Sarris v Matcham

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SARRIS & ANOR v MATCHAM & ORS
[2025] SASC 96
Decision of the Honourable Associate Justice Bochner
REAL PROPERTY - BOUNDARIES OF LAND AND FENCING
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS - ATTEMPTS TO RELITIGATE

SARRIS & ANOR v MATCHAM & ORS
[2025] SASC 96

This action concerns a narrow strip of land located between two properties in North Adelaide. Before I can consider the applications before me, it is necessary to review the history of ownership of the two properties and the previous dealings between the registered proprietors of those properties.
The history of the strip of land
The applicants and the third respondent are the registered proprietors of a property at 8 Sussex Street, North Adelaide. This property has been in their family since 1959. It has been rented out for many years. The third respondent has not taken part in this action. I will refer to the applicants as the Sarris parties and to their property as 8 Sussex.
The respondents are the registered proprietors of a property at 29 East Pallant Street, North Adelaide. I will refer to them as the Matcham/Matthews parties and to their property as 29 East Pallant.
8 Sussex runs in a north-south direction and 29 East Pallant is on its eastern side. 29 East Pallant runs in an east-west direction, and 8 Sussex lies along its western boundary. Between 29 East Pallant and 8 Sussex is the strip of land. The strip of land runs the full width of 29 East Pallant and at its longest, it is less than one metre. It was, until 2022, part of the land known as 25 East Pallant Street, which property is owned by Mr Ramsay and Ms Lennon. I will refer to them as the Ramsay/Lennon parties and to their property as 25 East Pallant. While the land was part of 25 East Pallant Street, it was not accessible from that property, nor could it be seen from there. It was not used in any way by the Ramsay/Lennon parties. Nonetheless, 8 Sussex shared a boundary with 25 East Pallant, not with 29 East Pallant, with the strip of land effectively acting as a buffer between 29 East Pallant and 8 Sussex.
In 2022, the Matcham/Matthews parties and the Ramsay/Lennon parties undertook a boundary realignment, as a result of which the strip of land became part of 29 East Pallant. This arose out of the desire of the Matcham/Matthews parties to utilise the strip of land.
It appears that for some significant period of time (and, on the Sarris parties’ case, since at least the 1960’s), the boundary fence between 8 Sussex and 25 East Pallant was placed beyond the eastern edge of the strip, that is, within the land that was part of 29 East Pallant. In effect, the strip of land was incorporated into 8 Sussex, in addition to some of the land belonging to 29 East Pallant. The Sarris parties say that they have cultivated a garden bed along the fence and have generally made use of it.
This is not the first legal action to arise out of the right to use the strip of land.
The first Magistrates Court action
In 2015, the registered proprietors of 29 East Pallant were Mr and Mrs Tran. I will refer to them as the Trans. The Trans commenced an action in the Magistrates Court in which they sought orders pursuant to the Fences Act 1975 for the removal of a fence erected by the Sarris parties between 8 Sussex and 29 East Pallant.[1] They said that the fence should have been placed on the western edge of the strip, that is, on the boundary of 8 Sussex and the strip. Prior to commencing this action, the Trans obtained a survey plan which identified the correct boundary and confirmed that the fence was not constructed on the boundary of the Sarris parties’ property but in fact was placed on their land. In their statement of claim, the Trans pleaded that the Ramsay/Lennon parties had not consented to the construction of the new fence by the Sarris parties.
[1] AMCCI-15-2569, FDN 17, JW10
In their defence, the Sarris parties pleaded:
…The rear side boundary of the Defendants (sic) [the Sarris parties] Property is separated from the backyard of the Plaintiff’s [the Trans] Property by land owned by Kym Ramsay and Catherine Lennon whose land is located at 25 East Pallant Street North Adelaide.[2]
[2] FDN 17, JW11, [4.1]
They further pleaded:
The Defendants [the Sarris parties] deny that they have treated the “narrow strip of land” as part of the Defendants (sic) Property and say that the “narrow strip of land” has remained and remains the property of Kym Ramsay and Catherine Lennon with ongoing access available to them.[3]
[3] Ibid, [6.7]
Subsequent to the filing of the defence, the Trans filed an amended statement of claim, in which they named the Ramsay/Lennon parties as the second defendant.[4] In essence, the amendment pleaded that the Ramsay/Lennon parties owned the strip of land and that they agreed to or acquiesced in the Sarris parties’ use of it.
