PAYNE -v- DWYER [2013] WASC 271

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 271
Case No:	CIV:1364/2011	Heard:	10 & 11 DECEMBER 2012
Coram:	PRITCHARD J	Delivered:	23/07/13
No of pages:	38	Judgment 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
Category:	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) 13 App Cas 657 McDonnell v McKinty (1847) ET 514 Miller v Evans [2010] WASC 127 Minister for Mineral Resources v Brantag Pty Ltd [1997] NSWCA 206 Moors v Burke [1919] HCA 32; (1919) 26 CLR 265 O’Grady v North Queensland Company Ltd [1990] 2 Qd R 243 Panther Resources Ltd v Canadian Northern Railway [1984] 2 WWR 237 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 Powell v McFarlane (1979) 38 P and CR 452 Radonich v Radonich [1999] WASC 165 Re Gerard and London and Northwest Rail Co [1895] 1 QB 459 Re Gillie; ex parte Cornell (1996) 70 FCR 254 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Shire of Wannon v Riordan [1955] 1 VLR 413 Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177 Waring v Foden [1932] 1 Ch 276 Water Corporation v Hughes [2009] WASC 152 Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 Whittlesea City Council v Abbatangelo (2009) 259 ALR 56 Wik Peoples v Queensland (1996) 71 ALJR 173 Wills v Wills [2003] UKPC 84 Woolley v Attorney General (Vic) (1877) 2 App Cas 163

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PAYNE -v- DWYER [2013] WASC 271 CORAM : PRITCHARD J HEARD : 10 & 11 DECEMBER 2012 DELIVERED : 23 JULY 2013 FILE NO/S : CIV 1364 of 2011 BETWEEN : ALEXANDER LESLIE PAYNE

First Plaintiff

RAZOR HOLDINGS PTY LTD

Second Plaintiff

AND

JONATHON JAMES DWYER

Defendant

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)

Result:

Plaintiff's claim that mineral interest not extinguished upheld

Plaintiff's claim for conversion dismissed
Defendant's counterclaim for adverse possession dismissed

Category: A

Representation:

Counsel:

First Plaintiff : Mr S Penglis

Second Plaintiff : Mr S Penglis

Defendant : Mr D H Solomon & Mr C S Williams

Solicitors:

First Plaintiff : Herbert Smith Freehills

Second Plaintiff : Herbert Smith Freehills

Defendant : Solomon Brothers

Case(s) referred to in judgment(s):

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) 13 App Cas 657
McDonnell v McKinty (1847) ET 514
Miller v Evans [2010] WASC 127
Minister for Mineral Resources v Brantag Pty Ltd [1997] NSWCA 206
Moors v Burke [1919] HCA 32; (1919) 26 CLR 265
O’Grady v North Queensland Company Ltd [1990] 2 Qd R 243
Panther Resources Ltd v Canadian Northern Railway [1984] 2 WWR 237
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204
Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163
Powell v McFarlane (1979) 38 P and CR 452
Radonich v Radonich [1999] WASC 165
Re Gerard and London and Northwest Rail Co [1895] 1 QB 459
Re Gillie; ex parte Cornell (1996) 70 FCR 254
Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324
Shire of Wannon v Riordan [1955] 1 VLR 413
Wade v New South Wales Rutile Mining Co Pty Ltd (1969) 121 CLR 177
Waring v Foden [1932] 1 Ch 276
Water Corporation v Hughes [2009] WASC 152
Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528
Whittlesea City Council v Abbatangelo (2009) 259 ALR 56
Wik Peoples v Queensland (1996) 71 ALJR 173
Wills v Wills [2003] UKPC 84
Woolley v Attorney General (Vic) (1877) 2 App Cas 163

1 PRITCHARD J: The plaintiffs and the defendant own undivided half shares in minerals located in some land in Bindoon (which land is owned by the defendant). A dispute has arisen about two issues. The first is whether the plaintiffs' title in the minerals has been extinguished as a result of adverse possession by the defendant. The second is whether the defendant engaged in the tort of conversion of minerals co-owned by the plaintiffs, as a result of extracting gravel from the land and selling it to third parties. These issues were tried as separate issues in advance of the trial of the plaintiffs' claim for damages flowing from the alleged conversion.

2 For the reasons set out below, I have concluded that the plaintiffs have not lost title to their interest in the minerals by virtue of adverse possession by the defendant, and that the defendant's claim of adverse possession fails. I have also concluded that the extraction of gravel by the defendant does not constitute a conversion of the minerals, and accordingly the plaintiffs' claim in conversion must fail. That conclusion means that it is unnecessary for any further trial on the question of damages.

3 These reasons for decision deal with the following matters:

1. Overview of general principles in relation to rights to minerals in land;

2. Factual background;

3. The adverse possession claim;

4. The conversion claim.

1. Overview of general principles in relation to rights to minerals in land

4 Before turning to consider the factual background to the parties' claims, it is useful to bear in mind some general principles concerning the rights to minerals in land, which assist in understanding the factual context for the present dispute.

5 At common law, the general principle is that the owner of land owns everything on or below the surface of that land to an indefinite extent,1 so that the land owner owns all minerals on or beneath the surface of that land. This general principle was subject to the exception of what were known as the 'royal metals' - all gold and silver was considered to be owned by the Crown (as part of its prerogatives) and the Crown had a right to enter, dig and remove those precious metals.2 The common law position was changed in Western Australia by statute so that since 1 January 1899 new grants of freehold titles provided that all minerals were reserved to the Crown.3 However, in respect of titles which were granted before 1899 (which was the case here), the owner of the land retained ownership of all of the minerals in the land (with the exception of gold, silver and other precious metals which were reserved to the Crown).

6 It is possible to exclude the rights to all or any minerals from the transfer of land, with the result that the title to the minerals in the land may be retained when the title to the balance of the land is transferred. Separate titles may be issued for the land itself, or for mines and minerals within the land.4

7 With that general background in mind, I turn to the facts of this case.

2. Factual Background

8 The facts relevant to the resolution of the present dispute are narrow in compass, but very unusual. However, it will assist in an understanding of those relevant facts to start by outlining some of the broader factual background pertaining to the titles in respect of Lot 7 held by the predecessors in title of the plaintiffs and the defendant, namely Mrs Adrien Payne and Joice Investments Pty Ltd.

9 For some time prior to 1970, Mr James Payne and Mrs Adrien Payne were the registered proprietors as tenants in common of an estate in fee simple in land at or near Bindoon, being a portion of each of Swan Locations 321, 759 and 1372, and being part of Lot 7 on Plan 7148 (Lot 7).

10 The land comprising Lot 7 contains bauxite.5

(a) Earlier exceptions of minerals from Lot 7

11 The original Crown grants in respect of Swan Locations 321, 759 and 1372, which were made in 1867, 1870 and 1895, reserved to the Crown all mines of gold, silver and other precious metals in or under the land, with a right to enter onto the land and to mine and carry away those metals. In addition, long before Mr and Mrs Payne acquired Lot 7, there had been an exception and reservation to another party, pursuant to an earlier transfer (Transfer 9123/1913) of the metals, minerals, gems and mineral oil located in and upon part of Location 1372.

12 In summary, Mr and Mrs Payne owned all of the land in Lot 7 save for the metals and minerals which had previously been excepted (the previously excepted minerals).

(b) Undivided half interests in Lot 7

13 In around the middle of 1970, Mr Payne and Mrs Payne obtained separate certificates of title in respect of each of their undivided half interests in Lot 7.

14 In September 1970, Mr Payne transferred his one undivided half interest in Lot 7 to Joice Investments Pty Ltd, and Joice Investments became the registered proprietor in respect of that undivided half interest in Lot 7. (The shares in Joice Investments were held by the defendant and members of his family. The defendant was a director of Joice Investments from about September 1980 to September 2000.6)

15 As at September 1970 therefore, Mrs Payne and Joice Investments each owned an undivided half interest in Lot 7 (in each case, save for the previously excepted minerals).

(c) The 1970 agreement

16 On 28 October 1970, Mrs Payne entered into an agreement with Joice Investments pursuant to which she agreed to sell her undivided half interest in Lot 7 'except and reserving' all minerals on or below the surface of the land (save for the previously excepted minerals). I will refer to this agreement as the 1970 agreement.

17 The 1970 agreement also provided, in cl 4:

The vendor [Mrs Payne] shall not nor shall any transferee of the vendor exercise or attempt to exercise the right to mine for and extract the minerals or any of the minerals - one undivided half share or interest in which has been reserved to the vendor or her transferees as aforesaid - without having first entered into or ensured that any party intending to carry on mining operations has entered into an agreement in writing with the purchaser [Joice Investments] or its successor in title for payment of compensation to the purchaser or its successor in title such agreement to be prepared by the solicitors for the purchaser or its successor in title and to provide inter alia that

(a) the land be rehabilitated after mining by the replacement of surface soils so that farming operations may thereafter be carried on in the same manner as they may have been carried on immediately prior to commencement of mining operations

(b) in the event that mining operations so destroy the land as to make rehabilitation impossible or impracticable then the purchaser or its successor in title shall be compensated by payment for the area or areas so destroyed on the basis of the original cost per acre plus development costs or the value of the land as agricultural land at the timing mining operations may have commenced (whichever is the greater)

(c) such drilling boring and shafts sinking operations as are required for testing of the ground will be permitted by the purchaser or its successor in title on payment of adequate compensation for damage done to standing crops or to the surface of the land the amount of such compensation to be determined (in default of agreement) by arbitration.'

