years of exclusive and continuous possession of the disputed land. They further contend that two leases granted by previous owners of the disputed land severed the plaintiff’s claim for continuous adverse possession because time stopped running as against the freehold owner whilst the tenants were in possession.
3For the following reasons, I find the plaintiff has established her claim to adverse possession of the disputed land. The evidence demonstrated both sufficient acts of factual possession, together with the requisite intention to exclusively possess the disputed land by the plaintiff’s predecessors in title for the necessary period. I was not satisfied that the defendants or their predecessors committed acts amounting to dispossession during the relevant periods. I was also not persuaded that the leases relied upon by the defendants did have the effect of stopping the time running. Consequently, I find that the first defendant’s registered title to the disputed land is extinguished pursuant to s18 of the Limitation of Actions Act 1958 and the plaintiff is entitled to be registered as proprietor of the disputed land.
Description of the parties’ land and the disputed land
4The first defendant is the current registered proprietor of Lots 1-3, 5-6, 8 and 10-14 on Title Plan 567616G being part of the land described in Certificate of Title Volume 8939 Folio 624 (“the Maher land”). The disputed land is located within the Maher land, along its eastern-most boundary.
5From 13 May 2014, Mr Suckling was the registered proprietor of the land on lots 4, 5 and 6 on Title Plan 885314Y situated at 255 Dean-Mollongghip Road, Mollongghip in the state of Victoria, and being land described in Certificates of Title Volume 11495 Folios 725, 726 and 727 (“the plaintiff’s land”). The western boundary of the plaintiff’s land is directly adjacent to the disputed land.
6The disputed land is a 3.090-hectare parcel of land situated between the plaintiff’s land and a fence running along the eastern side of the Maher land. It is roughly divisible into a “southern portion” and a “northern portion”. The southern portion is triangular in shape and is suitable for cropping due to its flat gradient. An iron shed constructed in the early 1960s sits partially on the southern portion of the plaintiff’s land and partially on the disputed land (“the shed”). The northern portion is trapezoid in shape and features steep gradients which are traversable but not suitable for cropping. A power pole and water pump are located on the northern portion.
7A large dam was constructed sometime in the late 1970s or early 1980s and sits between the southern and northern portion of the disputed land (“the dam”). The boundary between the disputed land and the plaintiff’s land runs partially through the dam. As a result, the dam straddles land owned by the plaintiff and the first defendant.
8An iron hut was built in the early 2000s and is situated to the east of the dam (“the hut”).
9The disputed land is enclosed by fencing along its northern, western, and southern boundaries. Along the fence in the north-western corner of the disputed land, there is a gate (“the northern gate”) which provides access between the disputed land and the Maher land. There is no fencing separating the plaintiff’s land from the disputed land.
10Attached to these reasons and marked:
(a) Annexure 1 - is an aerial shot depicting the disputed land, the Maher Land and the plaintiff’s land;[1]
(b) Annexure 2 - is a plan of survey depicting the disputed land in red and delineating its northern and southern portions;[2] and
(c) Annexure 3 - is a more recent plan of survey dated 18 January 2021.[3]
[1]Court Book “CB” at 1767, survey by Swanson Surveying dated 15 September 2020, annexed to the affidavit of Daniel Patrick Maher dated 21 February 2021
[2]CB 195, survey by Steele Surveying dated 22 August 2017, annexed as JDE-2 to the affidavit of Jessica Eagles dated 8 July 2020
[3]CB 1961, survey by Steele Surveying dated 18 January 2021, annexed to the affidavit of Richard John Steele dated 6 April 2021
Background
11On 18 September 1961, Ada Kirkland May (“Ada”) became the registered proprietor of a parcel of farmland in Dean,[4] consisting of Lots 2, 3, 4, 5 and 6 on Title Plan 885314Y, being land described in Certificate of Title Volume 8326 Folio 508.
[4]Where the May family members are referred to by their first names it is for the sake of convenience, and no disrespect is intended by doing so.
12The Dean-Mollongghip Road was altered in the 1960s so that it followed a more gradual bend rather than being at right angles. The road changes impacted parcels of land both to the north and south of Dean-Mollongghip Road. The southern-most parcel has since been adversely possessed by the defendants and is not relevant to this dispute. The parcel to the north of the road constitutes the southern portion of the disputed land.
13On 1 October 1971, Ada became the registered proprietor of the Maher land and remained so until 4 April 1996.
14From the mid-1970s, Ada’s son and grandson, Lawrence and Murray May respectively, farmed and grew potatoes on both the Maher land and the plaintiff’s land under a partnership known as “LG May & Son”.
15Ada died in July 1992.
16The titles and possessors of the Maher land and the plaintiff’s land have changed multiple times since Ada’s death. A brief chronology is outlined below.
The plaintiff’s land
17Ada was the sole registered proprietor of the plaintiff’s land from 18 September 1961 to 8 February 1996.
18Ada died in July 1992. On 8 February 1996, Murray May (“Murray”) became the registered proprietor of the plaintiff’s land.
19On 24 May 2013, Murray entered into a contract of sale with Mr Suckling to sell the plaintiff’s land. Settlement occurred on 22 August 2013. Mr Suckling commenced farming activities on the land from late May 2013 pursuant to special condition 2 of the contract of sale.
20On 13 May 2014, the Certificate of Title for the plaintiff’s land was cancelled. The title was then transferred onto Certificates of Title Volume 11495 Folios 725, 726 and 727.
21On 24 May 2014, Mr Suckling became the registered proprietor of the plaintiff’s land. He carried on a farming business on the plaintiff’s land until his death on 29 October 2019.
22The plaintiff was appointed executrix of Mr Suckling's estate under his will dated 22 August 2002. Following a grant of probate dated 24 March 2020, the plaintiff was registered on title as owner of the plaintiff’s land.
23Mr Suckling’s family has continued to farm the plaintiff’s land since October 2019.
Maher Land
24The Maher land was registered in Ada’s name from 1 October 1971 to 4 April 1996. Upon Ada’s death in 1992, the Maher Land passed to her daughter, Ms Katrine Anderson Kelly, but remained registered under Ada’s name.
25On 4 April 1996, Ms Katrine Kelly gifted the Maher land to her four children, Raymond John Kelly, Bernard Kelly, Elizabeth Kelly, and Nicole Schroeter (née Kelly) (“the Kelly siblings”), who were registered as joint proprietors. In 1998, the Kelly siblings entered a partnership agreement with each other for the use and maintenance of the Maher Land.
26On 7 December 1998, the Kelly siblings entered into a five-year lease with LG May & Son over 74 acres of the Maher land (“the May-Kelly lease”). There was an issue at trial about whether the disputed land was included in the May- Kelly lease. This is dealt with later in these reasons.
27On 10 December 1999, Elizabeth Kelly purchased the Maher land from her siblings, becoming the sole registered proprietor.
28Around 3 December 2003, the term of the May-Kelly lease expired and was not renewed.
29Around September 2004 Andrew Maher, a local farmer and an uncle of the second defendant, leased part of the Maher land from Elizabeth Kelly. The leased area excluded the disputed land. The lease was for the duration of a single season to grow potatoes.
30On 1 March 2010, Elizabeth Kelly leased the Maher land to Precision Production (Aust) Pty Ltd (“Precision”) (a company owned by the second defendant) for a term of one year (“the Precision leases”). There was a debate about whether the Precision leases included the disputed land. It was uncertain whether this lease was renewed after the initial term. The parties agreed there were no written renewals. The effect of the Precision leases and the earlier May-Kelly lease on the claim for adverse possession are dealt with later in these reasons.
31On 17 May 2012, the title for the Maher land was cancelled and the land comprising the original title was transferred onto three separate titles. The part of the Maher land comprising the disputed land was part of the land known as Lots 10-14 on Title Plan 567616G and was transferred in about May 2012 to Certificate of Title Volume 11357 Folio 218 (“the new title”).
32On 23 November 2017, the new title was cancelled. The land comprising the new title was transferred onto two separate titles. The disputed land formed part of the land transferred onto one of the separate titles, being Certificate of Title Volume 11936 Folio 475.
33On 29 January 2018, Elizabeth Kelly sold the Maher land (which included the disputed land) to the first defendant.
Issues in Dispute
34The principal issues that fall to be resolved are:
(a) did Murray May and Mr Suckling adversely possess the disputed land or any part thereof?
(b) if yes to (a), did the Kelly siblings or the first defendant retake possession of the disputed land or any part thereof at any time?
(c) what is the effect, if any, of the May-Kelly lease and the Precision leases on the plaintiff’s claim for adverse possession?
Legal principles regarding adverse possession
35The principles relating to adverse possession are well settled. The Court of Appeal conveniently summarised the principles regarding the concept of possession in Whittlesea City Council v Abbatangelo as follows: [5]
“(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.”
[5][2009] VSCA 188 (“Whittlesea”), citing from Bayport Industries Pty Ltd v Watson [2002] VSC 206, [39]-[40] (citations omitted)
36The Court of Appeal in Whittlesea expanded on those preliminary principles as follows:
“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 CJ said in Seddon v Smith (1877) 36 LT 168 at 1609: “Enclosure is the strongest possible evidence of adverse possession”. Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487 at 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 (1969) 20 P & Cr 633 at 642, per Sachs LJ.
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.
[6]For the purposes of this appeal, the following additional principles are also relevant:
(a) The reference to ‘adverse possession’ in s 14(1) of the Act is to possession by a person in whose favour time can run and not to the nature of the possession. The question is simply whether the putative adverse possessor has dispossessed the paper owner by going into possession of the land for the requisite period without the consent of the owner, with the word ‘possession’ being given its ordinary meaning. Whether or not the paper owner realises that dispossession has taken place is irrelevant.
