Willis v Abraham (No 2)

[2025] NSWSC 276

Supreme Court

New South Wales

Medium Neutral Citation:

Willis v Abraham (No 2) [2025] NSWSC 276

Hearing dates:

18-20 March 2025

Date of orders:

27 March 2025

Decision date:

27 March 2025

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

1. Judgment is entered for the plaintiff for possession of lot 1, deposited plan xxxx situated at and known as 5 xxxx Street, Rozelle NSW 2039.

2. Leave is given for the issue of a writ of possession to the plaintiff.

3. The defendant’s cross-claim filed in Court on 18 March 2025 is dismissed.

4. The defendant is to pay the plaintiffs costs of the proceedings.

5. I will hear the parties if any change is sought to the costs order.

Catchwords:

LAND LAW — Adverse possession — Documentary owner reclaiming possession —Whether Defendant's possession was adverse — Where Defendant originally used property for storage

LAND LAW — Adverse possession — Documentary owner reclaiming possession —Whether Defendant intended to possess — Where Defendant left the front-facing property in a derelict state to avoid attracting intruders — Where occupancy not apparent

LIMITATION OF ACTIONS — Operation of bar — Defendant pleading the limitation period — ss 27-28 Limitation Act 1969 (NSW) — Whether twelve year limitation period had passed — Where the Defendant's possession was not adverse — Limitation period had not expired

Legislation Cited:

Limitation Act 1969 (NSW), ss 27, 28

Real Property Act 1900 (NSW), s 45C

Uniform Civil Procedure Rules 2005 (NSW), r 29.1

Cases Cited:

State of New South Wales v Carver [2023] NSWSC 828

Karnataka Board of Wakf v Government of India (2004) 10 SCC 779

Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464

Bottos v Citylink Melbourne Pty Ltd (2022) 407 ALR 523; [2022] VSCA 266

Powell v McFarlane (1977) 38 P & CR 452

Category:

Principal judgment

Parties:

Mary Philomena Willis (Plaintiff)
Yael Abraham (Defendant)

Representation:

Counsel:
Ms C Gleeson SC (Plaintiff)
Mr H Rogers (Plaintiff)
Ms E Cohen (Defendant)

Solicitors:
Corrs Chambers Westgarth (Plaintiff)
Dezarnaulds Legal (Defendant)

File Number(s):

2023/451976

Publication restriction:

No

JUDGMENT

1. The plaintiff is the registered owner of 5 xxxx Street (No 5) and 7 xxxx Street (No 7) in the Sydney suburb of Rozelle. On 13 December 2023, the plaintiff filed a statement of claim seeking possession from the defendant of these two properties.

2. The defendant gave up her challenge to the claim for possession of No 7 in April 2024. She has resisted the claim in respect of No 5. She asserts that the proceedings are time-barred. She relies on ss 27 and 28 of the Limitation Act 1969 (NSW) which state:

27 General

(1) An action on a cause of action to recover land is not maintainable by the Crown if brought after the expiration of a limitation period of thirty years running from the date on which the cause of action first accrues to the Crown or to a person through whom the Crown claims.

(2) Subject to subsection (3) an action on a cause of action to recover land is not maintainable by a person other than the Crown if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.

(3) Subsection (2) does not apply to an action brought by a person claiming through the Crown and brought on a cause of action which accrues to the Crown.

(4) Where a cause of action to recover land accrues to the Crown, an action on that cause of action is not maintainable by a person claiming through the Crown if brought after the expiration of the first to expire of—

(a) the limitation period fixed by or under this Act for an action on that cause of action by the Crown, and

(b) a limitation period of twelve years running from the date on which the cause of action first accrues (on or after the date of accrual to the Crown) to a person claiming through the Crown.

28 Accrual—dispossession or discontinuance

Where the plaintiff in an action on a cause of action to recover land or a person through whom the plaintiff claims—

(a) has been in possession of the land, and

(b) while entitled to the land, is dispossessed or discontinues his or her possession, the cause of action accrues on the date of dispossession or discontinuance.