18 I will refer to the agreement contemplated by cl 4 of the 1970 agreement as a compensation agreement. I discuss cl 4 of the 1970 agreement later in these reasons.

(d) The 1970 transfer and the titles to Lot 7 and to the Mineral Interest

19 Mrs Payne's half interest in Lot 7 was transferred to Joice Investments pursuant to a transfer dated 3 November 1970 (the 1970 transfer). The description of the land transferred in the 1970 transfer was in the following terms:

All that piece of land being portion of Swan Locations 321, 759 and 1372 being Lot 7 on Plan 7148 (as to the said portion of 1372 coloured yellow on the map on the undermentioned Certificate of Title only except and reserving metals minerals gems and mineral oil as specified in Transfer 9123/1913) and as to the remainder of the said land

except and reserving to the Transferor and her Transferees in fee simple her undivided half share or interest in all minerals

other than gold silver precious meals and mineral oil on or below the surface and being the whole of the land comprised in Certificate of Title Volume 1224 Folio 869 (emphasis added).

20 Accordingly, what Mrs Payne excepted and reserved to herself under the 1970 transfer was a half share in the minerals on or below the surface of Lot 7 (save for the previously excepted minerals). I will refer to Mrs Payne's undivided half share in the minerals in Lot 7 as the Mineral Interest. I note for completeness that there was no issue that that interest included an interest in bauxite.

21 Mrs Payne applied for the issue of a new certificate of title in respect of the Mineral Interest which was issued on 6 November 1970.7 The Mineral Interest is described in the certificate of title as a 'one undivided half share of an estate in certain mines and minerals only'.

22 Accordingly, from 6 November 1970, Joice Investments was the registered proprietor of the two half shares in fee simple in all of the land in Lot 7, save for the previously excepted minerals and for the minerals the subject of the Mineral Interest, which exception and reservation is noted on the title.8 Leaving the previously excepted minerals to one side, Joice Investments held an undivided half share in the minerals in Lot 7 (by virtue of its title over Lot 7) while Mrs Payne retained the other undivided half share in those minerals, which comprised the Mineral Interest.

(e) The Pacminex agreement

23 On 14 September 1971, Mrs Payne and Joice Investments entered into an agreement with Pacminex Pty Limited pursuant to which they granted Pacminex an exclusive right, for three years, to enter onto, and remain on, Lot 7 and to test and investigate the potential of bauxite and associated laterite minerals, and if warranted to mine for, and carry away, those minerals on certain conditions including the payment of royalties (the Pacminex agreement). Under the Pacminex agreement, Pacminex had an option to take five successive extensions for three years each but it appears that Pacminex did not take up that option.

(f) The present title holders

24 In May 2009, the defendant became the registered proprietor of each half share in fee simple in Lot 7, with the exceptions and reservations to which I have already referred.9

25 Following the death of Mrs Payne, the plaintiffs became the registered proprietors of the Mineral Interest, in March 2011.

(g) The taking of gravel from Lot 7

26 Since at least 1 July 2002, the defendant has been extracting gravel from Lot 7 and selling it, or permitting others to extract gravel from Lot 7.10 Until 2009, the defendant did so with the permission of Joice Investments. Since he became the registered proprietor of Lot 7 in 2009, the defendant has continued to extract gravel from Lot 7 and sell it.

27 The defendant's evidence (which was uncontested, and which I accept) was that in extracting the gravel from Lot 7 he has never taken any step to separate the gravel into any of its constituent elements, and has not charged customers any premium for the gravel sold based on the mineral composition of the gravel. Instead, his evidence was that the price he charged for the gravel reflected its value solely as gravel.

3. The adverse possession claim

28 The plaintiffs seek a declaration that the Mineral Interest has not been extinguished 'by adverse possession or otherwise'. The defendant sought a declaration that he has obtained title to the Mineral Interest by adverse possession. As no basis for the extinguishment of the Mineral Interest other than by adverse possession was alleged, I confine myself solely to that question.

29 The defendant claims that he has obtained adverse possession of the Mineral Interest by virtue of the operation of the provisions of the Limitation Act 1935 (WA) (the Act). The defendant's case for adverse possession was based on events prior to 1983. The parties agreed, and I accept, that although the present action was commenced after the repeal of the Act and the commencement of the Limitation Act 2005 (WA) the question of adverse possession in this case is to be determined by reference to the provisions of the Act.11

30 I am unable to accept the defendant's contention that the application of the provisions of the Act in the circumstances of this case leads to the conclusion that the plaintiffs' title in the Mineral Interest has been extinguished.

31 In this section of my reasons, I deal with the following matters:

(a) Overview of the legislative framework under the Act for claims of adverse possession in Western Australia;

(b) The basis for the defendant's claim of adverse possession;

32 In the discussion which follows, the period between 1970 and 1983 - during which the events occurred which were the basis for the defendant's claim of adverse possession - is referred to as the 'relevant period'.

(a) Overview of the legislative framework under the Act for claims of adverse possession in Western Australia

33 It is convenient to commence the analysis of the defendant's claim of adverse possession with an overview of the provisions of the Act which governed claims of adverse possession during the relevant period.

34 The provisions of the Act in relation to the limitation periods governing adverse possession are expressed in rather cumbersome language, to say the least. For ease of reference, only those parts of the provisions which are relevant for present purposes have been set out.

35 The extinguishment of a title in land by virtue of adverse possession occurred pursuant to s 30 of the Act, which relevantly provided:

At the determination of the period limited by this Act to any person for … bringing any action or suit, the right and title of such person to the land … for the recovery whereof such … action, or suit respectively might have been made or brought within such period, shall be extinguished.

36 (The term 'land' was defined in s 3 of the Act to include 'messuages and all corporeal hereditaments whatsoever, and any share, estate, or interest in them or any of them, whether the same is a freehold or chattel interest, and whether freehold or held according to any other tenure.')

37 The effect of s 30 of the Act was that at the end of the limitation period prescribed by the Act for bringing an action to recover land, not only was the right to bring an action for recovery of the land lost, but the title to the land which was held by the person who would otherwise be entitled to bring the action for its recovery, was extinguished.12 The Act did not vest that title in the dispossessor, although clearly his or her title, and thus his or her right to the possession of the land, was stronger by virtue of the extinguishment of the prior claim to possession.

38 However, the dispossessor was able to obtain a title in respect of the land pursuant to s 222 - s 223 of the Transfer of Land Act 1893 (WA) (the TLA), which permits an adverse possessor to apply to be registered as the proprietor of land if he or she has extinguished the title of the registered proprietor.13 (The recognition of a title by adverse possession is an express exception to the indefeasibility of the title of the registered proprietor under the TLA.)

39 The time period during which an action for the recovery of land could be brought was set out in s 4 of the Act. That section provided (amongst other things) that no person could bring an action to recover land other than within 12 years after the time to bring such an action 'shall have first accrued,' either to the person bringing the action, or to a person through whom he or she claimed.

40 In order to determine when the time to bring an action 'shall have first accrued' it was necessary to look to other provisions of the Act, especially s 5. Section 5 relevantly provided:

In the construction of this Act, the right to … bring an action to recover land … shall be deemed to have first accrued …: -

(a) When the person claiming such land … has, in respect of the estate or interest claimed, been in possession … and while entitled thereto has been dispossessed, or has discontinued such possession … then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession … .

…

(c) When the person claiming such land … claims in respect of an estate or interest in possession granted … by any instrument (other than a will) to him … by a person being in respect of the same estate or interest in the possession … and no person entitled under such instrument has been in such possession … then such right shall be deemed to have first accrued at the time at which the person claiming … became entitled to such possession … by virtue of such instrument.

…

For the purposes of this section, the right to … bring an action to recover any land, has not and shall not be deemed to have first accrued to any person in any case, whether or not such person has been in possession … until such land is in the actual possession of some person not entitled to such possession, and any land not in the actual possession of any person shall be deemed to be in the possession of the person entitled to such possession.

41 Although s 5(a) is not, strictly speaking, relevant in the present case, I have set it out above because it encompasses what might be called the 'classic' case of adverse possession, namely where the title owner is dispossessed or discontinues possession, and another person enters into possession.

42 It is also convenient at this point to note that s 14 of the Act addressed the situation where two or more people were entitled to land as joint tenants or tenants in common, but only one of them was in possession. Section 14 made clear when that possession would not be treated as possession by all of the tenants. Section 14 of the Act relevantly provided:

When any one or more of several persons entitled to any land … as coparceners, joint tenants, or tenants in common, have been in possession … of the entirety, or more than his or their undivided share or shares of such land … for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land … such possession … shall not be deemed to have been the possession … by such last-mentioned person or persons or any of them.

43 In Radonich v Radonich14Parker J summarised the operation of these provisions in the following way:

For relevant purposes the provisions of the … Act are concerned to limit the time for actions to recover land or rent (s 4). The scheme of the Act in this respect is to establish a limit of 12 years from the time at which the right to bring such an action first accrues.

