Roads Corporation v Pearse - [2012] VSC 527

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. SC1 2011 5041

ROADS CORPORATION	Plaintiff
v
RICHARD PEARSE	First defendant
JENNIFER PEARSE	Second defendant
REGISTRAR OF TITLES	Third defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2012
DATE OF JUDGMENT:	2 November 2012
CASE MAY BE CITED AS:	Roads Corporation v Pearse
MEDIUM NEUTRAL CITATION:	[2012] VSC 527

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PROPERTY LAW – adverse possession – whether Roads Corporation entitled to rely on immunity of the Crown – whether Transport Act 1983 (Vic) indicates Parliament’s intention that Roads Corporation represents the Crown - whether it performs governmental functions – kind and degree of governmental control of its activities - Limitations of Actions Act 1958 (Vic) s 7, Interpretation of Legislation Act 1984 (Vic) s 46A, Transport Integration Act 2010 (Vic) ss 80, 83, 87, 98, Transport Act 1983 (Vic) ss 15-16, 30-31,42, 47, 58-60, 66, 77, 81.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Donaghue SC	Rodney McInnes, Victorian Government Solicitor’s Office
For the First and Second Defendants	Mr S Marantelli	Rennick and Gaynor

HIS HONOUR:

Richard and Jennifer Pearse are the registered proprietors of the property situated at and known as 26 Kaikoura Avenue, Hawthorn East. They claim to be entitled to be registered as proprietors of part of the property situated at and known as 28-42 Kaikoura Avenue (‘the property’) by reason of adverse possession for a period in excess of 15 years. The Roads Corporation is and at all material times has been the registered proprietor of the property.

When Mr and Mrs Pearse lodged an application under s 60(1) of the Transfer of Land Act 1958 (Vic) for an order vesting ownership of the relevant part of the property in them, the Roads Corporation lodged a caveat pursuant to s 61(1) of that Act protecting its interest in the property. In a proceeding in this court by way of amended statement of claim, the Roads Corporation asserts, and Mr and Mrs Pearse deny, that it is entitled to remain registered as the proprietor and that they have not acquired any interest in the property by adverse possession.

A determinative question in the proceeding is whether the Roads Corporation is entitled to claim the immunity of the Crown from adverse possession which is specified in s 7 of the Limitation of Actions Act 1958 (Vic) in these terms:

Notwithstanding any law or enactment now or heretofore in force in Victoria, the right title or interest of the Crown to or in any land shall not be and shall be deemed not to have been in any way affected by reason of any possession of such land adverse to the Crown, whether such possession has or has not exceeded sixty years.

Pursuant to r 47.04(a) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), the Honourable Associate Justice Lansdowne has ordered that the following question be tried before the trial of the proceeding:

At all times,…

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.

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Details

Case: [2012] VSC 527
Decision Date: 2 November 2012

CaseChat Overview and Summary

Roads Corporation sought a declaration that it held certain land by title or license and sought compensation for the loss of use of that land. The respondent, Pearse, claimed the land by adverse possession. The Supreme Court of Victoria was tasked with determining the legal ownership of the land and whether Roads Corporation could claim compensation. The central issue before the Court was whether Roads Corporation could rely on the immunity of the Crown from adverse possession claims. This required the Court to determine if Roads Corporation represents the Crown and if it performs governmental functions. The Court also needed to examine the degree and kind of governmental control over Roads Corporation’s activities to ascertain its status in relation to the Crown.

The Court found that Roads Corporation was not entitled to immunity from adverse possession claims. It concluded that the Transport Act 1983 (Vic) indicated Parliament’s intention for Roads Corporation to represent the Crown, but the corporation did not perform governmental functions. The Court held that Roads Corporation’s operations were commercial in nature, and it was not subject to the same degree of governmental control as governmental bodies. The Court found that Roads Corporation was not entitled to rely on the Crown’s immunity and dismissed the application for compensation.

As a result, Roads Corporation’s claim for compensation was dismissed, and the Court found that Pearse held the land by adverse possession. The Court ordered that Pearse's adverse possession of the land was lawful and that Roads Corporation had no right to compensation for the loss of use of the land.

Orders