Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd
[2006] VSC 314
•28 August 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5385 of 2005
| Sunny Corporation Pty Ltd | Plaintiff |
| v | |
| Elkayess Nominees Pty Ltd and Others | Defendant |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 – 25, 27 January 2006 | |
DATE OF JUDGMENT: | 28 August 2006 | |
CASE MAY BE CITED AS: | Sunny Corporation v Elkayess Nominees | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 314 | |
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Land law – adverse possession – claimant’s belief as to true owner – animus possidendi – content of mental element in adverse possession – claimant successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr C.L. Pannam QC with Mr S.R. Horgan | Hardys, Dandenong |
| For the Defendant | Mr R. McCaw QC with Mr R. Miller | Taylor Splatt & Partners, Frankston |
HIS HONOUR:
This case concerns a dispute over about 4.06 hectares of land on the Frankston-Dandenong Road at Bangholme. The plaintiff claims to own the land, having purchased it, as part of a much larger parcel, from Martom Pastoral Co Pty Ltd by a contract of sale dated 17 May 2002. The defendants claim a possessory title on the basis that they have occupied the land adversely to the registered proprietor since at least 1972.
The plaintiff, by its statement of claim, seeks declaratory relief to the effect that its title is unaffected by the defendant’s claims. The defendants, by a counterclaim seek declaratory relief to the opposite effect; that is to say that the title of the plaintiff to the disputed land has been extinguished by virtue of the operation of the Limitation of Actions Act 1958, together with consequential orders concerning the registered title to the land.
As the defendants rely on a possessory title as against the registered proprietor, the plaintiff, they bear the onus of establishing their case. At the commencement of the trial the plaintiff proved its title and sought a direction that it be permitted to present its substantive case on the issue of adverse possession in reply to the defendants’ case. Having regard to the onus falling upon the defendants this course was appropriate: re Hardiman, deceased[1]; Protean (Holding) Ltd v American Home Assurance Co[2].
[1][1967] VR 577 at 580 per McInerney J with respect to a testamentary capacity case.
[2][1985] VR 187 at 191 per Marks J with respect to a claim on an insurance policy where fraud of the insured was in issue.
The disputed land
The disputed land has a frontage to the Frankston-Dandenong Road and lies immediately south of an irregular boundary formed by an embankment along the southern side of a drain or creek known as the Eastern Contour Drain. This drain, which is man-made land feature, was thought by one witness, who had a long association with the area, to have been constructed by the former State Rivers and Water Supply Commission as a flood control measure in the 1930’s. The southern boundary of the disputed land is a post and wire fence which runs in a straight line generally east-west, commencing at the Dandenong-Frankston Road about 108 metres south of the Eastern Contour Drain and running to a point at which it meets the irregular southern boundary of the drain. A sketch of the land which was tendered as an exhibit on the trial is an appendix to this judgment.
The registered proprietor of the Eastern Contour Drain, which is bounded on its northern side by another irregular embankment is the Melbourne Water Corporation, having acquired it when it took over the functions of the now defunct Dandenong Valley Authority. The balance of the land purchased by the plaintiff is immediately to the south of the disputed land. This land is generally referred to in this judgment as the Sunny land. The registered proprietor of the land immediately to the north of the Eastern Contour Drain is Elkayess Nominees Pty Limited, the first defendant. This is referred to as the Kelly land.
The facts
Leo Francis Kelly is a director of Elkayess and of Kelly Bros. Market Gardeners Pty Ltd, the second defendant. He first operated a market garden on the land to the immediate north of the Eastern Contour Drain in 1968 when his father acquired that land from one Les Norris for him and his brothers Kevin and Steven. Les Norris had previously operated a market garden there. There was one house on the Kelly land at that time. Later, two others were built for Kevin and Steven respectively. Later still Steven left the market gardening business which was then conducted by the two remaining brothers.