To further facilitate the operation of s 4, provisions such as s 5 and s 9 make express provision (often by way of deeming) for the determination of the time when the rights of action with which s 4 was concerned should first accrue. These provisions deal with a variety of situations in which that time would not otherwise be clear, or to vary the existing law as to the time of first accrual of rights of action to recover land or rent. Section 5(a) provides that a right of action first accrues in a case where a person in possession is dispossessed or where possession is discontinued. Section 5 also deals with the first accrual of a right of action where the interest in dispute is that of a deceased person, cases of alienation, future estates, and forfeitures and breaches of condition. …

Section 14, however, is not dealing with the first accrual of a cause of action. It is dealing with the possession of land as between coparceners, joint tenants and tenants in common. In case of joint tenancy and tenancies in common, the common law presumed that possession by one of the joint owners was possession on behalf of all of them, Culley v Doe d Taylerson(1840) 11 AD and EL 1008, 113 ER 697, so that all the joint owners continued in possession and time could not run. Being a presumption it is to be expected that it was open to a party to rebut it by proper evidence that one joint owner had in fact taken possession to the exclusion of the other, ie possession which was adverse to the right to possession of the other owner and therefore giving rise to a right of action to recover that right of possession from which there had been exclusion. …

This is the area of operation of s 14 … . In my respectful view it is displacing the operation of the common law presumption; hence the words 'such possession … shall not be deemed to have been the possession or receipt of' the non-occupying joint owner. The provision does not, however, provide for more than the displacement of the presumption. Its words do not go so far as to preclude possession by one joint owner from being possession on behalf of another joint owner, it merely displaces the presumption that the possession by one joint owner is possession by all. In the language of the section it precludes that being 'deemed' where, in fact, that is not the case.

Hence, in my respectful view, the apparent effect of s 14 is to leave the question whether possession by one joint owner is on behalf of another joint owner, or to the exclusion of the other joint owner, to be determined as an issue of fact in each case … .

44 Finally, counsel for the defendant also made reference in the hearing to s 15 of the Act, which provided:

When any acknowledgment of the title of the person entitled to any land … has been given to him … in writing signed by the person in possession … then such possession … of or by the person by whom such acknowledgment has been given shall be deemed, according to the meaning of this Act, to have been the possession … of or by the person to whom … such acknowledgment has been given at the time of giving the same, and the right of such last-mentioned person …to … bring an action to recover such land … shall be deemed to have first accrued at and not before the time at which such acknowledgment, or the last of such acknowledgments if more than one, was given.

45 I have discussed the meaning and operation of s 15 in [93] below.

46 With these provisions in mind, I turn to consider the basis for the defendant's submissions in relation to his adverse possession claim.

(b) The basis for the defendant's claim of adverse possession

47 The basis for the defendant's claim of adverse possession was clarified, and confined, during the course of the hearing. Initially, it appeared on the face of the pleadings that the defendant relied, or may have relied, on conduct or events at any time between 1971 and 2009 as forming the basis for the claim of adverse possession. However, in the course of submissions, counsel for the defendant made clear that the defendant's adverse possession claim was based solely on events in the period up until 1983. For completeness, I note that the defendant did not place any reliance on the taking of the gravel as relevant to his claim to adverse possession. Counsel for the defendant also made clear that the defendant's claim for adverse possession rested on s 5(c) of the Act.15

48 In the course of the hearing I provisionally admitted evidence adduced by the plaintiffs which was said to be relevant to the defendant's intention (or lack thereof) to possess the minerals the subject of the Mineral Interest, which was manifested as late as 1999 and 2000. Having regard to the conclusions I have reached about the basis for the defendant's claim, the provisionally admitted evidence does not assist in the resolution of the defendant's adverse possession claim, and I have not taken it into account.

49 Having regard to the defence and counterclaim, and to the submissions of counsel for the defendant during the hearing, I understood the defendant's claim of adverse possession to proceed on the following basis:

(i) the Mineral Interest falls within the definition of 'land' in s 3 of the Act;

(ii) the 1970 agreement constituted a reservation, in the sense of a grant to Mrs Payne of a new interest in land which had previously not existed, namely an undivided half share or interest in the minerals in Lot 7, but without any right to mine those minerals;

(iii) because that grant of a new interest was made by an instrument, namely the 1970 agreement, the date when Mrs Payne's right to commence an action for the recovery of the Mineral Interest 'first accrued' fell to be determined by reference to s 5(c) of the Act;16

(iv) that right 'first accrued' from 6 November 1970 (when Joice Investments became the registered proprietor of Mrs Payne's half interest in Lot 7). Alternatively, the Pacminex agreement constituted an acknowledgement by Joice Investments of Mrs Payne's title in the Mineral Interest, so that having regard to s 5(c) and s 15 of the Act, the right to bring an action 'first accrued' on 14 September 1971 (the date of the Pacminex agreement);17

(v) for at least 12 years after 6 November 1970 or 14 September 1971, Joice Investments exclusively possessed Lot 7, including the Mineral Interest, to the exclusion of Mrs Payne. In particular, at no time within the 12 year period after any of those dates was a compensation agreement entered into between Mrs Payne and Joice Investments, nor did Mrs Payne exercise or attempt to exercise the right to mine for or extract any minerals the subject of the Mineral Interest or any other right or claim or entitlement conferred by or by virtue of the Mineral Interest.

50 The defendant's case is that as a consequence, Joice Investments obtained title to the Mineral Interest by adverse possession by September 1983, and he therefore seeks a declaration that as the successor in title to Joice Investments, he has obtained title to the Mineral Interest.18

51 The plaintiffs admitted that Joice Investments and the defendant had had exclusive possession of Lot 7 since 6 November 1970, there was no dispute that the Pacminex agreement was entered into on 14 September 1971, they admitted that no compensation agreement was entered into by Mrs Payne after 14 September 1971, and they admitted that at no time after 6 November 1970 did Mrs Payne mine the minerals. The plaintiffs also did not dispute that the Mineral Interest fell within the definition of 'land' for the purposes of the Act. However, the plaintiffs otherwise denied the defendant's claim of adverse possession.

(c) Why the defendant's claim of adverse possession fails

52 In my view, the defendant's claim of adverse possession fails for two reasons, which may be summarised as follows. First, the right of Mrs Payne (and the plaintiffs as her successors in title) to bring an action for the recovery of the Mineral Interest cannot be said to have 'first accrued' pursuant to s 5 of the Act because during the relevant period the Mineral Interest was not in the 'actual possession of some person not entitled to such possession' as required by the closing words of s 5 of the Act. Further, the evidence did not support the conclusion that Joice Investments possessed the Mineral Interest for its own benefit so s 14 does not assist the defendant's claim of adverse possession.

53 Secondly, s 5(c) of the Act has no application in this case. That is because Mrs Payne did not derive the Mineral Interest from an instrument (namely the 1970 agreement). Rather, she excepted the Mineral Interest from what she conveyed by the transfer of her interest in Lot 7 under the 1970 transfer. Accordingly, Mrs Payne retained something she had always held - an individual half interest in the minerals and the right to work them - and conveyed the remainder of her interest in Lot 7 to Joice Investments under the 1970 transfer.

54 The basis for these conclusions is explained below in more detail.

(i) The 'land'

55 First, however, it is appropriate to briefly refer to the question whether the Mineral Interest constitutes 'land' for the purposes of the Act. The application of the Act to the present case requires that the Mineral Interest constitutes 'land' as defined in the Act. As I have already noted, there was no dispute between the parties that it does.

56 As Edelman J observed in Fermora Pty Ltd v Kelvedon Pty Ltd,19 the definition of 'land' in s 3 of the Act is not expressed in 'the language of the modern law'. His Honour went on to observe:

A messuage is a dwelling house. A corporeal (from corpus, or body) hereditament (from hereditare, to inherit) is any physical thing which can be inherited. Strictly, 'corporeal hereditament' is a tautology since it is incorporeal

rights

to land which are inherited rather than the physical land itself. But the expression 'corporeal hereditament' focuses attention upon physical things rather than intangible things which cannot be touched.

…[I]n the context of [the Act] the expression 'corporeal hereditament' is used to describe tangible things other than land. The focus is on those corporeal things which are affixed to the land. The word 'includes' in the definition is important. Land includes those tangible things and any interest in them. Therefore, when s 5 speaks of possession of 'land' it can sensibly be read as speaking of possession of tangible things not intangible things like easements which cannot be possessed.

57 The title in the minerals the subject of the Mineral Interest clearly constitutes an hereditament.20 Furthermore, as minerals (in their natural state) are tangible things affixed to land, the Mineral Interest is a corporeal hereditament of the kind referred to in the definition of 'land' in the Act.

58 The next question is whether the Mineral Interest, of itself, constitutes 'land' for the purposes of the Act, so that it is possible to have a claim for adverse possession of the minerals within land, discrete from the balance of the land itself. That conclusion requires that the word 'includes' in the definition of 'land' in the Act be understood to convey the meaning that each of the things referred to in that definition independently constitutes 'land', rather than that the term 'land' wherever it appears in the Act should be understood as encompassing the earth, together with all of the messuages and corporeal hereditaments which may pertain to that land, and any estate or interest in them. The former conclusion is not free from difficulty. However, as the meaning of the term 'land' was not the subject of analysis by the parties, and as this issue is not determinative of the outcome of this case in light of the other conclusions I have reached, I have proceeded on the assumption that the Mineral Interest, of itself, constitutes 'land' for the purposes of the Act.

59 I turn now to explain why the defendant's claim of adverse possession fails.

(ii) The right of Mrs Payne (and the plaintiffs as her successors in title) to bring an action to recover the Mineral Interest cannot be said to have 'first accrued' pursuant to s 5 of the Act

60 The closing words of s 5 of the Act make clear that the right to bring an action to recover land does not 'first accrue' 'until the land is in the actual possession of some person not entitled to such possession' and 'any land not in the actual possession of any person shall be deemed to be in the possession of the person entitled to such possession'. The application of these words means that the defendant's case cannot succeed, for three reasons.

61 First, s 5 of the Act refers to a person with the 'actual possession' of the land, and there was no evidence that during the relevant period Joice Investments was in the actual possession of the Mineral Interest.