[4] Ibid, JW12
The Ramsay/Lennon parties filed a defence to the amended statement of claim.[5] They pleaded that they owned the strip of land, denied that they had agreed to or acquiesced in the Sarris parties’ use of it and denied any knowledge or involvement in the construction of the fence. They agreed to abide the order of the Court with respect to the fence and said that they did not want to be involved in the dispute between the Trans and the Sarris parties.
[5] Ibid, JW13
On 27 January 2016, the Trans and the Sarris parties resolved their dispute by agreement. As part of the settlement, the Sarris parties agreed to the relocation of the fence to the eastern edge of the strip, that is, on the boundary between the Trans’ property and the Ramsay/Lennon parties’ property, not on the boundary between the Sarris parties’ property and the Ramsay/Lennon parties’ property. A settlement agreement, which was signed by the Sarris parties and the Trans on that day, contained the following term:
The new fence will be constructed on the proper boundary between 29 East Pallant Street and 25 East Pallant Street as depicted by Peter Gilbert on Filed Plan 58743.[6]
[6] FDN 9, TS-31
In addition, the Sarris parties paid the Trans a sum of money and met the costs associated with relocating the fence. The first Magistrates Court action was discontinued.
The effect of the settlement was that the strip of land remained (either partially or totally) enclosed within 8 Sussex.
The second Magistrates Court action
In 2021, the Matcham/Matthews parties became the registered proprietors of 29 East Pallant. They wished to build a new house on the land and to that end, negotiated with the Ramsay/Lennon parties to have the boundary between their properties realigned, with the result that the strip of land would become part of 29 East Pallant. They wrote to advise the Sarris parties of this on 20 October 2021.[7] They further advised that, once the boundary realignment was complete, they intended to remove the existing fence and build a new wall on the new boundary between 29 East Pallant and 8 Sussex. I note that the Sarris parties say that they did not receive this letter.
[7] FDN 9, TS-35
The Matcham/Matthews parties wrote to the Sarris parties again on 8 February 2023.[8] They confirmed that the strip of land had been transferred to them and a formal boundary realignment completed. They further confirmed that they intended to build a new fence on the new boundary.
[8] Ibid, TS-43
To be clear, the new boundary between 8 Sussex and 29 East Pallant is on the western edge of the strip of land. The strip is now fully integrated into 29 East Pallant.
The Sarris parties replied on 3 March 2023.[9] They denied that the existing fence was situated on the strip of land and maintained that a “green landscaped structure” was not the boundary fence and was located wholly within 8 Sussex. In response to this, the Matcham/Matthews parties repeated an invitation to the Sarris parties to have a further survey of the boundary carried out, and advised that they intended to move the fence to the “true boundary” between 8 Sussex and 29 East Pallant.[10]
[9] Ibid, TS-44
[10] Ibid, TS-45
The Sarris parties instructed lawyers. On 21 July 2023, their lawyer wrote to the Matcham/Matthews parties and said (among other things):
In 2015, following issuing of proceedings by the then registered proprietors of 29 East Pallant Street in the Magistrates Court of South Australia…the registered proprietors of 25 East Pallant Street relinquished any rights or interests they held in the Strip of Land to the registered proprietors of 8 Sussex Street (the “Proceeding”).
