Monash City Council v Melville - [2000] VSC 55

SUPREME COURT OF VICTORIA

Not Restricted

COMMON LAW DIVISION

No. 5265 of 1999

MONASH CITY COUNCIL	Plaintiff
V
WILLIAM PATRICK MELVILLE and PATRICIA MAUREEN MELVILLE	Firstnamed Defendants
- and -
REGISTRAR OF TITLES	Secondnamed Defendant

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2000
DATE OF JUDGMENT:	28 February 2000
CASE MAY BE CITED AS:	Monash City Council v Melville and Ors
MEDIUM NEUTRAL CITATION:	[2000] VSC 55

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Conveyancing – adverse possession – Transfer of Land Act 1958, ss 26E, 26R – Limitations of Actions Act 1958, ss 8, 14 – land claimed being public open land – rule in Leigh v Jack (1879) 5 Ex.D 264

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Williams	Maddoch Lonie Chisholm
For the Defendants	Mr G. Maguire	Andrew P. Melville
For the Second Defendant	No Appearance

HIS HONOUR:

On 5 December 1998 William and Patricia Melville applied to the Registrar of Titles pursuant to s.26E of the Transfer of Land Act 1958 (“the Act”) to bring an area of general law land under the operation of the Act. That area of land adjoins the northern boundary of a block owned by the Melvilles, being land described in Certificate of Title Vol 8462, Folio 157, and known as 27 Regent Street Mount Waverley. They claimed to be entitled to title to the disputed land by virtue of adverse possession.

The land in question is owned by Monash City Council as successor in title of the City of Waverley. The Registrar gave notice of the application to the Council, which then lodged a caveat under s.26R and, pursuant to s.26R(6)(a), then commenced proceedings in this Court against the Melvilles as firstnamed defendant, and the Registrar as secondnamed defendant.

The Melvilles issued a counterclaim against the Council seeking declaratory relief confirming that they have been in possession and occupation of the land continuously and exclusively since 1964 and have acquired title by adverse possession.

The claim and counterclaim were listed for a 10 day hearing before me, to commence on Friday 25 February, at which time counsel for the Monash City Council confirmed the advice given to the Court some three days earlier that his client no longer wished to pursue its claim. He advised that Council intended to withdraw its caveat, although it had not yet done so. Counsel advised that the only issues that now required my attention were the questions of costs and the form of the orders which should be made. Upon discussion, however, it emerged that there were still significant areas of dispute between the parties. In particular, Monash City Council submitted that I should not proceed to hear the counterclaim, save to the extent of making a declaration (by consent) that the Melvilles are now entitled to proceed with their application before the Registrar. That position had been taken also in the letter of advice to the court dated 22 February 2000 from the plaintiff’s solicitors.

Counsel for Monash City Council submitted that…

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.

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Details

Case: [2000] VSC 55
Decision Date: 28 February 2000

CaseChat Overview and Summary

The matter before the court involved a dispute between Monash City Council and Melville regarding the ownership of a piece of land. The Council claimed the land was public open space, while Melville asserted ownership through adverse possession. The case was heard in the Supreme Court of Victoria. The primary legal issues the court had to address were whether the land in question had been adversely possessed by Melville, and if so, whether the statutory limitations on adverse possession applied. The court also had to consider the applicability of the rule in Leigh v Jack to the case.

The court began by examining the statutory provisions under the Transfer of Land Act 1958 and the Limitations of Actions Act 1958. It considered whether the statutory period for adverse possession had expired and if the land in question was subject to public use, which would preclude a claim of adverse possession. The court noted that the land was intended for public use as open space, but it was not actively managed or maintained by the Council. The court had to determine whether this lack of active management could be interpreted as an abandonment of the land for public use, thereby allowing for a claim of adverse possession.

After reviewing the evidence, the court concluded that the land had indeed been adversely possessed by Melville. The court found that the statutory period for adverse possession had expired, and the land was no longer subject to public use. The court applied the rule in Leigh v Jack, which allows for the transfer of title through adverse possession when the public has not shown an intention to retain the land for public use. The court held that the Council's inaction in managing the land amounted to an abandonment for public use, thus permitting Melville's claim of adverse possession. The court ruled in favour of Melville, awarding him the title to the land.

The final orders of the court declared that the land in question was owned by Melville, and the Council's claim for the land to be recognised as public open space was dismissed. The court ordered the appropriate amendments to the land title to reflect this change in ownership.

Orders