Cooper v McLennan

Supreme Court of NSW|2022-11-02|Before: Henry J

JUDGMENT

These proceedings concern three small parcels of rural land located in Nymboida, a town located in the Northern Rivers region of New South Wales, being Lots 1, 2 and 3 in Deposited Plan 127352 in auto consol folio 10832-80 (Lots).
The plaintiff, John Cooper, is the registered proprietor of the Lots.
The defendant, Tony McLennan, is the registered proprietor of two rural properties, known as Wards Creek and Sunnyside, that surround the Lots.
The plaintiff commenced these proceedings in response to the defendant's application to the Registrar General under s 45D(1) of the Real Property Act 1900 (NSW) (Real Property Act) to be recorded as the proprietor of the Lots, the Registrar General having given notice of its intention to grant the application. The defendant claims to be entitled to possessory title to the Lots, based on possession taken in September 1996, soon after his father and brother acquired the Wards Creek property that has been maintained adverse to the plaintiff since that time. The defendant contends that the plaintiff and his brother received title to the Lots in 1997 as a result of an error in the administration of his father's deceased estate in respect of the Wards Creek property.
By his summons filed on 22 February 2022, the plaintiff seeks declarations that the defendant has not been in possession of the Lots and has no entitlement to be recorded as registered proprietor of them and, in the alternative, that the plaintiff's title to the Lots has not been extinguished pursuant to s 45D(2)(b) of the Real Property Act. The plaintiff's primary position is that he consented to the defendant's family using the Lots to graze cattle in and from 1996. He also claims there has not been the requisite possession of the Lots by the defendant to the exclusion of the plaintiff at all, let alone for a period of more than 12 years.

Factual background and summary of evidence

The plaintiff read four affidavits: an affidavit from himself; affidavits from each of his sons, Shea Cooper and Jed Cooper; and an affidavit from a friend who had a property at Nymboida, Heyden Lane. The plaintiff, his sons and Mr Lane were each cross-examined.
The defendant read five affidavits, including one from himself and one from his brother, Hilton McLennan, who was a co-owner of the Wards Creek property between 1996 and 2012. The defendant and his brother were cross-examined.
The defendant also read affidavits from Clive Eggins and Ivan Connor, who were two of the executors of the estate of the plaintiff's father, the late Mervyn (Peter) Ellis, and from James O'Donohue, a Registered Surveyor, who prepared a plan of survey of the Lots dated 12 February 2021. These witnesses were not required for cross-examination.
As will appear, there are factual disputes about conversations that are alleged to have occurred in 1996, 2008 and 2010 (including with the plaintiff and the defendant's father, the late Leon McLennan) and the extent to which the plaintiff and his invitees have used the Lots.
The following facts are based on the affidavit, oral and documentary evidence. In assessing the evidence and making my findings, I have had regard to my notes taken during the hearing, the transcript and the submissions of the parties. Unless otherwise indicated, I am satisfied of the following matters.

The Lots and surrounding land

The picture below (an amended version of Exhibit E) shows the locations of the Lots (shaded in yellow) and the surrounding land, including the properties owned by the defendant, Wards Creek (marked in pink) and Sunnyside (marked in red), as well as Armidale Road (which runs between the Lots) and the Nymboida River (marked in blue).
The Lots total approximately 1.366 hectares in size (3.38 acres).
Lot 1 runs in an easterly direction from Armidale Road towards the Nymboida River. It is approximately 0.7 hectares in size, 370 metres long and 30 metres wide. There is a dam located at the western end of Lot 1 and low marshy land to the east of the dam which extends to the south, into Lot 7 in Deposited Plan 752839 (Lot 7), which is part of the Wards Creek property owned by the defendant. As depicted on the picture, the eastern boundary of Lot 1 ends approximately 100 metres from the Nymboida River.
Lot 2 is located on the eastern side of Armidale Road and is approximately 0.43 hectares in size, 100 metres long and 53 metres wide.
Lot 3 is located on the western side of Armidale Road and is approximately 0.28 hectares in size, 100 metres long and 36 metres wide.
The Lots are rural grassed pastures. There are no structures or improvements on them.
Other than old post and wire fencing along each side of Armidale Road and part of the northern boundary between Lot 3 and Sunnyside, the Lots are unfenced and wholly enclosed by the Wards Creek and Sunnyside properties. There are gates located in the fencing along Armidale Road near the north-western corner of Lot 2 and the north-eastern corner that provide access to those Lots. There is no gate access to Lot 1 from Armidale Road.