…
During the course of the Proceeding the registered proprietors of 25 East Pallant Street advised the Court that they had no interest in the outcome of the Proceeding and had no interest in or rights to the Strip of Land and requested to be removed as a party to the Proceeding, which was granted to you (sic) by the Court. By doing so they relinquished any rights they may have had to the land (which were denied as existing).[11]
[11] Ibid, TS-46
The Sarris parties wrote in similar terms to the Ramsay/Lennon parties, as well as asserting that the strip of land was not the Ramsay/Lennon parties’ land to sell and that they were estopped from taking any steps to sell the strip of land or representing that it was theirs to sell.[12]
[12] Ibid, TS-47
On 12 July 2023, having given the required notice under the Fences Act, the Matcham/Matthews parties commenced the second Magistrates Court action, seeking orders for the relocation of the existing fence to the new boundary between 8 Sussex and 29 East Pallant.[13] In their response, the Sarris parties pleaded that the fence was on the true boundary and that the Ramsay/Lennon parties had disclaimed any interest in the strip of land in the first Magistrates Court action. They said:
3.…The proposed movement of the fence is designed to accommodate the new build by providing 29 East Pallant Street with an added strip of land which no prior registered owners of either 25 or 29 East Pallant Street have ever occupied or been able to see…
4.The proposed movement of the Fence (sic) is not consistent with the original title of 29 East Pallant Street, which has recently been changed together with the title of 25 East Pallant Street without the knowledge of the registered proprietors of 8 Sussex Street North Adelaide as abutting and affected owners. The boundary change also ignores the prior fencing proceeding and court decision on the same matter in 2015.
5.This matter is not a fencing matter. It is a matter relating to the occupation of land which needs to be resolved before any existing fence is moved.[14]
[13] FDN 6, RM-01
[14] FDN 6, RM-02
On 8 November 2023, a directions hearing was held in the second Magistrates Court action. In the record of outcome, the learned Magistrate said:
The Respondents confirm that they are not making any claim for adverse possession but rather they consider that there will be an issue concerning encroachment onto their land once the true boundary is confirmed.[15]
[15] Ibid, RM-04
On 22 December 2023, the Sarris parties filed an amended response.[16] The purpose of the amendment was to seek orders pursuant to the Encroachments Act 1944 (SA) for the transfer of the strip of land to them. The bases for this claim were, in essence, that:
·The strip of land has been used by them for the past 70 years; and
·In 2015, they were granted exclusive occupation and possession of the strip of land, by the Trans, and by implication, by the conduct of the Ramsay/Lennon parties by the fact of their disclaiming the land and seeking to be disjoined from the first Magistrates Court action.
[16] Ibid, RM-05
A further directions hearing was held on 24 January 2024. At this time, the learned Magistrate noted the following:
The parties have agreed that the true boundary between the Applicants’ property at 29 East Pallant Street and the Respondent’s property at 8 Sussex Street, North Adelaide is accurately depicted in the Pegging Plan prepared by Veris and included at p.22 of the Veris Expert Survey Report dated 19 January 2024 (‘the Pegging Plan’).
…
It appears that based on the Pegging Plan the current dividing fence between the two properties is located entirely on 29 East Pallant Street and to that extent there is an encroachment onto the Applicants’ land.[17]
[17] FDN 6, RM-07
On 22 April 2024, the Sarris parties filed a further amended response.[18] They now sought, in the alternative to the relief previously sought, an order that the fence remain in its current location, notwithstanding the location of the boundary. On 23 April 2024, they filed written submissions in which they outlined the encroachments from 8 Sussex onto 29 East Pallant. These include the existing boundary fence, a wall, a tree, garden beds and water pipes.[19]
[18] Ibid, RM-06
[19] Ibid, RM-08
The Matcham/Matthews parties, in turn, filed written submissions arguing that there was no encroachment and that the agreement reached between the Trans and the Sarris parties bound neither the Matcham/Matthews parties nor the Ramsay/Lennon parties.[20]
[20] Ibid, RM-09
On 23 and 24 April 2024, the trial of the originating application was held. Oral evidence was called by both parties and those witnesses were cross-examined. The parties closed their cases, save for the tendering of further evidence addressing the question of where a tree first took root. On 1 May 2024, the learned Magistrate ordered the Sarris parties to obtain a report from an arborist and a further survey to address this question, with the cost to be shared equally between them and the Matcham/Matthews parties. I understand that the Sarris parties changed solicitors three weeks after the making of these orders.
The Sarris parties delayed in obtaining the required reports and were granted two extensions of time to do so. The second extension was granted on 11 July 2024.