Les Norris, who had also owned the Sunny land sold that land to a family called Elletson at about the same time as Kelly came onto his land. The Elletsons built a number of internal fences on their land to divide it into paddocks and also built the post and wire fence which now forms the southern boundary of the disputed land. Mr Kelly said that he saw that fence being built a short time after he came to the Kelly land. He said that when it was built it was in very good condition. It had a gate which gave access to what is now the disputed land from the south.
Mr Kelly said that in about 1972 that gate in the fence was wired up with heavy duty ringlock wire and that it has never been opened or used since. He said that about the same time the Dandenong Valley Authority (DVA), which, he said, had earlier cleared and graded the area which is now the disputed land, offered him a lease of it. Mr Kelly said that he had a conversation with a Mr Drew from the DVA who told him that the Elletsons had sold their land to someone called Phillips but that Phillips did not wish to continue to lease what is now the disputed land from the DVA. Drew said it was prepared to offer the lease to him, Kelly, as the owner of the land adjoining the drain to the north. Mr Kelly said that he accepted the offer.
In cross-examination Mr Kelly said that he remembered very distinctly standing on top of the southern bank of the Eastern Contour Drain with Drew, having walked over an old timber bridge (no longer in existence) across the drain. He said that Drew pointed out the east-west fence as being the southern boundary of the land to be leased. Kelly knew this fence well because he had seen it being built.
Mr Kelly said that he and Drew went back to Kelly’s house and signed a document which Drew got from his truck. He said that Mr Drew is now deceased.
Documents produced from the file of the Melbourne Water Corporation are convincing that the Dandenong Valley Authority and its successor the Melbourne Water Corporation only ever purported to deal with the land of which it was the registered proprietor, namely the Eastern Contour Drain. No documents were produced which in any way corroborated Mr Kelly’s claim to have leased, not only the land comprising the drain but also the disputed land to its south.
In fact Mr Kelly never leased the land comprising the Eastern Contour Drain adjacent to his property at all. The documents produced establish that he was granted a grazing licence over a section of the drain which entitled him to graze animals (other than pigs) there for an annual fee. The first reference to such a licence in the records produced to the Court is in November 1974. There follow copies of similar licences issued at irregular intervals up to July 2001 when a more elaborate licence agreement was entered into between Mr Kelly and the Melbourne Water Corporation, essentially to the same effect as the earlier licences but for a term of two years. No records produced to the Court support a claim that there was ever any lease or licence in respect of the disputed land.
The fact that Mr Kelly did not in fact have either a lease or a licence over the disputed land does not mean that he did not honestly believe that he did. He is a market gardener. It is clear from the evidence he gave that he did not understand the difference between a lease and a licence. In that he is not alone. He used the word lease to describe the arrangement he said he had come to with Drew. He said that when Mr Drew proffered a document to sign in the context of a conversation in which he had agreed to lease land not required by Phillips, he did no more than look at the document. Because he trusted Drew he never studied it. He said he accepted Drew’s word. Even if he had looked at it carefully it must be doubted whether he would not still have described it as a lease. It is not insignificant, in this context, that in more than one of the DVA letters to Mr Kelly found in the Melbourne Water file the writer appears not to appreciate the difference between a lease and a licence. It is not unlikely that Mr Drew used the term “lease” rather than licence when having his discussion with Mr Kelly. I accept Mr Kelly’s evidence that he did.
I accept Mr Kelly’s evidence that Drew pointed out land to him as being available and that that land included the now disputed land. At least, Mr Kelly thought that it did. I am also satisfied that Kelly had an honest belief that he had a lease which gave him possession of the disputed land as well as that part of the Eastern Contour Drain adjacent to his property. Not only was his evidence compelling, but his actions over the next 30 years with respect to the land are entirely consistent with that belief.
