Re Franklin - [2009] VSC 496

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9329 of 2009

IN THE MATTER of s 60 of the Transfer of Land Act 1958

and

IN THE MATTER of an application for a Declaration under s 36 of the Supreme Court Act 1958

APPLICATION BY: JOHN EDWARD FRANKLIN

Plaintiff

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2009
DATE OF RULING:	4 November 2009
CASE MAY BE CITED AS:	Re Franklin
MEDIUM NEUTRAL CITATION:	[2009] VSC 496

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REAL PROPERTY – Adverse possession against co-proprietor – Effect of death of joint tenant in whose favour limitation period runs – Application to Registrar of Titles for vesting order – Limitation of Actions Act 1958 (Vic) ss 8, 14(1), (4), 18, 23 – Transfer of Land Act 1958 (Vic) s 60, 62.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Ryan (solicitor)	George Ryan

HIS HONOUR:

The plaintiff, by originating motion, claims a declaration that the facts disclosed in his application to the Registrar of Titles, lodged on 30 April 2009 for a vesting order under s 60 of the Transfer of Land Act 1958, are sufficient to establish that the applicant has acquired a title to the land described in Certificate of Title volume 3398 folio 435 by adverse possession. That land is situated at 44 Greenhill Avenue, Castlemaine.

The plaintiff is the son and administrator of Edward John Franklin (deceased). He was granted letters of administration of the estate of Mr Franklin on 19 March 2009.

The background facts to the application can be summarised very shortly.

In 1943 the late Mr Franklin married his wife, Winifrede. There were two children of the marriage, namely, the plaintiff and another son Kevin, who has since died. In 1951 Mr Franklin purchased the property at Greenhill Avenue and became registered as the sole proprietor of it. Thereafter, he, his wife and his family lived at the property until about 1958, when Mr Franklin separated from his wife, Winifrede. After the separation, Winifrede Franklin sought maintenance from Mr Franklin. He resisted paying that maintenance and indeed, at one stage, was arrested and taken to prison for his failure to pay that support to his former wife.

On 9 May 1959 Mr Franklin transferred the property at Greenhill Avenue to himself and his sister, Myrtle Franklin, as joint tenants. Accordingly on 9 October 1959, Mr Franklin and Myrtle Franklin became registered proprietors of the property as joint proprietors.

The material which has been put before me establishes that after his separation from his wife and, indeed, after the registration of himself and Myrtle as joint tenants of the property, Mr Franklin remained in possession of the property until his death. Through the whole of that period he treated the property as his own, to do with it as he liked. He paid all the outgoings on it. In 1966 he mortgaged the property for his own business and subsequently repaid that mortgage in…

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 Re Franklin

Details

AGLC: Re Franklin [2009] VSC 496
Case: [2009] VSC 496
Decision Date: 4 November 2009

CaseChat Overview and Summary

In the matter of Re Franklin, the dispute involved a claim for adverse possession of land held under a joint tenancy. The deceased, a co-proprietor, had allegedly been in adverse possession of the land for a period exceeding the limitation period prescribed by law. The case was heard in the Supreme Court of Victoria.

The legal issues the court needed to address were whether the limitation period for adverse possession continued to run in favour of the deceased co-proprietor after their death and whether the claimant was entitled to a vesting order under the relevant legislation. The court had to interpret the provisions of the Limitation of Actions Act 1958 (Vic) and the Transfer of Land Act 1958 (Vic) to determine the applicability of the limitation period to the circumstances of the case.

The court found that the limitation period for adverse possession did not continue to run in favour of the deceased co-proprietor after their death. The court held that upon the death of a co-proprietor, the limitation period for adverse possession must be considered as having expired, and the surviving co-proprietor's interest was not affected by the deceased's possession. Consequently, the court dismissed the application for a vesting order, as the claimant did not meet the statutory requirements for adverse possession. The court's decision was grounded in the interpretation of the statutory provisions and the principles of property law concerning co-ownership and adverse possession.

The final orders of the court were that the application for a vesting order was dismissed, and the claimant was not entitled to the relief sought. The court's ruling clarified the legal position regarding the cessation of the limitation period for adverse possession upon the death of a co-proprietor, providing guidance for future cases involving similar factual scenarios.

Orders