Rise Home Loans Pty Ltd v Chambers

[2009] VCC 31

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
COMMERCIAL LIST

EXPEDITED CASES DIVISION

Case No. CI-08-02780

RISE HOME LOANS PTY LTD	Plaintiff
V
ALMA DOROTHY CHAMBERS & ANOR.	Defendants

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2009
DATE OF JUDGMENT:	3 February 2009
CASE MAY BE CITED AS:	Rise Home Loans Pty Ltd v Chambers & Anor.
MEDIUM NEUTRAL CITATION:	[2009] VCC 0031

REASONS FOR JUDGMENT

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Catchwords: Real property – adverse possession – Court declaration to be used as basis for application to the Registrar of Titles – s.60 Transfer of Land Act 1958 – costs of the proceeding

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G.D. Bloch	Zaitman & Associates
For the First Defendant	Mr M. Mulvany	Richard Billings
HIS HONOUR:

1           The plaintiff by writ dated 11 July 2008 claimed certain orders as a result of trespass to land of which it was the registered proprietor.

2 boundary there were two properties where the fence line was not on the title
boundaries. In correspondence between the parties, before the writ was issued, the
plaintiff sought to have the fence line moved to accord with the title boundary. The
owner of the southern most property is the first defendant. She issued a counterclaim

The plaintiff had recently purchased a block of land in Beaumaris. On the western predecessors in title she was entitled to adverse possession of the disputed land. The land comprises a strip .3 metres in width.

3 interlocutory steps including a Case Conference. The Case Conference was held on
24 October 2008 but the proceeding between the plaintiff and the first defendant was
not resolved at the Case Conference. The directions provided for the filing of affidavit

The claim was issued in the expedited cases list and directions were made for the plaintiff. The plaintiff amended its statement of claim and in response to the amended defence and counterclaim by the first defendant the plaintiff filed a reply and defence to counterclaim on 20 October 2008, which by paragraph 1 raised a legal matter relating to the subdivision of the property which is now owned by the first defendant.

4           By a facsimile dated 23 January 2009 the plaintiff’s solicitors informed the first defendant’s solicitors that they were “instructed to proceed to trial”. A further facsimile on 30 January 2009 indicated that the plaintiff was not proceeding with its trespass claim and would “submit to an order in relation to your adverse possession claim”, although it reserved its position in relation to questions of costs.

5 her case by tendering a number of affidavits which were filed pursuant to the
directions of the Court. These are the affidavits of Alma Dorothy Chambers, sworn 5
November 2008; John Thurstan Dickenson, sworn 7 November 2008; Margaret Helen

At the hearing today the first defendant and plaintiff by counterclaim has made out 2008; Lorraine Elizabeth Miller, sworn 5 November 2008 and an affidavit by a licensed surveyor, Malcolm Gardener Densten, sworn 31 October 2008.

6           Mr Mulvany, the first defendant’s counsel, also tendered a bundle of certified documents obtained from the Land Titles Office together with plans of subdivision and title searches of the land developed by the plaintiff and the property of the first defendant.

7           The affidavit material makes it clear that for a period of time in excess of 20 years the fence line to the rear of the first defendant’s property has been .3 metres into the plaintiff’s property as disclosed by the plan on the title. For many years, that fence line has enclosed the land and the first defendant and her predecessors in title have for many years had exclusive possession and use of that land.

8           The plaintiff purchased its property from John Dickenson in about December 2006. Mr Dickenson’s affidavit discloses that when he had purchased the property in about June 2000 he had a check survey carried out “which disclosed the fact that the fenced property at the rear was not in conformity with the title boundary”. Later, after Mrs Chambers had purchased her property, the old fence between her property and Mr Dickenson’s property was replaced by a new fence. The new fence was located on the alignment of the old fence, and as Mrs Chambers said, “Mr Dickenson did not mention anything to me about the fence not being on the title boundary”. Mr Dickenson for his part said that he believed that, “I had lost some land but I accepted this as the fact without objection to Mrs Chambers”. The further affidavits disclose the chronology of the purchase and subdivision of the various pieces of land and the fact that the original fence line was not on the title boundary and had not been for many years.

9           From Mr Densten’s survey it appears that, in addition to the strip of land .3 metres which encroached over the title boundary of the plaintiff’s land, there was a further strip of land .07 metres wide which is described on Mr Densten’s survey as a “hiatus”.

In his affidavit, Mr Densten explains that “a hiatus arises because the streets in which

properties are located have been given separate alignments in surveys carried out on

dates after the date of the original plan of subdivision”. He notes that the “original plan of subdivision for the subject area, LP10646, was done in 1925”. Mr Densten suggests that “a hiatus is not uncommon and is usually regarded by surveyors as

being the property of its possessor”.

10         In the circumstances, I consider it appropriate in this case to declare that the first defendant is entitled to have the disputed portion of land formerly within the title boundaries of the plaintiff’s property comprising the strip .3 metres wide, and the hiatus immediately to the west .07 metres, wide included as part of the land registered on the first defendant’s title.

11 The plaintiff, through its counsel Mr Bloch, did not dispute the appropriateness of the Court making these orders. Mr Bloch submitted that in the circumstances of this case the Court should make no order as to costs because the first defendant was required to establish her claim for adverse possession. The Registrar of Titles would not accept as sufficient to support an application under s.60 of the Transfer of Land Act, the fact that a declaration by the Court was made by consent without the Court hearing sufficient evidence to itself make a finding that there had been an extinguishment of title.

12         Mr Mulvany submitted that ordinarily an applicant making a claim for adverse possession would be entitled to follow the procedure set out in Vol.67 of the Law Institute Journal, at p1045, published in November 1993, and that the first defendant would not have incurred the substantial costs of defending the present proceeding and pursuing the counterclaim to trial.

13 I have generally accepted Mr Mulvany’s submissions on matters of costs, save that I have disallowed the costs of the affidavit material, including the survey prepared by the licensed surveyor, as it seemed to me that the first defendant would have incurred those costs in any event, if required to make an application pursuant to s.60 of the Transfer of Land Act. It was submitted that the first defendant would not have been required to make that application if the plaintiff had not brought the claim alleging trespass. Nevertheless, as a result of the orders I have made it is likely that the first defendant’s title will be rectified to reflect what has been the actual position on the ground for many years. In these circumstances, the first defendant should bear the costs which are referable to the application pursuant to the Act.

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Certificate

I certify that these 4 pages are a true copy of the reasons for decision of His Honour

Judge Anderson delivered on 3 February 2009.

Dated: 3 February 2009.

Caroline Dawes

Associate to His Honour Judge Anderson