Mr Kelly said that the conversation with Drew following which he signed a document produced by Drew occurred in 1972. The documents produced from the Melbourne Water Corporation file commence in 1974. However, even if it might be expected that the Melbourne Water Corporation file would be complete with respect to Mr Kelly’s dealings with the DVA, it must give way to the clear and convincing evidence of Mr Kelly himself that his dealings with the DVA commenced in 1972. I am satisfied that Mr Kelly had the intention of possessing the disputed land from that time, albeit under a mistaken belief that he was the lessee of that land from the DVA and later the Melbourne Water Corporation.
Mr Kelly said that from 1972 until the early 1990’s he always ran cattle on the disputed land until, at about that time, he began spending more time at his property at Yarrawonga. He said that he fed the cattle on waste vegetables from his market garden. He said that his son James later became interested in cattle himself and, once again cows and, later, a few horses were kept on the disputed land.
Mr Kelly’s evidence concerning the running of cattle on the disputed land between 1972 and the 1990’s is largely corroborated by one Bruce Peterson, who acted as Kelly’s agent in buying and selling these cattle. Mr Peterson said that he met Leo Kelly, through his uncle Frank Kelly, in 1972 or 1973 and at about that time inspected Leo Kelly’s property with him. He said that that inspection included viewing the disputed land from a position on top of the bank on the Eastern Contour Drain where Leo Kelly pointed out the boundaries of his property and showed him where he ran his cattle. That area included the disputed land.
Mr Peterson said that he bought and sold cattle for Leo Kelly and his brothers from about 1972 or 1973 until the early 1990’s. He said he used to advise the Kellys when to sell cattle, help them drench those cattle, inoculate them and generally “keep an eye on them”. He said that he visited the property regularly every two to four weeks depending upon what was happening with the cattle. He agreed with Mr Kelly that the gate in the east-west fence which borders the disputed land was never open. He said it was permanently wired up and that he had never seen anybody use it.
Mr Peterson described how Mr Kelly would entice cattle from the disputed land over the drain and into the cattle yards which were on the Kelly land. He said he would put a box of vegetables on his shoulder and walk out to the paddock and call the cattle. They would then follow him, either over the bridge, which then existed over the drain, or through the drain itself. Mr Peterson said that early in his involvement with the Kelly cattle there would have been 70 to 80 cattle on their property, including the disputed land. Later there would have been 25 to 40.
Mr Kelly’s evidence was also corroborated to some extent by a Mr William Bassette, a 79 year old licensed real estate and stock agent. Mr Bassette said that his family bought a property of 175 acres in Taylors Road, to the east of the Kelly land, the disputed land and the plaintiff’s land, in 1945. Although he married in 1950 and moved away to live he said has been a constant and regular visitor to his former family property ever since. Some members of his family still occupy it.
Mr Bassette said that he knew that Les Norris had sold the Kelly land to the Kellys in about 1968 and sold the plaintiff’s land (including the disputed land) to a Mr Elletson at about the same time. He said that in about 1970 the east-west fence to the south of the disputed land was built. Although closely cross-examined as to when the fence was built he adhered to his evidence, conceding only that it might have been built in 1971 or 1972. He rejected a suggestion that it was built as late at 1973 or 1974.
Mr Bassette said that he knew of only one gate in the fence and said that he had always known the land to the north of that fence as Kelly’s land and that the Kellys ran cattle on it.
Leo Kelly’s son, James Kelly, told the Court that he was born in 1970 and although, following his parents’ separation in about 1981, he went to live with his mother in Cranbourne, he spent a lot of time on the Kelly land when he was growing up. He began working there full time in 1988 when he finished school. He said that when he visited the property and, later, when he became involved in the market garden business, there were always cattle there, although, as the market garden expanded, the space available to run cattle contracted. He said that ever since he was a young child he remembers seeing his father’s cattle on the disputed land. After he could drive a tractor he used to feed waste vegetables to the cattle including on the disputed land and used to harrow that land with an old set of harrows which were kept for that purpose on that land.
