Carver v State of New South Wales

Court of Appeal (NSW)|2023-11-14|Before: Meagher JA, Gleeson JA, Hammerschlag CJ

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Since around 1996, the appellant (Mr Carver) has occupied a cottage built on Crown land on the southern bank of the Georges River at Illawong (the Land). The property is known as Cottage H. At some time around 1935, a permissive occupancy (PO) for Cottage H was granted by the Crown to a Mr Price, who thereafter occupied the cottage with his wife. Mr Price died sometime later, and Mrs Price was informed in 1978 by the relevant government department that it had decided not to terminate her PO. The department stated that it would allow her to remain for the duration of her natural life, after which the PO would be terminated. Mrs Price died in 1980, and her son (Mr Hood) and his wife then rented Cottage H to third parties, despite being advised by the department that this was a breach of the conditions of occupancy and that it would terminate the PO. After entering into an arrangement with Mrs Hood, Mr Carver commenced occupying Cottage H sometime around 1996. The Crown sought orders for possession of the Land. In his defence, Mr Carver claimed that the Crown's cause of action was statute-barred under ss 27(1) and 38 of the Limitation Act 1969 (NSW) on the basis that the PO terminated upon the death of Mrs Price, and that he and the Hoods were thereafter in continuous adverse possession of the Land for more than 30 years. The primary judge granted the orders sought by the Crown and rejected Mr Carver's argument, finding that the PO had not terminated upon Mrs Price's death and that, in any event, s 13.1 of the Crown Land Management Act 2016 (NSW) (2016 Act) precluded Mr Carver from establishing that the Crown's cause of action was statute-barred. On appeal, the principal issues were: (i) whether s 13.1 of the 2016 Act, read in light of ss 8(1)(b) and 65 of the Limitation Act, operates to preclude Mr Carver's defence that the Crown's claim for possession of the Land is statute-barred pursuant to ss 27 and 38 of the Limitation Act; (ii) if s 13.1 does not so operate, whether the Land was in continuous adverse possession for 30 years, first by the Hoods and then by Mr Carver, for the purposes of s 38 of the Limitation Act; and (iii) if the appeal is unsuccessful, whether Mr Carver should be granted additional time to vacate the Land before a writ for possession is issued. The Court (Griffiths AJA, Meagher and Gleeson JJA agreeing) held, dismissing the appeal, with costs: As to issue (i) (1) Mr Carver's defence, made in reliance on ss 27(1) and 38 of the Limitation Act, is precluded by s 13.1 of the 2016 Act. The operation of s 13.1 is explicitly preserved by s 8(1)(b) of the Limitation Act: [57]. The necessary endpoint of ss 27(1) and 38 of the Limitation Act is set out in s 65 of that Act, which on the present facts and contrary to s 13.1 would extinguish the Crown's title to the Land: [57]. Section 13.1(3)(b), which refers to s 170(5) of the Crown Lands Act 1989 (NSW), evinces a continued legislative intention that the operation of ss 27 and 65 of the Limitation Act be limited to causes of action with respect to reserved land that were debarred at the date of the commencement of the Crown Land (Amendment) Act 1931 (NSW), namely 2 October 1931: [58], [59]. Price v Spoor (2021) 270 CLR 450; [2021] HCA 20 (per Steward J) distinguished: [64] As to issue (ii) (2) The primary judge is not shown to have erred in not being satisfied that the relevant PO terminated on the death of Mrs Price rather than at some later time. The terms of the PO are not in evidence, and so it is unclear whether the PO was personal to Mrs Price. Department records suggest that it continued after her death, and the correspondence in evidence merely records the Department's intention to terminate the PO upon or after her death. The records of rent being paid in respect of the PO up to 2008 also suggest that it existed until that time: [71]. (3) Mr Carver failed to establish any appellable error in the primary judge's finding that the Hoods lacked the requisite animus possidendi. The Hoods' ongoing payment of rent to the Crown, as evidenced in the departmental records, is inconsistent with them having that animus: [73]. McFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629 distinguished: [75] (4) Mr Carver himself also lacked the requisite animus possidendi. His attempts to regularise his occupation of the Land by seeking a licence or permissive occupancy was inconsistent with him having such an animus: [80]. Mr Carver's own verified pleading was also destructive of his claim of adverse possession as it acknowledged the Crown's title and is inconsistent with his assertion that he had the requisite possessory intent: [83]. Phillips v Marrickville Municipal Council [2002] NSWSC 396 distinguished: [78] As to issue (iii) (5) There was no basis for extending the time granted by the primary judge to vacate the Land, save that the date from which this time commences should be changed to the date of this Court's orders: [86].

JUDGMENT

MEAGHER JA: I agree with Griffiths AJA.
GLEESON JA: I agree with Griffiths AJA.
GRIFFITHS AJA: This appeal is from orders dated 14 July 2023 as corrected on 17 August 2023, and, in particular, orders giving the respondent possession of particular Crown land and granting leave for a writ of possession to issue forthwith, subject to the writ lying in the Registry for not less than 42 days from 14 July 2023. The orders were made in conjunction with reasons for judgment of Hammerschlag CJ in Eq in State of New South Wales v Carver [2023] NSWSC 828 (primary judgment or PJ). On 13 September 2023, Gleeson JA ordered a stay of enforcement of the judgment pending the determination of the appeal: Carver v State of New South Wales [2023] NSWCA 223.
These reasons for judgment are structured as follows: 1. primary judge's findings concerning relevant events; 2. legislation summarised; 3. primary judge's disposition of parties' arguments; 4. summary of grounds of appeal and notice of contention; 5. consideration and disposition of appeal; and 6. conclusion.

