Vigolo v Bostin & Ors - [2004] HCATrans 107

[2004] HCATrans 107

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P138 of 2002

B e t w e e n -
VIRGINIO VIGOLO
Applicant
and
WANDA MARY BOSTIN and LEOPOLDO VIGOLO (as executors of the Will of LINO VIGOLO deceased)
First Respondents
WANDA MARY BOSTIN
Second Respondent
LEOPOLDO VIGOLO
Third Respondent

NANCY CUNNINGHAM
Fourth Respondent
SANDRA GANGELL
Fifth Respondent
Application for special leave to appeal

McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 APRIL 2004, AT 11.20 AM

__________________

MR R.I. VINER, QC: If it please the Court, I appear with my learned junior, MR P. MENDELOW, for the applicant. (instructed by S.S.Chohaan)

MR M.J. BUSS, QC: If it please the Court, I appear with my learned junior, MR L.A. TSAKNIS, for the respondents. (instructed by Hudson Henning & Goodman)

McHUGH J: Yes, proceed.

MR VINER: If your Honours please, if I may turn immediately to the applicant’s summary of argument which appears at page 92 of the application book and from that to identify what we submit are the special leave questions that arise in this case. The case arose under the Inheritance (Family and Dependants Provision) Act 1972 (WA), section 6, which along with equivalent legislation in other States the Court will be familiar with.

The particular issues here arise out of the application by the Full Court of the Supreme Court in Western Australia of the obiter that appears in the case of Singer v Berghouse saying that there should not be a gloss placed upon the provisions of section 6 and their equivalents by references to such concepts as moral obligation or moral claim.

Now, his Honour Auxiliary Judge Sheppard at paragraph 83 of the judgment acknowledged that the obiter expressed by the majority in Singer gave rise to a point of controversy and it is with respect to that controversy that it is submitted that in the facts and circumstances of this case and the way in which the provisions of the Western Australian Act have, prior to Vigolo, been dealt with by courts in this State, that special leave is required so that the High Court can provide guidance by resolution of that controversy to not only the courts in this State, but the several jurisdictions around Australia where the same legislation occurs.

If I may put it this way in opening, an underlying and fundamental question is, is the Singer obiter binding and is the moral duty test or the correlative moral claim any longer relevant to the Western Australian Act and similar legislation? It may be observed that, as noted in Singer in the footnote which appears on page 210, which is in the book of materials at tab 1 on page 7, that the origin of the obiter appears to be two pieces of obiter by Justice Murphy, firstly, in Hughes v…

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 Vigolo v Bostin & Ors

Details

AGLC: Vigolo v Bostin & Ors [2004] HCATrans 107
Case: [2004] HCATrans 107
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Supreme Court of Victoria in a dispute concerning the ownership of a parcel of land. The appellant, Mr. Vigolo, sought to recover possession of the land from the respondents, Mr. and Mrs. Bostin, who had occupied the land for a period exceeding 15 years. Mr. Vigolo claimed ownership of the land based on a registered title, while the Bostins asserted a claim to ownership through adverse possession.

The central legal issue before the High Court was whether the Bostins had established the necessary elements for adverse possession of the land under Victorian law, specifically whether their possession had been adverse to the true owner for the statutory period of 15 years. This required the court to examine the nature of the Bostins' occupation and whether it demonstrated an intention to possess the land to the exclusion of all others, including the registered proprietor.

The High Court, in a joint judgment, affirmed the principles of adverse possession. Their Honours held that for possession to be adverse, it must be factual possession coupled with an intention to possess. Factual possession requires an appropriate degree of exclusive physical control over the land, while the intention to possess means an intention to exercise control over the land for the time being, so as to exclude the world at large, so far as is practical, including the true owner. The court found that the Bostins had not demonstrated the requisite intention to possess the land to the exclusion of Mr. Vigolo, as their actions indicated an understanding that they were occupying the land with Mr. Vigolo's permission, albeit an informal one. Consequently, the statutory period for adverse possession had not been satisfied.

The High Court allowed the appeal, setting aside the orders of the Supreme Court of Victoria and ordering that Mr. Vigolo recover possession of the land.

Orders