Trustees of the Sisters of St Joseph v Diamond

The Trustees of the Sisters of St Joseph (the Trustees) sought to recover possession of land from Diamond, who had occupied the land for some 20 years. The Trustees claimed that Diamond’s occupation was unlawful, as he had entered the land without their permission. Diamond, however, argued that he had acquired a possessory title to the land through adverse possession. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether Diamond had established the necessary elements for adverse possession under the relevant legislation, specifically the *Limitation Act 1969* (NSW). This required the court to determine if Diamond’s possession of the land had been adverse to the Trustees’ title for the statutory period of 20 years, and if so, whether his possession met the criteria of being factual possession and an intention to possess.

The High Court considered the nature of adverse possession, reiterating that it requires both factual possession and an intention to possess. Factual possession involves an appropriate degree of physical control over the land, while an intention to possess means an intention to exercise such control as the owner would exercise. The court examined the evidence of Diamond’s use of the land, including fencing, grazing livestock, and maintaining the property, to assess whether these actions demonstrated the requisite degree of control and intention to possess, to the exclusion of all others, including the true owner. The court also considered whether any actions by the Trustees had interrupted Diamond's possession.

The High Court found that Diamond had established adverse possession of the land for the requisite period. Consequently, the court ordered that the Trustees’ claim for possession be dismissed.