3. As pointed out by the plaintiff, s 38 is also relevant. It states:

38 Adverse possession

(1) Where, on the date on which, under this Act, a cause of action would, but for this section, accrue, the land is not in adverse possession, the accrual is postponed so that the cause of action does not accrue until the date on which the land is first in adverse possession.

(2) Subject to subsection (3), where a cause of action accrues to recover land from a person in adverse possession of the land, and the land is afterwards in the adverse possession of a second person, whether the second person claims through the first person or not, the cause of action to recover the land from the second person accrues on the date on which the cause of action to recover the land from the first person first accrues to the plaintiff or to a person through whom the plaintiff claims.

(3) Where a cause of action to recover land accrues and afterwards, but before the cause of action is barred by this Act, the land ceases to be in adverse possession, for the purposes of this Act—

(a) the former adverse possession has no effect, and

(b) a fresh cause of action accrues on, but not before, the date when the land is first again in adverse possession.

(4) For the purposes of this section—

(a) adverse possession is possession by a person in whose favour the limitation period can run,

(b) possession of land subject to a rentcharge by a person who does not pay the rent is possession by the person of the rentcharge, and

(c) in a case to which section 33 applies, receipt of the rent by a person wrongfully claiming to be entitled to the land subject to the lease is, as against the landlord, adverse possession of the land.

(5) Where land is held by joint tenants or tenants in common, possession by a tenant of more than his or her share, not for the benefit of the other tenant, is, as against the other tenant, adverse possession.

4. In short, the defendant says the proceedings were commenced more than 12 years after the cause of action accrued.

5. The defendant has a cross-claim seeking title by adverse possession. She alleges that her possession commenced in about October 2009. If this is correct more than 12 years elapsed before 13 December 2023. The ‘start date’ for adverse possession is 13 December 2011.

6. The cross-claim is necessary to overcome the effect of s 45C of the Real Property Act1900 (NSW).

7. The parties agreed that two primary questions needed to be answered:

1. Was the defendant in adverse possession of No 5?

2. If yes, over what period was she in adverse possession of No 5?

8. The principles behind the establishment of adverse possession were summarised by Hammerschlag CJ in Eq in State of New South Wales v Carver [2023] NSWSC 828 (“Carver”) at [56]-[57]:

“56. It is now appropriate to set out the legal principles which relevantly relate to adverse possession. The following principles emerge from the authorities cited below:

(1) section 38(4)(a) of the Limitation Act defines adverse possession as possession ‘in whose favour the limitation can run’. This phrase is directed not to the nature of the possession, but to the capacity of the squatter: JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30 at [35] per Lord Browne-Wilkinson, who gave as an example of a person not in adverse possession and in whose favour the limitation could not run, a trustee who is unable to acquire a title by lapse of time against the trust estate.

(2) adverse possession involves two elements, physical possession and an intention to possess, sometimes referred to as animus possidendi. Whether these elements are established is a question of fact. Physical possession requires an appropriate degree of physical control, which depends on the circumstances, in particular the nature of the land and the manner in which it is commonly used and enjoyed. Animus possidendi is an intention by the possessor on her or his own behalf to exclude the world at large, including the owner with the paper title, so far as is reasonably practicable and so far as the process of the law will allow. The relevant intention is that of the claimant.

(3) the possession must be peaceful and not have been acquired by force (nec vi), be open and not stealthy (nec clam) and not be by consent of the true owner (nec precario). These requirements were articulated by Bryson J in Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270 as ‘actual, open, visible, notorious, continuous and hostile to the title of the true owner’.

See: Hughes v Griffin [1969] 1 WLR 23; Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464; Powell v McFarlane (1979) 38 P & Cr 452; BP Properties v Buckler (1987) 55 P & Cr 337; National Australia Bank Ltd v Golden Sea Dragon (Hobart) Pty Ltd (1992) 4 Tas R 250; Lee v Ferno Holdings Pty Ltd (1993) 33 NSWLR 404; Shaw v Garbutt (1996) 7 BPR 14,816; Cooke v Dunn (1998) 9 BPR 16,489; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30; McGuren v Simpson [2004] NSWSC 35; McFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629; Braye v Tarnawskyj [2019] NSWSC 277; (2019) 19 BPR 39,213; Healey v Fraine [2023] EWCA Civ 549.