62 Neither the phrase 'actual possession', nor the term 'possession' itself, is defined in the Act. The meaning of the word 'possession' depends on the legal context in which it is used.21 Similarly, the meaning of the phrase 'actual possession' as used in a statute depends upon the construction of the statute itself.22 Section 5 of the Act refers to 'possession' of land in several senses: it refers to the 'actual possession' of land, to 'an estate or interest in possession' and to being 'in possession' of land. More specifically, the reference to 'actual possession' in the closing words of s 5 appears in the context of land in the 'actual possession' of a person 'not entitled to such possession'. In the latter respect, clearly s 5 draws a distinction between the position of the title owner of the land (who, by virtue of ownership of the title, has the right to possess the land) and the position of the dispossessor - namely the person with the 'actual possession' of the land.

63 In the construction of the Act, it has been accepted that the starting point for determining possession will ordinarily be that the 'land' is in the possession of the holder of the paper title in respect of the land, because that person has a prima facie right to possession of the land.23

64 In order to attribute possession of land to a person who has no paper title to it, s 5 requires that that person be in 'actual possession'. That requires that the person have both factual possession and the requisite intention to possess (the animus possidendi).24 Factual possession requires physical custody and control.25 As for the intention to possess, it is the intention of the person in possession which is in issue, not that of the actual owner of the paper title.26 There need not be a conscious intention to exclude the true owner. Instead, what is required is an intention to exercise exclusive control27 on one's own behalf and for one's own benefit.28 The question is whether a person has dispossessed the owner by going into ordinary possession of the land without the consent of the owner.29

65 Counsel for the defendant relied upon some Canadian authorities in relation to claims of adverse possession of mines and minerals.30 Counsel for the defendant appeared to rely on these authorities simply to support the submission that what will constitute actual possession will depend upon all of the circumstances of a given case. Clearly all of the circumstances must be considered.31 However, nothing in the present circumstances supports the conclusion that Joice Investments was in actual possession of the Mineral Interest during the relevant period.

66 Counsel for the defendant submitted that Joice Investments had exercised dominion over Lot 7, and worked Lot 7 as the owner, and by inference submitted that that conduct was sufficient to constitute actual possession of the minerals the subject of the Mineral Interest.32 I am unable to agree. In their natural state, any minerals in land are fixtures and remain part of the realty until such time as they are extracted from the earth and separated from the soil. However in this case the minerals the subject of the Mineral Interest are the subject of a separate title. In these circumstances, in my view, the physical and legal possession of Lot 7 did not constitute the factual possession of the minerals the subject of the Mineral Interest. As the registered proprietor of Lot 7, Joice Investments was entitled to the possession of Lot 7 but at no time in the relevant period did Joice Investments itself separate the minerals the subject of the Mineral Interest from the rest of the earth comprising Lot 7, or take any other action so as to exercise some control over the minerals which was greater than that embodied in its ownership of Lot 7 itself. (Any mining activity conducted pursuant to the Pacminex Agreement is not relevant (nor was it relied on by the defendant) because that was carried on with the authority of both Joice Investments and Mrs Payne.) In my view, therefore, at no time did Joice Investments have factual possession of the minerals the subject of the Mineral Interest.

67 Even if Joice Investments' physical possession of Lot 7 could be said to constitute factual possession of the minerals the subject of the Mineral Interest, the evidence does not support the conclusion that Joice Investments manifested an intention to possess those minerals, on its own behalf and to the exclusion of Mrs Payne. The only evidence of any intention on the part of Joice Investments prior to 1983 points to the contrary conclusion. In 1970 when it became the registered proprietor of Lot 7, and again in 1971 when it entered into the Pacminex agreement with Mrs Payne, Joice Investments did so in circumstances where it expressly acknowledged Mrs Payne's title to the Mineral Interest. There was no other evidence on which it might be said that prior to 1983 Joice Investments had manifested an intention to exercise exclusive control over the minerals the subject of the Mineral Interest on its own behalf and for its own benefit. There was no evidence that it had mined the minerals or otherwise engaged in any act of control over the minerals the subject of the Mineral Interest.

68 A similar conclusion was reached in McDonnell v McKinty.33 In that case, the plaintiff brought an action for ejectment to recover quarries and limestone on some land. A grant of title in the land had excepted the mines, minerals and quarries, with liberty to the grantor to enter, mine and carry away the minerals. The defendant contended that the plaintiff's title had been extinguished by adverse possession pursuant to the relevant limitation statute, because the plaintiff's predecessor in title had not worked the mines. It was held that the defendant had not dispossessed the plaintiff because the defendant had not worked the mines, or engaged in any act of dominion over them. Blackburn CJ held that there was simply an omission by the plaintiff's predecessors in title to work the quarries, and that possession of the land by the defendant was not possession of the quarries, which had become a distinct hereditament. He held that actual possession is the object of the statute and that it was only by the defendant's use of the quarries or by some unequivocal act of possession that the plaintiff could have been dispossessed of them.34

69 Counsel for the defendant sought to rely on the fact that Mrs Payne was obliged to enter into a compensation agreement with Joice Investments in order to mine the minerals in Lot 7. In my view, the existence of that contractual obligation on Mrs Payne under the 1970 agreement does not assist the defendant to establish an intention on the part of Joice Investments to exercise exclusive control over the minerals the subject of the Mineral Interest.

70 Secondly, even if the minerals the subject of the Mineral Interest could be said to have been in the actual possession of Joice Investments, it cannot be said that they were in the possession of a person 'not entitled to such possession' during the relevant period. That is because Joice Investments was itself entitled to the possession of the minerals in Lot 7, as the owner of an undivided half share in the minerals in Lot 7 (other than the previously excepted minerals).

71 There is no doubt that a joint owner may acquire title by adverse possession against other co-proprietors.35 However, as Parker J explained in Radonich, in the quote set out at [43] above, possession by one co-owner would ordinarily be treated as possession of, or by, the other co-owners of the land. Section 14 of the Act makes clear that possession of the entirety of land by one co-owner, for his own benefit, will not be deemed to be possession on behalf of all other co-owners. Nevertheless, the co-owner claiming adverse possession of the other's interest will need to demonstrate that he was in possession of the entirety of the land, or of more than his undivided share in it, for his own benefit. For the reasons I have already given, there was no evidence to support the conclusion that at any time during the relevant period Joice Investments could be said to have held all of the minerals within Lot 7 for its own benefit. There was simply no evidence that Joice Investments had engaged in any conduct by which it exercised exclusive control, for its own benefit, over the minerals in Lot 7 during the relevant period.

72 Thirdly, an alternative answer to the defendant's claim, which is open in the circumstances, is that there was no one in actual possession of the minerals the subject of the Mineral Interest. During the relevant period, as I have explained, Joice Investments did not have actual possession of the minerals the subject of the Mineral Interest. Furthermore, Mrs Payne did not have the actual possession of the minerals because she did not have the factual possession of the minerals. There was no dispute that after the 1970 transfer, Mrs Payne had not entered onto Lot 7 to mine the minerals the subject of the Mineral Interest, nor did she seek to reach a compensation agreement with Joice Investments to facilitate her doing so. Although the Pacminex agreement reflected an intention by Mrs Payne (and by Joice Investments) to exercise control over the minerals the subject of the Mineral Interest, there was no evidence to suggest that in the period between September 1974 (when the Pacminex agreement expired) and September 1983, Mrs Payne had custody or control of the minerals and thus that she had been in actual possession of the minerals the subject of the Mineral Interest.

73 In those circumstances, the closing words of s 5 of the Act make clear that land not in the 'actual possession' of any person is deemed to be in the possession of the person entitled to such possession. In the relevant period, the persons entitled to possession of the minerals in Lot 7 (aside from the previously excepted minerals) were Mrs Payne and Joice Investments as the registered proprietors of the Mineral Interest, and of Lot 7, respectively. In so far as the minerals the subject of the Mineral Interest are concerned, s 5 operates so that during the relevant period, those minerals are deemed to be in the possession of Mrs Payne.

(iii) Par 5(c) of the Act has no application

74 In any event, the defendant's claim of adverse possession must fail because s 5(c) has no application in this case. One of the pre-requisites for the application of s 5(c) is that the person claiming the land (that is, the person who would bring the action to recover the land) - in this case Mrs Payne - 'claims in respect of an estate or interest in possession granted, appointed, or otherwise assured by any instrument … to him … by a person being in respect of the same estate or interest in the possession … of the land'. The defendant's claim of adverse possession must fail because Mrs Payne did not derive the Mineral Interest by an instrument to her by another person in respect of the same estate or interest in possession of the Mineral Interest.

75 Counsel for the defendant submitted that when Mrs Payne entered into the 1970 agreement and transferred her half interest in Lot 7, excepting and reserving her undivided half share in the minerals in the land, that constituted a reservation of the Mineral Interest (in the sense of the re-grant of something new, which did not previously exist), as opposed to an exception. He therefore submitted that Mrs Payne derived her interest in the Mineral Interest from the 1970 agreement which he submitted was an instrument of the kind referred to in s 5(c) of the Act.

76 In order to explain why s 5(c) has no application, it is necessary to start by examining the difference between an exception and a reservation of minerals.