Ownership of the Lots and the Wards Creek property

Prior to his death in April 1994, the plaintiff's father, the late Mervyn Ellis, owned various properties in the Nymboida region which he utilised as part of his beef cattle operations. The properties included Wards Creek and another property located about 5 kilometres north of Wards Creek, known as Nymboida Homestead.
It is unclear on the evidence when Mr Ellis became the registered proprietor of the Wards Creek property. It is agreed that Mr Ellis was the registered proprietor of the Lots since February 1967, when his ownership was gazetted (Exhibit F). The Lots appear to have come under the provisions of the Real Property Act by plan registered on 25 March 1994.
Mr Ellis left a will dated 4 February 1994 (Will) which devised his estate as follows: his "property known as Wards Creek comprising in area approximately 520 acres (210.4 hectares)" to his nephew, Richard Cutler; various monetary bequests to named beneficiaries; and the residue to his sons, the plaintiff and Phillip Cooper in equal shares as tenants in common.
Probate of the Will was granted on 4 July 1994 to the executors named under the Will, Mr Eggins, Mr Connor and Colin Munro (together, the Executors).
On 2 May 1994, a valuation of Mr Ellis' property was prepared by Michael Moy, a Registered Valuer, as at 26 April 1994, for the probate application (Valuation Report). The Valuation Report identified four separate parcels of land in Mr Ellis' estate that were utilised by the beef cattle enterprise, which included: 1. "Nymboida Homestead", situated immediately across from the Nymboida River, totalling 2442 acres (989 hectares) and valued at $975,000. This land was said to comprise 15 lots, closed roads and portions (or part portions) of land, one of which was described as "Closed Road… 3 [acres] 1 rood 20 perches". At the hearing, the defendant accepted that this "Closed Road" was a reference to the Lots in the plaintiff's name now (T168.39); and 2. "Wards Creek Paddock", situated some three kilometres west of the other Nymboida properties, divided by the Grafton-Armidale Road and with frontage to the Nymboida River but no river flats. This property totalled 519 acres (210 hectares), was valued at $200,000 and comprised six portions of land (portions 31, 32, 42, 40, 7 and 46).
The Valuation Report included a map, which is reproduced below, that identifies the Nymboida Homestead property (marked in red), the Wards Creek property to the south of Nymboida (marked in blue) and another property, Rifle Range Paddock to the east of Nymboida Homestead (also marked in blue) and the Nymboida River. The plaintiff accepts that, as depicted on the Valuation Report map, the Lots are within the boundary of the Wards Creek property and not within the Nymboida Homestead property.
The Inventory of Property prepared for probate identified five groups of real estate, some of which appear to be based on the groups in the Valuation Report. The first group identifies land by reference to 15 certificates of title and was valued at $975,000. The third group, valued at $200,000, identifies the land by reference to six certificates of title. It is common ground that the first group relates to the Nymboida Homestead property, the third group relates to the Wards Creek property and the Lots (comprised in certificate of title Volume 10832 Folio 80) are included as part of the first group. The defendant submits that this was a mistake and the Lots should have been included in the third group relating to the Wards Creek property.
Mr Ellis' estate was the subject of proceedings involving family provision claims that were heard concurrently by McLelland CJ in Eq (FPA Proceedings).
An affidavit of estate assets filed by the Executors in the FPA Proceedings on 30 June 1995 (Executor's Affidavit) identified the Nymboida Homestead as comprising land by reference to the same 15 certificates of title listed in the Inventory of Property, thus including the certificate of title for the Lots, and also identified the Wards Creek property as the land by reference to the same six certificates of title listed in the Inventory of Property.
On 23 October 1995, McLelland CJ in Eq gave judgment in the FPA Proceedings. His Honour's reasons record that agreement had been reached in relation to all but one of the family provision claims. His Honour approved additional legacies to two claimants and upheld the claim for provision by the other claimant, Ms Fujikake. His Honour held that the bequests of the Wards Creek property to Mr Cutler and the monetary legacies should be maintained, the burden of provision should be borne by the plaintiff and Phillip Cooper and the plaintiff and Phillip Cooper should receive the Nymboida Homestead property together with all plant and equipment and cattle as tenants in common rather than the residue.
On 16 November 1995, the Court made an order, which was amended on 14 December 1995, which provided that in lieu of the provision under Mr Ellis' Will, the plaintiff and Phillip Cooper were to receive in equal share as tenants in common "the Nymboida Homestead property (comprising 989 hectares)" together with breeding cows, cattle and plant and equipment. No certificate of title or other land details were included in the orders to identify the Nymboida Homestead property.
On or about 15 December 1995, by transmission application 2259243, the Executors transferred to Mr Cutler title to the six parcels of land identified as the Wards Creek property in the Executors Affidavit and Inventory of Property, which were then known by title reference as lots 7, 31, 32, 40, 42 and 46 in Deposited Plan 752839 (Wards Creek Titles).
On or about 26 July 1996, by transfer dealing 2355315, the Wards Creek Titles were transferred from Mr Cutler to Leon and Hilton McLennan as tenants in common in equal shares in accordance with a contract for sale that had been entered into by those parties on 24 July 1996 for the price of $190,000.
Hilton McLennan gave evidence, which I accept, that: 1. the Wards Creek property was a strategic purchase by he and Leon McLennan as it joined Sunnyside with another property they owned, known as Gordon's Block, which is located to the south of Wards Creek. Leon and Hilton McLennan had inherited the Sunnyside and Gordon's Block properties in 1980 and used them to graze cattle; 2. Hilton McLennan and his mother negotiated the purchase of the Wards Creek property with Mr Cutler; and 3. at the time of the Wards Creek purchase from Mr Cutler, he was unaware that there was any property between Wards Creek and Sunnyside that was not in the ownership of Mr Cutler and believed that he and Leon McLennan had acquired all of the land to the south of Sunnyside.
In September 1996, the defendant moved to live at the Sunnyside property. From that time, the defendant was responsible for all aspects of the management of Sunnyside, Wards Creek and Gordon's Block as cattle grazing properties.
It is common ground that the defendant used the Lots to graze cattle owned by Leon McLennan (and by the defendant subsequently) and carried out pasture improvement works for that purpose. The works undertaken by the defendant are detailed later in these reasons. The defendant says the Lots were occupied and worked by him from September 1996 as he believed that the Lots belonged to his family from the purchase of Wards Creek in 1996.
The plaintiff contends that Leon McLennan knew that the Lots belonged to the plaintiff. The plaintiff deposed that, sometime in 1996, he had a conversation with Leon McLennan in which he allowed Leon McLennan to use "his blocks" for grazing cattle and, from that point onwards, he was quite happy to allow him to run his cattle on his land. The defendant takes issue with the plaintiff's evidence about the conversation and alleged consent. For the reasons set out at [102]-[134] below, I am not satisfied on the balance of probabilities that such a conversation occurred.
On or about 27 June 1997, by transmission application 3246322, the Executors transferred title to the 15 parcels of land identified as the Nymboida Homestead in the Executor's Affidavit and the Inventory of Property (which relevantly included title to the Lots) to the plaintiff and Phillip Cooper as tenants in common in equal shares. It is common ground that, from this time, the plaintiff and/or Phillip Cooper paid the council land rates for the Lots as part of the amalgamated titles transferred to them from Mr Ellis' estate.
Leon McLennan died on 3 March 2005. Under Leon McLennan's will, the defendant inherited his father's interest in the Wards Creek, Sunnyside and Gordon's Block properties.
On or about 21 February 2006, by transfer dealing AC171749C (Exhibit G), title to those properties was transferred to the defendant and he became registered as a tenant in common in equal shares with Hilton McLennan in respect of those properties.
The plaintiff deposed that, after Leon McLennan died, he did not see any need to change the arrangement he had about grazing cattle on his land, he was happy for it to continue and he was aware that Leon McLennan's sons would inherit the property. He also gave evidence that neither of them lived in the area at the time. This is not correct as the defendant had been living at Sunnyside since September 1996.

2008: Defendant corresponds with lawyers for Mr Ellis' estate and plaintiff's lawyers and speaks to plaintiff about the Lots