On 19 July 2024, the Sarris parties commenced this action. On 23 July 2024, they filed an application in the second Magistrates Court action, asking that it be “deferred” to allow determination of this action. At a directions hearing on 8 August 2024, counsel for the Sarris parties advised the Court that they did not pursue the application to “defer” the second Magistrates Court action, and they consented to an order dismissing it. A few days later, they filed another application, asking for an order “recalling” the order dismissing the previous application, on the basis that there was a miscommunication between the Sarris parties’ solicitor and counsel as to their instructions. This application was also dismissed.
I note that all that is required to complete the trial in the second Magistrates Court action is for the parties to make closing submissions.
This action
The Sarris parties commenced this action on 19 July 2024. They sought orders pursuant to the Encroachments Act for the transfer of the strip of land to them. In her supporting affidavit, Theodora Sarris deposed that this action was precipitated by the Matcham/Mathews parties commencing the second Magistrates Court action. She said:
The second applicant and I have been advised that it is appropriate for us to make a formal application under the Encroachments Act 1944 for transfer of the parcel of land onto the certificate of title for the Sussex Street property, rather than to just let the issue be dealt with responsively under the Fences Act.[21]
[21] FDN 2, [23]
It must be noted that Ms Sarris did not tell the Court that the Sarris parties had in fact sought relief pursuant to the Encroachments Act in the second Magistrate Court action, nor did she explain that the strip of land was in fact originally part of the property at 25 East Pallant and not that of 29 East Pallant. She also did not provide any details about the first Magistrates Court action, including that it was settled by agreement or that the settlement agreement did not involve the registered proprietors of the strip of land.
I consider that these are serious omissions.
In response to the service of the originating application in this action, the Matcham/Matthews parties filed an application, seeking an order that the originating application be dismissed, and that the Sarris parties pay their costs on an indemnity basis.[22] In his affidavit in support of the application, Mr Matcham deposed to the full details of the second Magistrates Court action, exhibited the filed documents, and set out the stage that it had reached. He contended that this action was vexatious and amounted to an abuse of process, first, because it seeks to relitigate matters which have already been dealt with in the second Magistrates Court action and, second, because it fails to identify any specific encroachment.
[22] FDN 5
On 17 September 2024, the Sarris parties filed an interlocutory application seeking: leave to amend the originating application; an order that the matter proceed on pleadings; an order referring the matter to mediation; a stay of the second Magistrates Court action; and an order that the Sarris parties’ claims pursuant to the Fences Act be dealt with in this Court.[23] The amendments that they sought to make to the originating application were to include a claim for a declaration that the strip of land was held on a constructive trust for their benefit by way of adverse possession and to seek, in the alternative, a declaration that the Matcham/Matthews parties are estopped from denying the right of the Sarris parties to use and occupy the strip of land.
[23] FDN 10
I listed both of these applications for hearing at the same time. Shortly before the hearing date, the Matcham/Matthews parties filed a further affidavit on which they sought to rely.[24] The purpose of the affidavit was to:
·Put before the Court the report of an arborist dealing with the location of the fig tree (which report was ordered by the learned Magistrate in the second Magistrates Court action);
·Correct an omission from one of the exhibits in a previous affidavit filed on their behalf;
·Put before the Court the court documents filed in the first Magistrates Court action, which documents had been exhibited to an affidavit filed by the Sarris parties in the second Magistrates Court action; and
·Put before the Court a bundle of searches relating to the various certificates of title of 8 Sussex, 25 East Pallant and 29 East Pallant.
[24] FDN 17
The Sarris parties sought to adjourn the argument because of the late filing and service of this material. Their counsel, Mr Dal Cin, said that they had not had an opportunity to read the material or to provide instructions on it. Mr Dal Cin submitted that the issues had changed and he required time to consider this. In particular, he said that there had been no prior notice that the documents filed in the first Magistrates Court action would be deployed in this action.
I declined to grant the adjournment. I considered that the late filing of the affidavit did not cause prejudice to the Sarris parties as the report of the arborist and the documents from the first Magistrates Court action were already in their possession (and, in fact, the latter had been provided by them to the Matcham/Matthews parties) and the other documents were not such as to require any response.