Exceptions and reservations of minerals

77 The principles in relation to exceptions and reservations in property law are well established. By an exception under a transfer, the transferor keeps back some part of that which is transferred so that it remains with the transferor.36 An exception operates immediately and the subject of it does not pass to the transferee.37 In contrast, a reservation involves the re-grant out of the subject conveyed of something newly created and that did not previously exist.38 It is well established that the retention by a grantor of something which already exists in the subject-matter, such as mines and the right to work them, is an exception.39 However, although the distinction between the concepts of an exception and a reservation is clear, the words 'reservation' and 'reserving' are often used to refer to what is, in fact, an exception from a grant.40

78 It is also well established that minerals may be excepted from a grant whether they are extracted or not and whether they are to be found secreted in other substances which are not excepted or reserved minerals.41

79 The characterisation of what has occurred, and in the case of an exception or reservation of minerals in the land, what the owner of the minerals is entitled to do, will depend on the construction of the instrument which conveys the land and contains the exception or reservation. In some cases, that instrument will be silent about precisely what the owner of the minerals in land was entitled to do. For that reason, at common law, a number of general principles emerged to deal with such cases, so that (for example) it was held that a grant of minerals implied a right to do all things necessary to win and work the minerals, including entry upon the surface with machinery (if required),42 digging pits to extract and carry away the minerals,43 digging a shaft vertically through an upper seam,44 and tunnelling horizontally through other mines.45

80 Against that background, I turn to consider in more detail the nature of the defendant's submissions in relation to the application of par 5(c) of the Act.

The defendant's submissions as to the 'reservation' of the Mineral Interest

81 Counsel for the defendant accepted that ordinarily an exception and reservation in favour of the grantor of the estate in fee simple of all of the minerals in that land, coupled with a right to enter and mine those minerals, would be an exception. However, he submitted that that was not what occurred in this case. He submitted that the exception and reservation of a one half undivided share in the minerals in this case operated as a re-grant to Mrs Payne of something that did not previously exist, and was therefore properly characterised as a reservation.

82 As I understood it, the argument proceeded on the following bases. Counsel for the defendant submitted that the rights to the minerals in Mrs Payne's half interest in Lot 7 (coupled with a right to enter and mine those minerals) formed part of Mrs Payne's half interest in the fee simple estate in Lot 7 prior to the 1970 agreement. He submitted that following the 1970 agreement, Mrs Payne only had a right to enter onto Lot 7 and to mine the minerals if she first complied with cl 4 of that agreement by entering into a compensation agreement with Joice Investments. Accordingly, counsel for the defendant submitted that under the 1970 agreement, what Mrs Payne separated from the fee simple in Lot 7 was a right to the minerals, but without any right to mine those minerals. As a result, he submitted, what Mrs Payne had after the 1970 agreement was something quite different from that which she had previously owned. Accordingly, he submitted that the 'exception and reservation' of the minerals under the 1970 transfer constituted a reservation rather than an exception.

The Mineral Interest was excepted from the 1970 transfer of Mrs Payne's interest in Lot 7

83 I am unable to accept the submission by counsel for the defendant for two reasons.

84 First, counsel for the defendant relied upon the terms of the 1970 agreement, and particularly cl 4 of that agreement, as the basis for characterising what occurred under the 1970 transfer. With respect, that submission was misconceived. The 1970 agreement merely constituted the agreement between Mrs Payne and Joice Investments to pass a title in Lot 7 (with the exception and reservation of the minerals). The actual conveyance of Mrs Payne's interest in Lot 7 (subject to the exception and reservation) was effected by the 1970 transfer and was reflected in the certificates of title which were issued in respect of the Mineral Interest and in respect of the undivided half share of the balance of Lot 7. It is those instruments which must be construed to determine whether what took place was an exception or a reservation of the Mineral Interest. Because those documents are instruments registered under the Torrens system, their meaning, generally speaking, falls to be determined from the terms of each instrument, and not from extrinsic material which might establish facts or circumstances existing at the time of their execution.46 In my view, the 1970 agreement constitutes extrinsic material which would not be available to a third party inspecting the register, and it is therefore not appropriate to have regard to its terms to construe the 1970 transfer or the certificates of title issued in consequence of that transfer. It is not necessary for present purposes to determine whether cl 4 of the 1970 agreement constituted a restrictive covenant, as submitted by counsel for the defendant, because the 1970 agreement was not included on the register.

85 The second reason for concluding that the 1970 transfer contained an exception of the minerals from Lot 7 (rather than a reservation) derives from the terms of the 1970 transfer itself. The words used in the 1970 transfer specifically refer to the minerals being excepted and reserved (rather than just reserved) from the land transferred to Joice Investments. The phrase 'except and reserving' has been construed as constituting an exception rather than a reservation.47

86 In addition, quite apart from the use of the words 'except and reserving' the balance of the words used in the 1970 transfer support the conclusion that Mrs Payne retained something of that which she had previously owned as part of the land. The relevant portion of the 1970 transfer provided 'except and reserving to the Transferor and her Transferees in fee simple her undivided half share or interest in all minerals other than gold, silver …' (emphasis added). Those words suggest that what was being excepted and reserved was the entirety of Mrs Payne's pre-existing, undivided half share in the minerals in Lot 7.

87 Mrs Payne's title in respect of Lot 7 did not expressly specify what rights she held - as the registered proprietor of a half interest in Lot 7 - to enter onto the land and mine the minerals in the land. Similarly, the certificate of title in respect of the Mineral Interest did not specify what rights Mrs Payne held to enter onto Lot 7 and to mine the minerals. However, as I have already noted, at common law a grant of minerals was ordinarily understood to imply a right to work the minerals. In my view, Mrs Payne's title to 'an undivided half share of an estate in fee simple … in all minerals' (save for the previously excepted minerals) in Lot 7 should be construed as carrying with it the right to enter onto Lot 7 and to work the minerals. That construction of the certificate of title in respect of the Mineral Interest also supports the conclusion that the exception and retention of the minerals under the 1970 transfer, properly characterised, constituted an exception from the grant of Lot 7.48

88 Accordingly, what took place by virtue of the 1970 transfer was that Mrs Payne transferred her half interest in Lot 7, but carved out and retained for herself her undivided half interest in the minerals in that land. The minerals were thus excepted from what was conveyed. The Mineral Interest retained by Mrs Payne carried with it the right to enter onto Lot 7 and to work the minerals.

The requirements of par 5(c) are not met

89 I return, now, to the terms of s 5(c) itself. The submission by counsel for the defendant that s 5(c) applies suffers from an immediate difficulty: it requires the conclusion that s 5(c) encompasses a situation where a person has an estate or interest in land in possession as a result of a grant (by an instrument) by himself or herself of that estate or interest. The strain in the language of the section to cover that circumstance militates against the construction advanced by the defendant.

90 In any event, it cannot be said that in an action to recover the land, Mrs Payne would have claimed the Mineral Interest 'as an estate or interest in possession granted … by any instrument … to [her] … by a person in respect of the same estate or interest in the possession … of the land'. Mrs Payne's interest in the minerals in Lot 7 did not derive from the 1970 agreement (which was the 'instrument' to which counsel for the defendant pointed). Instead, Mrs Payne's interest in the minerals, together with a right to mine those minerals, in Lot 7 formed part of her half share of the fee simple estate in Lot 7, of which she became the registered proprietor some time before 1970. Mrs Payne did not derive her interest in the Mineral Interest from the 1970 agreement, or even from the 1970 transfer. Instead, the 1970 transfer evidenced that she retained her interest in the minerals the subject of the Mineral Interest notwithstanding the transfer to Joice Investments of the balance of her undivided half share in Lot 7. That interest was then registered in a separate title on the register.

91 In making his submission that s 5(c) of the Act applied, counsel for the defendant focused to a considerable extent on the additional requirement of paragraph (c) that 'no person entitled under such instrument has been in such possession', as the basis for his submission that because Mrs Payne had never entered into actual possession of the Mineral Interest, the time in which she could bring an action to recover the Mineral Interest ran from the date of the 1970 agreement. In view of the conclusion I have reached it is unnecessary for me to deal with this aspect of counsel's argument.

92 However, it is appropriate to address one further aspect of the submissions advanced by counsel for the defendant. That submission was to the effect that the Pacminex agreement constituted an acknowledgement by Joice Investments of Mrs Payne's title to the Mineral Interest, for the purpose of s 15 of the Act. Counsel for the defendant submitted that that acknowledgment extended the time from when Mrs Payne's right to recover the land 'first accrued' under s 5(c) to the date of the Pacminex agreement, namely 14 September 1971.49 Nothing further needs to be said about that submission in view of my conclusion in respect of s 5(c) of the Act.

93 At times, however, it appeared that the defendant relied upon s 15 of the Act, of itself, as specifying the time when the right to recover 'first accrued'. In my view, s 15 does not operate independently of the other provisions of the Act to which I have referred. Instead, s 15 operates in conjunction with s 5 of the Act in so far as it concerns situations where a dispossessor is in possession of land. In the latter case, s 15 extends the time from which the right to bring an action to recover the land 'first accrued' until the last time the dispossessor acknowledged the title of the title owner.

4. The conversion claim

94 It is necessary at the outset to identify the issues which were in dispute on the pleadings in relation to the plaintiffs' claim in conversion. I then go on to explain why it is that the plaintiffs' claim in conversion fails.

