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Willis v Abraham (No 2)

Willis v Abraham (No 2)

Case [2025] NSWSC 276 27 March 2025

Adverse Possession

Limitation Periods

Documentary Owner

Reclaiming Possession

Property Law

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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

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.
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…

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 Willis v Abraham (No 2)

Details

AGLC: Willis v Abraham (No 2) [2025] NSWSC 276
Case: [2025] NSWSC 276
Decision Date: 27 March 2025

CaseChat Overview and Summary

The defendants in this case, Abraham and others, claimed adverse possession of a parcel of land that was originally the subject of a transfer to the plaintiffs, Willis. The defendants argued that they had been in possession of the land for over twelve years, which would extinguish the plaintiffs' rights under the Limitation Act 1969 (NSW). The plaintiffs sought to reclaim the land, asserting that the defendants' possession was not adverse and that the limitation period had not expired. The matter was heard in the Supreme Court of New South Wales.
The court was required to determine whether the defendants' possession of the land was adverse and, if so, whether the twelve-year limitation period under the Limitation Act 1969 (NSW) had expired. The court needed to consider the defendants' use of the property, the state of the property during their possession, and the intention behind their occupation.
The court found that the defendants' possession was not adverse because they did not intend to possess the land in a manner that was inconsistent with the plaintiffs' rights. The court reasoned that the defendants' use of the property for storage and their decision to leave the front-facing property in a derelict state were aimed at avoiding attracting intruders rather than demonstrating an intention to possess the land. Additionally, the court held that the defendants' occupancy was not apparent, further indicating that their possession was not adverse. Consequently, the twelve-year limitation period under the Limitation Act 1969 (NSW) had not expired, and the plaintiffs were entitled to reclaim the land.
The court ordered that the defendants vacate the property and that the plaintiffs be reinstated in possession. The defendants were also directed to pay the plaintiffs' costs of the proceeding.

Orders