(a) Summary of primary judge's findings concerning relevant events

The primary judge's findings may be summarised as follows.
Since around 1996, the appellant (Mr Carver) has occupied a cottage built on Crown land on the southern bank of the Georges River at Illawong (the Land). The property is known as Cottage H. Cottage H is located partially on Crown Plan 22617-3000 and on a Crown reserve below the mean high water mark. No part of it is on Torrens Title land. The NSW government department presently responsible for the administration of the area is the Department of Planning, Industry and Environment.
The proceedings below were commenced by summons on 23 December 2021, when the Crown in the right of the State of New South Wales sought orders for possession of the Land. Mr Carver accepted that he had the onus of establishing a defence to the Crown's cause of action. Relevantly, he claimed that the cause of action was statute-barred under relevant provisions of the Limitation Act 1969 (NSW).
A brief summary of the lengthy history of relevant events follows, drawing heavily on the primary judgment at [17]ff.
Cottage H was constructed sometime in the 1930s. It appears that around 1935, a permissive occupancy (PO) for Cottage H was granted to a Mr F J Price (a copy of the PO was not included in the evidence). Mr Price and his wife, Mrs Sylvia Joan Price, occupied Cottage H pursuant to the PO. Mr Price predeceased his wife.
In a ministerial submission dated 25 November 1977, the Department recommended that the PO for Cottage H remain for the natural lives of the occupants, that the PO then be terminated and improvements removed, and that no transfer be permitted other than to a surviving spouse. Mrs Price was informed by a departmental letter on 1 March 1978 that it had been decided not to terminate the PO, but to allow "pensioners to remain for their natural lives, then the Permissive Occupancies will be terminated and the occupations (sic) removed".
Mrs Price died in June 1980.
Following an inspection of Cottage H and other nearby similar dwellings on 4 November 1980, a departmental review was undertaken. The Department found that Mrs Price was no longer in occupation and that Cottage H had been rented to Messrs Leo and John Schwager, who had taken up occupation about four months earlier. The rent was paid to Mr William Hood (Mrs Price's son). Mrs Patricia Hood was Mr Hood's wife.
In February 1981, the Department wrote to "Mr Price" c/o Messrs Leo and John Schwager. The Department said that it had been informed that Mrs Price had died in June 1980 and that "Mr Price" (which Mr Carver conceded should be taken as a reference to Mr Hood) was renting the premises to Messrs Leo and John Schwager. He was told that this was a breach of the conditions of occupancy and that "the Permissive Occupancy is to be terminated and the structures will have to be removed". Mr Hood was directed to remove the cottage building within six months and leave the area in a clean and tidy condition.
On 6 August 1981, Mr Hood responded to the Department and asked for a copy of his mother's PO and any correspondence which took place between the Department and either Mr or Mrs Price over the previous five years. A handwritten note on the Department's copy of that letter stated that Mr Hood's mother's name was Price.
A departmental record in relation to Cottage H (which is undated, but must be later than 11 January 1983) records that a PO was granted on 8 January 1977 and then again on 11 January 1983, at a rental price of "$40-00 minimum". The holder is described as "Sylvia Joan Price" and the purpose of the PO (numbered 1903/410) is described as a "Residence and Swimming Enclosure". Handwritten notes on the record state that Mrs Price died in 1980 and that there was a "Disposal" on 13 July 1984.
The Department's records also included a letter dated 4 January 1996 which the Department sent to Mr Hood as occupant of Cottage H. The letter stated that one of the provisions of POs is that "they are a personal right of occupation with no right to sub-let or transfer the occupation" and that a PO is terminable at the will of the Minister. Mr Hood was asked to complete a questionnaire which aimed to establish the basis on which he occupied the site. No completed questionnaire was in evidence.
An internal departmental memorandum dated 22 July 1999 detailed what were described as five "unauthorised residential occupations" on Crown land on the Georges River, including Cottage H. The holder of the PO for Cottage H was described as "Sylvia Joan Price, deceased" and the memorandum recorded that the PO had commenced on 8 January 1977. The current occupant was said to be "Mr W Hood", who was described as "unauthorised" and believed to be the son of the late Mrs Price. The record said that the rent was $70 and added that there were nil arrears. As will emerge, the parties were in some dispute as to the significance of those statements (which had some bearing on the issue of animus possidendi), with the respondent emphasising that the statement of nil arrears was to be contrasted with the stated position regarding two of the other nearby dwellings, where rent arrears were recorded.
The memorandum noted that all the occupations were unauthorised to the extent that none of the POs had been transferred to the current occupants, but some of the occupants claimed to be descended from, or related to, the holders and others claimed to have permission from the holder. The memorandum also noted a departmental policy which had existed since the 1970s which was to seek removal of the structures in order to return foreshore lands to the community for public use.
The memorandum set out three options. A handwritten note records that it was "[r]ecommended that Option 1 be pursued", namely that all occupants be given a "firm deadline of say six months to vacate the premises" and the POs subsequently terminated.
The primary judge noted that there was some divergence between Mr Carver's written and oral evidence below as to his initial occupancy of Cottage H. Under cross-examination, he said that he offered to purchase Cottage H from Mrs Hood, for which he paid her a monthly amount. Conversely, in his affidavit evidence, Mr Carver had sworn that he reached an agreement with Mrs Hood to pay a sum of $150 weekly as rent, which would cease after 12 months and that he would occupy the cottage in its present condition and take responsibility for all improvements.
On 31 January 2006, the then Department of Lands issued an arrears notice to Mrs Price (notwithstanding that she had died in 1980) in the amount of $297. Then on 11 January 2007, the Department issued an arrears notice in the name of Mrs Price in the amount of $418.37. These records are consistent with several screenshots (which were admitted below over objection) and show payments by Mrs PE Hood on 13 February 2006 and 13 February 2007 of the respective amounts of $297 and $418.37.
The Departmental records show that the PO "licence account" in the name of Sylvia Joan Price was terminated on 10 January 2008. That this correctly records the time when the PO was terminated in law was and is contested by Mr Carver.
It is evident that Mr Carver spoke to the Department some time in 2009 regarding the possibility of him applying for a new licence to occupy Cottage H. It is well to describe three subsequent letters in which he raised the same issue as they are relevant to his claim of adverse possession. The first is a letter dated 27 May 2010 written on Mr Carver's firm's letterhead, and headed: "Re-Permissive Occupancy Lot 406 Old Ferry Road, Illawong-House No 3 (Previous Holder Pat Hood)".
After referring to a discussion he had with a departmental officer the previous year regarding applying for a new licence, Mr Carver said that he needed some clarification "as I have consistently offered the Department to pay for a License and I have been told since 1996 that no license is being granted". He pointed out that he had been in occupation since 1996 and had spent around $50,000 in improving the property. With an evident degree of frustration, Mr Carver asked whether the Department could "do anything to formalise this tenancy one way or another?".
Mr Carver's second letter is dated 16 October 2013 and was sent by email to the Department. It is headed "Application for Licence for PO". Mr Carver wrote that that he "was renting the PO and Cottage from Mrs Pat Hood", that Mrs Hood had subsequently relinquished the PO and that it had been cancelled by the Department. Mr Carver asked whether he could have a dialogue with a senior officer about the property and "the likelihood of being granted a PO".
Mr Carver's third letter is dated 4 December 2013. It has the same heading as the first letter. Mr Carver referred to having spoken to a departmental officer some time in 2012 about the possibility of applying for a new licence. He also referred to his first letter (dated 27 May 2010) and after referring to a departmental study about the authenticity of the "heritage listed properties", he asked: "Any news yet??".
There are departmental records (the admissibility of some of which was challenged by Mr Carver below and on appeal) which reveal that, during the period January 1992 to January 2008, the Department (throughout its various iterations) received numerous payments in respect of Cottage H, including multiple payments in the amount of $70 paid by cheque and by an unknown payer. Later records, for the period from January 2000 to February 2007, record payments in varying amounts made by "PE Hood". The primary judge noted at PJ[32] that the evidence did not establish the circumstances under which these payments were made but his Honour added that "the inference is irresistible that payments were made in consideration for the occupation or right of occupation of the Cottage".
There was various other correspondence between the Department and Mr Carver between the period 9 April 2014 and 23 July 2020 in which Mr Carver was repeatedly told that his occupation was unauthorised and that he should vacate the buildings that he continued to use and/or occupy. On 23 January 2020, Mr Carver wrote to the Department (on behalf of himself and a resident of another cottage) saying that there had been many meetings over the past 24 years and that during that period he and the other resident had been seeking to obtain "some clarification and tenure of our residences and willing and offering to pay any License fees or occupation fees".