(b) Factual possession requires a sufficient degree of physical custody and control. Intention to possess requires an intention to exercise such custody and control on one’s own behalf and for one’s own benefit. Both elements must be satisfied by a putative adverse possessor, although the intention to possess may be, and frequently is, deduced from the objective acts of physical possession.
(c) In considering whether the putative adverse possessor has factual possession, a court has regard to all the facts and circumstances of the case, including the nature, position and characteristics of the land, the uses that are available and the course of conduct which an owner might be expected to follow. Each case must be decided on its own particular facts. While previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a person’s dealings with land. Acts that evidence factual possession in one case may be wholly inadequate to prove it in another. For example, acts done by a putative adverse possessor who lives next to the relevant property may sufficiently evidence a taking of possession, whereas those same acts may be insufficient if done by a person who lives some distance from the property.
(d) The intention required by law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land.
(e) A number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention.
(f) Statements about intention by a putative adverse possessor should be treated cautiously, as they may be self-serving. But while a statement by a person that he or she intended to possess land will not be enough in itself to establish such an intention, it may be relevant when taken in combination with other evidence suggesting an intention to possess.
(g) Mere use falling short of possession will not suffice. In some circumstances, a person’s use of land may amount to enjoyment of a special benefit from the land by casual acts of trespass and will neither constitute factual possession nor demonstrate the requisite intention to possess. For example, where vacant land abutted a putative adverse possessor’s land, occasional tethering of the claimant’s ponies on the vacant land, and grazing them there, and occasional playing on the vacant land by her children were held not to suffice. Use and enjoyment of a special benefit and exclusive possession are not, however, necessarily mutually exclusive, for exclusive possession will usually entail use and special benefit. Use and enjoyment of a special benefit, on the other hand, will not necessarily amount to exclusive possession.
(h) There is no separate requirement that the use to which the land is put by the putative adverse possessor be inconsistent with the paper owner’s present or future intended use of the land, as suggested by Leigh v Jack. In Monash City Council v Melville, Eames J reviewed the history of the rule in Leigh v Jack and said the following:
To the limited extent that the rule still applies its effect, now, is as follows. Where the trespasser’s acts had not been inconsistent with the future planned use, not therefore manifesting the requisite intention of dispossessing the owner, one might conclude that the requisite elements for adverse possession had not been established; [l]ikewise it may more readily be concluded that the requisite elements to constitute adverse possession had not been established where the land is waste land and the possessor had not done any acts to manifest an intention to dispossess the owner.
However, where the trespasser had done acts which plainly manifested an intention to dispossess the owner, and where the acts would otherwise lead to the conclusion that adverse possession had been established, the fact that the land was waste land or was set aside for some future public purpose, did not introduce any special rule which gainsaid that conclusion.
It was not suggested before us that Eames J incorrectly stated the law in relation to the present limited effect of the rule in Leigh. We would therefore proceed on the basis that his Honour correctly stated the law even if it was not for the subsequent decision of the House of Lords in Pye, where Lord Browne-Wilkinson (with whom the other Law Lords agreed) said this in relation to the rule in Leigh:
The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong … The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such an inference could be properly drawn in cases where the title owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.
(i) While inconsistent use is not required, it may be a factor, where it is present, which is indicative of factual possession and of an intention to possess to the exclusion of the paper owner.”
37The parties agreed there was no dispute relating to the general legal principles regarding adverse possession. These principles were also helpfully summarised by counsel for the plaintiff in his written submissions as follows:[6]
[6] Paragraphs 4 – 5 of the plaintiff’s written submissions dated 16 April 2021
“(1)For a person to acquire possessory title he or she must be shown to have had both factual possession and a requisite intention to possess the land.
(2)Factual possession signifies an appropriate degree of physical control and it must be single and exclusive possession and this is a question of fact dependent on particular circumstances such as the nature of the land and the manner in which such land is commonly used or enjoyed. There is no universally applicable principle to resolve this question.
(3)The intent to possess is that of the claimant to title by possession and involves an intention in relation to the whole world, including the owner with the paper title.
(4) There must be clear and affirmative evidence that the claimant has acquired possession. Equivocal acts will normally not suffice.
(5)The acts must be indicative of the requisite intention to possess.
(6)The concept of adverse possession in the Act is to possession by a person in whose favour time can run and not to the nature of the possession. The question is whether the claimant adverse possessor has dispossessed the paper owner by having possession without the consent of the owner.
(7)The intention required by the law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The claimant, although in adverse possession, need not subjectively believe that he or she is the owner of the land.
(8)A statement of intention by a claimant adverse possessor must be treated cautiously as it may be self-serving, but it may be relevant with other evidence to support the inference of an intention to possess.
(9)Use falling short of possession will not suffice. For example, a use of land may amount to enjoyment of a special benefit of the land by casual, cursory or occasional acts of trespass and this may not suffice to establish factual possession nor demonstrate the requisite intention.
(10)There is no requirement that the use to which the land is put by the claimant adverse possessor must be inconsistent with the paper owner’s present or future use of the land.
(11)Periods of possession can be aggregated so long as there is no gap in possession.
(12)Once the limitation period has expired, the interest of the adverse possessor or a person claiming through them, cannot be abandoned.
(13) Where a claimant originally enters upon the land as a trespasser, they should produce compelling evidence of an intention to possess.
(14) Enclosure by itself prima facie indicates the requisite intention to possess. Enclosure is strong evidence of adverse possession: Marshall v Taylor (1895) 1 Ch 641 at 645; Kierford Ridge Pty Ltd v Ward [2005] VSC 215 at [132]; Laming v Jennings [2017] VCC 1223 at [22] and the authorities cited therein. Fencing may provide evidence of an intention to possess: eg Spiteri v Fibreglass Industrial Products Pty Ltd [2017] VSC 768 at [30]-[31]. Land does not even need to be completely enclosed if the acts of possession and necessary intent can otherwise be established: Bowman v Tremaine [2016] WASC 294 at [143].
(15)Acts of possession with respect to only part of land may in all the circumstances constitute acts of possession with respect to all the land. This rule applies only where the whole of the land is sufficiently defined by fence or physical barrier or otherwise: Bowman v Tremaine [2016] WASC 294 at [40] and the authority cited therein.
(16)Whether the paper owner realises that dispossession has taken place is irrelevant: Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 at [6](a).
(17)In considering whether a person has factual possession, all facts and circumstances must be considered and acts evidencing factual possession in one case may be wholly inadequate to prove it in another case. For example, acts done by an adverse possessor who lives next door to the relevant property may sufficiently evidence a taking of possession, whereas those same acts may be insufficient if done by a person who lives some distance from the property: Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 at [6(c)].
(18) Land does not need to be used continually by squatters for them to be in possession: Laming v Jennings [2017] VCC 1223 at [147].”
38In addition to the common law principles, adverse possession is dealt with under the Limitation of Actions Act 1958 (“the Act”). Section 8 provides that no action shall be brought to recover any land after expiration of 15 years from the date on which the right of action accrued. Under s9, the cause of action for recovery of land accrues on the date of dispossession or discontinuance. Section 14(1) provides the land must be in adverse possession of some person as against the person otherwise entitled to the land. By s16, neither formal entry on the land nor a continual or other claim by the paper title owner is sufficient to stop time running. After the expiration of 15 continuous years of adverse possession, the title of the person who owns the land is extinguished under s18.
39Section 42(2)(b) of the Transfer of Land Act 1958 also provides that the title of a registered proprietor is subject to any rights subsisting under any adverse possession of the land.
The Relevant Possession Periods
40The plaintiff claims there are two potential periods of time for which she might satisfy her adverse possession claim. The first period runs from 8 February 1996 to 7 February 2011 (“the first period”). The alternative period (should it be found that the May-Kelly lease stops Murray’s time running on the adverse possession claim from December 1998 until December 2003) is from December 2003 to December 2018 (“the alternative period”).
The first period: 8 February 1996 to 7 February 2011
41The plaintiff pleads that from 8 February 1996, when Murray became registered proprietor of the plaintiff’s land, Murray and subsequently Mr Suckling have maintained exclusive possession of the disputed land.
42From April 1996 to December 1998, with the permission of the Kelly siblings, Murray continued to access and farm parts of the Maher Land.
43On 7 December 1998, LG May & Son (as tenant) and the Kelly siblings entered into the May-Kelly lease. It is disputed whether the disputed land was included as part of that lease. It is agreed that LG May & Son paid 50 per cent of the annual rates for the Maher Land as required by the May-Kelly lease.
44Both parties led evidence of use and entry upon the disputed land during the first period.
The alternative period: December 2003 to December 2018
45The plaintiff submits that from around the time the May-Kelly lease expired in December 2003, to when Mr Suckling acquired Murray’s property in May 2013, Mr Suckling maintained Murray’s previous intention and acts of possession and exclusive use of the disputed land. Consequently, they are successive adverse possessors of the disputed land, whose time can be added together to amount to a 15-year successive period.
46As with the first period, both parties led evidence of use and entry upon the disputed land during the alternative period.
Did Murray May and Mr Suckling adversely possess the disputed land or part thereof?
47The registered proprietor is deemed to be in possession of the disputed land in the absence of sufficient evidence to the contrary.[7] In order to prove that she has adversely possessed the disputed land, the onus is on the plaintiff to demonstrate that the title holder has been dispossessed.
