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…

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 Zhang v Streeter

Details

AGLC: Zhang v Streeter [2024] VSC 816
Case: [2024] VSC 816
Decision Date: 20 December 2024

CaseChat Overview and Summary

In Zhang v Streeter, the plaintiff, Mr Zhang, sought to overturn a Magistrates’ Court decision that granted the defendant, Mr Streeter, ownership of a section of land through adverse possession. The dispute centred around a parcel of land that Mr Zhang claimed was part of his property, but which Mr Streeter had fenced off and maintained for over 15 years. The legal issues before the court were whether Mr Streeter had established factual possession of the land, whether he had the requisite intention to possess, whether he had abandoned the possession, and whether he had acknowledged Mr Zhang's title. The case hinged on statutory provisions of the Limitation of Actions Act 1958, specifically sections 8, 9, 14, 18, and 24, which outline the requirements for adverse possession.

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