(b) Legislation summarised

The various relevant legislative provisions concern three matters. They are the nature of a PO, restrictions on acquisition of title by adverse possession against the Crown, and general limitation provisions concerning adverse possession.

Permissive occupancies

During the mid-20th century, it was the practice of the then NSW Lands Department to grant POs of Crown lands for various purposes. Two challenges were brought against the validity of POs in 1958 on the basis that the then in force Crown Lands Consolidation Act 1913 (NSW) (1913 Act) did not provide a legislative basis for the Department's power to grant them. The 1913 Act was amended to rectify this with the insertion of s 136K, the relevant parts of which provided: (1) The Minister may grant permissions to occupy Crown lands, whether above or below or beyond high water mark, or whether reserved from lease or license or not, for such purposes and, subject to this section, upon such terms and conditions as to him may seem fit. … (5) …[A] permission to occupy Crown lands granted under subsection (1) shall be terminable at will by the Minister.
A PO granted under s 136K(1) was understood to be "a personal licence such as would afford a defence to an action for trespass" (Southern Estates Pty Ltd v New South Wales Aboriginal Land Council (1991) 24 NSWLR 320 at 324), though the precise characterisation of POs may have varied between occupancies, as the terms of POs could vary (see Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) (2004) 221 CLR 178; [2004] HCA 4 at [15]).

