Weekly property law round-up, 13 Nov - 19 Nov 2023

Some interesting property cases from the week before last:

1. Is grazing and associated use of land enough to constitute ‘possession’ in the context of an adverse possession claim? (Cooper v McLennan, Supreme Court of New South Wales).

2. An application for the recovery of land under Ord 53 of the Supreme Court rules is not always a summary procedure, if there is a genuine dispute as to the facts (Downey v Doyle, Supreme Court of Victoria).

Cooper v McLennan [2023] NSWSC 1385 (17 November 2023)

Supreme Court of New South Wales (Henry J)

LAND LAW – adverse possession – whether consent given to defendant’s family to graze land

This case provides an example of the sort of historical detective work that is necessary when dealing with claims for adverse possession. It also helpfully summarises the principles governing actions in adverse possession (at [141]-[142]).

For anyone unfamiliar, the rule of adverse possession is that a person who remains in uninterrupted possession of land for certain period of time (12 years in NSW, 15 years in Victoria), without the permission of the registered proprietor, may claim title over that land, through an application to the Registrar of Titles.

As a corollary, after that period elapses, no action may be brought by the existing registered proprietor for the recovery of that land (Limitations Act 1969 (NSW) s 27(2); Limitation of Actions Act 1958 (Vic) s 8).

The decision concerned some rural land in Nymboida, a small town in the Northern Rivers region of New South Wales. The plaintiff, Mr Cooper, was the registered proprietor of the land. The defendant, Mr McLennan, made an application to the Registrar General under s 45D(1) of the Real Property Act 1900 (NSW) (the Victorian equivalent is the Transfer of Land Act 1958 (Vic) s 60), seeking to be recorded as the proprietor of the land.

The Registrar General gave notice of its intention to grant title, based on Mr McLennan’s contention that Mr Cooper had received title to the land only due to an error in the administration of his late father’s estate.

Mr Cooper commenced proceedings, seeking declarations that the McLennan family had never been in possession of the land, or alternatively that even if they had taken possession of the land, they did so with the permission of Mr Cooper -- meaning that such possession was not adverse to the latter's title.

As with most actions for adverse possession, the matter turned on its own facts, and particularly on the respective use made by the parties of the disputed land. The defendant had, since 1996, sprayed weeds, ploughed and sowed the soil, fertilised the blocks ever few years, and maintained a dam on one of the blocks (at [72]-[74]). The plaintiff’s use of the land was more limited, with the Court finding that it essentially amounted to crossing two of the blocks in order to access the Nymboida River for camping and fishing (at [92]-[96]).

Also of importance were conversations between Mr Cooper and members of the McLennan family, which might reveal whether the latter occupied the blocks with permission. The gist of Mr Cooper’s evidence was that in 1996, he had given the elder McLennan, now deceased, permission to graze ‘his’ land, and that there had been later conversations with the younger McLennan, the defendant, to this effect. If this were proven, then even if the defendant had been in possession of the land, such possession would not be ‘adverse’ to the plaintiff, and the latter’s title would not be destroyed. The Court was unconvinced. After considering the respective accounts of plaintiff and defendant in some detail, it held that the alleged permission had never been granted.

The Court further held that the use of the land by the McLennan family over the years was sufficient to show both unbroken possession and an unequivocal intention to possess the land. They not only grazed the land, they also improved and maintained it. While grazing might not have been enough of itself, in combination with other factors such as weeding, sowing and fertilising the land, and maintaining boundary fences, such use was consistent with the acts of an occupying owner (at [172]-[174]).

Mr Cooper’s order for declaratory relief was refused, clearing the way for Mr McLennan to take title on the basis of adverse possession.

Downey as Trustee of the Bankrupt Estate of Robert Henry Bourne v Doyle [2023] VSC 664 (17 November 2023)

Supreme Court of Victoria (Irving AsJ)

PROPERTY LAW – Application for recovery of land and removal of caveat – Application brought by trustee in bankruptcy – Defendant is former title holder, currently occupying land under alleged rental agreement

In this case, the trustee of a bankrupt estate sought to recover land from the defendant, who had been living on the land subject to some kind of agreement with the bankrupt registered proprietor since 2007. The exact nature of the agreement was disputed.

The plaintiff applied for orders for the recovery of possession of the land (under Order 53 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)), and for removal of a caveat that the defendant had lodged over the land several years ago (under s 90(3) of the Transfer of Land Act 1958 (Vic)).

The decision highlights a key difference between an application for the removal of a caveat, and applications for the recovery of land under Order 53, despite the two forms of relief often being allied:

• The former is a summary procedure analogous to the determination of an interlocutory injunction (at [52]-[62]), and so will involve the Court considering whether there is a prima facie question to be tried, with a sufficient likelihood of success to justify a caveat to maintain the status quo, .

• The latter is usually a summary procedure, but not always. An application under order 53 will only be summarily determined in clear cases, where there is no real question to be tried. If there is a genuine dispute, the Court is able to list the matter for a final hearing (at [46]-[51]). As Derham AsJ put it in the decision of Framlingham Aboriginal Trust, an application under Order 53 allows for “a speedy resolution in favour of the proprietor of land of a dispute whereby trespassers are keeping the proprietor out” (cited at [47]). Where there is a factual dispute, however, the Court can either dismiss the application, determine the factual dispute then and there, or list the matter for a full hearing.

Unfortunately for the plaintiff trustee, this was not a clear case with no question to be tried. The parties agreed that the defendant had been living on the land since at least 2007. However, this is where the parties’ stories diverged:

• The plaintiff alleged that the defendant had sold her interest to the now-bankrupt Mr Bourne in 2007, but had remained living on the land under an informal licence.

• The defendant, on the other hand, alleged that she had asked Mr Bourne to act as bare trustee for the land in order to secure bank finance, with her children as the beneficiaries. She further claimed that no money had changed hands on the supposed ‘sale’ to Mr Bourne.

In the end, the Court held that there was a genuine question to be tried in relation to the application for the recovery of the land, and listed it for a final hearing.

The caveat was a simpler matter: the defendant herself was bankrupt, and any caveatable interest had vested in her trustee, who had consented to the lapse of the caveat provided a portion of any proceeds from the sale of the land was held on trust pending the outcome of the final hearing. The caveat was thus ordered to be removed.