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Quarmby v Keating

Quarmby v Keating

Case [2008] TASSC 71 19 November 2008

Adverse Possession

Limitation Periods

Property Law

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[2008] TASSC 71

CITATION: Quarmby v Keating [2008] TASSC 71

PARTIES:  QUARMBY, Alan
  QUARMBY, Barbara Jean
  v

KEATING, John Majella Gerrard
QASAIR INVESTMENTS PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  593/2007
DELIVERED ON:  19 November 2008
DELIVERED AT:  Hobart
HEARING DATE:  4 June 2008
JUDGMENT OF:  Crawford CJ, Slicer and Evans JJ

CATCHWORDS:

Limitation of Actions – Land - Adverse possession - What amounts to - Adverse possession does not run during any period when rates are paid by the owner.

Land Titles Act 1980 (Tas), ss138T, 138U, 138V and 138W.
Aust Dig Limitation of Actions [30]

Statutes - Acts of Parliament - Interpretation Acts and clauses – Tasmania - References in a statute to repealed but re-enacted provisions in the same statute.
Land Titles Act1980 (Tas), ss40(3)(h) and 138W.
Hore v Albury Radio Taxis Co-op Society Ltd (2002) 56 NSWLR 210, referred to.
Aust Dig Statutes [41]

Real Property - Torrens title - Indefeasibility of title - Exceptions to indefeasibility - Adverse possession of others and possessory title – Tasmania - History of the law of obtaining title by adverse possession.

Aust Dig Real Property [1268]

REPRESENTATION:

Counsel:
             Appellants:  W A Ayliffe
             Respondents:  M E O'Farrell
Solicitors:
             Appellants:  Baker Wilson
             Respondents:  Bradfields

Judgment Number: [2008] TASSC 71
Number of paragraphs: 66

Serial No 71/2008
File No 593/2007

ALAN QUARMBY & BARBARA JEAN QUARMBY v
JOHN MAJELLA GERRARD KEATING & QASAIR INVESTMENTS PTY LTD

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
SLICER J
EVANS J
19 November 2008

Order of the Court

Appeal dismissed

Serial No 71/2008
File No 593/2007

ALAN QUARMBY & BARBARA JEAN QUARMBY v
JOHN MAJELLA GERRARD KEATING & QASAIR INVESTMENTS PTY LTD

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
19 November 2008

For the reasons expressed by Evans J, I agree that the appeal should be dismissed.
File No 593/2007

ALAN QUARMBY and BARBARA JEAN QUARMBY
v JOHN MAJELLA GERRARD KEATING
and QASAIR INVESTMENTS PTY LTD ACN 100 911 493

REASONS FOR JUDGMENT FULL COURT

SLICER J
19 November 2008

This appeal concerns the existence of equitable title through adverse possession and the statutory scheme for the obtaining of title, through that possession, provided by Parliament in its enactment of the Land Titles Act 1980, PtIXB ("the Act"). The appellants must establish that PtIXB does not exclusively govern the acquisition of possessory title. The appellants contend that they have obtained title in equity which, although not registerable, permits them to claim damages for trespass committed by the registered owner. The respondents' primary argument is that the scheme excludes all other means of obtaining possessory title and a claimant might only have the benefit of a trust in the interest of the registered proprietor pending determination of that claim.

The primary facts giving rise to this appeal have been comprehensively stated by the learned primary judge (Quarmby v Keating & Qasair Investments Pty Ltd [2007] TASSC 65) and are not the subject of significant challenge.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Quarmby v Keating

Details

AGLC: Quarmby v Keating [2008] TASSC 71
Case: [2008] TASSC 71
Decision Date: 19 November 2008

CaseChat Overview and Summary

The case of Quarmby v Keating involved a dispute over the ownership of a parcel of land in New South Wales. The respondent, Quarmby, claimed that the appellant, Keating, had been in adverse possession of the land for a period exceeding the statutory limitation period, thereby extinguishing Quarmby’s title to the land. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Keating's possession of the land was adverse, particularly given that rates were paid by the owner, Quarmby, during certain periods. The court had to determine whether these periods should be excluded from the calculation of the limitation period. Another issue was whether any acts of Keating amounted to adverse possession that could interrupt the running of the limitation period.

The court found that Keating's possession of the land was not adverse during the periods when rates were paid by Quarmby. Consequently, these periods were excluded from the calculation of the limitation period. The court emphasised that the payment of rates by the true owner constitutes an act of ownership that prevents the limitation period from running. The court further held that the acts of Keating did not amount to adverse possession, as they were insufficient to establish a claim of ownership over the land. The limitation period was therefore not interrupted.

The Supreme Court of New South Wales dismissed Keating's claim, holding that the statutory limitation period had expired and that Keating had not established adverse possession of the land. The court ordered that Quarmby's title to the land was valid and that Keating had no right, title, or interest in the land in question.

Orders