James Kelly said that since as far back as he can remember the original gate in the east-west fence bordering the disputed land has been wired shut and has never been used. He said that he has never seen any four wheel drive vehicle on the disputed land and, having regard to the state of the gate, the only way such a vehicle could get to that area would be through the Kelly land as there was no other access until a second gate was installed in the fence towards the Frankston-Dandenong Road in more recent times.
A Mr Ivan Pamic, who lived on a two and a half acre property in Coleman’s Road to the north of the Kelly land, said that he kept 28 goats and two sheep on his property. In January 2001, because of a scarcity of feed, he asked Leo Kelly if he could run his stock on the disputed land because he had seen good feed there when passing on the Dandenong-Frankston Road. Kelly agreed, but before Mr Pamic took his stock to that area he inspected the fences and although he found them good enough for cattle he did not consider them good enough for his smaller animals. He said that he got some barbed wire and steel posts and “I fix it all up”.
Pamic said he left his goats and sheep on the disputed land for about 18 months until he took them home. However, before he took them home, he and his son built a second gate in the east west fence, closer to the Dandenong-Frankston Road to enable his stock to be moved without having to cross the Eastern Contour Drain because the water in the drain was, at that time, too high. The gate he used was an old gate of Kelly’s but he said it was satisfactory for the job.
Mr Pamic was familiar with the original gate in the east west fence. He described it thus:
“. . . I say was really rusty old gate was tied up with rusty wire, to me probably never been used for a long, long, long, time anyway.”
Mr Pamic said he never used that gate. At the time his goats and sheep were on the land he said that there were also two horses there that belonged to Leo Kelly’s son.
The vendor of the plaintiff’s land to the plaintiff was Martom Pastoral Co Pty Limited. It had become the registered proprietor of the plaintiff’s land, including the disputed land, on 15 December 1972 by transfer from Allan R Elletson Pty Ltd the previous registered proprietor. ASIC records tendered to the Court show that Martom was incorporated on 4 November 1970 and that Mary Louise Phillips and John Thomas Ivan Phillips were its directors between that date and 5 June 1986 when they resigned and Stavros Mavroudis and Norman Russo became its directors.
Mr Mavroudis gave evidence in this case. A Greek migrant, he said he had been in Australia for 51 years and was in business as a menswear retailer. His facility with English was adequate, if not perfect, and in assessing the weight to be given to his evidence that factor has to be taken into account. However in many instances Mr Mavroudis gave answers which were completely non responsive to the questions he was asked. I am satisfied he understood those questions. This unfortunate tendency detracted somewhat from his evidence as did his tendency to give inconsistent and, sometimes, contradictory answers.
Mr Mavroudis said that shortly after he acquired his interest in Martom, which he insisted was in 1984, not 1986, he became a regular visitor to the property although he didn’t live there. He said his visits to the property continued until it was sold to Sunny in 2002.
In contrast to other witnesses who described the gate in the east-west fence on the boundary of the disputed land, Mr Mavroudis said that that gate had a chain on it, that it could be opened and that he could open it any time he wished. He said it would swing backwards and forwards without any difficulty. He said he could open the gate any time he wished but that he kept it closed so that cattle from his property would not stray through the drain onto the Kelly land.
Mr Mavroudis said that whilst he had an interest in the property, between the late 80’s and the early 90’s, there were 30 or 32 steers there which were kept until they became very big when they were sold. During the time they were there they were often on the disputed land. He said that a Barry Waterfall was responsible for buying and selling stock on the property. Mr Waterfall was referred to a number of times in the evidence but was not called as a witness. Mr Mavroudis said that he and his son also used the land; he hunted there and no one could stop him! He seemed extremely anxious to ensure that the Court was under no misconception that the disputed land was his until Martom sold it to the plaintiff. Overall his evidence was unsatisfactory and could not be accepted where it conflicted with the evidence of the defendant Leo Kelly, his son or the other witnesses called on behalf of the defendants. His insistence that his or his son’s cattle ran on the disputed land was somewhat at odds with his earlier evidence that he kept the gate in the east-west fence closed to stop cattle straying across the drain and into the Kelly land.
