Although different views have been expressed as to the meaning of that section, it was held by Else-Mitchell J in Van Den Bosch v Australian Provincial Assurance Association Ltd (1968) 88 WN (Pt 1) (NSW) 357 to mean that a Torrens Title could not be extinguished by adverse possession whatever the effect of the statute of limitations upon actions in respect of the land: see also the decision of Wootten J in Addison v Billion [1983] 1 NSWLR 586. So long as this regime persisted, it was not possible for a Torrens title to be defeated by a statute of limitations (and this is reflected in s 45D(1)(b)). Part 6A in 1979 provided a mechanism whereby the Registrar General could change the register upon appropriate establishment of adverse possession. However, the effect of s 45C(1), by its terms, is to maintain the law as established in Van Den Bosch , save where the title has been transferred to a new registered proprietor pursuant to a determination by the Registrar General pursuant to Part 6A. The Land Titles Office practice in this regard is correct in law: see Baalman & Wells' Land Titles Office Practice (5th ed, 1998) [397.100].
16 The situation in this case thus is that, if the Court were to hold that the plaintiff could not establish a title by adverse possession, the defendant could as registered proprietor bring an action of ejectment (or, in modern terminology, an action for possession) in respect of the land without any ability in the present plaintiff or any other defendant to maintain against her a defence based upon a statute of limitations. If, however, the Registrar General accedes to the Part 6A application, the indefeasible title will be transferred to the plaintiff and the defendant's rights as registered proprietor lost.
17 As to the adverse possession which will in the modern law cause time to run against the owner, Bowen CJ in Eq said in Mulcahy v Curramore Pty Ltd [1974] 1 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".'"
18 The question raised in this case is whether the defendant has an arguable case that the plaintiff cannot obtain a title by adverse possession because his possession cannot be said not to have been maintained by force. I do not, of course, in these interlocutory proceedings, have to determine whether that is so or not. Nor am I in this case compelled, as was suggested by Mr Coles, to determine this question upon this application because it is simply a question of law. Even if it be the law, as he asserts, upon the authority of Karaguleski v Vasil Bros [1981] 1 NSWLR 267, that a Judge hearing an interlocutory application must on all occasions without option determine a question which is purely a question of law upon the hearing of that application, the question that arises in this case, it seems clear to me, is not purely a question of law. However, Mr Coles says that it is, upon the authority of Shaw v Garbutt supra; that decision, he says, as a matter of law precludes it being found that the deceased's possession was not peaceable. In that case the proprietor, who was out of possession, had gone to the property and been turned away by a man wielding a gun. That man was not the adverse possessor and in that case his Honour found that it was not established that he was acting with the authority of the adverse possessor. That ground alone was decisive of the case. In addition, his Honour said that no reason was given as to why the dispossessed could not have gone to law to assert his rights, so that he could not be said to have been kept out of possession by force. That reason was in that case an obiter dictum. In any event this case is different. The defendant was physically ejected from the property and ejected by the deceased himself. Furthermore, she says that she was in such fear of him and of threats and consequences to her and hers that she was frightened during his lifetime to go to law. Whether that case can be established factually at a trial, it appears to me to raise a serious question which merits a trial. Whether the factual proposition, if established, falls within the concept of nec vi must be decided on the basis of the facts established at trial. It seems to me that there may be a real argument that the facts alleged may fall outside the concept of peaceable possession, whatever may have been decided by Young J in Shaw v Garbutt. Authority on the ambit of peaceable possession is not easy to find. However, it seems to me arguable that the possession is not peaceable if the owner by reason of the adverse possessor's conduct was frightened to go to law and this seems to receive some support from what was said by Sir Robert McMillan CJ in Hough v Taylor (1927) 29 WALR 97 at 98:
The nature of the user which the plaintiff has to prove is set out in paragraph 524 of the 11th volume of Halsbury in these words: 'The user or enjoyment of an alleged right in order to support a prescriptive claim, under the doctrine of prescription at common law, must be shown to have been user "as of right," having been enjoyed, nec vi, nec clam, nec precario, neither as the result of force, secrecy, or evasion, nor as dependent upon the consent of the owner of the servient tenement. Consent or acquiescence on the part of the servient owner lies at the root of prescription. He cannot be said to acquiesce in an act enforced by mere violence, or in an act which fear on his part hinders him from preventing, or in an act of which he has no knowledge actual or constructive, or which he contests and endeavours to interrupt, or which he sanctions only for temporary purposes, or in return for recurrent consideration.'"