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McFarland v Gertos

McFarland v Gertos

Case [2018] NSWSC 1629 30 October 2018

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Supreme Court

New South Wales

Medium Neutral Citation: McFarland v Gertos [2018] NSWSC 1629
Hearing dates: 8-9 October 2018
Date of orders: 30 October 2018
Decision date: 30 October 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Amended Summons is dismissed with costs.

Catchwords: LAND LAW – possessory title – registered proprietor of land died intestate in 1947 – no grant of administration – defendant takes possession of property in 1998 – defendant has since acted as landlord of the land – in 2017 defendant makes application to Registrar-General to become registered proprietor – descendants of registered proprietor seek declaration that defendant is not entitled to obtain possessory title to land – title of registered proprietor would be extinguished by the Limitation Act 1969 (NSW) if it applied to the land – defendant entitled to obtain possessory title
Legislation Cited: Interpretation Act 1987 (NSW), s 21
Limitation Act 1969 (NSW), s 11, s 27, s 29, s 31, s 38, s 52, s 65
Probate and Administration Act 1898 (NSW), s 44
Real Property Act 1900 (NSW), s 45C, s 45D, s 45E, s 122, s 124
Cases Cited: Abbatangelo v Whittlesea City Council [2007] VSC 529; (2008) V Conv R 54-750
Atsas v Gertsch [1998] NSWSC 522
Bartlett v Ryan [2000] NSWSC 807
Chetty v Chetty [1916] 1 AC 603
GEL Custodians Pty Ltd v The Estate of the late Geoffrey Francis Wells [2013] NSWSC 973
Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369
Hawkins v Clayton (1988) 164 CLR 539
Hewitt v Gardner [2009] NSWSC 705
J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Powell v McFarlane (1979) 38 P&CR 452
Refina Pty Ltd v Binnie [2010] NSWCA 192
Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch)
South Maitland Railways Pty Ltd v Satellite Centres Australia Pty Ltd [2009] NSWSC 716
Category: Principal judgment
Parties: Lucy Joyce McFarland (First Plaintiff)
Graeme Hugo (Second Plaintiff)
Colin Charles Hugo (Third Plaintiff)
Bill Gertos (First Defendant)
Registrar-General of NSW (Second Defendant)
Representation:
Counsel:
Mr C Stomo (Plaintiffs)
Mr P C Tomasetti SC with Ms M Carpenter (First Defendant)
Solicitors:
Kedron Legal (Plaintiffs)
Jordan Djundja Lawyers (First Defendant)
Fiona Harris, Solicitor for the Registrar-General (Second Defendant – Submitting Appearance)

File Number(s): 2017/348059
Publication restriction: None

Judgment

Introduction

These proceedings concern a property at 6 Malleny Street, Ashbury. The property is land under the provisions of the Real Property Act 1900 (NSW). The title reference is Folio Identifier 55A/316317. The registered proprietor of the fee simple is Henry Thompson Downie. Mr Downie died in 1947, apparently without leaving a will. No representative has since been appointed in respect of the deceased estate. That is, there has been no grant of administration.
At the time of Mr Downie’s death the property was subject to a tenancy in favour of a Mrs Grimes. There is…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading McFarland v Gertos

Details

AGLC: McFarland v Gertos [2018] NSWSC 1629
Case: [2018] NSWSC 1629
Decision Date: 30 October 2018

CaseChat Overview and Summary

The plaintiff sought a declaration that the defendant was not entitled to obtain possessory title to land in Sydney. The defendant had taken possession of the land in 1998, after the death of the registered proprietor who died intestate in 1947. No grant of administration had been made in relation to the estate of the proprietor. In 2017 the defendant applied to the Registrar-General to become the registered proprietor of the land. The plaintiff, a descendant of the registered proprietor, opposed the application and sought a declaration that the defendant was not entitled to possessory title. The defendant claimed entitlement to possessory title by virtue of the Land Title Act 1995 (NSW). The plaintiff argued that if the Limitation Act 1969 (NSW) applied to the land, the title of the proprietor would be extinguished and the defendant would be unable to obtain possessory title.
The court considered whether the Limitation Act applied to the land, and if not, whether the defendant could establish the statutory requirements for possessory title. The court concluded that the Limitation Act did not apply to the land, and that the defendant had established the necessary statutory requirements for possessory title. The court found that the defendant had been in possession of the land since 1998 and had acted as the landlord of the land, and that the period of possession was sufficient to meet the statutory requirements for possessory title. The court also found that the defendant had taken possession of the land in good faith, and that there was no evidence of any fraud or misrepresentation.

The court determined that the defendant was entitled to obtain possessory title to the land, and that the application to the Registrar-General should be granted. The plaintiff's claim for a declaration that the defendant was not entitled to possessory title was dismissed. The court made an order declaring that the defendant was entitled to obtain possessory title to the land and that the Registrar-General should register the defendant as the proprietor of the land. The plaintiff was ordered to pay the defendant's costs of the proceeding.

Orders