57. It will be readily apparent that the notions of animus possidendi and possession without consent are related. Where the possessor seeks the owner’s consent, this will be destructive of the suggestion that the possessor has the necessary intention, even more so, if the owner gives consent expressly or implicitly. In such a case, the possession will also not be nec precario.”

9. A useful description of adverse possession was given by the Supreme Court of India in Karnataka Board of Wakf v Government of India (2004) 10 SCC 779 (“Karnataka”) at [11]:

“In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128).”

10. The plaintiff’s attack on the defendant sought to highlight a lack of credit on the part of the defendant and, in turn, that the asserted possession had not existed and had certainly not been “open”.

11. As is usual in litigation of this type, the defendant carried the running of the case. She is the beginning party under r 29.1 of the Uniform Civil Procedure Rules 2005 (NSW).

Background in summary form

12. The plaintiff inherited No’s 5 and 7 from her father in 1999. At the same time her brother, Mr Martin Willis, inherited No’s 9 and 11 in the same street.

13. The plaintiff and her brother seem to have become estranged many years ago. Mr Willis left Sydney in 1985 and has had very little contact with his sister in the ensuing years. He saw her in court for the first time since about 2002. He did know that as at 2002 the plaintiff was living at an address in Kensington (No 55). There are photographs of this premises taken very recently which show it to be in a somewhat dilapidated state. According to her affidavit the plaintiff still resides at No 55.

14. The state of No 55 adds somewhat to the mystery surrounding the plaintiff. The mystery was heightened when, at the close of the defendant’s case, the plaintiff indicated that she would not rely on her two affidavits, quickly followed by the defendant stating that she would rely on the plaintiff’s affidavits. No objection was taken to the latter course but, obviously, the defendant was not then able to cross-examine the plaintiff.

15. The plaintiff had a tenant in No 5 until January 2000. The agent, from the firm of CobdenHayson, told her that the residence required extensive works, costing about $60,000. The plaintiff did not have such resources and so did not re-let the property. The agent however stayed engaged and continued to manage the property until 2014. Council rates and other fees were paid until this time.

16. Turning for the moment to the defendant, she was living in Burradoo with her seven children. These children were from the same family and came to the defendant through the foster system and were then adopted by her. One of the children is Chantal Abraham, who was born in 1997. She is the eldest of the seven children. Without any disrespect and for convenience I will refer to her as Chantal.

17. In 2009 the defendant was featured in the television program Australian Story. The point is relevant because the defendant referred to the program in one of the justifications she later gave for being legitimately in possession of the properties. I think I can take judicial notice that Australian Story is a type of program likely to have been laudatory of the defendant rather than critical of her.

18. While in Burradoo the defendant ‘dated’ a Mr Ronald Rundle. Their relationship lasted about three years but ended when the defendant moved to Sydney in 2011. The defendant also had a long-term friend, Mr William Cassidy.

19. According to the defendant, she heard, through her brother, about three apparently abandoned properties in Sydney. They were No 55, No 5 and No 7. She visited these properties in about October 2009. She thought that No 55 was uninhabitable because of a collapsed roof. Despite the fact that the plaintiff was apparently residing in the property, the defendant never saw her even though she went to the property many times and left notes. She stated she even went inside the property but “the property had been abandoned and there were no signs of anyone living there”.

20. The defendant also visited No 5 and No 7. She thought that No 7 was occupied but that No 5 was abandoned. She made her way into No 5. It was awash with the detritus associated with squatters. This included “a dirty mattress, blankets, cigarette butts, and empty cans laying around on the floor”. Nevertheless, the defendant thought the property was “habitable with some work done”.

21. Over the next two years, the defendant says she visited No 5 about monthly and started to “clean up the property”. She “maintained the garden, cleaned up the rubbish, cleaned the interior [of No 5] and started to store some non valuable possessions in the property”. In addition, she repaired the locks on the doors. She did not however repair the broken front window because she “did not wish to have intruders and assumed nobody would want to rob a run down property”. I will return to this point below.