Mr Mavroudis’ son, Steven, told the Court that he was 37 years of age and had been involved in the plaintiff’s property when Martom owned it. He described the east-west fence as being pretty dilapidated but that he did some work on it. He said that steers which he managed were kept on the disputed land for three to four months of the year but that otherwise they grazed all over the property.
Steven Mavroudis also said that he hunted on the Martom property. He said that he shot hares and the odd snake and that his father accompanied him from time to time and that such hunting included hunting on the disputed land.
Stephen Mavroudis said that on one occasion whilst he was on the disputed land he was approached by “not a super old guy” who was a bit weathered looking and riding a motor bike. He said that this man said to him “What are you shooting. I heard some shooting”. He said that he replied “I’m shooting foxes and hares”. When asked who he was he said that he said “Well I’m shooting on my father’s and Norm’s property” and that the man on the bike said “I’m your neighbour”.
This incident was not put, in those terms, to Leo Kelly when he gave his evidence although he said that he rode a motor bike from time to time and had “kicked shooters off” the disputed land.
The plaintiff relies upon Steven Mavroudis’ evidence as to this incident as indicating that Mavroudis was able to exercise domain over the disputed land without any interference from Kelly. However, an event which James Kelly described as having occurred in the recent past, casts considerable doubt on Steven Mavroudis’ version.
James Kelly said that about two years ago he bought a suit at the Mavroudis’ menswear store in Dandenong. He was served by Steven Mavroudis. He told the Court that he and Mavroudis joked about the fact that it was his, Kelly’s, father who had “kicked” Mavroudis off his land. James Kelly said that this conversation occurred in July or August 2004 and that in the course of it Mavroudis accepted that he had been chased off the property by Kelly’s father. James Kelly put the incident in which his father told Mavroudis to leave the property as being in about 1987 or 1988.
When Steven Mavroudis was cross-examined he was questioned not only about the event in which he was approached by someone on a motor bike but also about the conversation he had with James Kelly in more recent times. Upon being questioned as to the event itself Mavroudis became aggressive. He described a suggestion that the man on the motor bike had demanded that he leave the land as “rubbish”. He used the same description of a suggestion that the same man had said that the land was his. With respect to the incident in the menswear shop, initially he denied that any such conversation took place. Subsequently, he conceded there may have been a conversation about his meeting James Kelly’s father when he was shooting but there was nothing more to it.
I am satisfied that the conversation as recounted by James Kelly is accurate in substance. There was a conversation between him and Stephen Mavroudis in which Mavroudis and he joked about the fact that Leo Kelly had “kicked” Mavroudis off his land.
Whilst the significance of Steven Mavroudis’ attempted evasion with respect to this conversation should not be over emphasised, when combined with his aggression on being questioned about his activities on the land and the general impression he gave as a witness a doubt is cast over the reliability of his evidence generally, if not its honesty. However, there is no necessity to go as far as expressing disbelief in his account of the activities carried on by him and his father on the disputed land whilst Martom was the registered proprietor. It is sufficient to say that I am unable to accept his evidence concerning the state of the east-west fence and the original gate, his evidence concerning Martom cattle grazing on the disputed land and his other evidence of use of that land for hunting, collecting firewood and the other activities he described. He may have been deliberately disingenuous in his evidence or he may have been simply mistaken. In any event I do not accept his (or his father’s) account of the use of the disputed land.
I prefer the evidence of the defendant Leo Kelly and his son, corroborated, to the extent that they are corroborated, by Peterson, Bassette and Pamic.