The defendant deposed that he had no knowledge the Lots were not in his ownership (nor that of his father and brother previously) until a conversation with Phillip Cooper in August 2008 at the Nymboida Coaching Station Inn (Coaching Station), during which Phillip Cooper said words to the effect of "[t]here are some paper roads in your land at Nymboida which belong to John and me. We inherited it from our father. John won't contribute to the rates".
The following week, the defendant engaged solicitors, Pollack Greening & Hampshire, to make enquiries about the matter.
On 26 August 2008, Pollack Greening & Hampshire wrote to the solicitors who represented Mr Ellis' estate, Foott, Law & Co, and asked them to investigate the estate file and advise why the Lots were not transferred to Mr Cutler as part of the Wards Creek property. The letter refers to Phillip Cooper telling the defendant that he and the plaintiff had been paying rates on part of "our clients' abovementioned property, being Lots 1, 2 & 3 in DP127532" and asserts that the defendant and Hilton McLennan (as co-owner) always believed that the Lots would form part of "Wards Creek" and they understood Mr Cutler believed the same.
On 8 October 2008, Foott, Law & Co responded to Pollack Greening & Hampshire by letter which stated that: it appeared that the Lots (referred to as "enclosed road") were "not identified as being included in the property known as "Wards Creek"" and "were transmitted along with other parcels to the residuary beneficiaries, Phillip Cooper and John Cooper, in error"; Foott, Law & Co had previously contacted the plaintiff and Phillip Cooper regarding the matter; no response had been received from the plaintiff but Phillip Cooper had indicated that he would be prepared to join in a transfer of the subject land to the defendant and Hilton McLennan; and contact should be made with the plaintiff and Phillip Cooper directly.
On 18 November 2008, Pollack Greening & Hampshire sent letters to the plaintiff and Phillip Cooper in relation to the Lots. The letters are in the same terms and assert that the Lots formed part of the Wards Creek property that was devised to Mr Cutler and were erroneously transferred to them; request that they "place this matter in order" by having the Lots transferred to the defendant and Hilton McLennan as the current owners of the Wards Creek property; and confirm that the defendant and Hilton McLennan were happy to reimburse on an area basis for any council rates and charges previously paid and would bear all costs and stamp duty associated with the transfer.
Sometime in 2008, the plaintiff and the defendant saw each other at the Coaching Station. It is common ground that they had a discussion about the Lots although they have different versions of what was said.
The plaintiff says that the defendant (who the plaintiff refers to as "Choko") approached him and they had a conversation to the following effect: Defendant: You know those blocks at Wards creek they belong to Wards Creek and they are mine, it's a mistake that they have your name on it. Plaintiff: Choko you know they're mine mate, I will be keeping them. I don't care about you continuing to run the cattle there, I told your dad he could do that and I'm happy for you to keep the cattle grazing there, I'm going to keep using my land like I have been to access the river.
The defendant says that the plaintiff approached him and said words to the following effect: Plaintiff: I own the paper roads on the Wards Creek property. Peter left them to me so I could access the river from there Plaintiff: They're mine and I'll be keeping them. There is nothing you can do about it. Defendant: Ok maybe we will end up in Court.

2009: Further correspondence between lawyers

On 16 April 2009, Foott, Law & Co sent a letter to the defendant's solicitors, Pollack Greening & Hampshire, which refers to a conversation of 8 April 2008 (sic: should be 2009), the details of which are not in evidence. The letter confirmed that: Foott, Law & Co had acted for Mr Ellis' estate; according to their file, the Wards Creek Titles were transferred to Mr Cutler and totalled 519 acres (210.03 hectares); they had received advice that the successors in title to Mr Cutler were making a claim to other land devised to the plaintiff and Phillip Cooper; and it was their opinion that "having regard to the actual terms of the Will the only avenue open to your clients is to negotiate a purchase from the Cooper brothers".
Around this time, Pollack Greening & Hampshire contacted Thompson Wheelahan and Hampshire, solicitors that the plaintiff had retained, after receiving the letter at [47] above.
In a letter dated 22 April 2009 sent in response to Thompson Wheelahan and Hampshire's request for background to the claim that the Lots should be transferred to the defendant and Hilton McLennan, Pollack Greening & Hampshire, acting on behalf of the defendant and Hilton McLennan: asserted that the Lots were transmitted to the plaintiff and Phillip Cooper as residuary beneficiaries "in error" and enclosed a copy of Foott, Law & Co's letter dated 8 October 2008; noted that they were holding a transfer in relation to the Lots executed by Phillip Cooper, who had acknowledged that the defendant and Hilton McLennan were entitled to the land; and referred to Phillip Cooper advising that, although the final transfer of the property to he and the plaintiff did not take place until three years after Mr Ellis' death, "they have been aware of the mistake since 1997 when he and [the plaintiff] divided their properties".
On 7 August 2009, Thompson Wheelahan and Hampshire, acting for the plaintiff, sent a letter responding to Pollack Greening & Hampshire's 22 April 2009 letter that rejected that a reference to "Wards Creek" in Mr Ellis' Will necessarily included the Lots, advised that the plaintiff would be happy to consider an offer to purchase the Lots by the defendant and Hilton McLennan and said that any offer should reflect the fact that the plaintiff had paid rates since acquisition and wanted a right-of-way to access the river.
There was no further correspondence between the lawyers. The defendant and Hilton McLennan did not make an offer to purchase the Lots and took no Court action in relation to the Will. The defendant gave evidence that he decided not to pursue legal action at the time as it was clear to him that the Lots had been transferred to the plaintiff and Phillip Cooper erroneously and he found the legal processes too difficult. He says that he continued to treat the Lots as if he owned them because he regarded them as belonging to him and thought it was a mistake made by the solicitor that they were not in his name.
The plaintiff says that, around this time in 2009 or 2010, the defendant approached him at the Coaching Station. The plaintiff cannot recall exactly what was said but says that the conversation was something to the following effect and got quite heated: Defendant: Those blocks there shouldn't belong to you, there was a mistake in your dad's will. I want possession of the blocks and I'll take you to the High Court if I have to, to get you to forfeit the properties to me. I'll take you to court to get those blocks off you. Plaintiff: I am going to build a cabin down there by the river and keep fishing and camping down there and you can't stop me. It's my land. I use the land to access the river and I am going to keep doing just that. As we discussed years back, I always allowed Leon to run his cattle on my land before he died and I told you that you could continue to run cattle on my land after he passed. Defendant: If you build anything there I will knock it down, I will just bulldoze it down. I do not want you on that land at all. Plaintiff: If you want it that badly, just make me an offer to buy and I'll think about it. Defendant: I wouldn't pay what you want. You'd be asking too much so I'm not even interested in making an offer. Plaintiff: Well then we are going to have to put the fence back up and you are going to have to go halves in the cost. Defendant: Bullshit I'm not going to do that.
The defendant denies this conversation. He says that in 2010 he was diagnosed with cancer, underwent surgery and did not attend the Coaching Station that year due to his illness, treatment and subsequent recovery.

2012 and 2014: Further transfers in relation to Wards Creek and the Lots

On 6 July 2012, by transfer dealing AH149848B, the defendant became the sole registered proprietor of the Wards Creek, Sunnyside and Gordon's Block properties following the transfer of Hilton McLennan's interest to him in accordance with a deed of partition dated 21 May 2012.
On or about 10 February 2014, by transfer dealing AI403426Q, the plaintiff became the sole registered proprietor of the Lots with Phillip Cooper having transferred his interest in the Lots to the plaintiff for the stated consideration of $5,000.