Restrictions on acquisition of title by adverse possession against the Crown

By 1988, there were 20 pieces of legislation, including the 1913 Act, which governed tenure, leases, licences and permits, as well as numerous pieces of legislation dealing more broadly with Crown land. The Crown Lands Act 1989 (NSW) (1989 Act) repealed and consolidated the previous swathe of legislation, and included inter alia a provision governing the limitation on acquisition of title by adverse possession against the Crown. That provision relevantly provided: 170 Limitation on acquisition of title by possession against the Crown (1) Title to any land of the Crown which has been: … (d) reserved in a Crown grant or recorded in a folio of the Register as being reserved to the Crown, may not, on the basis of adverse possession, be asserted or established against the Crown or any persons holding the land in trust for a public purpose. … (5) This section does not affect the title to any land: … (b) which the Crown was debarred from recovering by the operation of the Crown Suits Act 1769 or the Limitation Act 1969: (i) at the date of assent to the Crown Lands (Amendment) Act 1931 in the case of land referred to in subsection (1).
Section 13.1 of the Crown Land Management Act 2016 (NSW) (2016 Act) replaced s 170 of the 1989 Act. It relevantly provided: 13.1 Limitation on acquisition of title by possession against Crown (1) Title, based on adverse possession, cannot be claimed or established against the Crown for any of the following - … (b) any land of the Crown that has been dedicated or reserved under the Crown Land Acts or any other Act for a public purpose, (c) any other Crown land. … (3) This section does not affect - … (b) the title to any land referred to in section 170(5) of the Crown Lands Act 1989 immediately before the Act's repeal.
Significantly, the Limitation Act, by s 8(1)(b), explicitly preserves the operation of s 13.1 of the 2016 Act.

General limitation provisions concerning adverse possession

Section 27(1) of the Limitation Act provides: (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.
The remaining relevant provisions of the Limitation Act are ss 38 and 65: 38 Adverse possession (1) Where, on the date on which, under this Act, a cause of action would, but for this section, accrue, the land is not in adverse possession, the accrual is postponed so that the cause of action does not accrue until the date on which the land is first in adverse possession. (2) Subject to subsection (3), where a cause of action accrues to recover land from a person in adverse possession of the land, and the land is afterwards in the adverse possession of a second person, whether the second person claims through the first person or not, the cause of action to recover the land from the second person accrues on the date on which the cause of action to recover the land from the first person first accrues to the plaintiff or to a person through whom the plaintiff claims. (3) Where a cause of action to recover land accrues and afterwards, but before the cause of action is barred by this Act, the land ceases to be in adverse possession, for the purposes of this Act - (a) the former adverse possession has no effect, and (b) a fresh cause of action accrues on, but not before, the date when the land is first again in adverse possession. (4) For the purposes of this section - (a) adverse possession is possession by a person in whose favour the limitation period can run, (b) possession of land subject to a rentcharge by a person who does not pay the rent is possession by the person of the rentcharge, and (c) in a case to which section 33 applies, receipt of the rent by a person wrongfully claiming to be entitled to the land subject to the lease is, as against the landlord, adverse possession of the land. (5) Where land is held by joint tenants or tenants in common, possession by a tenant of more than his or her share, not for the benefit of the other tenant, is, as against the other tenant, adverse possession. … 65 Property (1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action specified in column 1 of Schedule 4, the title of a person formerly having the cause of action to the property specified opposite the cause of action in column 2 of that Schedule is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished. (2) Where, before the expiration of a limitation period fixed by or under this Act for a cause of action specified in column 1 of that Schedule, an action is brought on the cause of action, the expiration of the limitation period does not affect the right or title of the plaintiff to property specified in column 2 of that Schedule in respect of which the action is brought - (a) for the purposes of the action, or (b) so far as the right or title is established in the action. (3) This section does not apply where the cause of action is for conversion or detention of goods and, before the expiration of the limitation period fixed by or under this Act for the cause of action, the person having the cause of action recovers possession of the goods.
Relevantly to the application of s 65(1), Sch 4 to the Limitation Act, headed "Extinction of right and title", provides: Column 1 Column 2

Mr Carver's case was that the PO terminated when Mrs Price died in June 1980; that Mr and Mrs Hood took possession in about 1981, which was adverse possession for the purposes of s 38; and that Mr Carver took adverse possession in 1996 or 1997, which continued at least until 2011. In those circumstances, Mr Carver contended that the Crown's cause of action against him for possession was taken to have accrued in 1981 and became statute-barred 30 years later in 2011 (PJ[58]).
The Crown's response was threefold. First, s 13.1 of the 2016 Act precluded Mr Carver from relying on adverse possession of the Land because it was land dedicated or reserved for a public purpose. Mr Carver's response was that that section did not apply because he was not claiming or seeking to establish title to that Land. Secondly, Mr and Mrs Hood's possession was not adverse in the relevant sense. Thirdly, Mr Carver's possession was similarly not adverse.
The primary judge first summarised the operation of ss 27, 38 and 65 of the Limitation Act as follows (PJ[55]): For the convenience of the reader, the following is a brief summary of how ss 27, 38 and 65 work: (1) a cause of action to recover land is not maintainable by the Crown after the expiration of 30 years from the date it arose. (2) the cause of action will not accrue where the land is not in adverse possession and is postponed so that it does not accrue until the land is in adverse possession. (3) if a cause of action accrues against a person in adverse possession and thereafter the land is in the adverse possession of a second person, the cause of action to recover from the second person arises on the date upon which the cause of action arose against the first person. In other words, a second adverse possessor gets the benefit of the adverse possession of a predecessor adverse possessor. (4) if the cause of action accrues and then, but before it is barred, the land ceases to be in adverse possession, the former adverse possession has no effect, and a fresh cause of action only arises when the land is again in adverse possession. (5) when the limitation period expires, the title of the person against whom the cause of action formerly lay and against the person's successors, is extinguished. The practical effect of this is that the "squatter" acquires the prior owner's title.
The summary in PJ[55(5)] contains an error, albeit not one that was suggested to have had any material effect on his Honour's reasoning or indeed to have correctly recorded his Honour's understanding of the position. In substance, the first sentence should refer to the title of the person formerly having the cause of action as the title which is extinguished. The second sentence correctly states the operation of the statute.
His Honour's essential reasons for rejecting Mr Carver's submissions were as follows: 1. Section 13.1 of the 2016 Act precluded Mr Carver from establishing title against the Crown in relation to the Land (PJ[61]). 2. Mr Carver failed to establish when the PO came to an end and even though some of the departmental records reflected an intention to terminate it, there was no evidence of an actual termination prior to 2009 (PJ[62]). 3. Mr Hood's letter dated 6 August 1981 seeking information about his mother's occupancy of the Land was, if anything, inimical to him having animus possidendi and, more importantly, rent continued to be paid to, and accepted by, the Crown, which did nothing formally to terminate the PO or evict the occupants (PJ[63] and [64]). 4. Consistently with his affidavit evidence, Mr Carver paid rent to Mrs Hood, which is destructive of him having animus possidendi (PJ[65]). 5. Similarly destructive of Mr Carver's animus possidendi was the evidence of his several written requests to the Department in the period 16 October 2013 to 23 January 2020 for a licence or regularisation of his occupancy (PJ[66]).

