Sidoti v Hardy

The appeal concerned a dispute over a small portion of a 'dunny lane' where the respondent, Mr. Hardy, claimed adverse possession. The land in question was originally under old system title but was converted to Torrens title, albeit with a limited folio. The appellant, Mr. Sidoti, was the registered proprietor of the adjoining land. Mr. Hardy had commenced possession of the lane before the land was converted to Torrens title. The primary issue was whether Mr. Hardy's claim to adverse possession could succeed against the Torrens title, particularly given the timing of his possession relative to the conversion.

The court was required to determine whether a statutory possessory application over Torrens title land could be made in these circumstances. Alternatively, the court considered whether adverse possession claims, which had commenced prior to the creation of the limited folio, were preserved at common law. This involved examining the interaction between the *Limitation Act 1969* (NSW) and the *Real Property Act 1900* (NSW), specifically concerning the effect of conversion to Torrens title on inchoate adverse possession claims and the interpretation of provisions relating to exceptions to indefeasibility. The court also considered the relevance of the description of parcels and boundaries in the Torrens title register.

The court reasoned that the *Real Property Act 1900* (NSW) did not extinguish an inchoate adverse possession claim that had arisen under old system title at the moment of conversion to Torrens title. Section 45C of the *Real Property Act* was interpreted as not preventing a claim based on possession that commenced before the creation of the folio. The court found that Mr. Hardy's possession had commenced prior to the conversion, and therefore, his claim was not defeated by the subsequent registration of the land under the Torrens system. The court also addressed the issue of notice to the mortgagee, concluding that the absence of notice was not decisive of the appeal given the likely minimal impact on the mortgagee's security.

Leave to appeal was granted, and the appeal was dismissed, with costs ordered in favour of the respondent.