2017: Road works

The plaintiff deposed that maintenance and upgrade works were undertaken to Armidale Road in the vicinity of his land where it abuts the road, which he thought occurred in late 2017. He says that when he saw the edge of the road being cut deeper past the access gate he spoke to the workers on the site and told them how it would be much more difficult to access the property from the gate with the road cut so low. The plaintiff deposed that, sometime shortly after the conversation, he observed that a new driveway access had been formed by the workers so that he could continue to access his land from the road after the works were completed.
The defendant says that the conversation deposed to by the plaintiff would not be necessary as the defendant had been told by the council workers that the upgrade works were done based on the engineering plans they had.

2018: Plaintiff puts up a sale sign on Lot 2 gate

Sometime in 2018, the plaintiff erected a piece of corrugated tin on the gate to Lot 2 that displayed (in handwriting) the words "For Sale" alongside the plaintiff's contact number. The plaintiff says that he decided to list the Lots for sale as he wanted to see their worth and possibly realise some capital, he did not want to engage a real estate agent and he received some calls including from Anna Stone.
On 22 May 2018, Heyden Lane sent an email to Clarence Valley Council regarding land he owned at Nymboida and requested a "screen shot of John Coppers (sic) lots 1,2,3 DP 127532". Mr Lane made the enquiries with Clarence Valley Council on behalf of the plaintiff.
Mr Lane has known the plaintiff for about 18 years. He gave evidence that he had known the plaintiff owned the Lots for the last 10 years, that in about 2018 he and his wife were preparing to sell their Nymboida property and the plaintiff indicated that he would also like to sell the Lots, and he was aware that the plaintiff had a homemade "For Sale" sign on the gate along Armidale Road.
On 29 May 2018, the Clarence Valley Council sent an email to Mr Lane that included a screen shot of a diagram of the Lots and some surrounding land and noted the approximate size of the Lots.
On 30 May 2018, Mr Lane forwarded the email he had received from Clarence Valley Council to Anna Stone. The plaintiff gave evidence that Ms Stone had made an enquiry in response to the sale sign and he met her on site and conducted an inspection of the property by showing her the basic outline of the blocks but Ms Stone did not end up making an offer to purchase the Lots.
The corrugated tin sign remains located on the Lot 2 gate but is now illegible. The defendant gave evidence in cross-examination that he took no notice of the "For Sale" sign as he treated it as a "joke" and "ignored it".

2021: Exchange between plaintiff and defendant

Sometime in April or May 2021, the plaintiff and the defendant had a conversation at the Armidale Road gate on Lot 2 while the plaintiff was in his vehicle. It is common ground that this is the only occasion that the plaintiff and the defendant spoke to each other on or near the Lots.
The plaintiff says that the defendant approached him as he was leaving the Lots, having dropped his son and friends at the Nymboida River, and the following words were exchanged: Defendant: Mate I know this is your property but you have been driving all over my paddocks. Plaintiff: I've just dropped my boy and a couple of his mates down to the river I haven't been anywhere near your paddocks. Look back over there at my tracks you can see where I've been. I'll drive across my land whenever I like, It's my land and it's my gate. Defendant: I'm going to teach you a lesson and it's going to cost you a heap of money! Plaintiff: Well that fence will just have to be put back up to where it was, given you just decided to take it down after the flood and move it without consulting me. Just grow up.
The defendant gave a different version of the circumstances of the conversation and what was said. The defendant says that he saw the plaintiff on Lot 7 in his motor vehicle travelling from the south-east in a north-westerly direction towards the Lot 2 gate, the defendant waited at the gate and recognised the plaintiff as the driver as the car approached, and when the plaintiff stopped at the gate they had a conversation to the following effect: Defendant: What are you doing here? Plaintiff: I just dropped my son off down the river. Defendant: You're driving across my land. I am concerned about biosecurity and spreading noxious weed particularly parramatta grass. Plaintiff: Well build a fence.

May 2021 - 2022: Defendant's possessory title application and these proceedings

In May 2021, the defendant lodged an application for possessory title of the Lots with the Registrar General under section 45D(1) of the Real Property Act. The defendant says that he made the application at that time because he wanted to fix up ownership of the Lots and not pass the problem on to his children.
On or about 30 July 2021, the defendant paid the amount of $29.70 to the Clarence Valley Council, being the amount which he attributed to the rates for the Lots up to and including the rate year commencing 1 July 2021. By letter dated 29 September 2021, Clarence Valley Council advised the defendant's solicitors, MJO Legal, that Council was unable to rate the Lots separately and that the payment would be applied towards payment of rates and charges in respect of the annual ordinary rates for PID No. 3855604 relating to the Nymboida Homestead titles in the order in which they became due in accordance with s 568 of the Local Government Act 1993 (NSW).
On 10 November 2021, a notice was published under s 45E(2) of the Real Property Act that the Registrar General intended to grant the defendant's possessory title application unless an objection was lodged in the form of a caveat.
On 21 January 2022, the plaintiff lodged a caveat in objection, the time for lodgement having been extended. The facts relied on by the plaintiff assert that: 1. the plaintiff is and has been in sole and exclusive possession of the Lots since 5 March 2014; 2. the defendant had never been in possession at any time before or after that date or for a period exceeding 12 years; 3. the defendant has never had exclusive possession as the plaintiff has continued to exercise his rights as the registered proprietor including by accessing and enjoying the Lots, allowing invitees onto the Lots and listing the Lots for sale; 4. the defendant has never attempted to prevent or exclude the plaintiff from exercising the rights of a registered proprietor, including by accessing and enjoying the Lots; 5. the defendant has never had physical possession of the Lots as he does not reside, and has not erected any fixtures, upon them; 6. the defendant has been allowed to graze cattle on the Lots however that was, and has been, done pursuant to a licence terminable at will, which was originally granted to Leon McLennan by the plaintiff and Phillip Cooper. Upon the transfer of the Lots to the plaintiff, the plaintiff agreed to allow that licence to remain in operation however he hereby terminates the licence at will and requires the defendant to remove his cattle from the Lots within a reasonable period; and 7. the defendant did not become the sole registered proprietor of the adjoining lots until 6 July 2012 and, at best, it is only after this date that he could commence reckoning of time relevant to s 45D of the Real Property Act.
On 22 February 2022, the plaintiff commenced these proceedings in response to a lapsing notice that had been issued by the defendant. On 25 February 2023, the Court made orders extending the plaintiff's caveat until further order.