(d) Summary of grounds of appeal and notice of contention

Grounds 7 and 11 were not pressed. The remaining 10 grounds of appeal were directed to the issues briefly summarised above. Grounds 2, 3 and 4 raised issues of statutory construction. Grounds 1, 5 and 6 raised issues concerning claimed adverse possession by Mr and Mrs Hood, while grounds 8, 9 and 10 raised separate issues regarding Mr Carver's claim of adverse possession relating to his personal occupation of Cottage H. Ground 12, which was expressed in the alternative, sought additional time for Mr Carver to give up possession of Cottage H if his appeal was unsuccessful.
The respondent's position is that s 13.1(1) of the 2016 Act operates such that the limitation period could not run for the purposes of s 38(4) of the Limitation Act, a construction which it contends is consistent with s 65(1) of the Limitation Act. It argues that s 13.1(3)(b) preserves the title to any land referred to in s 170(5) of the 1989 Act, which in turn reveals an intention that the operation of s 27 of the Limitation Act be limited in relation to reserved land.
The respondent also filed a notice of contention which was directed to the question of whether Mr Carver had animus possidendi at any time. The respondent claimed that the primary judge ought also to have found that Mr Carver's requests for a permissive occupancy or licence from the Crown made on 27 May 2010, 16 October 2013 and/or 4 December 2013 confirmed the Crown's cause of action within the meaning of s 54 of the Limitation Act, which meant that the applicable period under the Limitation Act had not expired as at 23 December 2021 (when the respondent filed its summons).
Section 54 relevantly provides: 54 Confirmation (1) Where, after a limitation period fixed by or under this Act for a cause of action commences to run but before the expiration of the limitation period, a person against whom (either solely or with other persons) the cause of action lies confirms the cause of action, the time during which the limitation period runs before the date of the confirmation does not count in the reckoning of the limitation period for an action on the cause of action by a person having the benefit of the confirmation against a person bound by the confirmation. (2) For the purposes of this section - (a) a person confirms a cause of action if, but only if, the person - (i) acknowledges, to a person having (either solely or with other persons) the cause of action, the right or title of the person to whom the acknowledgment is made, or (ii) makes, to a person having (either solely or with other persons) the cause of action, a payment in respect of the right or title of the person to whom the payment is made, ... (4) An acknowledgment for the purposes of this section must be in writing and signed by the maker. (5) For the purposes of this section a person has the benefit of a confirmation if, but only if, the confirmation is made to the person or to a person through whom the person claims. (6) For the purposes of this section a person is bound by a confirmation if, but only if - (a) the person is a maker of the confirmation, …

(e) Consideration and disposition of appeal

I shall address the grounds of appeal by reference to the four categories described above.

(i) Statutory construction (grounds 2, 3 and 4)