22. In 2011 the defendant moved to Sydney. She stored furniture and boxes at No 5 because the house she and her family were moving into, in Zetland, could not accommodate all of her possessions. Mr Cassidy gave her a door which was installed at the back of No 5.

23. In mid-2012, presumably after a tenant had left No 7, the defendant and Chantal entered No 7 and noticed that it was empty. The defendant then started to do work on both No 5 and No 7 and Chantal used the properties to study.

24. The defendant also said she made some payments, but their nature and size are uncertain. She agreed these payments were not “meaningful”. As small as the payments were, in addition there were no corroborative documents and CobdenHayson was paying rates until 2014. In 2012 the defendant says she received council and water rates in the plaintiff’s name which she would take to the letterbox at No 55.

25. Returning to the chronology, the tenant in No 7 until 2012 was Ms Louise Fischer. She rented No 7 from 2005 until 6 June 2012. Ms Fischer had never met the plaintiff because all the leasing arrangements were made with CobdenHayson.

26. According to her affidavit, Ms Fischer was a very social person who often sat on the front porch of No 7. She never noticed anyone coming or going from No 5, and her neighbours and friends also never mentioned anyone living at, or using, No 5. Ms Fischer said she stored her bins on the front porch of No 5 and she did not see any other bins on the porch. She said that she often looked through the broken window of No 5 into the lounge room and saw no signs of occupancy. On one occasion, in about 2007, when she looked through the front window she saw “a few empty bottles and an old blanket on the floor”. She never saw any furniture and she never heard any noises consistent with habitation coming through the thin walls between No 7 and No 5.

27. After she vacated the property in June 2012, Ms Fischer would return to No 7 from time to time to collect her mail. She found No 5 in the same “state of disrepair” as it had been when she lived next door. She stopped visiting No 7 in 2014.

28. Under cross-examination Ms Fischer said she had actually been inside No 5 on one occasion and found that the property was “derelict”. She placed her entry at 2010 or 2011. She had not mentioned this intrusion in her affidavit, although she thought she had. She rejected the suggestion that the entry was a recent invention and added:

“… I will admit that we had all had alcohol at that point in time so, therefore, we were a little bit braver than we should have been, which was probably a very stupid thing to do but we did it.

Q. Is there any reason at all that you would go into a house in the night time with a broken window?

A. Five years of curiosity of what was next door.”

29. Ms Fischer’s evidence is to be contrasted with that of Mr Cassidy and Mr Rundle. Mr Rundle said he visited No 5 and No 7 in early 2010 and on other occasions would wait for the defendant while outside the property. The defendant was inside “to do some cleaning and removal of bricks and milk trays”. He did some clearing in the front garden. Mr Rundle said he never went into the rear of No 5 because “it was full of furniture”. He said that from 2011 he had often observed the defendant to take “furniture and personal items to and from both numbers 5 and 7”. On one occasion in 2013, after the defendant had moved to Vaucluse, he assisted the defendant with the use of his trailer to transport some furniture from Vaucluse to Rozelle.

30. Although Mr Rundle was challenged on the dates that he had been at the properties, I do not think the cross-examination was effective to distort, at least in general terms, the range of years which he referred to.

29. Mr Cassidy stated that he visited No 5 in early 2010. He said “There was nobody living in the house but some of the defendant’s cleaning materials such as buckets, sponges, a ladder, rubbish bins were there”.

30. Mr Cassidy said he visited No 5 about 10 times through 2010 and 2011. He said the property was being used for the storage of furniture. Mr Cassidy said that he last visited No 5 in 2023 when he observed that “the defendant continues to have furniture in storage at [No 5] and uses it as a Sydney base”.

31. Mr Cassidy’s use of the word “base”, a word used by other witnesses including Chantal, was the subject of criticism on the part of the plaintiff, the suggestion being that there had been some collusion of evidence. I think the suggestion took the matter a little too far. I do not think the use of the word suggested collusion; it was an entirely appropriate description of the picture the witnesses were trying to convey.