[7] Whittlesea at [5]
48The plaintiff contends that Murray and later Mr Suckling exclusively possessed and dealt with the disputed land either through the first period or the alternative period.
49The plaintiff submits the Court could find either that title was extinguished over the entirety of the disputed land or alternatively, that title to either the northern portion or the southern portion of the disputed land has been extinguished.
50The defendants accept there has been use of the disputed land by Murray, the extent of which is challenged. Whereas the defendants do not challenge the evidence of the Suckling family regarding use, they submit that Murray and Mr Suckling’s use does not amount to exclusive use for 15 years. If the plaintiff cannot demonstrate 15 years of continuous and exclusive possession of the disputed land by Murray and/or Mr Suckling, the plaintiff’s claim must be dismissed.
Murray May’s use of the disputed land (8 February 1996 to May 2013)
Plaintiff’s submissions on Murray May’s use of the disputed land
51Murray and Lawrence May farmed on both the plaintiff’s land and the disputed land prior to Ada’s death. Lawrence and Ada had an informal, unwritten arrangement allowing both Lawrence and LG May & Son to farm and otherwise utilise Ada’s properties. The farming activities undertaken on the land were mainly cropping of potatoes, wheat, oats, rape (a type of crop), and barley, plus grazing of fat lambs.
52Murray and Lawrence May (and their employees) continued to farm the land following Ada’s death. Crops were rotated regularly each season until Murray sold the farm in 2013. This was corroborated in the affidavits of former neighbouring farmers to the north of the disputed land, Alan and Graeme Myers, whose evidence was not challenged.
53The plaintiff and defendants agree that between February 1996 and about May 2020 there was never any fence or other barrier dividing or otherwise restricting access from the plaintiff’s land to the disputed land. The disputed land has been enclosed along its western, northern and southern boundaries, with the only unfenced side being to its east, namely the plaintiff’s land.
54Murray and his employees shot rabbits on the disputed land from 1996 to 2013.
55Murray did not pay rates for the disputed land. However, as the plaintiff pointed out the payment of rates by an owner raises only a slight inference on the question of actual possession and is not in itself determinative, citing Butler v Dickson.[8]
[8] [2018] VCC 510 at [56] and the cases referred to therein.
56Around 2010, Murray entered a handshake agreement with Sinclair Meats Pty Ltd (“Sinclair Meats”) to permit Sinclair Meats to agist lambs on both the plaintiff’s land and the disputed land. The lambs would eat lucerne on the northern portion of the disputed land before being removed to be slaughtered. The second defendant accepted in cross-examination that these sheep were on the disputed land, and that they were controlled by Murray. At the time of selling the plaintiff’s land to Mr Suckling, the disputed land had been sown with lucerne.
57The plaintiff submits that rights of ownership over the dam on the disputed land are asserted and manifested through use of its water. Murray deposed that he and his employees used water from the dam when he owned the plaintiff’s land to irrigate crops and water stock on both the disputed land and the plaintiff’s land.
58In the late 1990’s or early 2000’s, Murry leased part of the plaintiff’s land to the Prendergast family for one season. The lease included use of Murray’s water licence on the dam and the right to pump water from the dam on the disputed land. This was said to provide further evidence of Murray’s intention to possess because he was treating the dam situated on the northern as if it was his own.
59Between 2006 and 2007, Murray leased the southern portion of the plaintiff’s land and the southern portion of the disputed land to Andrew Maher, a local farmer and Daniel Maher’s uncle. The lease also allowed Andrew Maher to use water from the dam. Rent was paid to Murray for the land and the use of the water.
60The cropping, sheep grazing and water use from the dam was witnessed by Andrew Maher together with Alan and Graeme Myers. Ploughing and cultivating agricultural land by a party that does not own the land may point towards an intention by that party to appropriate land.[9]
[9] See Laming v Jennings [2017] VCC 1223 at [152] (“Laming”)
61Murray built the hut beside the dam in the early 2000s so that he and his staff could sleep there when they needed to be on the land at night to move irrigation pipes and the pump. The hut was also used as a hub when employees would fish in the dam. It included a concrete floor, an old table, a chimney and a pot belly stove.
62The shed was built prior to 1965. Murray used the shed from 1996 to 2013 to house machinery, store hay bales and to store electric irrigation pumps.
63Murray and his father used the power pole on the disputed land to power an electric pump to pump water from the dam. Murray used water from the dam to irrigate crops and to water stock on both the plaintiff’s land and the disputed land. He was able to do so pursuant to a 66 megalitre water licence which he held.
Defendants’ submissions on Murray May’s use of the disputed land
64While the defendants concede that Murray did use the disputed land on occasion, they challenge some alleged acts of possession. The defendants submit that evidence of third parties agisting the disputed land was vague, noting the plaintiff failed to call upon witnesses from Sinclair Meats. They submit the Court should treat Murray’s evidence with caution on the basis of diminished credibility or mistaken memory, as his accounts of his treatment of the disputed land differ to those of the majority of witnesses.
65The defendants further submit that Murray’s use of the disputed land was not exclusive use of the land, precluding a finding of adverse possession. Counsel for the defendants submits that the parties’ opposing contentions of their own various uses of the disputed land for farming, leasing and recreational purposes are not necessarily incompatible with each other. The defendants emphasise that the onus remains on the plaintiff to demonstrate an exclusive and continuous adverse possession, as opposed to concurrent, alternating, intermittent periods of possession which will not suffice to extinguish a paper title owner’s rights.
66The defendants concede that Murray enjoyed exclusive possession of the disputed land between 2003 and 2010.[10] The defendants also concede that Murray May enjoyed exclusive physical use of the southern portion of the disputed land between 2010 and 2013.[11]
[10] Transcript 377 at 11-12
[11] Transcript 309 at 15-28, see also 381 at 2
67The defendants led evidence of a range of acts performed by the Kelly siblings and the second defendant which they submit either demonstrate that Murray did not have exclusive possession of the disputed land between 1998 and 2013, or amount to acts by which they repossessed the land from Murray.
68The first of these acts was John Kelly’s expression of intention, sometime around 1996 and 1998, to include the southern portion of the disputed land on the title of the plaintiff’s land. He gave evidence that if he had been in Dean longer, he would have transferred the southern portion of the disputed land to the Mays. A transfer never eventuated. Pausing here, the mere fact that Mr Kelly thought it desirable or fair that the southern portion of the land should be transferred to the Mays did not affect Murray’s continuous and exclusive possession. Simply knowing that he and his siblings owned this part of the land, but without doing anything more, was not enough to stop the time running on Murray’s claim for adverse possession.
69It was apparent from Ms Kelly’s evidence and that of her brother, John Kelly, that neither of them was fully cognisant of the correct boundaries of the land that they inherited from their grandmother. Ms Kelly went for walks over the disputed land occasionally on a Sunday afternoon and sometimes accompanied her partner, Philip Nagle, who went fishing in the dam. She saw no difficulty in doing so as it had been her grandmother’s land. Andrew Maher’s evidence was that Ms Kelly told him she did not own the dam. His evidence was not challenged. Ms Kelly could not recall having said so when she was cross-examined on the topic.
70Murray deposed that to the best of his knowledge, the Kelly siblings never entered on to the disputed land or used the water in the dam while he farmed the disputed land. He also gave evidence that the Kelly siblings never discussed ownership of the disputed land with him or his father.
71None of the Kellys were farmers and they did not use their land, including the disputed land, themselves in any farming capacity. There was no evidence led which demonstrated that any use by them would have had any physical adverse effect or in any way diminished or restricted Murray’s possession of the land from 1996 onwards. The evidence that was led was restricted and consisted of the odd stroll and fishing on the disputed land. I was not persuaded that any activities conducted by the Kellys interrupted or hindered in any way Murray’s continuous and exclusive possession of the disputed land from 1996 to 2013.
72The defendants led evidence that Daniel Maher, the second defendant, also grazed sheep on lucerne on both the northern portion of the disputed land and the plaintiff’s land. Both Daniel and his brother Patrick Maher said they occasionally herded sheep through the northern gate (then ajar) onto the disputed land, down the eastern side of the dam along the plaintiff’s land, and onto the Dean-Mollongghip Road via the southern portion of the disputed land.
73The plaintiff denies that the defendants herded sheep in this manner, submitting it would be more logical for the lambs to be transported across the Maher land to a gate along the Maher land’s southern boundary.
74The plaintiff alleges that, around 2010, there was an occasion where Mr Maher’s lambs pushed through the northern gate onto the disputed land, and Murray returned them to the second defendant’s leased property before securing the northern gate with barbed wire and mesh. This allegedly rendered the gate inoperable.
75Between 2010 and 2013, Mr Maher said he pumped stock water from the dam approximately four times a year for the lambs on the Maher land. This was done either by driving a water truck through the northern gate and using a petrol-powered pump to draw water from the dam, or, when the dam was full, by parking the water tank on the Maher land and running a hose through the fence to the dam. This water would then be towed to a trough in the south-western corner of the Maher land.
76Murray deposed to never seeing the second defendant pumping water from the dam. Murray further deposed that he did not observe any unexpected drops in the water levels of the dam that would give him cause to believe someone else was pumping water from it.
77The defendants led evidence that the second defendant fished and on occasion licensed others (including his brother Patrick Maher) to fish in the dam between 30 to 50 times a year from 2010 to present. The second defendant claimed to have stocked the dam with trout from Tuki Trout Farm in Smeaton commencing in around 2010. Daniel Maher said he would transport trout and redfin caught on other dams at 76 Dean-Mollongghip Road and other paddocks of the Maher land to the dam.