Unfortunately, the argument was not completed on the day of listing and it was adjourned to the following week. During the period of the adjournment, the Sarris parties filed a further affidavit and sought to reopen their case. The evidence that they sought to adduce was:
·A historical certificate of title, which showed that the parents of the Sarris parties had owned 8 Sussex Street from 1959, rather than 1962, as previously contended;
·Part of the transcript of the cross-examination of Mr Matcham in the second Magistrates Court action;
·A bundle of correspondence from the Ramsay/Lennon parties to the solicitor for the Trans which was also copied to the Sarris parties. This correspondence was referred to in Mr Matcham’s cross examination. In this correspondence, the Ramsay/Lennon parties advised that they would, in effect, abide the event, that they took a neutral position in the dispute between the Sarris parties and the Trans, and that they did not want to be involved in the dispute.

Mr Dal Cin submitted that this evidence should be allowed as it was in the interest of justice and that the Sarris parties did not realise the significance of the transcript until after the last hearing.
Mr Billington SC, who appeared on behalf of the Matcham/Matthews parties, objected to the Sarris parties’ reopening their case, while at the same time acknowledging that the Matcham/Matthews parties would not be prejudiced by their reliance on this new evidence. He submitted that the evidence was nearly a year old and, save for the transcript, no explanation had been given for its late deployment.
Given that Mr Billington has conceded that his clients will not suffer any prejudice if the new material is admitted, I consider that it is in the interests of justice that the Sarris parties should be allowed to reopen their cases. I consider that the late filing of this material can be dealt with by way of submissions as to its weight.
The applications
By agreement, the application to amend the originating application was dealt with first. This was on the basis that the outcome of this application would largely dictate the outcome of the application to dismiss the originating application.
At the commencement of his submissions, Mr Dal Cin advised that, while the Encroachments Act remedy was not abandoned, it now only formed a small part of the Sarris parties’ case. He acknowledged that the fence was wholly located on the Matcham/Matthews parties’ land, and so did not amount to an encroachment. The only encroachment is a small portion of a retaining wall. Rather, they primarily press an equitable remedy, that is, a declaration that the Matcham/Matthews parties hold the strip of land on a constructive trust in their favour.
Mr Dal Cin submitted that a trust in favour of the Sarris parties arose in the following way.
It is accepted by the parties that the strip of land has been included as part of the land of 8 Sussex for the entire time that the Sarris parties have owned it. This has occurred with the acquiescence of the Ramsay/Lennon parties, the owners of the strip, who have never sought to interfere with this arrangement. When the dispute with the Trans arose, the Ramsay/Lennon parties, consistent with this acquiescence, permitted the Sarris parties to negotiate with the Trans, as if the strip of land was their own. The Sarris parties settled the action with the Trans on the basis that the strip of land would continue to be incorporated into 8 Sussex.
In making this submission, Mr Dal Cin relied on the decision of Moore J in Amorosi v Robinson & Anor[25], where he quoted a lengthy passage from the decision of White J (as he then was) in Shepherd v Doolan[26] and then said:
Consistent with this discussion, in Imam Ali Islamic Centre v Imam Ali Islamic Centre, McMillan J distilled the following three elements to establish a common intention constructive trust (the onus resting on the party asserting the beneficial interest against the legal owner):
(a)    there is an actual or inferred common intention of the parties as to their beneficial interest in a property;
(b)    there has been detrimental reliance on that common intention by the claimant; and
(c)    it would be an equitable fraud on the claimant to deny his or her interest in the property.[27]
(footnotes omitted)
[25] [2024] VSC 466
[26] [2005] NSWSC 42
[27] [2024] VSC 466, [112]
Mr Dal Cin submitted that there is an arguable case that the Sarris parties have established the elements set out by Moore J. Such a finding would lead to the conclusion that the Ramsay/Lennon parties had breached their fiduciary duties to the Sarris parties by transferring the strip of land to the Matcham/Matthews parties without notice to them.
In the alternative, Mr Dal Cin argued that the Ramsay/Lennon parties were estopped from denying the right of the Sarris parties to continue to occupy and use the strip of land.