A number of other witnesses were called by the plaintiff who deposed to various conversations with Leo Kelly and his son. The purpose of this evidence was to establish by way of express or implied admission by one or other of the Kellys that they did not exercise domain over the disputed land for the relevant period. I am satisfied that even if those conversations took place, in their context they do not establish any significant admission by either of the Kellys as contended for and would not be such as would displace the very strong evidence of exclusive possession to which reference has been made.
There was also evidence of some use of the disputed land by the plaintiff after it bought the Sunny land. It is not necessary to consider this evidence further as, by that time, if the defendant’s possession of the disputed land has been as I have found it to have been, any relevant limitation period had well and truly expired by the time the plaintiff acquired its paper title.
I am satisfied that over the whole of the period that Martom was the registered proprietor of the disputed land it was effectively isolated from the rest of the Sunny land by the east-west fence. Although that fence had a gate, that gate was unusable and unused. I am satisfied that the Kellys used the disputed land as they described and that they did so to the exclusion of anyone else including the registered proprietor. Leo Kelly believed that his entitlement to do so arose from a lease he had from the DVA and, subsequently, Melbourne Water. In fact he had only a grazing licence in respect of land adjacent to the disputed land and no title to the disputed land at all. I am satisfied that possession by Leo Kelly whether on his own behalf or on behalf of himself and his brother Kevin, or on behalf of the company which now operates the market garden or on behalf of the company which has title to the Kelly land, has been continuous and uninterrupted since about 1972 and continues to the present.
In order to succeed in establishing their possessory title against the registered proprietor of the disputed land the defendants must prove that they have been in possession of the land for the necessary period, 15 years, and that such possession has been continuous and unequivocal: Murnane v Findlay.[3] Such possession must in every case be considered with reference to its particular circumstances:
“The acts implying possession in one case may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must under various conditions, are to be taken into account.”[4]
See also the comments of Griffith CJ in Clement v Jones.[5]
[3][1926] VLR 80, per Cussen J at 86
[4]Lord Advocate v Lord Lovat [1880] 5 AC 273 at 286 quoted in Murnane v Findlay by Cussen J at 87
[5](1909) 8 CLR 133 at 138
As well as establishing factual possession of the disputed land a claimant under a possessory title must also have the requisite intention to possess the land, the animus possidendi. This intention must be an intention to exclude the true owner as well as other people: Powell v McFarlane & Anor;[6] Bayport Industries Pty Ltd v Watson.[7]
[6](1977) 38 P & CR 452 per Slade J at 470 – 472
[7][2002] VSC 206
As already noted, the defendants have established exclusive possession of the disputed land for the necessary period. It remains to consider separately an argument by the plaintiff that a claimant in respect of a possessory title cannot have the necessary animus possidendi if, as here, he wrongly believes he is in possession of the disputed land pursuant to a lease from the registered proprietor. That is to say he can have no sufficient animus possidendi if he has no intention of possessing the land adversely to the person he erroneously believes is the true owner.
In Malter v Procopets[8] Brooking JA was concerned with the not uncommon situation where a land owner believes himself to be the true owner of a strip of land actually owned by his neighbour because a fence has been built outside a title boundary. His Honour had no doubt that this mistaken belief would not prevent the acquisition of a title by adverse possession. He referred to a number of authorities.[9]
[8][2000] VSCA 11
[9]Bligh v Martin [1968] 1 WLR 804, Williams v Usherwood (1981) 45 P & CR 235, Pulleyn v Hall Aggregates Thames Valley (Ltd) (1992) 65 P & CR 276, Hughes v Cork [1994] EGCS 25 and Lutz v Kawa (1981) 112 DLR (3d) 271; (1980) 23 AR 9
The plaintiff in this case seeks to distinguish Malter v Procopets and the cases to which Brooking JA referred on the basis that because Leo Kelly thought he had a lease he did not intend to exercise exclusive possession over the disputed land adverse to the party he thought was the true owner. Thus, argues the plaintiff, he could not have had the necessary animus possidendi which involves an intention to exclude everyone, including the owner of the paper title, from the land.
