Payne v Dwyer

Case [2013] WASC 271

PAYNE -v- DWYER [2013] WASC 271



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 271
Case No:CIV:1364/201110 & 11 DECEMBER 2012
Coram:PRITCHARD J23/07/13
38Judgment Part:1 of 1
Result: Plaintiff's claim that mineral interest not extinguished upheld
Plaintiff's claim for conversion dismissed
Defendant's counterclaim for adverse possession dismissed
A
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Parties:ALEXANDER LESLIE PAYNE
RAZOR HOLDINGS PTY LTD
JONATHON JAMES DWYER

Catchwords:
Claim against co-proprietor of minerals in land
Adverse possession of minerals in land
Whether 'actual possession' of minerals for the purposes of Limitation Act 1935 (WA)
Whether interest in minerals derived from 'instrument' for purposes of Limitation Act 1935 (WA)
Conversion of minerals
Whether minerals a chattel capable of conversion
Conversion of co-owned property
Limitation Act 1935 (WA), s 5, s 14

Legislation:
Limitation Act 1935 (WA)
Transfer of Land Act 1893 (WA)

Case References:
Attorney General v Brown (1847) 1 Legge 312
Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465
Bride v Shire of Katanning [2013] WASWCA 154
Bunnings Group Limited v CHEP Australia Limited [2011] NSWCA 342
Cardigan v Armitage (1823) 2 B and C 197
Case of Mines (1567) 1 Plowd 310
Chirnside v Registrar of Titles [1921] VLR 406
Commissioner of Stamp Duties (NSW) v Henry (1964) 114 CLR 322
Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Limited (2002) 209 CLR 651
Commissioner of State Taxation v Balcatta Nominees [1981] WAR 7
Commonwealth v Hazeldell Limited (1921) 29 CLR 448
Commonwealth v New South Wales (1923) 33 CLR 1
Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9
Dand v Kingscote (1840) 6 M and W 174
Davidson v Elkington [2011] WASC 29
DKLR Holding Co (No. 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510
Duncan v Joslin (1965) 51 WWR 346
Estate of King v Estate of Buckle (1999) ABCA 343
Ex parte Henry; re Commissioner of Stamp Duties [1963] NSWR 1079
Fennings v Lord Grenville (1808) 1 Taunt 241
Fermora Pty Ltd v Kelvedon Pty Ltd [2011] WASC 281
Finesky Holdings Pty Ltd v Minister for Transport (WA) (2002) 26 WAR 368
Goold v Great Western Deep Coal Co (1865) 2 De GJ and S 600
Gwinnett v Day and Anor [2012] SASC 43
Hill and Anor v Reglon Pty Ltd [2007] NSWCA 295
In the matter of an application by John Edward Franklin [2009] VSC 496
JA Pye (Oxford) Ltd v Graham [2003] 1AC 419
Job v Potton (1875) LR 20 Eq 84
Jones v Consolidated Anthracite Collieries Limited v Dynevor [1915] 1 KB 123
Jones v Seward (1872) LR 5 HL 464
Kitano v The Commonwealth (1974) 129 CLR 151
Kitching v Phillips (2011) 278 ALR 551
Kuwait Airways Corporation v Iraqi Airways Co (No. 4 and 5) [2002] 2 AC 883
Livingstone v Rawyards Coal Company (1880) LR 5 HL 25
Lord Provost and Magistrates of Glasgow v Farie (1888)…

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AGLC
PAYNE -v- DWYER [2013] WASC 271
Case
[2013] WASC 271
Decision Date

CaseChat Overview and Summary

In Payne v Dwyer, the plaintiff, Payne, sought to prevent the defendant, Dwyer, from claiming a co-proprietary interest in minerals located in land owned by Payne. The dispute arose in the Supreme Court of Western Australia, where Payne argued that Dwyer's claim of adverse possession of the minerals was invalid and that Dwyer had converted the minerals by extracting and selling them. The legal issues at the heart of this case involved the interpretation and application of the Limitation Act 1935 (WA) and the nature of the mineral rights as either an interest in land or a chattel.

The court was required to determine whether Dwyer had established 'actual possession' of the minerals for the purposes of the Limitation Act 1935 (WA) and whether the mineral interest was derived from an 'instrument'. Additionally, the court needed to decide whether the minerals could be classified as a chattel capable of conversion, and if so, whether Dwyer's actions constituted conversion under the law. The court also had to consider the implications of Dwyer's actions on Payne's co-proprietary interest in the minerals.

The Supreme Court of Western Australia held that Dwyer had not established the requisite 'actual possession' of the minerals to claim adverse possession under the Limitation Act 1935 (WA). The court found that the interest in the minerals was not derived from an 'instrument', and therefore, the limitation period did not apply. The court also determined that the minerals were not chattels capable of conversion, dismissing Payne's claim for conversion. Consequently, Dwyer's counterclaim for adverse possession was also dismissed. The court upheld Payne's claim that the mineral interest had not been extinguished and dismissed Dwyer's counterclaim.

Orders

Orders of the court

Plaintiff's claim that mineral interest not extinguished upheld

Plaintiff's claim for conversion dismissed

Defendant's counterclaim for adverse possession dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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