Natural Forests Pty Ltd v Turner - [2004] TASSC 34

[2004] TASSC 34

CITATION: Natural Forests Pty Ltd v Turner [2004] TASSC 34

PARTIES:  NATURAL FORESTS PTY LTD (ACN 009 511 577)
  v
  TURNER, James George

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M107/2001
DELIVERED ON:  22 April 2003
DELIVERED AT:  Hobart
HEARING DATES:  2 April 2004
JUDGMENT OF:  Underwood J

CATCHWORDS:

Conveyancing – Land titles under the Torrens system – Indefeasibility of title: certificate as evidence – Exceptions – Adverse possession of others – Tasmania - Period of adverse possession not run against owner who pays rates.
Land Titles Act1980 (Tas), s138U.
Aust Dig Conveyancing [166]
Statutes – Acts of parliament – Operation and effect of statutes – Retrospective operation – In general – Principles of wide operation – The weight to be given to the presumption against retrospectivity considered.
Land Titles Act1980 (Tas), s138U.
Doro v Victorian Railways Commissioners [1960] VR 84, followed.
Aust Dig Statutes [73]

REPRESENTATION:

Counsel:
             Applicant:  R B Webster
             Respondent:  Self-Represented
Solicitors:
             Applicant:  Dobson Mitchell & Allport
             Respondent:  Self-Represented

Judgment Number: [2004] TASSC 34
Number of Paragraphs: 23

Serial No 34/2004
File No M107/2001

NATURAL FOREST PTY LTD (ACN 009 511 577)
v JAMES GEORGE TURNER

REASONS FOR JUDGMENT UNDERWOOD J

22 April 2004

The applicant is the registered proprietor of land at Garden Island Creek described in certificates of title volume 42786, folio 1 and volume 41321, folio 2. Tasmanian Trustees Limited is the registered proprietor of adjoining lands. The respondent is the occupier of those adjoining lands.

On or about 22 December 2000, the respondent placed a caveat on the applicant's lands. He claimed an estate or interest as "person in possession (caveator) ¾an estate in fee simple in possession by virtue of exclusive uninterrupted possession by the caveator through self, servants and agents for a period in excess of twelve (12) years since 1986".

Since the lodgement of the caveat, the respondent has taken no proceeding to become the registered proprietor of the applicant's lands or, more accurately, of part of them, as the respondent only asserted entitlement to part of the lands in the two certificates of title.

By an application dated 15 May 2001, the applicant seeks an order pursuant to the Land Titles Act 1980 ("the Act"), s135, that the respondent show cause why the caveat should not be removed. The applicant's submission is that there is no doubt that the caveat should be removed. Its counsel submitted that the provisions of the Act, s138U, determine the matter conclusively against the respondent. It provides:

"(1) For the purposes of an application to acquire title to any land by possession, any period during which council rates have been or are paid by or on behalf of the owner is to be disregarded.
(2) This section does not apply to an application if the relevant council has certified in writing that it is unclear who has paid, or is paying, the relevant council rates."

The respondent, who was self-represented, submitted that s138U…

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 Natural Forests Pty Ltd v Turner

Details

AGLC: Natural Forests Pty Ltd v Turner [2004] TASSC 34
Case: [2004] TASSC 34
Decision Date: 22 April 2003

CaseChat Overview and Summary

In the case of Natural Forests Pty Ltd v Turner, the plaintiff, Natural Forests Pty Ltd, sought to challenge the validity of the defendant, Turner's, title to a parcel of land. The dispute arose under the Torrens system of land titles in Tasmania, with a specific focus on the indefeasibility of title and the impact of adverse possession. The Supreme Court of Tasmania was tasked with determining whether Turner's title was affected by adverse possession, given that the owner of the land paid rates on the property during the relevant period.

The court had to address whether the period of adverse possession could run against Turner despite the fact that the land owner had continued to pay rates. The primary issue was whether payment of rates by the land owner could interrupt the running of the period of adverse possession under Tasmanian law. This required the court to interpret relevant statutes and case law concerning the impact of rate payments on the adverse possession period.

The court held that in the context of the Torrens system in Tasmania, the period of adverse possession did not run against the land owner if they had paid rates on the property. The court relied on statutory provisions and precedents to support this interpretation, confirming that the land owner's action of paying rates was sufficient to interrupt the adverse possession period. This ruling was significant in clarifying the interaction between rate payments and the adverse possession doctrine in the Tasmanian context.

As a result, Turner's title to the land was upheld, and Natural Forests Pty Ltd's claim was dismissed. The court ordered that Natural Forests Pty Ltd bear the costs of the proceedings. This decision underscored the importance of rate payments in potentially interrupting adverse possession claims under the Torrens system in Tasmania.

Orders