What is necessary to the formation of an animus possidendi, as the Latin phrase implies, is an intention to possess. In Malter the claimant intended to possess the disputed land because he erroneously thought he was the fee simple owner as that land was included within his title. In this case Mr Kelly intended to possess the disputed land because he thought he was the lessee under a lease. In each case the claimant had an intention to possess.
In J A Pye (Oxford) Limited v Graham[10] Lord Browne-Wilkinson considered cases in which it had been held that a claimant under a possessory title had to demonstrate an intention to own the disputed land in order to succeed in his claim. His Lordship rejected this proposition saying:-
“Once it is accepted that in the Limitation Acts, the word ‘possession’ has its ordinary meaning (being the same as in the law of trespass or conversion) it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess: if a stranger enters onto land occupied by a squatter, the entry is a trespass against the possession of the squatter whether or not the squatter has any long term intention to acquire a title.”[11]
The error in Mr Kelly’s belief is irrelevant. What is important is that he had the requisite intention to possess. He excluded the true owner without knowing he was the true owner just as the claimant did in Malter.
[10][2003] 1 AC 419
[11]at 436
The plaintiff also relied upon an argument based on s 13(3) of the Limitation of Actions Act 1958 which deals with the question of when time commences to run in a case where a person who is not entitled to the reversion expectant on a term nevertheless collects the rent for a property. But this provision merely regulates the situation as to when time begins to run against a lessor and in favour of a wrongful receiver of rent where a lease actually exists. In this case there is no lease. A consideration of this section does not alter the fact that Mr Kelly at all times intended to possess the disputed land to the exclusion of the true owner even if he acknowledged a non-existent title in the DVA and, later, Melbourne Water.
Conclusion
The defendants are entitled to the relief they seek in respect of the title to the disputed land. Having regard to the fact that Leo Kelly said in evidence that he occupied the disputed land on behalf of the entity which operated the market garden business, namely Kelly Bros Market Gardeners Pty Ltd (and all the plaintiffs by counterclaim are in agreement with this course) it is appropriate that the declaration as to title go in favour of that company.
There was also evidence during the trial that the plaintiff had constructed or commenced the construction of a fence on the disputed land adjacent to the southern bank of the Eastern Contour Drain. The plaintiffs by counterclaim seek relief in the nature of reinstatement with respect to that fence and there would appear to be no reason why that relief should not be granted.
The plaintiffs by counterclaim also seek an injunction with respect to the plaintiff entering upon the disputed land. Having regard to the declaration of title which will be made in favour of Kelly Bros Market Gardeners Pty Ltd that injunction should be refused. Should the plaintiff trespass on that land again, Kelly Bros Market Gardeners Pty Ltd will have its remedies at law.
The plaintiffs by counterclaim seek an order that the Registrar of Titles register the title now declared. As the Registrar was not a party to this proceeding it would be inappropriate to make such an order. Should difficulties occur with respect to registration the appropriate party can approach the Court and to that end there will be liberty to apply generally.
On the assumption that there are no complications with respect to costs and subject to any argument to the contrary, the plaintiff will be ordered to pay the defendants’ costs of the claim and counterclaim.
Subject to hearing counsel as to form, the following orders are proposed:-
1.There be a declaration that, by reason of s 18 of the Limitation of Action Act 1958, the registered title of the plaintiff to the disputed land shown on the survey plan attached to these reasons for judgment has been extinguished.
2.A declaration that Kelly Bros Market Gardeners Pty Ltd is entitled to be registered as the proprietor of the disputed land.
3.It is ordered that, by 30 September 2006 the plaintiff remove the materials used in construction of the fence marked with a yellow line on the original of the survey plan a copy whereof is attached to these reasons of judgment.
4.There be liberty to apply generally.
5.It is ordered that the plaintiff pay the defendants’ costs of and incidental to this proceeding both as to the claim and counterclaim.
APPENDIX
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