These grounds are as follows: 2. The primary judge erred in concluding that secs 27, 38 and 65 of the Limitation Act 1969 had the combined effect that when the limitation period expires the title of the person against whom the cause of action formerly lay was extinguished. 55. It is the cause of action that is then extinguished - not the title of the Crown. In this regard, see sec 13.1(1)(b). [51] 3. The primary judge erred in giving possession of the land to the respondent because the appellant could not establish title to the land against the Crown. [61]. The cause of action to recover possession of the land was barred by sec 27(1) of the Limitation Act 1969. 4. The primary judge erred in finding that if the cause of action for possession of the land could not be maintained then the effect would be that the appellant would have title to the land. [61] The Crown and the State of New South Wales is not a person within the meaning of that word in the Limitation Act 1969. Notwithstanding that the cause of action to recover possession of the land from the appellant was statute barred the land remained Crown Land. Sec 13.1(1)(b) of the Crown Land Management Act 2016.
The terms of ss 27(1) and 38 of the Limitation Act are set out respectively at [35] and [36] above.
In brief, Mr Carver's contentions in support of his primary claim that the Crown's action to recover possession of the Land was time barred are as follows.
First, ss 27(1) and 38 are to be read together. Under s 27(1) of the Limitation Act, the Land was first in adverse possession from June 1980 when Mr and Mrs Hood took up occupation and their adverse possession remained until around 1996 when Mr Carver took over occupation, or, alternatively, if Mr Carver is considered to have been paying rent to Mr or Mrs Hood, the Hoods remained in adverse possession during this period and Mr Carver commenced adverse possession after the rent payments ceased. Under s 27(1), the Crown's cause of action to recover the Land first accrued in June 1980 against Mr Hood, but it took no action at that time. This is also the date the cause of action to recover possession of the Land against Mr Carver accrued.
Secondly, Mr Carver does not claim he has any title to the Land. Rather, he contends that the adverse possession on which he relies (i.e., both that of the Hoods and himself, over a period which totals more than 30 years) is a shield to the Crown's claim for possession. He asserts that the Crown, although it retains its title to the Land, lost its right to recover the Land in June 2010, which is 30 years after he says that the Crown's cause of action first accrued in June 1980. He contends that this "shield" constitutes an "interest" in the Land and that it is open to the Crown to acquire his "interest" in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).
Thirdly, having regard to s 8(1)(b) of the Limitation Act, nothing in that legislation affects the operation of s 13.1 of the 2016 Act (see [33] above). Thus, Mr Carver claims that s 65 of the Limitation Act (which might otherwise have operated to extinguish the Crown's title to the Land) did not affect s 13.1 of the 2016 Act. It is argued that the primary judge erred in his analysis at PJ[61] (footnote omitted): By s 13.1 of the 2016 Act, Mr Carver cannot establish title against the Crown in respect of the land on which the Cottage stands. If Mr Carver's contention that the Crown is statute barred was upheld, the consequence by virtue of s 65 of the Limitation Act, would be that he would establish title to the land. This is precluded by s 13.1.
The claimed error is that the primary judge overlooked s 13.1 despite the fact that it is unaffected by the Limitation Act (see s 8(1)(b)).
For the following reasons, I do not accept Mr Carver's contentions in support of grounds 2, 3 and 4.
It should be noted at the outset that, on appeal, there was a discernible shift in emphasis in the presentation of Mr Carver's case on statutory construction compared with the proceeding below. In particular, as pleaded in [11] of the further amended defence dated 24 April 2023, Mr Carver resisted the Crown's action to recover the Land on the basis of an asserted adverse possession by inter alia Mrs Hood from prior to 23 December 1991 (i.e., 30 years preceding the filing of the summons) and subsequently by Mr Carver's own occupation of the Land. He claimed that this had the effect of extinguishing the Crown's title to the Land. Furthermore, Mr Carver pleaded in defence to the Crown's claim for possession that the PO for the Land had been terminated by the end of 1984 and was not regranted (see [6(d)] of the further amended defence).
Senior counsel for the respondent correctly pointed out on appeal that, once Mr Carver adopted the defence to the Crown's right to possession through ss 27(1) and 38 of the Limitation Act, the necessary endpoint is that s 65 operates to extinguish the title to the Land. But that outcome is contrary to the explicit terms of s 13.1 of the 2016 Act, whose continuing operation is explicitly preserved by s 8(1)(b) of the Limitation Act.
There is no dispute that the Land is reserved land within the meaning of s 13.1(a)(iii). Importantly, it is made clear in s 13.1(3) that that section does not affect "the title to any land referred to in section 170(5) of the Crown Lands Act 1989 immediately before the Act's repeal". Sub-section 170(5) (which is set out at [32] above) provides that the limitation on acquisition of title by adverse possession in relation to certain Crown land does not affect the title to any land reserved in a Crown grant which the Crown was debarred from recovering by operation of the Limitation Act at the date of assent of the Crown Lands (Amendment) Act 1931 (NSW).
Thus, there was a specific prohibition which prevented the limitation period running in Mr Carver's favour which had the effect of precluding him from relying on adverse possession within the meaning of s 38(4)(a) of the Limitation Act. "Adverse possession" is defined for the purpose of that provision as "possession by a person in whose favour the limitation period can run" (emphasis added). As the respondent correctly pointed out in its outline of written submissions at [40]-[41] (footnotes omitted): Section 13.1(3)(b) of the 2016 Act preserves the title to any land referred to in s 170(5) of the 1989 Act. The wording of s 170(5) of the 1989 Act shows an intention that the operation of s 27 of the Limitation Act be limited in relation to reserved land (such as the land on which Cottage H stood) which the Crown had been debarred from recovering at the date of assent to the Crown Lands (Amendment) Act 1931 (NSW). Any argument that relies upon ss 27 and 65 of the Limitation Act 1969 in relation to Cottage H would thus be limited in operation to those causes of action debarred as at 2 October 1931. The effect of these provisions seems to evince a continuing legislative intention that, with the exception of extant adverse possession claims on reserved land at the date of the commencement of the Crown Lands (Amendment) Act 1931 (NSW), no further claims for adverse possession over reserved land could be made against the Crown. The Hansard for the Second Reading Speech for the Crown Lands (Amendment) Act Bill [year] (NSW) contains the following statement: It…limits the acquisition of titles to certain classes of land by virtue of adverse possession. It has been found that throughout the State attempts have been made in this way by persons to acquire larger holdings than they are legally or justly entitled to.
On appeal, Mr Carver attempted to avoid the operation and effect of these somewhat complex intertwined statutory provisions by contending that s 65 of the Limitation Act does not apply to extinguish the Crown's title to the Land, but has a more confined operation which extinguished the Crown's right to possession of the Land as against Mr Carver individually (as opposed to the world at large). Senior counsel for Mr Carver contended that Mr Carver's "interest" in the Land (which was not an interest in the nature of any title to the Land) is supported by Steward J's judgment in Price v Spoor (2021) 270 CLR 450; [2021] HCA 20.
For the following reasons, I do not accept this alternative formulation of Mr Carver's case. First, as senior counsel for the respondent correctly pointed out, this so-called "interest" by Mr Carver is not known to law and is inconsistent with the legislative regime, as explained above.
Secondly, I do not accept that Steward J's judgment in Price supports Mr Carver. Price raised various provisions of the Limitations of Actions Act 1974 (Qld), including ss 13 and 24 thereof (which are broadly similar to ss 27 and 65 of the NSW legislation). The issue in Price arose in the context of two mortgages which had been given in 1998. They each contained a clause which provided that the mortgagors covenanted with the mortgagee to exclude provisions of all statutes which had a specified effect and operation, including the Limitation of Actions Act. The mortgagee's successors in title commenced proceedings in the Supreme Court of Queensland in 2017 after the loan was not fully repaid by the due date of 2 July 2000. The mortgagors pleaded as a defence that the mortgagee's claims were statute-barred (there being a 12 year limitation period for an action for the recovery of land).
Kiefel CJ and Edelman J published a joint judgment dismissing the appeal brought by the mortgagors, as did Gageler and Gordon JJ in a separate joint judgment.
Although Steward J agreed that the appeal should be dismissed substantially for the reasons given in those two separate joint judgments, his Honour said at [52] that he wished to express his own reasons. One section of those reasons relates to the effect and operation of ss 13 and 24 of the Limitation of Actions Act. At [114], his Honour said it was important to identify precisely what s 24 extinguishes. His Honour referred to Lord Radcliffe's speech in Fairweather v St Marylebone Property Co Ltd [1963] AC 510, where it was said that provisions like s 24 extinguished no more than "the title of the dispossessed against the dispossessor", concluding that whatever "title" is extinguished is not extinguished against the whole world but only against the dispossessor.
His Honour noted at [115] that the mortgages were registered over Torrens land, with the consequence that the "title" held by the mortgagees which was capable of being extinguished by s 24 "is a species of statutory charge, giving them an interest but not an estate in land". Although this did not involve any ownership of the land, his Honour added at [115] that it was not disputed that such an interest was a form of "title". His Honour, referring approvingly at [116] to Keane J's observations in Brisbane City Council v Amos (2019) 266 CLR 593; [2019] HCA 27 at [49], concludes that the reference in s 24 to the phrase "may bring an action to recover land" is not to be read literally, but as a reference to a defendant's ability to plead that a claim is statute-barred.
In a passage relied upon by Mr Carver, Steward J then stated at [118] (footnotes omitted): If no defence of limitation is pleaded for whatever reason, the period within which to bring an action, here for the purposes of s 13 of the Limitation Act, will have never expired. And that is so for the purposes of both ss 13 and 24. Where, however, the defence is successfully pleaded that an action to recover land is statute-barred, the effect of s 13 is that the remedy of recovery of the land is barred, and the further effect of s 24 is that the "title" of the person seeking recovery of the land is "extinguished". Section 24 thus ensures that the issue of "title" is put beyond doubt where s 13 has applied, consistently with the reasons for the original enactment of s 34 of the Real Property Limitation Act 1833 (UK). This conclusion is supported by the fact that s 24 does not extinguish a person's title against the whole world, but only against the dispossessor. Its application is limited to the dispossessor and dispossessed because it is the dispossessor who has the option to plead the defence conferred by s 13, thus triggering a possible application of s 24.
I do not consider that Steward J's judgment provides any support for Mr Carver's case. In particular, the "title" in the subject land in Price held by the mortgagees is of a very different character to the form of "title" held by the Crown here. The Crown's title here is one of radical title and is not merely a species of statutory charge as was the case in Price. Accordingly, Price is distinguishable.
For completeness, it might also be added that, assuming contrary to the above that Steward J's observations provide some support for Mr Carver, it is significant that none of the other four justices expressed any view one way or the other on his Honour's observations. Those observations are not binding on this Court.