Evidence of use of and work to the Lots by defendant

The defendant gave evidence that he has been, or has been directly involved in, grazing cattle on the Wards Creek property (including on the Lots) since Leon and Hilton McLennan acquired it from Mr Cutler in 1996, that Leon McLennan was the only person who grazed cattle from that time until his death in 2005, with the defendant managing that activity on Leon McLennan's behalf, and since the Wards Creek property was purchased in 1996 the defendant has increased the cattle carrying capacity of the property east of Armidale Road (namely, Lots 7 and 34 in Deposited Plan 752839 and Lots 1 and 2), from about 12 to 25 head of cattle.
The defendant also gave evidence about the works he has undertaken to the Lots since September 1996, which can be summarised as follows: 1. removing the overgrown privet bush and loose stone on Lot 1, including using a bulldozer to do so; 2. poisoning the bracken fern, Parramatta grass, rush tussock, giant paspalum and other weeds on the Lots; 3. ploughing Lots 1 and 2 in spring of 1996 and sowing them with millet; 4. reploughing Lots 1 and 2 in autumn 1997 and in the summers of 1997 and 1998; 5. sowing Lots 1 and 2 with rye grass in autumn 1997 and subsequently with Kikuyu grass, Rhodes grass and clover so as to improve the pasture; 6. hand seeding the marshy area on Lot 1 (which is located on the western end of Lot 1) with Kikuyu grass and clover; 7. spraying the Lots for Parramatta grass annually each spring; 8. fertilising the Lots with superphosphate, manure and lime every couple of years; and 9. desilting and rebuilding the dam located on the western end of Lot 1 numerous times since 1996 and most recently in 2015.
I accept the defendant's evidence about those matters. It was not the subject of challenge by the plaintiff and was corroborated by other evidence. The plaintiff accepted that the defendant and his father before him grazed their cattle on the Lots and the defendant had removed privet from the riverbed near Lot 1, sprayed for weeds and replanted grasses. Hilton McLennan gave evidence that the defendant cleared the Wards Creek property pastures of weed infestation, privet bush (particularly near the river), Parramatta grass, Noogoora burr and rush tussock, and treated the land with manure and fertiliser. Mr Eggins gave evidence that the defendant eradicated the privet bush that infested the north-east corner of the Wards Creek property from the fence line with Sunnyside when he started looking after the properties.

Fencing and boundary pegs

The defendant gave evidence, which was not challenged and I accept, that since September 1996 he has undertaken works to maintain the fencing lines along Armidale Road, including realigning them, and has regularly used and maintained the gates in the fencing lines on Lots 2 and 3 to move cattle across Armidale Road.
There was some conflict on the evidence about the location of and works to remove fencing on Lot 1.
The plaintiff's affidavit referred to the defendant and his employees moving the boundary fence between "our lots" around the time of a major flood in 2009, which the plaintiff says he was not consulted about and did not approve of. In cross-examination, the plaintiff also referred to a fence running along the river in a north-south direction.
The defendant gave evidence that there was a fence line that separated Sunnyside from the Wards Creek property, which he used to maintain and replace with his grandfather and his father before September 1996. He says the part of that fence line on the southern side of Sunnyside to the east of Armidale Road was not in line with the boundary of Lot 1 and Sunnyside (describing it as running from the south of the dam towards the Nymboida River and incorporating part of Lot 1 into Sunnyside) and he had been involved in its renewal and repair over the years because it was vulnerable to being washed out by heightened river flows from the Nymboida River. The defendant gave evidence that, after the purchase of the Wards Creek property in 1996, he let that fence fall into disrepair as he thought there was no need to distinguish between those properties anymore and he removed the final remnants of the fence in October 1999 after much of the fence line closest to the Nymboida River had been washed away in a flood.
The plaintiff submitted that the Court should find that, sometime after the acquisition of the Lots, the plaintiff and Phillip Cooper fenced off Lot 1 in a north-south direction where the fence adjoined the riverbed. I do not make that finding. In my view, such a finding is not supported by the plaintiff's evidence-in-chief and submissions, which did not refer to any fencing work carried out by the plaintiff on or in connection with the Lots or his evidence in cross-examination, where he accepted that the fence between Lot 1 and Sunnyside was removed by the defendant in about 1998 (T94.12) and to the effect that the plaintiff and his brother may have installed some fencing along the river in the 1980's (T96.6). I prefer and accept the defendant's evidence about the location, removal and work to the fencing lines.
There are also references in the evidence adduced by the plaintiff to the existence of "boundary" and "surveyor" pegs on the Lots. The plaintiff deposed that he recalled showing Ms Stone his blocks in 2018 by reference to "surveyor pegs" that were in the ground at the time and, in cross-examination, Jed Cooper gave evidence that "there's pegs that denote the boundary", while accepting that there were no fences on the Lots themselves (other than along Armidale Road).
The plaintiff submitted that the Court should find that there are boundary pegs installed on the Lots with which "Shea Cooper appears to be incredibly familiar, to the extent of being able to identify their precise location… allowing the inference to be drawn that he had been told of their location by his father, the plaintiff". I make no such finding and also reject the plaintiff's evidence that there were surveyor pegs on the Lots in 2018. Jed Cooper's evidence about boundary pegs related to the fence line near Armidale Road, not the Lots (T58.16), and Mr O'Donohue's February 2021 survey report states that all original marks on the side boundaries of the adjoining Lots 6, 7 and 31 in Deposited Plan 752839 are gone and there are no reliable marks along the northern boundary of Lot 7.

