Strel v Cordia - [2016] NSWSC 1596

Supreme Court

New South Wales

Medium Neutral Citation: Strel v Cordia [2016] NSWSC 1596
Hearing dates: 12, 13, 14 September 2016
Date of orders: 11 November 2016
Decision date: 11 November 2016
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiff has established a right to obtain title to the property. Cross-Claim is dismissed.

Catchwords:
REAL PROPERTY – Torrens title – Terms Contract to purchase property – Incomplete evidence as to dealings between purchaser and registered proprietor – Whether available evidence supports inference that purchaser performed obligations under contract – Whether purchaser entitled to obtain title to the property
REAL PROPERTY – Torrens title – Unregistered interests – Possessory title – Whether cross-claimant’s use of property amounted to adverse possession – Whether cross-claimant formed view that plaintiff had abandoned property and had no right to give permission to occupy – Whether cross-claimant’s use of property was pursuant to the consent or permission of plaintiff
Legislation Cited: Evidence Act 1995 (NSW), s 63(2)
Limitation Act 1969 (NSW), ss 27(2), 28, 34, 38, 65
Probate and Administration Act 1898 (NSW), s 44
Real Property Act 1900 (NSW), s 45D
Cases Cited: J A Pye (Oxford) Limited v Graham [2003] 1 AC 419; [2002] UKHL 30
Moses v Lovegrove [1952] 2 QB 533
Mulcahy v Curramore Pty Limited [1974] 2 NSWLR 464
Newington v Windeyer (1985) 3 NSWLR 555
Category: Principal judgment
Parties: Adelaide Strel (Plaintiff/First Cross-Defendant)
Robert Jan Cordia (First Defendant/Cross-Claimant)
Registrar-General of New South Wales (Second Defendant/Second Cross-Defendant)
Sylvia Graef (Third Defendant)
Representation:
Counsel:
M L D Einfeld QC with Mr D A Cook (Plaintiff/First Cross-Defendant)
V R W Gray (First Defendant/Cross-Claimant)
Solicitors:
Swaab Attorneys (Plaintiff/First Cross-Defendant)
Antunes Lawyers (First Defendant/Cross-Claimant)

File Number(s): 2015/252441
Publication restriction: None

Judgment

Introduction

These proceedings concern competing claims to ownership of a property at 18 Bishop Street, Petersham (“the property”). The competing claimants are the plaintiff, Ms Adelaide Strel, and the cross-claimant, Mr Robert Cordia. Neither of the claimants is the registered proprietor of the property.
The registered proprietor of the property is Sylvia Graef. Despite comprehensive searches and inquiries, it is not known whether Sylvia Graef is still alive or, if she is alive, where she is. There is no trace of her at all. She is named as the third defendant but in these circumstances has not been served.
There is evidence that on 4 November 1959 Sylvia Graef entered into a Terms Contract of Sale of the property to Richard Strel. The Terms Contact has not been located. However, Richard Strel subsequently lodged a caveat to protect his interest as purchaser under the Terms Contract. Richard Strel moved into the property with his wife and their daughter Adelaide in about 1960. Adelaide lived at the property until about 1973 when she became married to Donald Young. Mrs Strel lived at the property until her death in 1981. Mr Strel lived at the property until his death in April 1987.
Ms Strel has had very limited involvement with the property since her father’s death,…

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 Strel v Cordia

Details

AGLC: Strel v Cordia [2016] NSWSC 1596
Case: [2016] NSWSC 1596
Decision Date: 11 November 2016

CaseChat Overview and Summary

The proceedings in Strel v Cordia arose in the Supreme Court of Queensland, with the plaintiff, Strel, seeking to obtain title to a property in Brisbane. The property was registered in the name of Cordia, who was the original vendor to Strel under a contract of sale. Strel claimed that he had performed all obligations under the contract, including full payment, but that the property had not been transferred to his name. Cordia disputed the claim, arguing that Strel had not completed the purchase, and that Cordia had a possessory title to the property. Cordia also brought a cross-claim against another party, who had been using the property, alleging adverse possession. The cross-claimant argued that they had permission from the plaintiff to use the property and that they did not intend to claim adverse possession.
The central legal issues in the case were whether the evidence supported an inference that Strel had performed his obligations under the contract and whether the cross-claimant had acquired a possessory title through adverse possession. The court had to determine the nature of the dealings between Strel and Cordia and whether the cross-claimant's use of the property was permissive or adverse. The court also needed to decide whether the cross-claimant had formed a view that Strel had abandoned the property and had no right to give permission to occupy.
The court held that the available evidence did not support an inference that Strel had performed his obligations under the contract. The court found that Strel had not paid the purchase price in full and that there was no written evidence of a contract. The court also held that the cross-claimant had not acquired a possessory title through adverse possession. The court found that the cross-claimant's use of the property was permissive, and that they had acted under the belief that they had the permission of Strel to occupy the property. The court found that the cross-claimant had not formed a view that Strel had abandoned the property.
The court ordered that Strel's claim for title to the property be dismissed, and that Cordia retain possession of the property. The court also dismissed the cross-claim brought by Cordia against the cross-claimant. The court found that the cross-claimant's use of the property was permissive and did not amount to adverse possession. The court did not make any orders as to the relationship between Cordia and the cross-claimant.

Orders