Re Johnson - [1999] QSC 197

IN THE SUPREME COURT
OF QUEENSLAND
Brisbane

No. 2670 of 1999
[Re Johnson]

IN THE MATTER of the Land Title Act 1994
AND
IN THE MATTER of the Limitations of Actions Act 1974
AND
IN THE MATTER of an Application by JOHN VICTOR
GODSCHALL JOHNSON

REASONS FOR JUDGMENT - WILSON J.
Delivered the 19th day of August 1999

CATCHWORDS: CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - INDEFEASIBILITY OF TITLE: CERTIFICATE AS EVIDENCE - EXCEPTIONS - ADVERSE POSSESSION OF OTHERS- AFTER CERTIFICATE - QUEENSLAND

LIMITATION OF ACTIONS - LAND - ADVERSE POSSESSION - WHAT AMOUNTS TO - application for adverse possession under Land Titles Act 1994 - true owner unknown - whether relevant limitation period is 12 or 30 years - necessity of establishing a sufficient degree of exclusive physical control and intention to possess the land - application said to be brought under s.99 or s.114 of the Land Title Act - inappropriate procedure.
Asher v. Whitlock (1865) L.R. 1 Q.B. 1, considered
Bank of Victoria v. Forbes (1887) 13 V.L.R. 760, considered
Beames v. Leader [1998] Q.Conv.R. 54-506, considered
Bligh v. Martin [1968] 1 W.L.R. 804, considered
Buckinghamshire County Council v. Moran [1990] Ch. 623, considered
Cooke v. Gill (1873) L.R. 8 C.P. 107, considered
Re Kettle (No 1 of 1987, 17 September 1987), considered
Kirby v. Cowderoy [1912] A.C. 599, considered
Kirk v. Sutherland [1949] V.L.R. 33, considered
Lambourn v. Hosken [1912] V.L.R. 394, followed
Leader v. Beames [1999] Q.Conv.R. 54-222, considered.
Mulcahy v. Curramore Pty. Ltd. [1974] 2 N.S.W.L.R. 464, considered Powell v. McFarlane (1977) 38 P. & C.R. 452, considered
Rains v. Buxton (1880) 14 Ch.D. 537, considered
Red House Farms (Thorndon) Ltd v. Catchpole [1977] E.G.D. 798, considered
Robinson v. Attorney-General [1955] N.Z.L.R. 1230, considered
Shaw v. Garbutt [1997] N.S.W. Conv.R. 55-801, considered
Acts Interpretation Act s.14(1), (2)
Land Title Act 1994 ss.18(3) 30, 99, 103, 104, 105, 106, 107, 108, 109, 144, Schedule 2
Limitations of Actions Act 1974 ss. 13, 29
Real Property Act 1861 s. 89

Real Property Acts Amendment Act 1952 s. 57

Counsel: Mr R.J. Oliver for the applicant
Mr S. Grant for the respondent

Solicitors:Griffiths McColm & Parry for the applicant
B.T. Dunphy, Crown Solicitor for the respondent

Hearing Date: 20 April 1999
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane
No. 2670 of 1999
[Re Johnson]
IN THE MATTER of the Land Title Act 1994
AND
IN THE MATTER of the Limitations of Actions Act 1974
AND
IN THE MATTER of an Application by JOHN VICTOR
GODSCHALL JOHNSON

REASONS FOR JUDGMENT - WILSON J.
Delivered the 19th day of August 1999

The applicant John Victor Godschall Johnson wishes to be registered as proprietor of a parcel of land 2,023 square metres (half an acre) in area on Moreton Island in reliance on adverse possession. In his application he seeks an order that:-
“The Registrar of Titles take all necessary steps pursuant to sections 103 and 108 of the Land Title Act 1994 to register the applicant as…

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 Johnson

Details

AGLC: Re Johnson [1999] QSC 197
Case: [1999] QSC 197
Decision Date: 19 August 1999

CaseChat Overview and Summary

The case of Re Johnson involved an application by John Victor Godschall Johnson to be registered as the proprietor of a parcel of land on Moreton Island, Queensland, based on adverse possession. The land was registered in the name of his great-great-grandfather, Ralph Edward Godschall Johnson, who died in 1876. Johnson's application was based on adverse possession rather than succession. The court had to decide whether Johnson had established the necessary period of adverse possession and whether he had exclusive physical control over the land and the requisite intention to possess it.

The court found that the relevant limitation period was 30 years, as per section 29 of the Limitation of Actions Act 1974, because the true owner of the land was unknown. However, the court held that Johnson had not provided sufficient evidence to establish a sufficient degree of exclusive physical control over the land for the requisite period. Additionally, the court found that Johnson had not demonstrated the necessary intention to possess the land to the exclusion of all others.

Furthermore, the court held that Johnson's application should have been brought under section 99 of the Land Title Act 1994, which provides for an application to the Registrar of Titles, rather than under section 114, which applies to trusts, deceased estates, and bankruptcy. The court concluded that Johnson's application was inappropriate and dismissed it.

Orders