If either of these arguments is accepted, it follows that the transfer of the strip of land amounted to a breach of trust by the Ramsay/Lennon parties. The Matcham/Matthews parties were knowing recipients of the trust property, within the meaning established in the first limb of Barnes v Addy[28], as a result of which they took the strip of land subject to the trust in favour of the Sarris parties.
[28] (1874) LR 9 Ch App 244
The Matcham/Matthews parties were knowing recipients of the strip of land as a result of the following:
·at the time that they purchased 29 East Pallant, the strip of land was fenced off from it by the existing fence;
·by at least October 2021, they had actual knowledge that the strip of land was owned by the Ramsay/Lennon parties, but was used and occupied by the Sarris parties, which use and occupation was of long standing;
·they then undertook, with the Ramsay/Lennon parties, the steps necessary to have the strip of land transferred to them, which was completed on 3 August 2022;
·By no later than 8 September 2023, they became aware of the first Magistrates Court action, and of the fact that the Ramsay/Lennon parties had left it to the Sarris parties to resolve that action with the Trans, which they had done at considerable cost to themselves.
Mr Dal Cin submitted that knowledge of these facts would indicate to an honest and reasonable person that the Ramsay/Lennon parties held the strip of land for the benefit of the Sarris parties, and a transfer of the land that caused the Sarris parties to lose the benefit of the land would be a breach of trust. Despite this, the Matcham/Matthews parties entered into an agreement with the Ramsay/Lennon parties which deprived the Sarris parties of this benefit.
In support of his submission that the Matcham/Matthews parties had the requisite knowledge, the Sarris parties relied on part of the transcript of Mr Matcham’s cross-examination in the second Magistrates Court action. His evidence was to the effect that he was a friend of the Ramsay/Lennon parties, that he probably discussed with Mr Ramsay the statement made by him in his letter of 13 April 2015 to the Trans’ lawyer about the use of the land by the Sarris parties, and that he probably gave advice to Mr Ramsay about the first Magistrates Court action. I note in this regard that Mr Matcham is a lawyer.
Mr Dal Cin submitted that this evidence leads to an inference that Mr Matcham had actual knowledge of the understanding between the Ramsay/Lennon parties and the Sarris parties about the use and occupation of the strip of land, that is, that the Ramsay/Lennon parties would abide by any decision reached by the Sarris parties and the Trans. He further submitted that it can be inferred that Mr Matcham had actual knowledge of this by 11 March 2015, when Mr Ramsay wrote a letter to the Trans’ solicitor advising that they had taken advice. In effect, he submitted that it can be inferred that the advice referred to by Mr Ramsay came from Mr Matcham.
All of these facts, he submitted, should lead to the conclusion that it is arguable that there was a common intention constructive trust created with the effect that the Ramsay/Lennon parties held the strip of land on trust for the Sarris parties. By transferring the land to the Matcham/Matthews parties, they breached that trust. The Matcham/Matthews parties were recipients of the trust property with the requisite knowledge so as to make them liable under the first limb of Barnes v Addy.
Consequently, the amendments to the originating application should be allowed. As to the fate of the second Magistrates Court action, Mr Dal Cin submitted that it should be transferred to this Court, or alternatively, stayed until this matter has been finalised.
Mr Billington submitted that the amendments should not be allowed. As to the declaration of a constructive trust by way of adverse possession, he set out in detail why the Sarris parties were not able to establish adverse possession, particularly where the then registered proprietors of the strip of land expressly claimed their ownership of it as recently as 2015 and that ownership was expressly acknowledged by the Sarris parties. Further, he submitted that, given that the Sarris parties had unequivocally told the Court in the second Magistrates Court action that they were not pursuing a claim for adverse possession, they cannot now assert such a claim.
As to the creation of a constructive trust, Mr Billington submitted that no conduct of either the Ramsay/Lennon parties or the Matcham/Matthews parties could be identified which would justify the imposition of a constructive trust. At best, the Sarris parties can establish that the Matcham/Matthews parties were aware that there was an informal arrangement or understanding by which the Sarris parties were allowed to use the Ramsay/Lennon parties’ land. In fact, not only is there no conduct which could be regarded as unconscionable, inequitable or lacking in probity, the Sarris parties admitted themselves, as recently as 2015, that the strip of land belonged to the Ramsay/Lennon parties and that they had not treated it as their own. He submitted that factual possession is not akin to or a substitute for adverse possession; if the Sarris parties cannot satisfy the requirements necessary to establish adverse possession, actual possession of the land will not bestow any rights on them as against the true owner.