32. One of the other deponents using the word “base” is Ms Magdaleine Jimenez who is the defendant’s sister. Ms Jimenez was not cross-examined on the understanding that no ‘Browne v Dunne’ point would be taken against the plaintiff. Ms Jimenez was looking after the defendant’s children in Queensland while the defendant was in Sydney for the court case.

33. According to Ms Jimenez she started to visit No 5 in 2010 when she observed the defendant “clean and tidy up” and store some possessions. Ms Jimenez recalled the defendant taking some boxes into No 5 in early 2011.

34. The defendant’s evidence, in her affidavit, is that between 2009 and 2011 she visited No 5 about once a month when she would “slowly clean up the property” including the garden. She put in “lockable doors”, which in her evidence she explained to mean changing the barrels on the locks, but she did not fix the broken front window. She then started to store “non valuable possessions in the property”. In early 2011, preparatory to moving to Sydney, she stored more furniture at No 5. It was at this stage that Mr Cassidy provided a new door and locks. This made the property “completely secure”.

35. In 2012 the defendant and her family moved to a property in Vaucluse. On a visit to No 5 in 2012 the defendant noticed that the blinds to No 7 were open. The rear door was unlocked. The property was empty.

36. Chantal stated in her affidavit that from mid-2012 she lived at No 5 and No 7 “part-time” and then in early 2015 moved into the properties with No 7 as her “primary place of residence” on her official documents.

37. It is difficult to reconcile the evidence of Ms Fischer with that of the defendant, Chantal, Ms Jimenez, Mr Rundle, and Mr Cassidy. As far as the latter two men were concerned, I have no reason to disbelieve them. They were apparently reliable witnesses. I make the same observation about Ms Fischer, but their respective evidence is diametrically opposed.

38. Before resolving this conflict, I will mention some other matters that weigh in to the balancing equation. Of course, in saying “balancing” I do not mean to shift the onus which remains squarely on the defendant in respect of establishing adverse possession.

39. The photographs which appear at pp 348 to 355 of the Court Book were taken in March 2011. They were placed in a subfolder titled “Squatter”. The description is apt when the photographs are observed. The photographs are not however consistent with No 5 being used to store furniture and having been cleaned.

40. There is a tax invoice dated 28 March 2011 from “Skipps On Wheels Property Maintenance” addressed to “Cobden & Hayson” for $506 attributable to gardening ($100), removing 6 m³ of rubbish and a mattress ($280), installing mesh on a window ($80) and GST ($46). This work is inconsistent with the defendant’s case that the property had been cleaned and was being used for storage.

41. The plaintiff submitted that there could not have been anyone occupying No 5 if the skip firm had been able to remove the rubbish, especially if the premises had been cleaned and was being used to store furniture. There was no suggestion that the “rubbish” included the defendant’s furniture. The defendant submitted that the 6m³ could have been “plant rubbish”. I doubt this explanation in particular, because a distinction is made in the invoice with slashing work, and presumably access would have been needed to obtain the mattress and install the mesh.

42. I think that I should ultimately prefer the evidence of Ms Fischer because of the corroboration provided by the photographs and other documents. This is not to say that I reject Mr Rundle and Mr Cassidy as being untruthful, but rather that perhaps they are mistaken as to dates and the specifics of their observations. I also note here that my ultimate conclusion will be that using No 5 as a storeroom does not substantiate possession by the defendant as adverse possession. The differences between the witnesses are therefore of much lesser significance.

43. I will now deal with an issue concerning rates. The plaintiff did not know that the agent had stopped managing No 5 until 2019. She had not received any rate or water notices in the intervening period.

44. Rates assumed some importance because on 23 May 2024, the defendant telephoned the Inner West Council and pretended to be the plaintiff, and arranged to pay the outstanding rates. The proceedings had already commenced and there is a particularly strong inference available that the defendant was paying the rates in order to bolster her claim for possession.

45. The defendant was in fact, not averse to lying and had probably instructed Chantal on how to rebuff inquiries about the properties. On 12 June 2016, Mr Willis attended No 7 where he spoke to Chantal:

“I said:    What is your name?

Chantal:   My name is Chantal.

