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Whittlesea City Council v Abbatangelo

Whittlesea City Council v Abbatangelo

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3709 of 2008

WHITTLESEA CITY COUNCIL
	Appellant
v
LAURICE ABBATANGELO	Respondent

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JUDGES:	ASHLEY and REDLICH JJA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2009
DATE OF JUDGMENT:	31 August 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 188
JUDGMENT APPEALED FROM:	[2007] VSC 529 (Pagone J)

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REAL PROPERTY – Rural land owned by a city council – Adverse possession – Acts amounting to exclusive possession – Intention to possess exclusively – Principles to be applied.

LIMITATION OF ACTIONS – Land – Adverse possession – Limitation of Actions Act 1958 (Vic), ss 8, 9, 14, 18.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Colbran QC with Ms J Tooher	Maddocks
For the Respondent	Mr G H Golvan QC with Mr G D Bloch	Tisher Liner & Co

ASHLEY JA
REDLICH JA
KYROU AJA:

Introduction and summary

This appeal arises from a decision of a judge of the Trial Division that Laurice Abbatangelo (‘Mrs Abbatangelo’ or ‘the respondent’) had acquired title to a parcel of general law land situated at 581 Bridge Inn Road, Mernda (‘the land’) by adverse possession against the Whittlesea City Council (‘the Council’ or ‘the appellant’), the paper owner of the land.[1]
[1](2008) V Conv R 54-750; [2007] VSC 529 (‘the Reasons’).

The appellant contends that the judge erred in finding that the respondent had acquired title to the land by adverse possession. It says that the elements of adverse possession were not made out, and seeks to impugn findings of fact and as to credit made by the judge.

For the reasons that follow, we have concluded that the judge’s decision was correct and that the appeal should be dismissed.

Applicable principles

Section 8 of the Limitation of Actions Act 1958 (Vic) (’the Act’) provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action accrued. Section 18 provides that at the expiration of that period, the person’s title to the land shall be extinguished. As to when the right of action accrues, s 9(1) refers to the date upon which the person whose title stands to be extinguished ‘has ... been dispossessed or discontinued his possession’, whilst s 14(1) provides that ‘[n]o right of action to recover land shall be deemed to accrue unless the land is in possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as “adverse possession”)’.

Before us, the parties agreed that the following comments made by Ashley J (as his Honour then was) in Bayport Industries Pty Ltd v Watson aptly summarise the relevant principles:

The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane. Thus, pertinently:
“It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:

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.

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Details

Case: [2009] VSCA 188
Decision Date: 31 August 2009

CaseChat Overview and Summary

The case of Whittlesea City Council v Abbatangelo involves the council, as the owner of rural land, and Mr Abbatangelo, who claimed adverse possession of part of the land. The dispute was heard in the Supreme Court of Victoria. The council sought to determine the validity of Mr Abbatangelo's claim to a portion of its land, arguing that his actions did not meet the necessary criteria for adverse possession.

The central legal issues the court needed to resolve were whether Mr Abbatangelo's actions constituted acts of exclusive possession and whether he demonstrated the requisite intention to possess the land exclusively. The court examined the principles of adverse possession, including the need for the possession to be both physical and exclusive, and the occupier's intention to possess the land to the exclusion of all others, including the true owner.

In its decision, the court held that Mr Abbatangelo's actions did not amount to exclusive possession. The court found that his use of the land did not prevent the council from exercising its rights as the true owner. Additionally, the court concluded that Mr Abbatangelo did not demonstrate a clear intention to possess the land exclusively. The court referred to the statutory provisions under the Limitation of Actions Act 1958 (Vic), particularly sections 8, 9, 14, and 18, to support its findings.

The court ruled that Mr Abbatangelo's claim for adverse possession was unsuccessful. Consequently, the council was affirmed as the rightful owner of the disputed land. The final orders were that Mr Abbatangelo vacate the land and that the council recover possession without the need for further court intervention.

Orders