78Counsel for the plaintiff submitted in closing submissions that the second defendant exaggerated how often he fished at the dam, and that the fishing was not a relevant consideration in determining possession.
79Daniel Maher deposed that he camped on the disputed land and in the hut beside the dam nine times in 2010 and four times between 2011 and 2013, sometimes with his brother Patrick. The most definite occurrence was the night before their sister’s wedding in November 2010.
80The plaintiff disputes the defendants’ assertion that the Maher brothers slept in the hut, as Murray May and his employees never saw the second defendant or his associates sleeping there.
81The defendants further submit that, between 2010 and 2014, Daniel Maher sprayed blackberry bushes on the disputed land once a year and shot rabbits there regularly during the summer, and an additional six times during the remainder of each year.
82The defendants invited the Court, should it believe the evidence of all the witnesses, to find that the plaintiff failed to discharge her onus as to exclusive use during the 2010-2014 window given the evidence of use by the defendants.
Conclusion as to possession from February 1996 to May 2013
83I am satisfied that Murray adversely possessed the whole of the disputed land between 8 February 1996 and May 2013.
84The defendants conceded that from 1996 to 2013 Murray enjoyed exclusive use of the southern portion of the disputed land.[12] I am satisfied that Murray maintained exclusive possession of the southern portion, both through acts of possession such as farming on the land and through an evident intention to exclusively possess the land including by enclosing the land with fencing.
[12] Transcript 377 at 11-12; 309 at 15-28; see also 381 at 2
85I am also satisfied that Murray used the northern portion of the disputed land for farming and grazing. While much of the land is not capable of being cropped due to its steep slopes, Murray’s use of the northern portion for grazing (including contracting with Sinclair Meats for agisting) manifests an act of factual possession that made evident to the world at large that he was not merely a trespasser, but rather someone seeking to take possession of the land from the registered proprietor.[13] The same applied in respect of the leases he entered into with the Prendergast family and Andrew Maher, referred to above. The New South Wales Supreme Court recently highlighted that a squatter’s entry into leases as a landlord of disputed land is a signifier of an intention to possess the property to the exclusion of all others, including the registered title holder.[14] Darke J in the decision of McFarland v Gertos [2018] NSWSC 1629 determined that conferring leasehold interests upon tenants amounts to acts of a person who has the possession of the land.
[13] See Laming at [148]
[14] McFarland v Gertos [2018] NSWSC 1629 at [67]
86Regarding the dam, I accept the plaintiff has demonstrated that Murray enjoyed exclusive possession over the northern portion of the disputed land which the dam occupies. Murray used water from the dam to irrigate crops and water stock on both the disputed land and the plaintiff’s land; clear acts of possession considering the nature of the dam in a farming context.[15] While I accept the accounts of the defendants’ witnesses who fished on the dam, these acts alone did not affect Murray’s exclusive possession of the dam. The fishing activities were intermittent and did not inhibit the main commercial purpose of the dam in an agricultural setting. The fact that Murray applied for and obtained a water licence relating to the dam, in my view, is further evidence of his intention to possess the disputed land.
[15] See Laming at [145]
87Murray’s extensive use of the disputed land was corroborated by the Myers, his neighbours located at the northern boundary of the disputed land.
88Fences enclosed the northern portion to the north and west, manifesting an intention to exclude others from the land. The fences enclosed the disputed land with the plaintiff’s land. The boundary of the southern portion was enclosed with a fence separating it from the road.
89Murray left the northern gate inoperable around 2010 with the result that access could not be gained onto the northern portion. As the case law demonstrates, fencing is a clear sign of an intention to possess land.
90I consider the Kelly siblings’ and second defendant’s acts on the disputed land between 1996 and 2013 fleeting and occasional, manifesting at most a trespassory intention. These acts, for instance fishing at the dam or herding sheep through the northern gate and out the southern portion of the disputed land, were not clear acts of possession but were merely transitory actions which did not diminish Murray May’s long-term possession of the disputed land.
91Having regard to the evidence led, I am well satisfied that Murray adversely possessed the entire disputed land from the Kelly siblings and Elizabeth Kelly for the period of 8 February 1996 to May 2013,in excess of the necessary 15 years.
Mr Suckling’s use of the disputed land (May 2013 to present)
Plaintiff’s submissions as to Mr Suckling’s use of the disputed land
92Mr Suckling took possession of the plaintiff’s land from around May 2013 in accordance with Special Condition 2 of the Contract of Sale. Mr Suckling’s son Cameron Suckling (who assisted his father on weekends, after work and during holidays) deposed that he and his father immediately commenced farming on the plaintiff’s land and the disputed land including:
(a) sowing 10 hectares of pyrethrum and 10 hectares of oats on the northern paddocks of the plaintiff’s land and the disputed land;
(b) putting sheep and lambs on the plaintiff’s land and the disputed land to eat down the lucerne sown by Murray May; and
(c) utilising water from the dam for stock water and irrigating crops.
93Since 2013, the disputed land has been fenced together with the plaintiff’s land to form a single continuous property.
94On 22 August 2013, Mr Suckling took exclusive possession of the plaintiff’s land. The plaintiff pleads that Mr Suckling (and his agents including employees and his sons Tom and Cameron Suckling) continued carrying out farming activities on the disputed land as Murray May had. Between 2014 and 2018, Mr Suckling and his agents grew and harvested potatoes on the plaintiff’s land and disputed land in rotation. The parts not being utilised for a potato crop were sown with wheat, pyrethrum or lucerne in rotation. Mr Suckling put sheep or lamb on the plaintiff’s land and allegedly on the disputed land after the crops were harvested to graze down the grain and regrowth. Cameron Suckling also deposed that between around May 2019 and December 2019, he and Mr Suckling sowed oats on the plaintiff’s land which crossed onto the northern portion of the disputed land.
95Between 2013 and 2015, Mr Suckling also installed underground piping and a centre pivot on the disputed land and the plaintiff’s land to allow him to pump water from the dam to another property he owned, being 1050 Blampied-Mollongghip Road, Mollongghip (“the Blampied Property”).
96Around 2014, Mr Suckling installed a pump site to pump water from the dam. Mr Suckling used the power pole located on the northern portion to power the pump site from 2014 to October 2019.
97Between May 2013 and approximately October 2019, Mr Suckling and Cameron Suckling used water from the dam on the disputed land to irrigate crops on the disputed land, the plaintiff’s land and the Blampied Property, and to provide stock water for animals on the disputed land and the plaintiff’s land. Between August 2013 and October 2019, Mr Suckling used his full entitlement of water (being 66 megalitres) under the water licence he purchased from Murray in the sale of the plaintiff’s land.
98Since May 2013, Mr Suckling and Cameron Suckling have undertaken the following tasks on the plaintiff’s land and the disputed land:
(a) put down lime and gypsum on the paddocks to prepare the paddocks for the next crops to be sown;
(b) removed and replaced internal fencing;
(c) maintained fences which enclose the disputed land and the plaintiff’s land; and
(d) sprayed and slashed weeds.
99The northern portion of the disputed land was too rough and steep to be conveniently cropped, but from 2013 Mr Suckling and his agents used it to graze livestock. The northern portion was maintained by Mr Suckling and Cameron Suckling by slashing the track for vehicles and keeping the grass down around the pump site.
Defendants’ submissions as to Mr Suckling’s use of the disputed land
100Counsel for the defendants conceded at trial that the use of the disputed land by Mr Suckling and his agents was not challenged.[16] However, the defendants contend their use was not exclusive.
[16] Transcript 283 at 3-6
101The defendants conceded that the relevant title holders did not in fact use the southern portion of the land until 2019 after the first defendant became the registered proprietor of the Maher land.[17] From around April 2019 to the date of trial, the second defendant has sown a crop of wheat in the southern portion of the disputed land, preventing Mr Suckling and his agents from using this land to sow their own crops.[18]
[17] Transcript 382 at 16-7
[18] CB 886, 887, 969
102The northern gate, which had been meshed shut by Murray May around 2010, was allegedly cut open by the second defendant around 30 August 2019.[19]
[19] CB 184-5; See also CB 243
103As mentioned at paragraph 77 above, Daniel Maher said he fished in the dam on the disputed land 30 to 50 times a year from 2010 to the present. Philip Nagle, Ms Kelly’s partner, also claims to have fished in the dam shortly after he commenced a relationship with Ms Kelly in 2013 and continued to do so. Mr Nagle estimated he fished in the dam around 10 times a year between 2013 and 2018.
104Counsel for the plaintiff accepted Mr Nagle’s evidence as to him fishing and yabbying in the dam, as well as to him riding his dirt bike on the disputed land.[20]
[20] Transcript 305 at 11-13, 28-31
105The second defendant deposed that around 2017, he observed Mr Suckling removing overgrown willow trees on the plaintiff’s land. He allegedly told Mr Suckling to remove the willow trees on the disputed land as well, though it is disputed whether Mr Suckling in fact did so.
Water in lieu of rent agreement
106The defendants also plead in paragraph 41 of their amended defence that around January 2018, the second defendant and Mr Suckling allegedly came to a “Water in Lieu of Rent Agreement”. The second defendant deposed that he said to Mr Suckling that he “was happy for [Mr Suckling] to continue pumping from the dam and using the Disputed Land for the remainder of the year so long as in the following year he provided me with sufficient paper megalitres from his water licence to irrigate my potato crop, in lieu of rent”. Mr Suckling allegedly agreed to the proposal by saying words to the effect of “that’s fine”, and they shook hands.[21] Mr Suckling allegedly reneged on the alleged Water in Lieu of Rent Agreement in around November 2018.[22]
[21] CB1610-11 [48].