I said:    Who gave you permission to stay here?

Chantal:   My Aunty Mary.

I said:    Well Mary is my sister and you are not my niece.

Chantal:   You can speak to my mother Yael. I will give you her contact details.”

48. Mr Willis spoke to the defendant again later on the same day:

“Yael said:   Mary is my confidant and is allowing my daughter to live in no 7 because she is studying in Sydney.

I said:    If you are my sister’s confidant - can you tell me her middle name?

I said:   What documents do you have that state your daughter can stay in my sister’s property?

Yael said:   I will speak to Mary and come back to you.”

49. On 24 June 2016 Mr Willis received a text message from the defendant stating:

“martin have not forgotten about u … having meeting with mary next friday face-to-face … shall report back.”

50. Although the defendant did not concede the use of the word “confidant” she did accept that she had been conveying a message that it was alright for her to live in the properties. The defendant was clearly trying to give the impression that she had authority to be in the properties. The question of authority re-emerged in 2023 when the defendant spoke to Ms Petrini, the property manager at CobdenHayson.

51. On 24 April 2023, the defendant telephoned Ms Petrini and said:

“The owner of the Properties knows me and gave me the keys many years ago. My daughter, Chantal, has resided at 7 xxxx Street for many years, and I or a friend occupy 5 xxxx Street.”

52. Leaving out some intervening communications, on 5 May 2023 the defendant sent an email to Ms Petrini stating:

"Subject. re 7 AND 5 XXXX ST ROZELLE NSW 2039

WITHOUT PREJUDICE

Kelly and team:

I refer to your letters dated 21^st April and your email of the 28^th April. I informed you if you represent Mary Philomena Willis I would be happy to speak to you but if you represent another person, unless they have a POA, I would rather not communicate with you. You refused to give me the details of the party you represent.

You say it is the registered proprietor, but the registered proprietor has not been in the homes for many years, and I have spoken to two persons purporting to be her estranged brothers, and wonder who has approached you. These men knew my daughter and I had possession of the properties, and so did your client who gave us the keys following watching a tv program on the ABC.

I also spoke to Mary back in about 2011 and [sic] brother Martin several times over the past 8 or so years. The other person who authorised for us to move in I have not spoken to for many years

I spoke to the REI and the [sic] confirmed you have an obligation to inform me who you represent. I therefore ask that you confirm who is your client, as I am concerned it could be an unauthorised person.

I confirm you attended the above properties on the 26^th April seeking possession of both properties. I told you to please leave as you trespassed onto number 5 and possibly number 7, and I confirm further unauthorised entries on to the properties will result in legal action without further notice.

I suggested we organise a Zoom conference to discuss this matter as soon as possible

Please let me know your availability.

Regards

Yael”

53. The program referred to in the email is presumably Australian Story. When cross-examined about the email, the defendant said she regretted using the word “authority”. She said she did not mean to mislead. I do not accept that evidence. The defendant who had worked for many years as a solicitor, I am satisfied, was endeavouring to pretend that she had been authorised to be in the properties.

54. It seems clear that the defendant did not speak to the plaintiff in about 2011. The first conversation was in 2016. The defendant’s reliance on “WITHOUT PREJUDICE” to excuse her mistakes was somewhat disingenuous.

55. If there is any doubt about the defendant’s knowledge of the English language or the rules of grammar, she put them to bed when commenting on the note that she had left at No 55 in March 2016. The note reads:

“Whom ever is

Picking up all or

any of Mary’s mail

Please contact me

Yael: 04XXXXX XXX

URGENTLY!!!”

56. When asked if the note was in her handwriting, the defendant stated:

“A. It's really funny. Yes, it is. It's in my writing, but I'm horrified that I've put a capital P that shouldn't be a capital P.”

57. On the subject of collusion, it was effectively suggested to Chantal that she had colluded with her mother in some of her evidence. The suggestion went to the extent of putting to Chantal that it had been inappropriate for her to have spoken to her mother about relevant events at the properties. Had the suggestion been confined to the period during which they were giving evidence, it might have had some substance, but to expect that witnesses in the same family would not discuss an upcoming court case is quite unrealistic.