For the sake of relative brevity, I do not deal in any greater detail with Mr Billington’s submissions about adverse possession and the effect of Part 7A of the Real Property Act 1886. It is clear on the facts of this matter that the Sarris parties are unable to satisfy the requirements of the Real Property Act.
As to the Sarris parties’ claim for a declaration that the Matcham/Matthews parties are estopped from denying them the right to occupy and use the strip of land, Mr Billington submitted that they must be referring to the granting of a right to exclusive possession. However, they are neither asserting, nor are they able to establish, any proprietary interest known to law which would confer a right of exclusive possession. Further, they are not able to establish the necessary prerequisites to a successful case for estoppel, in that:
·They do not assert, nor can they show, that they believed that a legal relationship had been or would be created between them and the Ramsay/Lennon parties (or the Matcham/Matthews parties) in relation to the land;
·There is no evidence that the Ramsay/Lennon parties (or the Matcham/Matthews parties) induced the Sarris parties to hold any such belief;
·The Sarris parties did not do or refrain from doing anything on the basis of that assumption;
·There is no evidence that the Ramsay/Lennon parties (or the Matcham/Matthews parties) knew that the Sarris parties had done or had refrained from doing something on the basis that assumption; and
·The Sarris parties have not suffered any detriment as a result of the actions of the Ramsay/Lennon parties (or the Matcham/Matthews parties).
During the course of the first Magistrates Court action, it became clear that there was no doubt in the Sarris parties’ minds as to who the actual owner of the strip of land was: the Ramsay/Lennon parties. Further, the Ramsay/Lennon parties asserted their ownership of the land and made no suggestion, assertion or promise that it would be transferred away from them. The fact that they allowed the Sarris parties and the Trans to negotiate a settlement dealing with the use of the land does not change the fact of ownership, which they never relinquished. The Ramsay/Lennon parties cannot be bound by a settlement to which they were not parties, particularly in the absence of any evidence that they even knew about it. Further, there is no evidence that the nature of the improvements which the Sarris parties contend that they made to the strip of land were sufficient to render it unconscionable for the Matcham/Matthews parties to obtain the benefit of them.
In any event, Mr Billington submitted that, if an estoppel could be established, the appropriate remedy would be equitable compensation, not the transfer of the land to the Sarris parties.
As to the imposition of a common intention trust, Mr Billington submitted that the Sarris parties are unable to establish that there was in fact an actual or inferred common intention between them and the Ramsay/Lennon parties. The evidence of the Sarris parties is insufficient to demonstrate any common intention. They have not given any evidence about the details or particulars of the intention, including its duration, and whether it is irrevocable, transferrable or the like.
The settlement of the first Magistrates Court action was reached with the Trans and did not involve the Ramsay/Lennon parties at all. As a result, it cannot have caused, induced or resulted from a common intention between the Ramsay/Lennon parties and the Sarris parties. No common intention can be created by the Ramsay/Lennon parties standing by while the Trans and the Sarris parties negotiated an agreement about the location of the fence. At best, the Sarris parties had a licence to use the land, nothing more. A settlement in which the Ramsay/Lennon parties were not involved cannot give rise to a common intention held by both them and the Sarris parties.
Mr Billington submitted that the response filed by the Sarris parties in the second Magistrates Court action is clearly wrong. There is no basis for their assertions that they were granted exclusive occupation and possession of the land by the Trans and that the Ramsay/Lennon parties had disclaimed the land. These assertions are simply incorrect.