[22] Transcript 102-4, 117-9; CB 1610-2
107In the defendants’ written submissions, it is conceded that this oral agreement did not amount to an acknowledgment of title within the meaning of section 25 of the Act. Instead, the agreement is relied upon as evidence in support of their case that Mr Suckling did not have exclusive possession of the disputed land.
108The plaintiff disputes the likelihood that Mr Suckling would have entered into said agreement. The plaintiff relies on the affidavits of Cameron Suckling, Trevor Shaw and Jessica Eagles, which disclose that Mr Suckling never told his son, close employee or solicitor respectively of such an agreement. Added to this should be the usual cautious scrutiny to be adopted by courts where statements are said to have been made by persons who are deceased and are unable to give evidence.[23]
[23] Plunkett v Bull (1915) 19 CLR 544 at 549
109Cameron Suckling deposed that the Sucklings needed all of the megalitres from Mr Suckling’s water licence to irrigate their own crops. Cameron Suckling states that it would be uncharacteristic of Mr Suckling to agree to such a significant arrangement so swiftly and without asking for his son’s consideration.
110The plaintiff also relies on an internal memorandum from Goulburn-Murray Water regarding correspondence from the second defendant on 9 January 2019 which is silent to the alleged Water in Lieu of Rent Agreement. The Goulburn-Murray Water internal memorandum states that the second defendant was “reluctant to approach [Mr Suckling] to organise an entitlement trade as he believes Suckling will not be supportive of him licensing the storage.” The plaintiff further relies on an email dated 24 October 2019 from the second defendant to Peter Watson of Goulburn-Murray Water requesting the water meter for the dam be removed “as he has refused to trade with us”.
111Even if I did accept that this agreement was made, the plaintiff submits that mere entry into an agreement does not cause any resumption of possession.
112Having regard to all the evidence on this issue and the fact that Mr Suckling cannot give evidence about it, I am not satisfied to the requisite degree that the defendants proved that Mr Suckling entered into the so-called Water in Lieu of Rent Agreement. It is not to be taken that I consider the second defendant has given evidence he knows to be false. Human memory is fallible over time. Given this, weight should be given as far as possible to contemporary materials objectively established facts and the apparent logic of events.[24] It is improbable that Mr Suckling would have entered into such an agreement when he already held the water licence over the dam and was preparing an adverse possession claim over the disputed land. The second defendant’s correspondence to Goulburn-Murray Water in January and October 2019 is silent as to the agreement with Mr Suckling. If anything, it tends to support the plaintiff’s contention that Mr Suckling would not have entered into such an agreement.
[24] Moore v Aubusson [2020] NSWSC 1466
113But, assuming I am mistaken and an agreement was formed in the terms alleged, the Water in Lieu of Rent agreement ultimately had no impact on the plaintiff’s adverse possession claim. Mr Suckling supposedly reneged on the agreement in November 2018 – well after the 15-year period for adverse possession accrued in February 2011 – and therefore this agreement can have no effect.
114In early November 2019, Cameron Suckling observed that the dam’s water meter was disconnected. This was requested by the second defendant in late October 2019 because Mr Suckling had refused to trade water for rent.
Offer to purchase at a Christmas party in 2018
115For the sake of completion, the plaintiff noted in written submissions that the second defendant, in his affidavit dated 21 February 2022, said that Mr Suckling had offered to buy the disputed land from him at a Christmas party at the end of 2018 for the same price per acre that he originally paid. In his affidavit affirmed 6 April 2021, Cameron Suckling denied this allegation, suggesting instead that his father had told him that he had offered to purchase the whole of the Maher land, not just the disputed land. The defendants did not rely upon this matter in either their pleadings or submissions as a potential defence to the claim, for example, as an acknowledgment of the owner’s title. As it was not relied upon by the defendants, it is unnecessary to make any findings on this aspect of the evidence. In any event, the alleged discussion at the Christmas party in 2018 occurred well after the 15-year period of adverse possession had run and is therefore irrelevant.
Conclusion as to possession from May 2013 to present
116I am satisfied that Mr Suckling, upon taking possession of the plaintiff’s land in May 2013, maintained acts and intention of possession over all portions of the disputed land. Mr Suckling’s crop rotations (including upon the southern portion and parts of the northern portion of the disputed land) demonstrate a clear and unambiguous use of the disputed land consistent with the nature of the land and ordinary use of such land. Fencing and enclosure manifests a clear intention to exclude others from possession the property. Even without the defendants’ concession that Mr Suckling and his agents’ use of the disputed land was not contested, I accept the comprehensive and detailed evidence that Mr Suckling and his agents rotated crops and grazed livestock on the disputed land and utilised water from the dam.
117The second defendant and Mr Nagle’s fishing in the dam is insufficient usage to amount to an interruption to Mr Suckling’s exclusive possession of the dam, such that he could not freely irrigate his crops or provide stock water.
118It is only after the first defendant became the registered proprietor of the Maher land in 2018 that Mr Suckling’s exclusive possession of the disputed land was interrupted. By sowing wheat on the southern portion from April 2019, the defendants inhibited Mr Suckling from rotating a crop on the land, a clear interruption of the plaintiff’s exclusive possession. Similarly, requesting the disconnection of the dam’s water meter prevented the plaintiff’s use of the dam water for irrigation, evidently disrupting the plaintiff’s exclusive possession of the dam. By cutting open the northern gate, the second defendant also manifested an intent to repossess the northern portion by gaining uninhibited access to the disputed land.
119Accordingly, I am persuaded the evidence demonstrates Mr Suckling maintained exclusive and continuous possession of the disputed land from May 2013 to April 2019. I am of the view that the physical acts that he engaged in, which were numerous, satisfied the requirements both for factual possession and the necessary intention to possess the disputed land.
Conclusion as to Possession
120I regard the acts of Murray May and Mr Suckling to be unequivocal acts of possession over the entire disputed land from 1996 until 2019. These acts were coupled with a clear intention to exercise control over the disputed land to the exclusion of others. The possession continued for a period of at least 15 years. Accordingly, unless it can be shown that the registered proprietor of the disputed land repossessed it within 15 years of the commencement of time running, the plaintiff’s claim succeeds.
Did the Kelly siblings or the defendants (as registered proprietors of the disputed land) retake possession of the disputed land or part thereof?
121If a title holder recovers possession of disputed land, they stop the time running on the period of adverse possession. It is irrelevant for how short a period the repossession lasts.[25]
[25] See Randall v Stevens (1853) 118 ER 907, 912
122The defendants rely on the actions of the defendants and the Kelly siblings, being the previous title holders, in support of their pleading that possession of the disputed land was retaken so as to stop the time running for adverse possession by Murray and later Mr Suckling.
123The defendants submit that there were two key acts of dispossession, namely:
(a) the May-Kelly lease, which ran from 7 December 1998 to 6 December 2003; and
(b) the first Precision lease, detailed below, which ran from 2010 to 2014.
(collectively, “the Leases”)
124The defendants contend that the Leases amount to acts of dispossession of Murray from the moment they were entered into. The execution of the Leases by the Kelly siblings and by Elizabeth Kelly in her individual capacity respectively as registered proprietors are submitted to be fatal to the plaintiff’s case. The plaintiff accepted the proposition that if the May-Kelly lease did relate to the disputed land, then no claim for adverse possession could be made out from 7 December 1998 to 7 December 2003, because if an adverse possessor is present with the permission of the owner, then any possession cannot be adverse.
125There are three key issues emerging from the Leases:
(a) Was the disputed land included in the area of the May-Kelly lease?
(b) What effect do the Leases have on time running on the adverse possession claim, in circumstances where the registered proprietor entered into them with a third-party?
(c) In substance, are each of the Precision leases a lease or a licence, and does this impact on the time running against the title holder of the disputed land?
(a) Was the disputed land included in the area of the May-Kelly lease?
126The defendants submit that the May-Kelly lease severed any possession that Murray May had over the disputed land, precluding the plaintiff’s exclusive possession in the first period.
127The Kelly siblings entered into a partnership agreement as joint owners of Maher Land to manage and administer the land (described in the agreement as “Loatta”) effectively, including management of the farmland. This partnership agreement states that the land surrounding the property was to be leased by LG May & Son for a period of 5 years.
128The May-Kelly lease was entered into about December 1998. The land leased comprises 74 acres of the 88 acres of Loatta falling within the Maher land. The lease agreement states that the lease includes, inter alia, “the 25 acre paddock located to the north west of the homestead on the northern side of the Mollongghip road (the Island paddock)".
129The plaintiff submits that the May-Kelly lease excluded the disputed land, contending that the boundaries of the Island paddock on the handwritten map attached to the lease reflect an exclusion of the disputed land. The plaintiff relies on a survey Elizabeth Kelly commissioned in 2014 of the arable section of the farm land of the Maher land (which excluded the disputed land) which was approximately 24.8 acres.
130John Kelly drafted the partnership agreement and the May-Kelly lease in 1998. The map attached to the lease was drawn by his father. The map is referred to in the lease. Murray gave evidence that the May-Kelly lease did not include the disputed land. Mr Kelly gave oral evidence that the map reflected what they thought they owned at the time, and was the one he had regard to in his discussions with Murray. Mr Kelly agreed that what he said in the witness box contradicted paragraph 19 of his affidavit, which referred to a map in a later valuation report. Mr Kelly gave evidence at trial that he was unaware they owned the northern portion of the disputed land at the time of the lease.[26]
[26] Transcript 234 and Exhibit P4 “Map prepared by Mr John Kelly in 01/21”.