58. The cross-examination of Chantal about speaking to her mother led to an unfortunate incident when Chantal was recalled to give further evidence.

59. I do not wish to give too much weight to the incident because it was clearly a product of her nervousness and misapprehension about being permitted to talk to her mother after her evidence was completed.

60. I do however agree with the plaintiff’s submission that I should approach Chantal’s evidence with caution, in particular her preparedness to say something which suited the circumstances. This is what occurred in her conversation with Mr Willis when she referred to her aunty Mary. Although I strongly suspect the idea came from her mother, Chantal was prepared to give Mr Willis a misleading answer.

61. Because the plaintiff was never cross-examined the mystery about her whereabouts over the years remains. As I have said, her affidavits give No 55 as her address but this seems unlikely, in particular considering the photographs (Exhibit 4) recently taken showing No 55 to be boarded up, overgrown and without electricity.

62. The defendant’s frequent attempts to contact the plaintiff were described as an effort to regularise her occupation of the properties and possibly to obtain the plaintiff’s consent. Ms Cohen, who appeared for the defendant, said it was to:

“Maybe negotiate a deal. She said she thought that she may be able to come to a better arrangement. She tried to contact and let this lady know that she was living in the property.”

63. I note here that seeking consent, as observed by Hammerschlag CJ in Eq in Carver at [57] “will be destructive of the suggestion that the possessor has the necessary intention …”.

Was the defendant in adverse possession of No 5?

64. Referring again to Carver, the nature of the possession is important. As observed by Hammerschlag CJ in Eq at [56]:

“Physical possession requires an appropriate degree of physical control, which depends on the circumstances, in particular the nature of the land and the manner in which it is commonly used and enjoyed.”

65. The manner in which the property is used was emphasised in Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475:

“Possession which will cause time to run under the Act is possession which is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner. Lord Shaw of Dunmfermline, giving the opinion of the Privy Council in Kirby v Cowderoy [1912] AC 599, discussed the nature and incidents of adverse possession. Adopting earlier judicial observations, he said: Possession ‘must be considered in every case with reference to the peculiar circumstances … 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 in determining the sufficiency of a possession’.”

66. Chantal, in her oral evidence said she did not take up residence in No 5 until early 2016. She had said that she had lived part time at No 5 from 2012, but this seems unlikely. She would have been 15 years of age. At best the property was not used other than for storage, and perhaps Chantal studying from time to time, until Chantal started to live there in 2016. This raises the point about the physical nature of the possession and whether it was of a type fitting into the description of “the manner in which it is commonly used and enjoyed”. No 5 is a residence. A residence, classically, is a place where a person sleeps, eats and ablutes. It is not a study or a storeroom or even an occasional place to sleep. No 5 did not have a functional bathroom in 2012 and probably not until 2016.

67. Accepting that the defendant had a degree of physical control of No 5 from about 2011, I am not satisfied that it was physical possession of the type required. Had the defendant, or Chantal, ‘lived’ in No 5 the position would have been different. But using the property as a storeroom and occasional place of study is not in my view, using it in the nature of a residence. This type of occupation did not occur until 2016.

68. This conclusion is enough to defeat the defendant’s claim. But further there is the issue, as described in Karnataka, that possession must be actual and visible. Albeit for the good reason of not wishing to attract possible intruders, the defendant, deliberately, took no action to display her occupation to the outside world until much later. The front windows were never mended, and the roof was only repaired in the last five years. In other words, to the passerby, the appearance of occupation was not apparent.

69. In Bottos v Citylink Melbourne Pty Ltd [2022] VSCA 266 the Victorian Court of Appeal stated:

“47. The requirement that the possession needed to support a claim for adverse possession must be ‘open and manifest’ comes from the judgment of Cooper J in McDonell v Giblin. In McDonell, Cooper J said:

In order to dispossess the rightful owner the possession which is claimed to be adverse to his rights must be sufficiently obvious to give to such owner the means of knowledge that some person has entered into possession adversely to his title and with the intention of making a title against him; it must be sufficiently open and manifest that a man reasonably careful of his own interests would, if living in the locality and passing the allotment from time to time, by his observation have reasonably discovered that some person had taken possession of the land. No doubt, in applying this rule, regard must be had to the character and position of the land.

