Planning Ministerial Corporation v Clint Jarvie

[2024] NSWSC 593

Supreme Court

New South Wales

Medium Neutral Citation:

Planning Ministerial Corporation v Clint Jarvie [2024] NSWSC 593

Hearing dates:

15 May 2024

Date of orders:

15 May 2024

Decision date:

15 May 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

1 Under r 13.1 Uniform Civil Procedure Rules 2005 (NSW), summary judgment in favour of the plaintiff against the defendant for possession of the land comprised in folio identifiers 181/11106 and 182/11106, being the land situate at and known as 34-36 Horning Street, Kurnell NSW 2231.

2 Under r 39.1(1)(d) UCPR, leave to the plaintiff to issue a writ of possession in enforcement of this judgment, which writ may issue forthwith but is not to be executed before the expiration of 28 days from today's date.

Catchwords:

TORTS – trespass to land – squatter – land owned by NSW government – no ground for adverse possession – no arguable defence – summary judgment granted

Legislation Cited:

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, cl 6

Environmental Planning and Assessment Act 1979 (NSW), s 2.5

Interpretation Act 1987 (NSW), s 13A

Limitation Act 1969 (NSW), s 27

Real Property Act 1900 (NSW), s 45D

Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 39.1(1)(d)

Category:

Principal judgment

Parties:

Planning Ministerial Corporation (Plaintiff)
Clint Jarvie (Defendant)

Representation:

Counsel:
A B Douglas-Baker (Plaintiff)
No appearance (Defendant)

Solicitors:
Department of Planning and Environment

File Number(s):

2024/46073

EX TEMPORE JUDGMENT

1. By statement of claim filed on 2 February 2024, the plaintiff claims judgment for possession of certain real property situated at Kurnell in the Sutherland Shire. The defendant is a person named Clint Jarvie and it is the plaintiff's case that Mr Jarvie is a trespasser, having squatted for a period of time on which is otherwise vacant land on the mangrove waterfront at Kurnell. His unauthorised presence on the land came to the attention of the plaintiff in about May of 2022 when Mr Jarvie's occupation and the use he was making of the land was drawn to the attention of an officer of the plaintiff by an officer of the Sutherland Shire Council.

2. By notice of motion filed on 19 April 2024, the plaintiff seeks summary judgment under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW). Ms Douglas-Baker of counsel, who appears for the plaintiff, has read a number of affidavits, including affidavits of service of the statement of claim, the notice of motion and notice of today's date for the hearing of the summary judgment application which was fixed by the Registrar.

3. Mr Jarvie has not appeared today, notwithstanding the usual practice of calling him outside the court three times. From the affidavit evidence, I am satisfied that Mr Jarvie has not only been duly served with the statement of claim and the notice of motion but has also received adequate notice of today's hearing date providing him with a reasonable opportunity to appear and present evidence of any defence, if he had one.

4. As I have said, the land is essentially vacant land, and the plaintiff is a New South Wales Government agency constituted under s 2.5 of the Environmental Planning and Assessment Act 1979 (NSW). By cl 6 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), the plaintiff is taken to be a continuation of, and the same legal entity as, the corporation constituted as the “Minister administering the Environmental Planning and Assessment Act 1979" under what was formerly s 8 of that Act. Clause 6(2) provides that without limiting its operation, the assets, rights and liabilities of the corporation formerly so styled are the assets, rights and liabilities of the Planning Ministerial Corporation. That is not without significance because the land in question is Real Property Act 1900 (NSW) land and the folio identifiers describe the corporation formerly so styled as the registered proprietor. By force of cl 6, I am satisfied that the plaintiff as named in the statement of claim is, as the Regulation provides, a continuation of, and the same legal entity as, the entity named in the folio of the register for each of the parcels of land that make up the land the subject of these proceedings.

5. I am also satisfied that Mr Jarvie is a trespasser and that his occupation of the land was, as I have said, unknown to the plaintiff until May 2022. On the evidence read, he seems to have set up some sort of camp, residing in an old bus, and has accumulated what appears to be a certain amount of junk around the bus on the land. It is not all junk: there is a boat and a bicycle and other paraphernalia which appears in working order. And I bear in mind that one man's junk is another man's treasure. It also appears to me from the evidence that Mr Jarvie claims to have been in occupation for as long as 15 years. He formerly erected some kind of fence around that part of the land that he occupies directly, to keep his dog or dogs in, following a complaint by police.

6. I think it is relevant to also record that on 11 March 2024, after service of the statement of claim and other documents required under the Rules, Mr Jarvie attended the offices of the plaintiff and effectively returned the documents that had been served upon him. Of interest, he recorded on a page of those documents: "Note. No assistance or advice was given to Mr Jarvie to find suitable and safe residence or accommodation." I mention those matters because it is clear on the evidence of a senior departmental officer, Ms Sharon Minns (affidavit sworn on 19 November 2023) that from her inspection of the records available to the plaintiff, "no lease or any other agreement which permits any person to enter upon or occupy any part of the property" has been entered into by the plaintiff, and certainly not with Mr Jarvie. From that, I infer that the plaintiff believes that Mr Jarvie has no defence to these proceedings and that he is a trespasser.

7. I have gone into some detail about that because I raised with Ms Douglas-Baker the possibility – albeit remote – that Mr Jarvie may assert he has acquired a title by adverse possession. Having raised that topic, I think there are a number of answers to that. Even if one accepted at face value his assertion that he had occupied the land for 15 years, the plaintiff as constituted is the Crown, in effect, by the operation of s 13A of the Interpretation Act 1987 (NSW). The limitation period for an action relating to land owned by the Crown, including an action for possession or ejectment, is 30 years and not 12 years, under s 27 of the Limitation Act 1969 (NSW). Moreover, there is no evidence whatsoever that Mr Jarvie has ever made an application under s 45D of the Real Property Act. Finally, it would seem to me that the endorsement on the returned documents to which I have referred is entirely inconsistent with him possessing the necessary intent to occupy the land to the exclusion of all others, including the plaintiff. I am satisfied, on the evidence before me, that there is no arguable defence available to the defendant.

8. As Mr Jarvie is a trespasser and the plaintiff is seised of the land and the legal title, I am satisfied that an entitlement to summary judgment under r 13.1 UCPR has been established.

9. For these reasons, I make the following orders:

1. Under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW), summary judgment in favour of the plaintiff against the defendant for possession of the land comprised in folio identifiers 181/11106 and 182/11106, being the land situate at and known as 34-36 Horning Street, Kurnell NSW 2231.

2. Under r 39.1(1)(d) of the said Rules, leave to the plaintiff to issue a writ of possession in enforcement of this judgment, which writ may issue forthwith but is not to be executed before the expiration of 28 days from today's date.

**********

Decision last updated: 16 May 2024