| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 06110
S ECI 2023 06122
| BETWEEN: | S ECI 2023 06110 |
| JIE ZHANG | First Appellant |
| LIXIA CAO ZHANG | Second Appellant |
| v | |
| JOHN STREETER | First Respondent |
| ADA STREETER | Second Respondent |
AND
| BETWEEN | S ECI 2023 06122 |
| JIE ZHANG | First Appellant |
| LIXIA CAO ZHANG | Second Appellant |
| v | |
| JOHN STREETER | First Respondent |
| ADA STREETER | Second Respondent |
JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 and 31 May, 2 August 2024 |
DATE OF JUDGMENT: | 20 December 2024 |
CASE MAY BE CITED AS: | Zhang v Streeter |
MEDIUM NEUTRAL CITATION: | [2024] VSC 816 |
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APPEAL – Orders of Magistrates’ Court – Adverse possession – Erection of fence – Where adverse possessor established factual possession for 15 continuous years – Whether intention to possess – Whether abandonment of possession – Whether acknowledgement of title holder’s title – Limitation of Actions Act1958 ss 8, 9, 14, 18, 24.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Ms T Acreman | LWS Lawyers |
| For the Respondents | In person |
HIS HONOUR:
The parties are the registered proprietors of adjacent properties located at 3 and 5 Durward Road, Malvern East. The first and second appellants, Jie Zhang and Lixia Cao Zhang, who are husband and wife, and to whom I will refer as the Zhangs, are the registered proprietors of 5 Durward Road, having acquired the property on 5 January 2005. The first and second respondents, John Streeter and Ada Streeter, who are husband and wife and to whom I will refer as the Streeters, are the registered proprietors of 3 Durward Road, having acquired that property on 8 July 1997.
The fence dividing the properties, with the possible exception of 7.5 metres at its Durward Road end, was in its current position at the time the Streeters acquired their property in 1997. It is not built along the paper title boundary but encroaches onto the Streeters’ land. That encroachment, which is the disputed land, is a triangular strip of approximately 29cm wide at its widest (‘the strip of land’ or ‘disputed land’).
The Streeters commenced a proceeding in the Magistrates’ Court, seeking orders that a new fence be erected on the title boundaries. The proceeding was brought under the Fences Act 1968 and in trespass. In response, the Zhangs commenced their own proceeding claiming adverse possession of the disputed land.
The issues in the appeals include the Zhangs’ adverse possession claims of the disputed land. The Magistrate decided that the Zhangs had not discharged the onus of proving that they had had adverse possession of the disputed land for 15 years as required by statute. His Honour accepted the Streeters’ contentions that any adverse possession had been abandoned and that the Zhangs had acknowledged their title.
The Zhangs filed notices of appeal pursuant to s 109 of the Magistrates’ Court Act 1989, from the Magistrates’ orders dated 13 December 2023 in the two Magistrates’ Court proceedings commenced by…
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- AGLC
- Zhang v Streeter [2024] VSC 816
- Case
- [2024] VSC 816
- Decision Date
CaseChat Overview and Summary
The court examined whether Mr Streeter's actions in erecting a fence and maintaining the land demonstrated factual possession and an intention to possess. It considered evidence of Mr Streeter's activities on the land, such as gardening and clearing, as well as his assertion that he believed he was the rightful owner. The court also assessed whether Mr Streeter's actions constituted an abandonment of possession or an acknowledgement of Mr Zhang's title. Ultimately, the court concluded that Mr Streeter had met the statutory requirements for adverse possession, as he had exercised factual possession for the requisite period and had the intention to possess. The court found that Mr Streeter's maintenance of the land and his belief in his ownership were sufficient to establish adverse possession under the Act.
Consequently, the court upheld the Magistrates' Court decision, affirming Mr Streeter's ownership of the disputed land. The appeal was dismissed, and the orders of the Magistrates’ Court were confirmed. The court held that Mr Streeter had effectively acquired title to the land through adverse possession, as he had exercised factual possession for 15 years and had the necessary intention to possess. The court found no evidence of abandonment or acknowledgment of Mr Zhang's title, and therefore, Mr Streeter's adverse possession was valid.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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