131Ms Kelly and Daniel Maher gave evidence that the Maher land including the disputed land was approximately 34 acres. This is consistent with an auction notice of the property in 2013 listing it as 33 acres. The May-Kelly lease however refers to the Island paddock being 25 acres as did the Kelly partnership agreement. This provides confirmation that the May-Kelly lease excluded the disputed land.
132Counsel for the defendants acknowledged in closing submissions that the 8-acre difference between the 74 acres in the May-Kelly lease and the 82 acres in the Precision leases was only explicable by reference to the disputed land’s inclusion in the Precision leases and exclusion in the May-Kelly lease.
133Based on the dimensions of the Maher land, the disputed land, Murray’s evidence and coupled with the handwritten map and terms of the lease agreement, I find that the May-Kelly lease did not include the disputed land.
134Accordingly, the defendants’ submission that the May-Kelly lease severed Murray’s adverse possession for the period between 7 December 1998 and about 7 December 2003 is rejected because the disputed land was not the subject of this lease. Consequently, Murray was not in possession of the disputed land with the permission of the title holder, such that his possession continued to be adverse.
(b) What is the effect of the Precision leases on time running in the adverse possession claim?
135The Precision leases are comprised of several memoranda of agreement between Elizabeth Kelly and Precision Production Australia Pty Ltd, a company controlled by the second defendant. The defendants rely on Elizabeth Kelly’s entry into the Precision leases as an act of repossession from Murray May from at least 2010 to 2011, or an act of severance, claiming that the Precision leases stopped time running against Murray May’s alleged adverse possession.
136The first Precision lease agreement was entered into on 1 March 2010. It provides for a one-year tenancy from 1 March 2010 to 1 March 2011 of Lot 2 (approximately 34 acres) being part of the property Loatta to Precision Production Australia Pty Ltd (“the first Precision lease”). It is claimed that this lease included the disputed land.
137Also on 1 March 2010, Elizabeth Kelly and Precision Production Australia Pty Ltd entered into a second lease for three years for Lot 1, (approximately 48 acres) being part of the property Loatta (“the second Precision lease”) on the same terms as the first Precision lease. The second Precision lease relates to other land known as Creeks Land and is not relevant to this dispute.
138The second defendant gave evidence that the first and second Precision leases came to be documented because the land had been advertised for tender. It was not his usual practice to document every lease or deal that he entered into with a neighbour. The second defendant said he was aware that the disputed land formed part of the Maher land when the Precision leases were signed, but accepted he did not plant any crops on any part of the disputed land during the period of the Precision leases. This is consistent with the permitted use which was for grazing.
139Ms Kelly gave evidence that she had the Precision leases drawn up at Mr Maher’s request, and that no survey was done of the area around the time the first two Precision leases were entered into. She agreed that the “little triangle” of the southern portion was not discussed at the time of entering the Precision leases, and that the disputed land in general was not specifically discussed. Ms Kelly agreed that she had commissioned a survey of the land at Mr Maher’s request, which was produced on 27 October 2014, and which again excluded the southern portion.
140The second defendant deposed that he renewed the first and second Precision leases from Elizabeth Kelly until the end of 2014. Elizabeth Kelly deposes to the same renewals. The plaintiff submits that insufficient evidence was adduced at trial for the Court to be satisfied that the Precision leases were renewed after March 2011. However, as the defendants submit, it does not matter if the leases were renewed or not. A one-year lease from 2010 to 2011, if it stopped time running, would interrupt both 15-year continuous periods claimed by the plaintiff and preclude a finding of adverse possession of the disputed land.
141Between 2014 and 2016, Ms Kelly deposed that she leased the land described in the Precision leases to Robert Lockhart. This lease was not produced into evidence. The plaintiff submits there is no evidence before the Court that Mr Lockhart leased or attempted to use the disputed land.
142Ms Kelly and Precision then entered into a further lease on 31 October 2016. This lease commenced on 1 November 2016 for a term of 20 months. (“the third Precision lease”). The second defendant deposed that he did not believe he was leasing the disputed land under this lease. The lease refers to the property as “the Island” being the property marked as parcel 4 on title TP 567616G. This parcel is part of the Maher land. The plaintiff contends that the third Precision lease is of no effect because the first defendant had no intention to possess the disputed land during this period and did not so as a matter of fact. The amount of rent was reduced to take into account the fact that Mr Maher did not want to pay for land he could not use according to his evidence and that of Ms Kelly, which was to similar effect.
Plaintiff’s Submissions
143The plaintiff submits that Elizabeth Kelly’s entry into the Precision leases does not amount to an act or acts of repossession. In opening submissions, counsel for the plaintiff noted that Murray continued to farm the disputed land during the period of the Precision leases, submitting that a mere paper transaction merely executing a document does not of itself have any impact on the chain of adverse possession. He argued that what would have needed to occur to break that chain was a resumption of possession by either Ms Kelly or Mr Maher stopping the adverse possession by enjoying the land or otherwise resuming possession. He claimed further that in order for time to stop running on their claim, the adverse possessor would need to have known that they were being dispossessed of the land of which they were in possession. Counsel for the plaintiff submitted that “mere paper operations” such as entry into a written lease are of no consequence in establishing repossession in the relevant sense.
144Counsel for the plaintiff made these submissions based on his reading of ss 3 and 8 of the Act. The relevant parts of those sections read as follows:
“3 Definitions
…
(4) A person shall be deemed to claim through another person if he became entitled by, through, under, or by the act of that other person to the right claimed…
(5) References in this Act to a right of action to recover land shall include references to a right to enter into possession of the land; and references to the bringing of such an action shall include references to the making of such an entry.
…
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…”
145Counsel for the plaintiff submitted that, reading these sections together, the 15-year time period for an adverse possession claim to be made out begins when the right of action accrues through the person from whom the person claims. In this case, this person is the paper title holder, Elizabeth Kelly. The parties agree that the cause of action of trespass accrued through Ms Kelly either in 1996 or 2003. The plaintiff contends the introduction of a lessee did not stop time accruing as against her. The landlord, Ms Kelly, did not have an interest in reversion or remainder under s 10 of the Act because under ss 8 and 9 the cause of action is treated as having first accrued to the person in possession at the date of accrual of the cause of action.
146The plaintiff argues that mere paper claims of title are of no effect and mere paper operations by a title holder will not have the effect of stopping the possession of an actual possessor or interfere with the maturing of title under the Act. For example, entry into a mortgage would have no effect on the adverse possessor’s claim. The plaintiff submits that entry into a lease of itself is insufficient to stop time running and that factual repossession of the land must be demonstrated, relying on the case of Goodwin v Western Australian Sports Centre Trust [2014] WASC 138 (“Goodwin”).
147In the matter of Goodwin, the plaintiff and the prior registered proprietors of lot 200, which was the site of the Lakeview Terrace Caravan Park, allegedly occupied and used Wright Lake and the land between lot 200 and the shoreline of the lake from 1961 to 2007. From 22 September 1980, the Town of Armadale (later the City of Armadale) had been the registered proprietor of Lot 500, which included the entirety of Wright Lake and its foreshore. On 30 July 2004, the City of Armadale leased the whole of lot 500 to the Armadale Redevelopment Authority from 15 December 2003 to 5 October 2011.
148In determining whether the entry into the lease of the allegedly adversely possessed land interrupted the squatter’s time running, Hennan J at [51] explained:
“[I]n order to consider whether or not the Goodwins' possession of the designated area of Lot 500 continued for 12 years it may be necessary to investigate what, if any, acts of possession of Lot 500 or the designated part of it were exercised by the ARA before 8 February 2006, because if none were the possession by the Goodwins would have continued for 12 years. If, however, the ARA or its authorised agent, the second defendant, had retaken possession of the designated area of Lot 500 from the Goodwins before 8 February 2006, it would be necessary for the plaintiff to rely on some or all of the period of adverse possession by his predecessors, the Dostals, stretching back to 1961.”
149Before this court, Counsel for the plaintiff relied on this passage from His Honour to argue that entering into a lease of itself is an insufficient act to stop time running. It was submitted that the defendants must demonstrate factual acts of resumption of possession from Murray or Mr Suckling.
Defendants’ Submissions
150The defendants contend that the Precision leases are significant for two reasons. Firstly, they submit that, as a matter of law, adverse possession can only be made out against the title of the party in possession. The defendants cite Fairweather v St Marylebone Property Company[27] and Chung Ping Kwan v Lam Island Development Co Ltd[28] as authority for the proposition that where adverse possession is acquired against a tenant, it is the tenant’s interest in land that is extinguished, not the freeholder’s interest. Secondly, they claim that by the Precision leases the landlord Elizabeth Kelly utilised the land by renting it for grazing purposes, thereby interrupting the plaintiff’s adverse possession of the land.
[27] [1963] AC 510 (“Fairweather”)
[28] [1997] AC 38 (“Chung Ping Kwan”)
151Counsel for the defendants submit that if I was to accept (as I have) that the Mays had adversely possessed the disputed land since 1996, from 2010 the adverse possession was not against Elizabeth Kelly as the paper title owner, but rather as against the tenant Precision.
152The defendants submit that adverse possession effectively sanctions a party for allowing their land to fall into disuse, and that the tenant was the party in possession entitled to sue under a cause of action of trespass, with said right extinguished after 15 years of adverse possession. For the four years that the defendants’ claim that Precision leases were on foot, the landlord was not entitled to enter the leased land because of the tenant’s exclusive possession, preventing the landlord from repossessing the land from the adverse possessor or even from suing them in trespass.[29]
[29]Transcript 68 at 16-9; see also 361 at 16-28; quoting Chung Ping Kwan at 46
153The plaintiff contends that Fairweather and Chung Ping Kwan could be of no assistance to the defendants’ claims because in these cases there were already leases in place when the dispossession commenced, so the landlord did have a reversionary interest under s10 of the Act.