Evidence of use of the Lots by plaintiff and his invitees

The plaintiff deposed that he crossed "[his] land" to get to the Nymboida River to go fishing and for other recreational purposes with his family and friends.
The plaintiff also gave evidence that he allowed others to access his land. He deposed that: 1. during the last four years or thereabouts, he had allowed a friend, Rick Mockett, to access and cross his property to gain access to the Nymboida River with his family and friends to fish and that Mr Mockett would attend the property several times a year over the summer for fishing; and 2. he had regularly opened up his land to local First Nations people so they could have access to sites along the Nymboida River, he had taken First Nations friends to go turtle diving in the water, amongst other activities, and estimated this occurred on 40 occasions from the mid-1990s.
In cross-examination, the plaintiff was asked about his trips with First Nations people and friends. He gave evidence that: he had been going there with them "[s]ince the blocks have been in my name", which he stated was from since his father died (T145.7-34); they regularly accessed the river bank on his land and the water from "Mickeys Rock" which was located on the other side of the Nymboida River (T133.8-20); and referred to expeditions with the First Nations people that involved travelling over the Clarence Valley region on private and government land that he had "been hundreds of times over the years, I've had - depending on the size of groups or individual people - hundreds of times" (T145.35-146.19).
The plaintiff's sons, Shea and Jed Cooper (22 and 24 years old at the hearing respectively), both gave evidence that they were aware that the land the subject of the proceedings was owned by the plaintiff, the plaintiff had taken them out to the property to go fishing, kayaking and camping along the Nymboida River from when they were young, from around 2010 or 2011, and after they got their provisional licences (at 17 years old) they would take friends out to the property and sometimes camp on the land along the riverbed and have a fire.
Jed Cooper said that on some occasions the plaintiff would drop them off at the property and from there they would kayak the 5 kilometres down the river to the plaintiff's other property and estimated that in the last three years he visited the property four to five weekends over the summer but did not attend the property for fishing during the winter. Shea Cooper could not recall the frequency of the trips and estimated he would have attended about five times a year.
In cross-examination, Shea Cooper gave evidence that he accessed the land via a gate on Armidale Road (which I infer is the gate on Lot 2) and, to get to the river, he would drive in an easterly direction in wet conditions whereas in dry conditions he would drive in a north-easterly direction. Jed Cooper also gave evidence that he entered the property through the gate on Armidale Road (at Lot 2) and said he would generally drive in an easterly direction towards the river.
The plaintiff says that he saw Leon McLennan from time to time as he crossed the land; he rarely, if ever, saw Hilton McLennan on the property; he saw the defendant there in 2021 in the circumstances referred to at [64]-[66] above; and he was not aware of any of his family or friends having been confronted by the defendant whilst crossing his property or during the time that they were at the river. Shea and Jed Cooper also said they had never been approached by the defendant or any person to say that they were trespassing or not allowed to be on the property.
That evidence is generally consistent with the defendant's evidence that he has not seen the plaintiff on the Lots apart from the one occasion referred to at [64]-[66] above, he has never seen anyone else crossing or camping on the Lots or the land close to them and has seen no evidence of campfires being lit. The defendant also says that if he had seen the plaintiff or other people walking on the land, he would have taken it up with them as he is protective of his land due to biosecurity and weed infestation concerns and he would have investigated if he had seen evidence of campfires.
I am satisfied that the evidence supports a finding that the plaintiff has, whether by himself or his invitees (including his sons), accessed Lots 1 and 2 on occasion over the years. There is no evidence that they ever accessed Lot 3.
Overall, in my view, the evidence presented a consistent picture that the plaintiff and his invitees used Lots 1 and 2 to gain access to the Nymboida River and the surrounding river-flat land for recreational activities, such as fishing, camping, kayaking, swimming and diving for turtles, rather than engaging in activities (rural, recreational or otherwise) on the Lots themselves. Jed Cooper said he would camp about 50 metres from the river (T56.45) and Shea Cooper accepted that he would camp about 10 to 20 metres from the river depending on what looked good on the day (T63.20), demonstrating that the camping occurred on the land located between the river and the eastern boundaries of Lot 1 and Lot 7 (as depicted on the diagram at [11] above).
During cross-examination, the plaintiff rejected that when he goes fishing and diving for turtles at the Nymboida River or around the edge of the river all he is doing is walking across the Lots. However, his evidence about his use of the Lots was limited and lacked details. His oral evidence that "I've got my eyes open, looking for other things as well", his land is "kangaroo lots, if you like" and he has observed "[s]ome original timbers… down towards the river end of the paddock" (T146.46-147.15) was vague. Overall, the evidence did not satisfy me that the plaintiff and his invitees have used the Lots continuously and continue to use them for purposes other than to access the Nymboida River and the river-flat land, consistent with the plaintiff's affidavit evidence as set out at [83] above.
I find that the plaintiff and his invitees accessed the gate on and the land in Lot 2 to access the Nymboida River and its surrounds. However, I am not satisfied on the balance of probabilities that the plaintiff or his invitees have regularly accessed Lot 1 for that purpose.
Shea Cooper's evidence in cross-examination that the routes taken from the gate to the river would nearly "black out the area" he marked on Exhibit C (T67.22-32; T68.16) highlighted that most of the routes taken crossed Lot 7 (land owned by the defendant) rather than Lot 1. This was consistent with Jed Cooper's evidence that he would generally drive in an easterly direction towards the river after entering the property from the gate (at Lot 2) and the defendant's evidence that he saw the plaintiff driving from the south-east on Lot 7 in a north-westerly direction towards the gate on Lot 2 in 2021. I also consider it unlikely that the plaintiff and his invitees regularly accessed Lot 1 after accessing Lot 2 by the gate or from the river, having regard to the location of the dam and marshy land on Lot 1 that made vehicle access difficult in those areas, the absence of tyre tracks or routes on the open paddocks for a vehicle or for a person to identify the location of and to follow along Lot 1 (T67.13-35) and the lack of fencing and pegs marking the boundaries of Lots 1 and 2 from the adjacent land in Lot 7.
I am unable to say with any precision how often the plaintiff and his invitees accessed Lots 1 and 2 since 1996. As I have said, the plaintiff's evidence about his use of the Lots lacked detail and his evidence concerning his trips with First Nations persons from the mid-1990's (which, on the plaintiff's evidence, averaged one to two uses per year) was not corroborated by any member of the First Nations groups. His evidence in relation to Mr Mockett, which only related to use from 2018, was also uncorroborated. The absence of any sightings of the plaintiff and his invitees by the defendant and vice versa, other than in 2021, suggests that the access was irregular.
Having considered the totality of the evidence, including the evidence from the plaintiff's sons (which I was given no reason to doubt), I find that during the period from around 2011, the plaintiff and his invitees (including members of his family) may have accessed Lot 2, up to four or five times per year, with less frequent and sporadic access in the years prior and in respect of Lot 1 for the whole period.