(a) The plaintiff's case in relation to conversion, and the defence to that claim

(i) The pleadings

95 The plaintiffs claim that since about 2009, the defendant has extracted and continues to extract gravel from Lot 7 and has sold and continues to sell gravel to third parties, that he has done so without Mrs Payne's consent, or the consent of the plaintiffs, and that the gravel contains minerals within the Mineral Interest. The plaintiffs claim that in those circumstances, the defendant has thereby converted and continues to convert the whole of the minerals which have been removed to his own use. (Although there was no specific pleading as to what minerals were said to be contained within the gravel, and although no particulars were sought and obtained as to that matter, the plaintiffs' claim was that the gravel contains bauxite.50) The plaintiffs also claim that the defendant will continue to remove minerals the subject of the Mineral Interest and convert those to his own use unless restrained by an order of the Court. The plaintiffs seek an injunction to restrain the defendant from this conduct in the future.

96 The plaintiffs seek damages for the conversion of the minerals, but as I have already observed, that part of their claim was not tried at the hearing.

97 The defendant pleads that the minerals on or below Lot 7 (excluding the previously excepted minerals) of which the plaintiffs are the registered proprietors are those substances which fell within the vernacular use of the word 'minerals' as at the dates of the original Crown Grants in respect of the land comprising Lot 7, or alternatively as at 3 November 1970 (the date of the 1970 transfer), and further or alternatively, that the minerals are limited to those substances which, as at the dates referred to, could be won by mining.

98 The defendant admits that he has taken gravel from Lot 7, and admits that the gravel extracted since 2009 contained substances 'which, if they were separated from the gravel, would be within the vernacular use of the term 'mineral' either as at the time of the original Crown Grants in respect of the land comprising Lot 7, or alternatively as at 3 November 1970, and in addition, or alternatively, that the minerals were substances which as at those dates could be won by mining.' The defendant denies that the gravel was a mineral and any substances contained within the gravel constituted minerals.

99 The defendant then pleads that he did not separate from the gravel any substances contained within the gravel, that the gravel was sold to third parties in the form in which it was extracted from the land, and that the prices for which he sold the gravel represented the value of gravel in the form in which gravel was extracted from the land and did not include any premium or component by reason of any substances contained within the gravel.

100 Accordingly, the defendant denies that he has converted the gravel or any substances within the gravel, and says that the allegation of conversion is not grounded in good law.

(ii) Issues arising on the pleadings

101 Having regard to the pleadings, and to the submissions by counsel at the hearing, two issues emerged for determination. The first is whether the taking of the gravel, of itself, constituted the conversion of any minerals contained within the gravel, or whether the minerals had to first be extracted from the gravel in order for there to be a conversion of the minerals. The second issue was whether the taking of the gravel could constitute a conversion of any minerals in the gravel given that the defendant is the title holder of an undivided half share in any such minerals.

102 Perhaps because of the manner in which the pleadings were drafted, or because of a lack of clarity about what the pleadings actually meant, counsel for the parties spent some during the hearing addressing some matters which I did not understand to be in issue.

103 It was, for example, no part of the plaintiffs' case that the gravel itself constituted a mineral.51 The plaintiffs' case was that the gravel contained minerals, so that taking the gravel necessarily involved the conversion of the minerals. The defendant's case was that the gravel contained substances, which if extracted, would constitute minerals, but that any such substances would only constitute minerals - and thus chattels which could be converted - once they were actually extracted from the gravel. Accordingly, although counsel for the defendant addressed, at length, the authorities in relation to the meaning of the word 'minerals', particularly in the context of whether a reservation or exception of 'minerals' excluded the contents of the ordinary rock, stone or soil of the district,52 those cases did not assist in the resolution of the issues actually in dispute in relation to the conversion claim.

104 Further, counsel for the plaintiffs made a number of submissions about the precise nature and effect of the defendant's pleading in relation to the conversion claim, and in particular in relation to the defendant's denial that 'any substance contained within the gravel constituted minerals', when the defendant had pleaded that the minerals the subject of the Mineral Interest were those substances which fall within the vernacular use of the word 'minerals' at various dates or alternatively those substances which at those dates could be won by mining.53 It seems to me sufficiently clear from the defendant's pleading that the defendant's case was that no conversion of the minerals the subject of the Mineral Interest could occur until such time as the minerals were separated from the land (or in this case the gravel) because until that occurred, the minerals did not become chattels, which were capable of being converted.

105 For completeness, I also note that as part of his defence to the plaintiffs' claim for conversion the defendant pleaded that the reservation of the minerals the subject of the Mineral Interest, pursuant to the 1970 transfer, contained an implied term to the effect that Mrs Payne and her successors could only exploit the minerals (by entering onto Lot 7 and mining them) if Mrs Payne first entered into a compensation agreement with Joice Investments (or its successors) in accordance with cl 4 of the 1970 agreement, that the right to mine for minerals did not include the extraction of gravel, and that no compensation agreement had been entered into. The defendant relied on this pleading as an additional defence to the claim of conversion. The pleading was, with respect, misconceived. For the reasons set out above, Mrs Payne excepted the minerals the subject of the Mineral Interest from what was transferred to Joice Investments pursuant to the 1970 transfer. The scope of the exception falls to be determined from the terms of the 1970 transfer and not from the 1970 agreement. Accordingly, the pleading that the exception itself contained an implied term – derived from the term of the 1970 agreement - must fail. In my view, the existence of the 1970 agreement has no bearing on the plaintiffs' claim in conversion.

106 In the course of his oral submissions, counsel for the defendant also appeared to advance an additional or related submission, namely that it was necessary to identify the nature of the plaintiffs' rights in the minerals the subject of the Mineral Interest, in order to determine whether there had been a conversion of the minerals. The thrust of the submission appeared to be that it was necessary to identify whether the Mineral Interest was to be understood as a half share in minerals situated in Lot 7 but not extracted, or a half share in any minerals if and when they were separated and extracted from the soil in Lot 7.54 The terms of the exception contained within the transfer made clear that Mrs Payne retained the fee simple estate in her 'undivided half share in all minerals [other than the previously excepted minerals] on or below the surface' of Lot 7. In my view, it is clear that the exception in the 1970 transfer means that the plaintiffs have the title to a half share or interest in any substances on or below the surface of Lot 7 that constitute minerals. It is not necessary to engage further in a process of construction of the exception because in his defence, the defendant admitted that the gravel contained substances which, if separated from the gravel, would be minerals. For the purposes of the conversion claim, the question remains whether a conversion of the minerals occurs when the gravel is removed from Lot 7 even though the minerals are not separately extracted from the gravel.

107 I turn, then, to consider the two issues that arise for consideration in relation to the plaintiffs claim of conversion, and to explain why the plaintiffs' claim fails.

(b) Why the plaintiffs' claim in conversion fails

108 The first issue for determination is whether the taking of the gravel, of itself, constituted the conversion of any minerals contained within the gravel, or whether minerals had to be extracted from the gravel before there could be a conversion of those minerals.

109 In considering this issue, it is necessary to bear in mind the elements of the tort of conversion. The essence of the tort is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property in the chattel.55 However, framing a precise definition of the tort has been described as 'well nigh impossible'.56 In Bunnings v CHEP Australia57Allsop P observed that:

the essential elements, or basic features, [of the tort] involve an intentional act or dealing with goods inconsistent with or repugnant to the rights of the owner, including possession and any right to possession. Such an act or dealing will amount to such an infringement of the possessory or proprietary rights of the owner if it is an intended act of dominion or assertion of rights over the goods.

110 A conversion may have a variety of forms, including taking the chattel, removing it, transferring it, withholding it, damaging or altering it, using it, destroying it, or losing it58 provided that the conduct involved is inconsistent with the rights of the owner.

111 In my view, this aspect of the plaintiffs' claim in conversion fails for two reasons. First, while they are in the ground, and not separated from the earth, minerals are not chattels, but form part of the land itself. It is only at the point where a mineral is severed from the land that it becomes a chattel.59 Although the title to the minerals may be held separately from the title to the balance of Lot 7, until the minerals are physically separated from the land they do not become chattels capable of conversion. In this case, such minerals (if any) as may have been contained in the gravel were not extracted from the gravel and thus were not separated from the land itself, and so did not constitute chattels which were capable of being converted.

112 In any event, even if it can be said that the minerals in the gravel were, by virtue of the extraction of the gravel, separated from the land itself, that is not sufficient to constitute a conversion in this case. I understood the plaintiffs' case to be that there was a conversion in this case because the sale of the gravel meant that the minerals contained in that gravel were necessarily removed from the possessory title of the plaintiffs, and that that was sufficient to constitute a conversion. There is a significant attraction in this argument. After all, the practical effect of the sale of the gravel means that it is no longer open to the plaintiffs to exercise their rights to mine for minerals in that part of Lot 7 which has been removed by virtue of the extraction of the gravel.

113 However, even though the sale of the gravel necessarily involved the physical transfer of possession of any minerals contained in the gravel, that is not sufficient to establish the tort of conversion. As Allsop P made clear in Bunnings(in the quote set out above) it is also necessary for the plaintiffs to establish that the physical act of dealing with the goods was an intentional one. It is, for example, well established that a conversion will not be committed as a result of mere negligence.60 In the circumstances of this case, I am not persuaded that it is possible to infer, from the extraction and sale of the gravel, that the defendant intended to interfere with any minerals which may have been contained in the gravel, and in which the plaintiffs had an interest, in such a way as to exercise dominion, or to assert rights, over those minerals as minerals.

114 As the registered proprietor of Lot 7, there is no doubt that the defendant was entitled to extract gravel from the land and to sell that gravel. Further, the evidence was that the gravel was sold simply as gravel and the sale price did not reflect the mineral composition of the gravel. Although there was evidence that the defendant knew that in taking gravel, bauxite may also be removed,61 I am not persuaded that it can be inferred that by taking the gravel the defendant must necessarily have intended to exercise dominion, or assert rights, over the bauxite itself, or over any other minerals, which may have been contained within the gravel.