154The defendants further submit that Elizabeth Kelly’s act in charging and receiving rent for the disputed land amounts to the “single highest evidence of the resumption of possession by a landholder that is possible by a landlord”. The receipt of rent is the only identifiable act that symbolises a landlord’s title to the land.
155The defendants submit that if the wrongful receipt of rent by Murray as squatter (from the Prendergasts in the late 1990s or early 2000s) is legally effective to dispossess the landlord under s13(3) of the Act, then a landlord’s receipt of rent over disputed land ought to repossess land from a squatter. Section 13(3) provides the following:
“Where
(a) any person is in possession of land by virtue of a lease in writing by which a rent amounting to the yearly sum of not less than $2 is reserved; and
(b) the rent is received by some person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease; and
(c)no rent is subsequently received by the person rightfully so entitled—
the right of action of the last-named person to recover the land shall be deemed to have accrued at the date when the rent was first received by the person wrongfully claiming as aforesaid and not at the date of the determination of the lease.”
156The defendants rebut the plaintiff’s submission that the effect of paper transactions are insufficient to defeat a squatter’s interest. Counsel relies on a number of property law textbooks to illustrate where termination and renewal of leases for proper purposes could defeat a squatter’s interest.[30]
[30] See Transcript 368 at 20-374 at 16
157The defendants submit that acceptance of rent monies in respect of land is constructive or deemed possession of that land by the recipient of that rent (whether that recipient be the paper title owner or a squatter). Accordingly, the Kelly siblings and Elizabeth Kelly as registered proprietors to the freehold estate of the disputed land for the May-Kelly lease and Precision leases respectively are deemed to be in possession of their freehold estates, although they did not have a right to immediate actual possession of the leased land. Fairweather, the authority the defendants rely upon, concerned a squatter who was held to have dispossessed a tenant of their leasehold interest but not that same land’s lessor of their freehold interest. It was held that once the lease was surrendered, time began running afresh against the freehold owner.
Analysis
158The question to be determined is whether a squatter’s time stops running against the freehold interest in the land by the registered proprietor’s mere granting of a lease over the disputed land to a third party.
159It is not contentious that where a squatter commences possession on leased land, time will not run against the landlord, but rather the tenant. Time will not run against the freehold interest until the lease expires or is surrendered.
160Butt’s Land Law (6th edition) (a secondary material referred to in the defendants’ submissions) provides at 91 that the grant of a lease where the tenant does not take actual possession does not stop time running, as it does not amount to a factual retaking of possession. Butt cites the case of Simpson v The Council of North West County District (1978) 4 BPR 9277 (‘Simpson’) to support this conclusion.
161In Simpson, the plaintiff sought declarations that he was entitled to an unencumbered estate in fee simple in a 285-acre parcel of land near the Severn River in northern New South Wales. The land in question was Crown Land, hence the plaintiff relied on the Imperial Crown Suits Act 1796 (“The Nullum Tempus Act”) s1. The plaintiff’s claims were based on adverse possession against the Crown for upwards of 60 years of grazing cattle and cultivation. All parties in that matter accepted that the land had been factually adversely possessed since 1901.[31]
[31] Simpson at 9288-90
162Waddell J found as a matter of general principle that leases granted by the Crown over the relevant land “should be regarded as mere paper titles and not, of themselves, effecting an interruption in the plaintiff’s possession of the land unless there was some entry on the demised land of a kind which was inconsistent with the plaintiff’s possession”.[32]
[32] Ibid at 9293
163His Honour went on to find that “in law the Crown is deemed to be in possession of all Crown land” and that ”the Crown’s possession of the land in law is terminated only when the requirements of s 1 of the Nullum Tempus Act have been satisfied”.[33] His Honour affirmed In re Winter (1893) 14 NSWLR 389 to hold that there was no need to distinguish “the effect of a granting by the Crown of a mining lease from the issue of a Crown grant in fee simple so far as the effect on the Crown’s possession of the land in question is concerned”.[34]
[33]Ibid at 9294, applying Wilson (Doe d) v Terry (1863) 2 SCR App 1; A-G v Brown (1863) 2 SCR App 30
[34] Ibid at 9294
164His Honour determined the following on the Simpson facts (at 9294):
“… the result is that each of the lessees of the mining leases must be regarded as having gone into possession of the land leased and thus the grant of the lease had the effect of interrupting the possession of the plaintiff in respect of that land. In In re Winter the court applied that doctrine by regarding the possession of the occupier as having been interrupted for the day on which the Crown grant was issued and as recommencing on the following day.”
165His Honour noted at 9294 that:
“If it were not for the special position of the Crown in relation to its land I would take the view that the lease to Jeffrey did not interrupt the occupation of the plaintiff because there is no evidence to justify the conclusion that Mr Jeffrey did anything on the land which was inconsistent with the possession of the plaintiff or which could be regarded as an assertion of his rights as lessee of the Crown against the possession of the plaintiff. Similarly, as appears below, I would take the view that the Council did not, pursuant to the lease, interrupt the plaintiff’s possession until January 1975.”
166I do not accept the defendant’s submissions that mere entry into a lease stops Murray or Mr Suckling’s time running against the registered proprietor. I am of the opinion that the plaintiff’s construction of ss 3 and 8 is correct. The cause of action started to run when Murray took possession of the disputed land in 1996 when Ms Kelly was the registered proprietor of the Maher land. Consequently, an action of trespass ought to have been taken by the registered proprietor (or successive owners) within the following fifteen years to stop the time running.
167The cases relied upon by the defendants are distinguishable in that the putative adverse possessors were seeking possession as against a tenant, and the issue was whether time then recommenced against the freehold owner once the tenancy came to an end. The claim for possession made here is not against a tenant self-evidently but as against the title paper owner(s). I do not regard the cases relied upon by the defendants to support the proposition that once a tenant is interposed, this automatically severs the time running for adverse possession. Whilst the entry into a lease by the owner would ordinarily suggest a retaking of possession, a factual enquiry must still be made as to whether the lessee has actually committed acts of repossession sufficient to dispossess the adverse possessor.
168In addition, it must be brought to the squatter’s attention that the registered proprietor is repossessing the land. I agree with the plaintiff’s submission that mere entry into a lease, without physical acts of repossession, fails to amount to such notice. The acts of the tenant fall to be considered as to whether those acts amount to a repossession of the disputed land. Precision’s payment of rent to Elizabeth Kelly was not observable to the world at large (including Murray), and thus lacked a physical manifestation of repossession. The enquiry that needs to be made is whether the tenant acted in a way which was inconsistent with the possession of the plaintiff or which could be regarded as an assertion of his or her rights as tenant against the possession of the plaintiff.
169For the reasons that follow later, I was not persuaded on the evidence that the first defendant, being the tenant under the first Precision lease, acted in a way which was inconsistent with or interrupted Murray’s possession of the disputed land.
(c) Were the Precision leases in substance a lease or a licence?
170Counsel for the plaintiff submitted in closing submissions that each of the Precision leases were in substance a licence. The plaintiff relies on the authority of Radaich v Smith to contend that,[35] if what is granted by an instrument is not of its nature the right to possession or exclusive possession but rather the right to use the land for a particular purpose, there will prima facie be no lease. The plaintiff submits that the Precision leases limited the defendant’s use of the land to grazing on the farmland property only, and that they were thus in substance licences rather than leases. The plaintiff relies on Elizabeth Kelly’s evidence that she could go onto the land whenever she wanted as further pointing towards the grant of a right to use, rather than a right to exclusive possession. The plaintiff contended that there is no relevant interest in land created by the Precision leases.
[35] (1959) 101 CLR 209
171The defendants submit that the Precision leases were in substance leases. Counsel for the defendants submits that it can be inferred that the parties intended to create a lease because the parties chose to title the documents as leases, referred to parties as lessor and lessee, provided for the possibility of assignment and subletting, and referred to the Landlord and Tenant Act 1958.[36] Further, the defendants submit that the conduct of the parties (being Elizabeth Kelly and the second defendant) demonstrate they treated the agreement created by these documents as a lease.
[36] Transcript 358
172The second Precision lease is for unrelated land. The third Precision lease excluded the disputed land so therefore is not relevant to this enquiry. The first Precision lease is the one that the defendants accept would sever time running if I agreed with their submission about the automatic entry into a lease being fatal, which I have rejected. Given this finding, it is strictly unnecessary to decide whether the first Precision lease was lease or licence. But for the sake of completion, I am of the view that the first Precision lease should be treated as a lease rather than a licence. The wording of the document itself repeatedly refers to a lease. The term is provided, as is the tenant, and a description of the demised premises is given. It has a commencement and an end date. The hallmark of a lease is exclusive possession. I do not accept the plaintiff’s argument that because the use was confined to grazing only that this means there is no exclusive possession granted. This runs counter to clause 9 of the first Precision lease which sets out the circumstances where the landlord may be permitted to inspect the leased property. This term is more in keeping with a lease rather than a licence. Overall, as a matter of construction I find that the first Precision lease is a lease.
Physical Acts of Repossession
173Acts relied on by the defendants as demonstrative of the plaintiff’s alleged failure to maintain exclusive possession can also be considered in determining whether the defendants have factually repossessed the disputed land.