(ii) Adverse possession of Mr and Mrs Hood (grounds 1, 5 and 6)

Mr Carver contends that the primary judge erred in not finding that either Mr or Mrs Hood were in adverse possession of the Land from June 1980 until 1996 when Mr Carver took over occupation. Further, he claims that the primary judge erred in finding at PJ[62] that: 1. Mr Carver had not established that Mrs Price's PO ended on her death in 1980; and 2. Mr Hood was not in adverse possession and had paid rent.
For the following reasons, I reject those contentions.
First, his Honour is not shown to have erred in not being satisfied that the relevant PO terminated on the death of Mrs Price rather than at some later time. The terms of the PO are not in evidence. Thus, it is unclear whether the PO was personal to Mrs Price. Departmental records suggest that it continued after the death of Mrs Price - a mere intention to terminate is expressed in various correspondence, including the Department's letters dated 1 March 1978 and February 1981 and memorandum dated 22 July 1999. The records of rent being paid to the Department in respect of that PO up to January 2008 suggest that it was still in existence at least until the "licence account" was terminated in January 2008 - see at [22] above.
Secondly, because on his own case Mr Carver's personal occupation of the Land falls short of the requisite 30 year period, it was essential for him to establish that his occupation followed on immediately from adverse possession by the previous occupants (Mr and Mrs Hood) in order to have a total of 30 years' adverse possession.
Thirdly, Mr Carver has failed to establish any appellable error in the primary judge's finding that the Hoods lacked animus possidendi. The evidence is plain that, by some sort of indulgence, the Hoods remained in occupation of the Land for payment of money to the Crown until at least 1996 on a basis which necessarily acknowledged that the Crown was ultimately entitled to possession of the Land, whether as owner or otherwise. Money was paid, either as a licence fee or rent or an occupation fee, in return for occupation. The records referred to at [21] provided a sufficient basis for the primary judge to find that Mr Carver had not established animus possidendi on the part of the Hoods.
Perhaps the most telling document which contradicts Mr Carver's claim of adverse possession concerning the occupation of the Land by the Hoods is the internal departmental memorandum dated 22 July 1999. As mentioned, it noted Mr Hood as the current occupant of the Land, which is described as "unauthorised". The rent is recorded there as $70 and, in contrast with other cottages in the area, no arrears of rent are recorded. The ongoing payment of rent to the Crown in relation to the ongoing occupation of the Land is inconsistent with the Hoods having the requisite animus possidendi to constitute adverse possession.
Finally, McFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629 at [67]-[69] per Darke J does not assist Mr Carver. Unlike the position here, the person claiming animus possidendi there collected rent but did not then pay rent to the documentary titleholder. As noted above, the departmental records here indicate that the Hoods were not in arrears of rent to the Crown.