As to any liability of the Matcham/Matthews parties under the first limb of Barnes v Addy, Mr Billington submitted the Sarris parties are unable to demonstrate the existence of any knowledge or circumstances which would lead a reasonable person to infer that the land was held by the Ramsay/Lennon parties on trust. There were, in fact, no circumstances which would indicate that the land was held on trust and that its transfer would be a breach of that trust. Even if the Matcham/Matthews parties were aware of the first Magistrates Court action, there was nothing in this action which would alert the reasonable person to the creation of a trust: that action was about the location of a fence, not the ownership of the strip of land and there is no reason for a reasonable person to infer that the ownership of the land was in any affected by a settlement of the location of the fence.
I have formed the view that the amendments should not be allowed.
The amendments relating to a claim for adverse possession should not be allowed, not least because the Sarris parties have expressly disclaimed any such claim in the second Magistrates Court action. They should not be permitted to run a case in this Court that they have expressly abandoned in another court. Further, it is clear that, because the Ramsay/Lennon parties expressly asserted their ownership of the strip of land in 2015, which ownership was acknowledged by the Sarris parties at that time, they are unable to establish the necessary elements to succeed in a claim for adverse possession. The claim is simply unarguable particularly given that they have not availed themselves of the mechanism provided in Part 7A the Real Property Act to claim title by way of adverse possession.
Nor is it arguable that the strip of land is held on any sort of trust for the Sarris parties. Again, the Ramsay/Lennon parties’ clear assertion of their title to the land in 2015 defeats any suggestion that the Sarris parties were granted more than a mere licence to occupy and use the land. The settlement agreement between the Trans and the Sarris parties makes it clear that no transfer of ownership was intended. It says:
The new fence will be constructed on the proper boundary between 29 East Pallant Street and 25 East Pallant Street…[29]
[29] FDN 9, TS-31
This can give rise to no suggestion that there was any intention by anyone to adjust the “proper boundary” in any way. It is, in fact, an acknowledgement that the fence was to be placed along a line that was not a boundary with 8 Sussex and was not to create a boundary with 8 Sussex. Further, there is no evidence that the Ramsay/ Lennon parties had any knowledge of the nature of the settlement reached by the Trans and the Sarris parties; save for asserting their title to the strip of land, they simply did not involve themselves in the dispute.
There is simply insufficient evidence to establish that it is arguable that a common intention trust was created at the time of the settlement of the first Magistrates Court action. The evidence suggests no more than that the Ramsay/Lennon parties were agnostic as to the terms of the settlement of the dispute between the Trans and the Sarris parties, against a background of their assertion of their ownership of the strip of land. There is certainly no evidence that the Ramsay/Lennon parties disclaimed the land; in fact, there is evidence to the contrary. In light of their clear statement in their defence that they owned the strip of land, it is impossible to maintain that they disclaimed it.
Further, there is no evidence of any knowledge of the Matcham/Matthews parties about the settlement between the Sarris parties and the Trans. The evidence relied on by the Sarris parties goes no further than that Mr Matcham probably discussed with Mr Ramsay the dispute and that he probably gave advice to him about it. This is still against the background of the Ramsay/Lennon parties’ clear and unequivocal assertion of their title to the strip of land in the course of the dispute. At most, it could be inferred that the Matcham/Matthews knew that the Ramsay/Lennon parties allowed the Trans and the Sarris parties to agree the use of the strip of land, while they maintained ownership of it.
For the same reasons, an estoppel cannot arise.
It necessarily follows that, if the amendments are not allowed, the originating application should be dismissed. This is for two reasons. The first is that there is no evidence that fence, which is the subject matter of this action, encroaches onto 29 East Pallant. Indeed, the evidence is clear that the fence is positioned entirely within the boundary of 29 East Pallant.
But second, the Sarris parties should not be allowed to commence an action in this Court when they are seeking the same relief in another Court. The relief sought in the originating application is the same relief sought by them in the second Magistrates Court action, the trial of which action has been heard and completed save for the closing addresses of the parties. To allow the Sarris parties to commence a new action in this Court seeking the same relief would be an abuse of process and one which would bring the administration of justice into disrepute. The suggestion of the Sarris parties, that the second Magistrates Court action should be stayed to allow them to run a trial on the same issues in this Court could only amount to an abuse of process.
FDN 10 is dismissed. The originating application is also dismissed. I will hear the parties on the question of costs.

[2025] SASC 96

10 June 2025