174To repossess their land, a title holder must reassert their right to possession, including by retaking factual possession of the land with the requisite intention to possess. Repossession is a question of fact and requires consideration of both the nature of the title holder’s conduct and the nature of the land.
175This is articulated by A’Beckett ACJ in Robertson v Butler [1915] VLR 31 at 37:
“The legal effect of acts relied upon as disturbances of possession must in every case depend upon the character of the possession which they are said to disturb. That which would be an interruption of possession evidenced by continuous acts done upon a small area might be no interruption of possession evidenced by intermittent acts of ownership done at difference places over a wide area.”
176Occasional use of the land itself will be insufficient to amount to retaking of possession.[37] Shared use will also be insufficient to establish the title holder’s retaking of possession unless the use is inconsistent with the enjoyment of the land by the squatter.[38]
[37] KY Enterprises Pty Ltd v Darby [2013] VSC 484 at [139]
[38] Ibid at [141]
177When assessing factual acts of repossession, ”[w]hile previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a person’s dealings with land”.[39] The Court of Appeal Whittlesea also stated that ”a number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention”.[40]
[39] Whittlesea at [6]
[40] Ibid
178The Kelly siblings’ expressed intention to include the southern portion of the disputed land on the plaintiff’s registered land was unknown to Murray. A retaking of possession ”must be brought to the notice of the person in adverse possession”.[41] Accordingly, I do not believe the mere expression of intention to be a sufficient act of repossession. The evidence given by Ms Kelly and her brother was to the effect that they did not know the northern portion of the disputed land belonged to them. John Kelly was aware that the southern portion was owned by them but thought it was appropriate for that portion to be transferred to Murray,
[41] Butler v Dickson [2018] VCC 610 at [74]
179The defendants led evidence of the second defendant, his brother and Phillip Nagle fishing redfin and trout in the dam. The second defendant claimed to fish as often as 50 times a year. Case law provides that intermittent fishing will not amount to a clear and unequivocal act of prescription.[42] While I am prepared to accept that Daniel and Patrick Maher did on occasion fish in the dam, even if I accept their evidence at its highest as the second defendant fishing once a week, for Murray May or the Sucklings to never observe the Maher family or Mr Nagle fishing on the dam suggests that the act of fishing (or Mr Nagle’s yabbying) did not interfere with Murray May’s and subsequently Mr Suckling’s use and enjoyment of the land, including the dam.
[42]Cobham v Joseph Frett (British Virgin Islands) [2000] UKPC 49, applied in Laming at [157]
180Furthermore, applying Re Johnson [1999] QSC 197 at 508, the second defendant’s alleged camping on the land between 2010 and 2013 at a maximum of nine times a year is also insufficient to establish a sufficient degree of exclusive control, as it fails to use the land in a way incongruent with the squatter’s possession.
181The defendants allegedly allowed their stock to eat lucerne on the northern portion of the disputed land. The Court of Appeal in Whittlesea stated that ”it cannot be said that grazing stock on land, of itself, will never be sufficient to establish possession. Whether it is sufficient of itself or in combination with other matters, invites consideration of all the circumstances of the case”.[43]
[43] Whittlesea at [79]
182In the matter of Tecbild Limited v Chamberlain [1969] EWCA Civ J 0212.6, Lord Justice Sachs, concluded that the defendant’s act of grazing and exercising of ponies on disputed land “were not even equivocal, in that they did not appear to provide an equal balance between intent to exclude the true owner from possession and an intent merely to derive some enjoyment, wholly consistent with such use as the true owner may wish to make of the land. The scaled tipped clearly towards the latter conclusion.”[44]
[44] Tecbild Limited v Chamberlain [1969] EWCA Civ J 0212.6 at 8
183I regard the defendants’ acts of permitting their sheep to graze on lucerne on the disputed land and herding their sheep over both the disputed land and the plaintiff’s land as acts performed merely to derive some enjoyment from the land. The defendants could not distinguish between the disputed land and the plaintiff’s land at the time of the alleged grazing and herding. The second defendant gave evidence that he had anywhere from three to 150 sheep grazing on the land leased under the Precision leases. This land included the island paddock as well as the disputed land initially. Accordingly, the number of sheep grazing beyond the Maher land at any time was never substantial and was limited to the northern portion. Given this, in my view, the benefit derived from these acts is at best characterised as convenient and casual enjoyments of the land beyond the Maher land. The defendants ceased sheep grazing on the disputed land after Mr Suckling took ownership of the adjacent property.
184The defendants deposed to pumping water from the dam between 2010 to 2013, which was towed to the trough in the south-western corner of the Maher land. Malcolm CJ in Ghilarducci v Ghilarducci held that mere use of a bore on a disputed boundary, as is the case here, was held to not establish possession in the whole or a defined portion of another’s land.[45]
[45] [1992] WASC 385 at 12
185The defendants’ further alleged acts of spraying blackberry bushes once a year,[46] shooting rabbits[47] and moving of stones[48] are also readily characterised as acts of an equivocal nature, insufficient to amounting to acts of factual repossession. While maintenance of a property is typically understood to be the responsibility of the owner of the property, none of these acts manifested an intention to exclude Murray or Mr Suckling from the disputed land.
[46] See Laming at [168]
[47] See Robertson v Butler [1915] VLR 31 at 38
[48]See Cobham v Frett (British Virgin Islands) [2000] UKPC 49, applied in Laming at [157]
186The plaintiff submits that the Kellys did not farm the disputed land from 1996 up to 2010, being the commencement date of the first two Precision leases, [49] and did not take any steps to reclaim possession from Murray.
[49] Transcript 345 at 24-28
187The plaintiff relies on the authority of Cobham v Frett to support the contention that the registered proprietors’ combination of transient uses of the disputed land can be held to be insufficient to amount to possession.[50]
[50] [2000] UKPC 49. See Transcript 352
188Counsel for the plaintiff submit that the defendants did not do anything factually to dispossess the defendant until 2019, by which time it is too late.[51]
[51] See Transcript 349 - 350
Conclusion as to repossession
189I accept the defendants’ witnesses regarding their use of the disputed land for recreational fishing, infrequent camping in the hut, pumping water from time to time and the occasional grazing of sheep on the disputed land. This is despite the contrary evidence given by Murray and his neighbours that they never saw the Mahers on the land. But it is common in adverse possession disputes, particularly where farming land is concerned, that many individuals can use the same parcel of land, and, like ships that pass in the night, never witness each other’s enjoyment. Murray did not live on the plaintiff’s land and visited 2-3 times per week. It is possible that the defendants’ activities did occur without him knowing.
190However, the use of the land by a registered proprietor must be sufficient to be inconsistent with the squatter’s alleged use. I am of the opinion that, until 2019, the acts of the Kelly siblings and the defendants were insufficiently unequivocal to repossess the disputed land from Murray or Mr Suckling.
191The intermittent fishing and yabbying in the dam, and the camping both at the hut and around the dam were fleeting activities that did not disturb Murray and Mr Suckling’s use and possession of the disputed land for farming, grazing, and irrigating. The second defendant’s lambs may have grazed on lucerne in the northern portion of the disputed land occasionally, but the transitory use of the disputed land’s resources lacks the unequivocal characterisation to manifest repossession of land being used for commercial gain by Murray and Mr Suckling. In contrast, Murray’s repulsion of the defendants’ sheep back onto the Maher and closing off the northern gate to prevent access demonstrated an unequivocal act of possession.
192As noted earlier, it is only in 2019, when the first defendant became registered proprietor of the Maher land that the registered proprietor of the disputed land undertook physical acts of repossession. The sowing of wheat on the southern portion of the disputed land, the disconnection of the dam’s water meter, installing a fence on the boundary of the plaintiff’s land and the disputed land and the cutting open of the northern gate were clear acts of dispossession performed by the second defendant in an attempt to resume possession of the disputed land. Such acts made apparent to the world at large that the first defendant was not merely a trespasser but rather an owner reclaiming possession of the disputed land. But these events occurred well after the cause of action for adverse possession had already accrued. Any acts of repossession taken in 2019 were too late and of no effect because by that time, the clock had stopped ticking.
193I am satisfied that the registered proprietors of the disputed land did not repossess the land from the adverse possessors being Murray and later Mr Suckling. Accordingly, I find that the plaintiff has successfully made out her claim that Murray adversely possessed the disputed land from February 1996 to April 2013 when he sold the plaintiff’s land to Mr Suckling. The relevant 15-year period ran from 8 February 1996 and expired on 7 February 2011. I further find that Mr Suckling continued to adversely possess the disputed land following his purchase and this continued up until the defendants attempted to retake possession in April 2019.
Conclusion
194In summary, I find the plaintiff has succeeded in her claim for adverse possession of the disputed land. I will make declarations and orders in the following terms:
(a) the plaintiff has established her claim of title by adverse possession to the whole of the disputed land;
(b) the first defendant’s title to the disputed land is extinguished pursuant to section 18 of the Limitation of Actions Act 1958;
(c) the plaintiff is the beneficial owner in fee simple of the disputed land and is entitled to be registered as the proprietor of the disputed land;
(d) the Court directs the Registrar of Titles to do any act or make any amendments to the Register that are necessary to give effect to these orders.
195I will hear from the parties on the precise form of final orders to be made, including costs.
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Certificate
I certify that these 53 pages (including annexures) are a true copy of the reasons for judgment of Her Honour Judge A Ryan delivered on 11 April 2022.
Dated: 11 April 2022
Associate to Her Honour Judge A Ryan
ANNEXURE 1
ANNEXURE 2
ANNEXURE 3
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