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Refina Pty Ltd v Binnie

Refina Pty Ltd v Binnie

Case [2009] NSWSC 914 3 September 2009

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CITATION: Refina Pty Ltd v Binnie [2009] NSWSC 914

HEARING DATE(S): 19 & 20 March 2009

JUDGMENT DATE :
3 September 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

DECISION: Proceedings dismissed with costs

CATCHWORDS: REAL PROPERTY – Torrens title – possessory title - whether plaintiff had adversely possessed strip of defendant’s land so as to be entitled to make application for possessory title – held: plaintiff had been entitled to make application for possessory title – Whether plaintiff acknowledged defendant’s title so as to lose entitlement to apply for possessory title – where negotiations between parties contemplated offer by plaintiff to purchase strip – held: at highest an offer of compromise rather than acknowledgement of title – Whether possessory claim destroyed by registration of plan of subdivision incorporating strip into larger lot – held: claim for possessory title no longer available – Whether plaintiff had personal equity against defendant in respect of disputed strip arising from possession – held: adverse possession gives possessor no legal or equitable claim as against registered proprietor – Whether plaintiff entitled to order requiring Registrar-General to “correct error” by omitting strip from plan – where disputed strip not expressly referred to in Council consent to subdivision but subsequently included in registered plan of subdivision – held: no error, registered plan accorded with Council’s intent notwithstanding that not expressly referred to in it

LEGISLATION CITED: (NSW) Conveyancing Act 1919, s 7A , s 195H
(NSW) Environmental Planning and Assessment Act 1979, s 4(2)(d)(ii)
(NSW) Real Property Act 1900, s42, s 45D, s 45(2), 45B, s 45D, s 45D(1)(a), s 45D(1)(c)

CATEGORY: Principal judgment

CASES CITED: Bahr v Nicolay (No 2) [1988] HCA 16, (1988) 164 CLR 604
Baiada Pty Ltd v Registrar-General (1994) 6 BPR 13,704
Baiada Pty Ltd v Registrar-General (1994) 6 BPR 13,704
Bartlett v Ryan [2000] NSWSC 807
Breskvar v Wall (1971) 126 CLR 376
Cawthorne v Thomas (NSWSC, Bryson J, 15 December 1993, BC9302312)
Doe d Curzon v Edmonds (1840) 6 M&W 295
Edginton v Clark [1963] 3 All ER 468
Frazer v Walker [1967] 1 AC 569
Garofano v Reliance Finance Corporation Pty Ltd (1992) NSWConvR 55-640
Grgic v Australian & New Zealand Banking Group Ltd (1994) 33 NSWLR 202
Harris v Smith [2008] NSWSC 545
In Trieste Investments Pty Ltd v Watson (1963) 64 SR (NSW) 98
Macquarie Bank Ltd v Sixty-Fourth Throne Pty Ltd [1998] 3 VR 133
Minister for Education & Training v Canham [2004] NSWSC 274
MJ Davis Industrial Pty Ltd v Fairfield City Council [2000] NSWCA 287, (2000) 10 BPR 18,495, BC200006275
Newington v Windeyer (1985) 3 NSWLR 555
Oh Hiam v Tham Kong (1980) 2 BPR 9451
Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423
Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740, (1973) 28 LGRA 218
Shaw v Garbutt [1996] NSWSC 400
Somerville v Dalby (1990) 69 LGRA 422
Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN…

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 Refina Pty Ltd v Binnie

Details

AGLC: Refina Pty Ltd v Binnie [2009] NSWSC 914
Case: [2009] NSWSC 914
Decision Date: 3 September 2009

CaseChat Overview and Summary

Refina Pty Ltd commenced legal proceedings against Binnie, seeking to establish possessory title over a strip of land that was part of Binnie's property. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether Refina had adversely possessed the strip of land, thereby entitling it to apply for possessory title. Additionally, the court had to determine if Refina's negotiations and offer to purchase the disputed strip constituted an acknowledgement of Binnie's title, thereby forfeiting its entitlement to apply for possessory title. Another matter before the court was whether the registration of a plan of subdivision incorporating the disputed strip into a larger lot destroyed the possessory claim. Finally, the court considered whether Refina had any personal equity against Binnie in respect of the disputed strip arising from its possession.

The court found that Refina had indeed adversely possessed the strip of land, thereby entitling it to apply for possessory title. However, the court held that the negotiations and offer to purchase the strip by Refina were merely an offer of compromise, not an acknowledgement of Binnie's title. The court also determined that the registration of the plan of subdivision incorporating the disputed strip into a larger lot destroyed Refina's possessory claim. Finally, the court held that adverse possession does not give the possessor any legal or equitable claim against the registered proprietor. Consequently, Refina was not entitled to an order requiring the Registrar-General to correct the error by omitting the strip from the plan, as the registered plan accorded with the Council's intent, notwithstanding that it was not expressly referred to in the consent to subdivision.

Orders