48. Cooper J’s statement was cited with approval and applied by Pagone J, at first instance, in Abbatangelo v Whittlesea City Council. On appeal, in Whittlesea City Council v Abbatangelo, this Court set out a number of relevant principles relating to adverse possession, one of which was that a court will ‘require clear and affirmative evidence that [a] trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world’. After setting out the relevant principles, the Court of Appeal referred to Pagone J’s statement of the principles at first instance as being ‘broadly consistent with our summary of the principles’. Thus it is apparent that the Court of Appeal in Abbatangelo considered (rightly in our respectful view) that there was no material difference between its formulation of the requirement that possession be ‘clear to the world’ and the earlier formulation of the requirement that it be ‘open and manifest’.” (Footnotes omitted)

70. Taking the issue of the defendant’s possession being adverse a step further, the possession was not open because the occupation was effectively physically concealed, but also because the defendant held out that she had permission to be in the premises. This is evident from the various occasions in which persons made enquiries of her, or Chantal, as to their status, or right, to be in No 5. It will be recalled that the defendant said that she had been given permission, and in fact the keys, by the plaintiff, and Chantal told Mr Willis that her “aunt” (the plaintiff) had permitted her occupation.

71. This conclusion is, I think supported by this passage in Powell v McFarlane (1979) 38 P & CR 452, at 472:

“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”

72. I am satisfied that the possession by the defendant was not open and therefore not adverse in the required manner.

73. As to the position, maybe after early 2016 when Chantal took up occupation of No 5 and presumably used it as a residence, including, for example going in and out of the front door, it may be argued that the possession then became adverse. I do not think this would be the case because the question of openness remains, in particular, the continued pretence of permission to be in the premises and the pretending of the defendant to be the owner, such as in her telephone conversation with the local council.

74. I am therefore not satisfied that the possession of No 5 was adverse in the required sense. In summary, this is because:

1. No 5 was not used as a residence before 2015, or perhaps 2016. Use of the premises as a sometime storage facility is not a normal use of a residential premises.

1. The assertions of use of the property are in any event contrary to the ‘squatter’ photographs, the removal and repair work done on 28 March 2011, and the evidence of Ms Fischer.

2. The defendant’s holding out that she, or Chantal, had permission to occupy No 5 was contrary to the requirement for open possession. It was also possession continued by stealth.

3. Maintaining the appearance of No 5, from the street, as derelict property (for example not fixing the broken front window), did not amount to possession open to the world.

4. The plaintiff maintained a degree of control over No 5, and therefore had not abandoned her possession, by the retention of CobdenHayson until 2014. In addition, there was the work organised by the agent on 28 March 2011.

5. The defendant’s payment of rates in 2024 does not assist her. The rates were paid after the proceedings were commenced, when the defendant was aware of ‘adverse possession’, and, more importantly, she paid the rates through the stealth of pretending to be the plaintiff.

75. This being the case it is not necessary to examine the length of time of any adverse possession.

76. The result is that the limitation period imposed upon the plaintiff did not start to run in 2011, and she is not precluded from now pursuing her claim for possession.

77. I will therefore make the necessary orders for the plaintiff to regain possession and dismiss the cross-claim.

78. Finally, I acknowledge that the defendant has made fairly substantial payments (like the rates) and improvements (like the roof) in respect of No 5. Her cross-claim makes no alternative demand for restitution or equitable compensation.

79. I make the following orders:

1. Judgment is entered for the plaintiff for possession of lot 1, deposited plan xxxx situated at and known as 5 xxxx Street, Rozelle NSW 2039.

2. Leave is given for the issue of a writ of possession to the plaintiff.

3. The defendant’s cross-claim filed in Court on 18 March 2025 is dismissed.

4. The defendant is to pay the plaintiffs costs of the proceedings.

5. I will hear the parties if any change is sought to the costs order.

**********

Decision last updated: 27 March 2025