115 Turning to the second issue which arises for determination in relation to the claim for conversion, in my view the plaintiffs' action fails because the defendant was a co-owner of any minerals contained within the gravel. The orthodox position at common law was that in order to establish conversion in respect of a jointly owned chattel, conduct by a co-owner had to involve the destruction of the chattel, or a direct and positive exclusion of the co-tenant in common from the common property.62 That was because each co-owner is equally entitled to the possession and use of the property, so neither could commit any wrong as against the other by taking or retaining possession of it, and using it for the purposes for which it was designed or intended, even if the other was thereby prevented from using it in a similar way.63 More recently, however, it has been accepted that a co-owner will have an action in conversion against another co-owner if the latter deals with a jointly owned chattel in a manner inconsistent with the rights of the former as a co-owner, such as by excluding him or her from possession and preventing the exercise of his or her rights.64

116 In the case of jointly owned mines, it is well established that co-owners may each enter and work the mine, provided that they do not take more than their share.65 Accordingly, if one co-owner entered and worked a mine, that conduct could not be considered to be conduct inconsistent with the rights of the other co-owner. That being the case, it is difficult to see how the defendant's conduct in extracting and selling the gravel (and with it, any minerals which may have been contained within that gravel) could be inconsistent with the plaintiffs' rights as the co-owners of any such minerals, so as to constitute a conversion of those minerals, sounding in damages, or in other relief directed to bring an end to the conversion (such as the injunction sought by the plaintiffs).

117 For completeness, I note that in so far as the plaintiffs' claim for relief in the form of an injunction is concerned, the defendant's co-ownership of the minerals would preclude the grant of an injunction which would restrain the defendant from removing minerals from Lot 7 without the plaintiffs' prior consent.

118 The conclusions I have reached apply solely to the plaintiffs' action in conversion. In his submissions, counsel for the defendant adverted to the possibility that had the defendant earned a profit from the sale of the minerals, an account might have been required to the plaintiffs for a share in those profits, but that there was no sale of the minerals in this case in any event. It is not necessary to explore those possibilities because they are not raised by the pleadings.

(c) The plaintiffs' claim for relief based on an 'infraction' of the Mineral Interest by virtue of the extraction of the gravel

119 It is necessary to briefly mention a further issue which emerged from the pleadings, and was referred to in counsel's submissions, in addition to the conversion claim.

120 The plaintiffs sought a declaration that the Mineral Interest had been 'infracted' by the taking of the gravel. Initially it appeared that the 'infraction' was simply intended as a reference to the alleged conversion. However, in the course of the hearing counsel for the plaintiffs submitted that 'even if there had not been a conversion', the circumstances amounted to 'an infraction of [Mrs Payne's] proprietary right which she is [and her successors in title are] entitled to enjoin in some way without either some compensation or an account of profits being offered.'66 Counsel for the plaintiffs did not adequately explain the basis for the grant of such relief, even when I sought clarification.67 In addition, following a request for clarification of this claim after the hearing had concluded, the solicitors for the plaintiff indicated that the claim was made in response to the defendant's claim that by taking the gravel there had been no 'infraction' of the plaintiffs' Mineral Interest.

121 In the defence and counter claim, the defendant pleaded (apparently as an alternative to his claim that the extraction of the gravel did not constitute a conversion of the minerals) that the reservation of the Mineral Interest by the 1970 transfer 'contained an implied term to the effect that Mrs Payne, and her successors in title, could exploit the [Mineral Interest] by, and only by entering onto [Lot 7] and mining for Minerals, subject to any agreement made between Mrs Payne, or her successors in title, and Joice Investments, or its successors in title'.68 The defendant pleads that Mrs Payne did not have any entitlement to exploit the Mineral Interest unless such a compensation agreement was entered into, that no such agreement was entered into after 6 November 1970 or alternatively 14 September 1971, and that the right to mine for minerals did not include the extraction of gravel from Lot 7. Accordingly, the defendant pleads that the extraction of gravel from Lot 7, regardless of its composition, could not constitute an 'infraction' of the Mineral Interest. The defendant sought a declaration that there had been no 'infraction' of the plaintiffs' Mineral Interest by taking the gravel.

122 To the extent that the defendant's plea that the Mineral Interest was not 'infracted' on the basis that the Mineral Interest is subject to an implied term to reflect the terms of the 1970 agreement, that contention must be rejected, for the reasons set out in [105] above. To the extent that the references in the defence and counterclaim to 'infraction' were intended to have any other meaning or rely on any other cause of action – or the absence thereof - the meaning of the term 'infraction' was not explained by counsel for the defendant.

123 Accordingly, in so far as the defendant's claim for a declaration - that the taking of the gravel involved (and involves) no 'infraction' of the plaintiffs' Mineral Interest - is intended to refer to something other than the plaintiff's claim of conversion, I would refuse a declaration to that effect.

124 As for the plaintiffs' reference to an 'infraction' of the Mineral Interest, it is not appropriate to speculate on whether, and if so, what other causes of action might have been relied upon when none was expressly advanced by counsel. It suffices to say that in the circumstances, I am not persuaded that the plaintiffs have established any basis for the grant of relief in the form of a declaration that their Mineral Interest has been 'infracted' as a result of the taking of the gravel.

Conclusion

125 The defendant's claim of adverse possession, and for a declaration that he obtained title to the minerals the subject of the Mineral Interest by virtue of adverse possession, should be dismissed.

126 The plaintiffs' claim that their title to the minerals the subject of the Mineral Interest has not been extinguished by adverse possession will be upheld. I will hear from counsel as to the appropriate terms of a declaration reflecting that conclusion.

127 The plaintiffs' claim that the minerals the subject of the Mineral Interest have been converted by the defendant as a result of the extraction of the gravel should be dismissed. The plaintiffs' prayer for relief in the form of a declaration that their Mineral Interest has been 'infracted' by the taking of the gravel should also be dismissed.

128 In so far as the defendant seeks a declaration that the taking of the gravel did not constitute an infraction of the Mineral Interest (other than by reference to the allegation of conversion) I would refuse a declaration in those terms. However, in so far as the declaration sought by the defendant simply seeks to make clear that the taking of the gravel has not involved the conversion of the minerals the subject of the Mineral Interest, I will hear from counsel as to whether such a declaration is sought and if so, as to the utility and appropriate terms of such a declaration.