Findings in relation to disputed conversations

The main factual dispute relates to the plaintiff's evidence about his conversation with Leon McLennan in 1996. There are also disputes about the conversations with the defendant in 2008 and 2009/2010.
The plaintiff gave evidence that he recalled that, in or around 1996, Richard Cutler transferred ownership of the Wards Creek property to Leon McLennan, who the plaintiff knew as "Digger". The plaintiff deposed that: In about 1996, probably around the time of the transfer by Richard, I had a conversation with Digger when he approached me one day at the property. I obviously cannot recall exactly what was said because it happened so long ago but I can recall the intent of the conversation quite clearly. The words said by us would have been along the following lines: [Leon McLennan]: John, I just purchased Wards Creek of Richard Cutler I didn't realise that my land didn't include your blocks. I would like to buy your land from you. [Plaintiff]: I'm not interested in selling but it's alright Digger, you just run the grass, I just want to maintain possession of the property so I can access the river and go fishing and camping down there with my family and friends. You can run your cattle over the grass that's fine.
In his affidavit, the plaintiff deposed that he was happy to allow Leon McLennan to run the cattle on his land as, to his mind, that was a normal and usual interaction between adjoining landowners in country areas and he did not have any way of keeping the grass under control. He also said that he regarded Leon McLennan as a good mate; he saw Leon McLennan from time to time when he crossed his land to get to the river to go fishing and that whenever he saw Leon McLennan on the property he would "have a yarn to him" although they never really discussed the running of his cows on the property.
The plaintiff submitted that there is no reason not to accept his evidence about his conversation with Leon McLennan. It was submitted that the plaintiff gave his evidence in a candid and forthright manner, engaged with difficult questions in cross-examination and made appropriate concessions. The plaintiff submitted that, to the extent there is any contest, the plaintiff's evidence should be accepted over the defendant's evidence as, in contrast to the plaintiff, the defendant declined to accept relatively simple propositions of fact and instead resorted to his contention as to mistake about the Lots being transferred to the plaintiff. It was also submitted that the plaintiff's evidence was consistent with Hilton McLennan's evidence as to Leon McLennan's knowledge of the plaintiff receiving the Lots from Mr Ellis' estate.
The defendant submitted that the plaintiff's evidence that he consented to Leon McLennan grazing his cattle on the Lots and his evidence of consent in the 2008 and 2009 conversations with the defendant should not be accepted. The defendant described the plaintiff's evidence as uncertain and unreliable and the conversation with Leon McLennan as highly unlikely and contradicted by the documentary evidence and submitted that the Court should be wary of accepting evidence of purported consent based on an alleged oral conversation made some 26 years ago that is uncorroborated.
Having considered the parties' submissions and the evidence, I am not satisfied on the balance of probabilities that the plaintiff had a conversation with Leon McLennan in 1996, or at any other time prior to Leon McLennan's death in 2005, in the terms deposed to by the plaintiff in which the plaintiff consented to Leon McLennan using the Lots to graze cattle or for any other purpose. This is for the following reasons.
First, there is nothing in writing that supports the conversation having taken place in 1996 (or at another time). Nor, in my view, is there any other evidence that corroborates the plaintiff's conversation with Leon McLennan.
There may be no rule that prevents me from accepting the plaintiff's evidence of a conversation which attributes statements to a deceased person and occurred over 26 years ago. However, it is to be treated with caution given the lack of corroboration: Plunket v Bull [1915] VLR 603; (1915) 19 CLR 544; [1915] HCA 14. In view of the frailty of human memory and the plaintiff's obvious self-interest in this case, more weight should be placed on the objective surrounding facts, the inherent probabilities and improbabilities of events and the contemporaneous documents to the extent they are available: Watson v Foxman (1995) 49 NSWLR 315 at 319; and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[31].
Second, in my view, the plaintiff's evidence of the alleged conversation, which he asserts took place "[i]n about 1996… probably around the time of the transfer by [Mr Cutler]" is not consistent with the logic of events and other evidence. This is in the context where Leon McLennan is alleged to have approached the plaintiff to discuss the plaintiff's "blocks" at a time when the Lots were not yet owned by the plaintiff and his brother. The Lots were not transferred to them until the middle of the following year.
The plaintiff's evidence in cross-examination that Leon McLennan would have known in 1996 that the plaintiff was going to receive the Lots because the Court had already made the decision in the FPA Proceedings (T127.9-20) was implausible. Leon McLennan was not a party to the proceedings and the Court orders did not identify the title details to the Lots or the Wards Creek property. The plaintiff's oral evidence about conversations between Mr Cutler and Leon McLennan and between the plaintiff and Mr Cutler concerning the Lots was new and unpersuasive having regard to the evidence given by Hilton McLennan (at [31] above), the defendant (at [39] above) and the Executors (at [124]-[125] below). Further, if Leon McLennan knew that the plaintiff and his brother were to receive the Lots following the Court case, why would Leon McLennan refer to the Lots as the plaintiff's blocks and offer to purchase them from the plaintiff but make no mention of Phillip Cooper's interest during the conversation?
Third, while acknowledging that the plaintiff's oral evidence of the conversation reflected the thrust of his affidavit evidence and he candidly accepted that he could not recall the precise details, there were aspects of the plaintiff's evidence that, in my view, undermined the reliability and credibility of his evidence about the conversation and his evidence more generally.
The plaintiff's oral evidence that the conversation occurred after Leon McLennan approached the plaintiff "at [Leon McLennan's] cattle yards at Sunnyside… another couple of hundred metres down Boundary Creek Road" was inconsistent with his affidavit evidence that Leon McLennan approached him at the "property", namely, the Lots, which the plaintiff explained as a mistake in his affidavit. The plaintiff's oral evidence also included aspects of the conversation that were not dealt with in his affidavit, such as Leon McLennan's suggestion of a number of options, which the plaintiff described as "[p]urchase, pay rates, whatever" (T129.3-16), Leon McLennan's offer just for the plaintiff "to transfer it to him" (T122.1) and Leon McLennan's acceptance of the arrangement by shrugging and saying "okay" in response to the plaintiff indicating that he was not interested in selling (T129.40-130.11).
The plaintiff's affidavit evidence that he considered Leon McLennan to be a good mate and had a "yarn" with him whenever he saw him was undermined and shown to be an exaggeration by his oral evidence that he only saw Leon McLennan two or maybe three times during the period 1996 to 2005, his "yarns" involved saying "g'day, how are you going" and Leon McLennan never told the plaintiff that the defendant was managing the Wards Creek and Sunnyside properties, a matter which the plaintiff accepted he would expect Leon McLennan to tell him during a "yarn" (T132.17). It was also contradicted by the evidence given by the defendant and Hilton McLennan, as set out at [114] and [117] below, which was persuasive.
The plaintiff's responses to questions about whether he knew the Lots were transferred to him and his brother in error in cross-examination were unconvincing. I do not accept the plaintiff's evidence that he knew at the time of the transfers that there were more lots in the Wards Creek area than Mr Cutler had been left with by Mr Ellis' estate based on the valuation or that the Lots were not included in the 519 acres left to Mr Cutler under the Will because the plaintiff had always expressed an interest to his father in keeping them for access and fishing. This is based on the following matters: the location of the Lots relative to the Wards Creek property and the Nymboida land; the plaintiff's acknowledgement in cross-examination that the Lots were within the boundary of the Wards Creek property (T80.21-81.36); and the plaintiff's evidence concerning some previous request to his father in relation to the Lots for river access was not addressed by his affidavit evidence. The plaintiff's evidence also made little sense given that: Lots 2 and 3 did not provide access to the river; according to the Valuation Report and diagram (at [23] above), the river runs past the Nymboida Homestead property; the solicitors' correspondence in 2008 and 2009 referred to the plaintiff and Phillip Cooper learning about the "mistake" in 1997; and Hilton McLennan, the defendant and the Executors gave evidence that they did not know that the transfer of the Wards Creek property to Mr Cutler did not include the Lots and that they were included in the transfer to the plaintiff.