(iii) Mr Carver's personal adverse possession (grounds 8, 9 and 10)

Mr Carver claims that the primary judge erred in finding at PJ[65] that he did not have animus possidendi from 1996 because he paid rent to Mrs Hood. He says that those payments were not for rent but were for the purpose of purchasing Cottage H.
Mr Carver also challenges the primary judge's findings that: 1. Mr Carver's attempt to regularise his occupation of the Land was inconsistent with him having animus possidendi (PJ[66]); and 2. Mr Carver's pleading was destructive of his claim of adverse possession (PJ[67]).
For the following reasons, I reject those contentions.
First, as has been explained, for Mr Carver's adverse possession case to succeed, he has to demonstrate appellable error in the primary judge's findings regarding the nature of the Hoods' occupation of the Land, which he has failed to do.
Secondly, and in any event, I would also reject Mr Carver's claims regarding his own individual occupation of the Land from either 1996 or 1997, which are the two dates identified by him as when he first took up occupation. The primary judge was plainly correct to find that Mr Carver did not have the requisite animus possidendi, having regard to the three letters described at [23]-[26] above in which Mr Carver sought to regularise his occupation of the Land.
Thirdly, Phillips v Marrickville Municipal Council [2002] NSWSC 396 does not support Mr Carver's case. Phillips turned very much on its own particular facts. Windeyer J's observations at [20] concerning the significance of an offer to purchase property from the documentary title owner as part of negotiations between the parties claiming entitlement to disputed land were made in the specific context of his Honour rejecting the Council's claim of confirmation under s 54 of the Limitation Act. The observations do not purport to be a statement of general principle regarding the significance of an invitation to the documentary titleholder to regularise an occupier's occupation of disputed land in the context of a claim of adverse possession. In any event, there is a second reason why Phillips does not assist. For Mr Carver to satisfy the 30 year period of adverse possession, he has to establish adverse possession, not only by himself, but also by one or more of the Hoods. For the reasons given above, Mr Carver has failed to establish any such adverse possession on the part of the Hoods; and he makes no submission that the observations in Phillips had any application to the Hoods so as to warrant a finding of adverse possession by them.
Fourthly, as to the payments made by Mr Carver to Mrs Hood, no appellable error has been established in respect of the primary judge's preference for Mr Carver's affidavit evidence in which he said that he had paid rent for at least a year to Mrs Hood, notwithstanding Mr Carver's subsequent oral evidence that these payments were instalments to purchase Cottage H.
Finally, Mr Carver's challenge to the primary judge's finding at PJ[67] that Mr Carver's own pleading was destructive of his claim of adverse possession is also rejected. The primary judge was correct to regard [13] of the further amended defence, as verified by Mr Carver, as an acknowledgment by Mr Carver of the Crown's title, which is inconsistent with his assertion that he had the requisite possessory intent.

(iv) Request for additional time to vacate occupation of Cottage H (ground 12)

As noted above, the effect of the orders below was that Mr Carver would have at least six weeks from the date of the orders (14 July 2023) to vacate the Land. If his appeal failed, Mr Carver sought more time before a writ for possession issued.
For the following reasons, and with one minor exception, I would not interfere with those orders. First, Mr Carver has not established any error of the kind in House v The King (1936) 55 CLR 499; [1936] HCA 40 in respect of the primary judge's exercise of discretion on this issue.
Secondly, as the respondent correctly pointed out, further steps will need to be taken for the necessary writ for possession to issue. Mr Carver will have an adequate opportunity to raise any issues of timing and hardship at that point. There is no justification for extending the six week period in order 3 dated 14 July 2023, save that the date for the commencement of that six week period should be changed from 14 July 2023 to the date of this Court's orders.

(e) Conclusion

In the result, the appeal should be dismissed, with costs. There is no need to determine the notice of contention. The following orders should be made: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs in this Court including the appellant's notice of motion filed 21 August 2023. 3. Vary order (3) made by Hammerschlag CJ in Eq on 14 July 2023 such that the order, relevantly, provide: "The writ is to lie in the Registry for not less than 42 days from the date of the judgment of the Court of Appeal.".

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2024

Crown Lands Act 1989(NSW)s 170

Crown Lands (Amendment) Act 1931(NSW)

Crown Lands Consolidation Act 1913(NSW)s 136K

Limitations of Actions Act 1974(Qld)ss 13

Crown Land (Amendment) Act 1931(NSW)

Limitation Act 1969(NSW)ss 8, 27, 38, 54, 65, sch

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