______________________________________

1Commonwealth v New South Wales(1923) 33 CLR 1, 23 (Knox CJ & Starke J).
2Case of Mines(1567) 1 Plowd 310; Woolley v Attorney General (Vic)(1877) 2 App Cas 163, 167 – 168 (Lord Blackburn, Sir Colvile, Sir Peacock, Sir Smith & Sir Collier).
3 Pursuant to the Land Act 1898 (WA) s 15 (now repealed).
4Chirnside v Registrar of Titles[1921] VLR 406.
5 See, for example, Exhibit 23.
6 ts 167.
7 Certificate of Title Volume 445 Folio 15A, later superseded by Certificate of Title Volume 2230 Folio 363.
8 The certificate of title in respect of the undivided half share in Lot 7 transferred to Joice Investments by Mrs Payne is Volume 445 Folio 17A.
9 Certificate of Title Volume 388 Folio 18A and Certificate of Title Volume 445 Folio 17A.
10 Exhibit 29; see also Exhibit B and ts 175.
11 See s 4(1) of the Limitation Act 2005 (WA) and s 4 of the Limitation Legislation Amendment and Repeal Act 2005; cf Water Corporation v Hughes[2009] WASC 152, [19], [21] (Martin CJ).
12Petkov v Lucerne Nominees Pty Ltd(1992) 7 WAR 163, 166 (Murray J).
13 See Petkov v Lucerne Nominees Pty Ltd(1992) 7 WAR 163, 166 (Murray J).
14Radonich v Radonich[1999] WASC 165, [168] - [172].
15 ts 65.
16 Counsel for the defendant made clear that his claim for adverse possession rested upon s 5(c) of the Act: ts 65.
17 The defendant pleaded, in the alternative, that the 12 year period ran from 14 September 1974 (the date of expiry of the Pacminex agreement). However, in oral submissions, counsel for the defendant confirmed that it was his case that Joice Investments obtained adverse possession by 13 September 1983: ts 64. Accordingly, the defendant’s claim of adverse possession relied on the entry into the Pacminex agreement as the last possible date from time Mrs Payne’s right to bring an action to recover possession ‘first accrued’.
18 Even if the defendant had established his claim of adverse possession, no such declaration could be made, because the effect of the Act was not to confer a title in land on a dispossessor, but rather to extinguish the title of the dispossessed title owner.
19Fermora Pty Ltd v Kelvedon Pty Ltd[2011] WASC 281, [96].
20 Cf Chirnside v Registrar of Titles[1921] VLR 406; Commissioner of State Taxation v Balcatta Nominees[1981] WAR 7, 10 (Brinsden J, Lavan ACJ and Smith J agreeing), referring to Ex parte Henry; re Commissioner of Stamp Duties[1963] NSWR 1079, 1084 (Heron ACJ, Manning J) and on appeal Commissioner of Stamp Duties (NSW) v Henry(1964) 114 CLR 322 at 333 (Taylor J).
21Bride v Shire of Katanning[2013] WASCA 154, [70] (Edelman J, Newnes JA agreeing), [7] (Murphy JA) and the cases cited therein.
22Bride v Shire of Katanning[2013] WASCA 154, [73] (Edelman J, Newnes JA agreeing), [11] (Murphy JA), citing Moors v Burke[1919] HCA 32; (1919) 26 CLR 265, 268 (the Court).
23Petkov v Lucerne Nominees Pty Ltd(1992) 7 WAR 163, 167 (Murray J).
24Petkov v Lucerne Nominees Pty Ltd(1992) 7 WAR 163, 167 (Murray J), citing Powell v McFarlane(1979) 38 P and CR 452 at 470 – 472; see also Davidson v Elkington[2011] WASC 29, [142] (Hall J); Whittlesea City Council v Abbatangelo(2009) 259 ALR 56, [6]; JA Pye (Oxford) Ltd v Graham[2003] 1AC 419, [40] (Lord Browne-Wilkinson, Lord Bingham, Lord Mackay, Lord Hope & Lord Hutton agreeing).
25Whittlesea City Council v Abbatangelo(2009) 259 ALR 56, [6] (Ashley & Redlich JJA & Kyrou AJA).
26JA Pye (Oxford) Ltd v Graham[2003] 1 AC 419, [45] (Lord Browne-Wilkinson, Lord Bingham, Lord Mackay, Lord Hope & Lord Hutton agreeing); Wills v Wills[2003] UKPC 84, [29] (Lord Walker).
27Petkov v Lucerne Nominees Pty Ltd(1992) 7 WAR 163, 168 (Murray J); see also Davidson v Elkington[2011] WASC 29, [143] (Hall J).
28Whittlesea City Council v Abbatangelo(2009) 259 ALR 56, [6] (Ashley & Redlich JJA & Kyrou AJA).
29JA Pye (Oxford) Ltd v Graham[2003] 1 AC 419, [36] (Lord Browne-Wilkinson, Lord Bingham, Lord Mackay, Lord Hope & Lord Hutton agreeing).
30Panther Resources Ltd v Canadian Northern Railway[1984] 2 WWR 237, [57] (Cormack J); Duncan v Joslin(1965) 51 WWR 346 at 352 (Kane JA); Estate of King v Estate of Buckle(1999) ABCA 343.
31Whittlesea City Council v Abbatangelo(2009) 259 ALR 56, [6] (Ashley & Redlich JJA & Kyrou AJA).
32 ts 114.
33McDonnell v McKinty (1847) ET 514.
34 At 526.
35In the matter of an application by John Edward Franklin [2009] VSC 496, [15] (Kaye J); Wills v Wills[2003] UKPC 84, 8 - 9 (the Court).
36Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Limited(2002) 209 CLR 651, [40] (Gleeson CJ, Gummow, Kirby & Hayne JJ); Wade v New South Wales Rutile Mining Co Pty Ltd(1969) 121 CLR 177, 194 (Windeyer J).
37DKLR Holding Co (No. 2) Pty Ltd v Commissioner of Stamp Duties[1980] 1 NSWLR 510, 522 [23] (Hope JA, Glass JA agreeing at 531 [49]).
38Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Limited(2002) 209 CLR 651, [40] (Gleeson CJ, Gummow, Kirby & Hayne JJ).
39DKLR Holding Co (No. 2) Pty Ltd v Commissioner of Stamp Duties[1980] 1 NSWLR 510, 522 [23] (Hope JA, Glass JA agreeing at 531 [49]); Minister for Mineral Resources v Brantag Pty Ltd[1997] NSWCA 206, 17 (Mason P, Stein JA & Sheppard AJA agreeing); Wik Peoples v Queensland(1996) 71 ALJR 173, 255; Jones v Consolidated Anthracite Collieries Limited v Dynevor[1915] 1 KB 123 at 135 (Scrutton J).
40Wade v New South Wales Rutile Mining Co Pty Ltd(1969) 121 CLR 177, 194 (Windeyer J).
41Minister for Mineral Resources v Brantag Pty Ltd[1997] NSWCA 206, 17 (Mason P, Stein JA & Sheppard AJA agreeing), citing Attorney General v Brown(1847) 1 Legge 312, 322 – 323.
42Dand v Kingscote(1840) 6 M and W 174, 151 ER 370.
43Cardigan v Armitage(1823) 2 B and C 197; 107 ER 356.
44Goold v Great Western Deep Coal Co(1865) 2 De GJ and S 600; 46 ER 508.
45Re Gerard and London and Northwest Rail Co[1895] 1 QB 459, 466-471 (Lord Esher MR).
46Westfield Management Ltd v Perpetual Trustee Co Ltd[2007] HCA 45; (2007) 233 CLR 528, 539 [37], [39] (the Court); Kitching v Phillips(2011) 278 ALR 551, [61] (Murphy JA, Pullin & Newnes JJA agreeing); see also Miller v Evans[2010] WASC 127, [15] (Hall J): Fermora Pty Ltd v Kelvedon Pty Ltd[2011] WASC 281, [32] (Edelman J). There are some exceptions: see Westfield Management Ltd v Perpetual Trustee Co Ltd[2007] HCA 45; (2007) 233 CLR 528, 539 [44] (the Court); Fermora Pty Ltd v Kelvedon Pty Ltd[2011] WASC 281, [32] (Edelman J), and as to evidence of the physical characteristics of the land, see Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 [16] (Handley JA); cf Currumbin Investments Pty Ltd v Body Corp Mitchell Park Parkwood CTS [2012] QCA 9 [48] - [49] (Fryberg J).
47Chirnside v Registrar of Titles[1921] VLR 406, referred to with approval in Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Limited(2002) 209 CLR 651, [40] (Gleeson CJ, Gummow, Kirby & Hayne JJ); McDonnell v McKinty(1847) ET 514, 524 - 525 (Blackburn CJ).
48DKLR Holding Co (No. 2) Pty Ltd v Commissioner of Stamp Duties[1980] 1 NSWLR 510, 522 [23] (Hope JA, Glass JA agreeing at 531 [49]); Minister for Mineral Resources v Brantag Pty Ltd[1997] NSWCA 206, 10 (Mason P, Stein JA and Sheppard AJA agreeing); Wik Peoples v Queensland(1996) 71 ALJR 173, 255; Jones v Consolidated Anthracite Collieries Limited v Dynevor[1915] 1 KB 123 at 135 (Scrutton J).
49 Ts 159, 160.
50 Ts 58.
51 This was made clear by counsel for the plaintiffs at the hearing: ts 201.
52 Those cases included Lord Provost and Magistrates of Glasgow v Farie(1888) 13 App Cas 657; Commonwealth v Hazeldell Limited(1921) 29 CLR 448; Waring v Foden[1932] 1 Ch 276; Shire of Wannon v Riordan[1955] 1 VLR 413; Minister for Mineral Resources v Brantag Pty Ltd[1997] NSWCA 206.
53 Par 15.3 of the Defence and Counterclaim.
54 Ts 128.
55Penfolds Wines Pty Ltd v Elliott(1946) 74 CLR 204 at 229 (Dixon J, in dissent but not in relation to this statement of principle).
56Kuwait Airways Corporation v Iraqi Airways Co (No. 4 and 5)[2002] 2 AC 883, [39] (Lord Nicholls of Birkenhead) cited in Bunnings Group Limited v CHEP Australia Limited[2011] NSWCA 342, [124] (Allsop P, Giles JA & Macfarlan JA agreeing).
57Bunnings Group Limited v CHEP Australia Limited[2011] NSWCA 342, [124] (Allsop P, Giles JA & Macfarlan JA agreeing).
58Penfolds Wines Pty Ltd v Elliott(1946) 74 CLR 204 at 229 (Dixon J); Bunnings Group Limited v CHEP Australia Limited[2011] NSWCA 342, [135] – [141] (Allsop P, Giles JA & Macfarlan JA agreeing) and the references cited therein.
59Finesky Holdings Pty Ltd v Minister for Transport (WA)(2002) 26 WAR 368, [52] (Steytler J, Wallwork J & Parker J agreeing); Bilambil-Terranora Pty Ltd v Tweed Shire Council[1980] 1 NSWLR 465, [90] (Mahoney JA); Livingstone v Rawyards Coal Company(1880) LR 5 HL 25, 39 (Lord Blackburn).
60 See the discussion in C. Sappideen and P. Vines Fleming’s Law of Torts (10^th ed) at [4.80] and the cases cited therein.
61 ts 181; Exhibit 23.
62 See Fennings v Lord Grenville(1808) 1 Taunt 241, 828 (Chambre J); Jones v Seward(1872) LR 5 HL 464, 474-5 (Lord Hatherly), 478 (Lord Westbury), 479 (Lord Colonsay).
63Gwinnett v Day and Anor[2012] SASC 43, [40] (Stanley J).
64Kitano v The Commonwealth(1974) 129 CLR 151, 172 (Mason J); see also Re Gillie; ex parte Cornell(1996) 70 FCR 254, 257 (Finn J); Hill and Anor v Reglon Pty Ltd[2007] NSWCA 295, [122] - [123] (Beazley JA, Spigelman CJ & Ipp JA agreeing); Gwinnett v Day and Anor[2012] SASC 43, [42] – [47] (Stanley J).
65O’Grady v North Queensland Company Ltd[1990] 2 Qd R 243 at 245-6 (Demack J, McPherson J agreeing), and see the authorities cited therein, including Job v Potton(1875) LR 20 Eq 84 at 93 (Bacon VC).
66 Ts 207.
67 Ts 208.
68 Re-Amended Defence and Counter-Claim dated 28 August 2012, par 16.1.

Payne v Dwyer

[2013] WASC 271

23 JULY 2013

PAYNE -v- DWYER [2013] WASC 271