Fourth, the conversation and alleged consent was not mentioned in the solicitors' correspondence in 2009 when the issue regarding the mistake about ownership of the Lots was raised. If, as the plaintiff contends, Leon McLennan had known the Lots were owned by the plaintiff since 1996 and the plaintiff had consented to him using the Lots from that time, it is probable that the plaintiff would have instructed his solicitors to refer to those matters in response to the alleged "mistake", rather than simply referring to the acreage of the Wards Creek property as referred to in the Will. This is particularly as the letter from the defendant's solicitor (at [49] above) referred to Phillip Cooper and the plaintiff being aware of the mistake in the transfer since 1997 and Phillip Cooper having acknowledged that the defendant and Hilton McLennan were entitled to the "subject enclosed roads".
The plaintiff's failure to adduce evidence from Phillip Cooper was also unexplained. It is to be expected that Phillip Cooper could have given evidence about an arrangement to allow others, such as Leon McLennan, to use land that he co-owned and the circumstances in which he became aware that he had title to them. I accept the defendant's submission that an inference may be drawn that Phillip Cooper's evidence would not have assisted the plaintiff, including in relation to the plaintiff's denial that he knew the Lots had been transferred to him (and Phillip Cooper) in error: Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367.
Fifth, I do not accept the plaintiff's submission that the plaintiff's evidence about the conversation is consistent with Hilton McLennan's evidence "as to Leon's knowledge of the plaintiff receiving the lots from the estate" of Mr Ellis.
Hilton McLennan deposed that when Leon McLennan learned that the plaintiff (and his brother) inherited real estate from Mr Ellis' estate, Leon McLennan said words to the effect of "[f]ancy that property going to a lost cause and done nothing to earn it". Hilton McLennan's affidavit evidence did not refer to the plaintiff inheriting the Lots but referred to the "property" and his evidence in cross-examination referred to the plaintiff inheriting "the farm" in general terms (T191.12).
Sixth, in my view, the substance of the alleged conversation is highly unlikely having regard to the objective fact that Hilton and Leon McLennan had bought the Wards Creek property for $190,000, the evidence from Hilton McLennan about the strategic nature of the purchase (at [31(a)] above) and his and the defendant's evidence about Leon McLennan.
Hilton McLennan gave evidence, which I accept, that Leon McLennan never mentioned a conversation in which the plaintiff disclosed that he owned part of the Wards Creek property or gave a licence to graze cattle or have grass rights over land located between Sunnyside and Wards Creek, he never mentioned seeing the plaintiff on the land and, if Leon McLennan had become aware that Hilton and his mother (who had negotiated the purchase from Mr Cutler) had not purchased all of the real estate comprising Wards Creek, he would have expected Leon McLennan to have made a comment to him in a negative way. Hilton McLennan also gave evidence that Mr Cutler never mentioned that there was land between Sunnyside and Wards Creek that was owned by the plaintiff and Phillip Cooper and he did not know that the Lots within the Wards Creek property were owned by the Coopers until the defendant told him well after their father died.
The defendant also gave evidence that Leon McLennan never told him that the plaintiff was the owner of the Lots or that the plaintiff (or anyone else) had given him grazing rights over the Lots or land adjoining Sunnyside or Wards Creek, and never mentioned seeing the plaintiff on the property. The defendant says that Leon McLennan kept a close eye on expenditure relating to the pasture improvement work he did, complained about the cost of diesel and other expenses incurred and would have made it known to the defendant if he thought the defendant was improving someone else's land. The defendant also deposed that he believed Leon McLennan did not regard the plaintiff as a good mate and had a low opinion of him, recalling that Leon McLennan had described the plaintiff as "useless".
The defendant's evidence about these matters and his lack of knowledge that the plaintiff and Phillip Cooper owned the Lots until August 2008 (at [39] above) was credible, supported by Hilton McLennan's evidence and the contemporaneous solicitors' correspondence, and I accept it.
In my view, it is inherently improbable that Leon McLennan would have had a conversation with the plaintiff in which he acknowledged that the plaintiff owned the Lots and offered to purchase them without mentioning those matters to Hilton McLennan or to the defendant, the co-owner and manager of the Wards Creek and Sunnyside properties. It is also inherently improbable that Leon McLennan knew that the Lots were owned by the plaintiff and his brother in 1996 or later when the defendant and Hilton McLennan did not know.
I am not persuaded by the plaintiff's submissions that the plaintiff's evidence should be preferred to the defendant's to the extent there is a contest. The defendant may have referred to the mistake as to title in response to questions put to him in cross-examination (see, for example, T184.31-4) but he did not come across as avoidant of simple propositions of fact or argumentative in cross-examination. Overall, he impressed me as a witness who answered questions directly and firmly, and to the best of his recollection. His oral evidence was also more consistent with his affidavit evidence and more reliable than that of the plaintiff, who advanced a number of matters in cross-examination that were new, uncorroborated and seemed largely self-serving (see, for example, his evidence referred to at [92], [106] and [110] above).
The defendant made appropriate concessions during his oral evidence. He accepted that he did not like the plaintiff, had not spoken to the plaintiff about transferring the Lots and did not approach the plaintiff after seeing the corrugated iron sale sign on the gate in 2008, stating that he ignored the sign as he thought it was ridiculous and a joke (T178.32; T178.26; T185.4-19).
He also accepted that the reference in the Valuation Report to the "Closed Roads" that measured 1.366 hectares was approximately equivalent to the area of the Lots, there was less than half an acre difference between the 210.03 acres that made up the Wards Creek Titles that the defendant inherited from Leon McLennan's estate and the 210.4 hectares figure referencing the Wards Creek property in Mr Ellis' Will and that he was aware from at least 16 April 2009 that the solicitors for Mr Ellis' estate had stated that he had to purchase the Lots from the plaintiff, while maintaining that he considered that there was a mistake in the administration of Mr Ellis' estate which had existed since 1994 and the Lots should have been transferred to Mr Cutler rather than to the plaintiff and his brother.
I am satisfied that the defendant's repeated references in cross-examination to the mistake reflected his firm and genuinely held view that the plaintiff had obtained title to the Lots as a consequence of an error. It is unnecessary for me to make a finding as to whether there was a mistake in fact or at law in relation to the transfer of the Lots as part of the administration of Mr Ellis' estate and I decline to do so. That said, I consider that the defendant's view about that matter was not unreasonably held having regard to the facts set out at [39]-[50] above and the unchallenged evidence given by the Executors.
Mr Eggins, who carted cattle for Mr Ellis from his various properties, including Wards Creek, deposed that: he thought the transmission application of the Wards Creek property to Mr Cutler on 15 December 1995 included all of the land in the Wards Creek locality and was not aware that the Lots had been omitted; had he been aware, he would not have signed the transmission consent until the document had been rectified; and he was not aware that land at Wards Creek (namely, the Lots) was within the description of the land being transmitted to the plaintiff and Phillip Cooper when he signed the transmission application dated 27 June 1997.
Mr Connor, a retired stock inspector who was acquainted with Mr Ellis' real estate, including the Wards Creek property, deposed that the Lots were always regarded as part of the Wards Creek property and never formed part of the land known as the "Homestead Property". He gave evidence that the Lots should have been transmitted to Mr Cutler together with the Wards Creek Titles, he was not aware that the Lots formed part of the transmission application of real estate to the plaintiff and Phillip Cooper and the failure to transmit them to Mr Cutler was an error caused by oversight.
The defendant's oral evidence that he did not take any legal steps to attempt to undo the mistake because "it costs a lot of money to do so" (T181.29), the solicitors "didn't know how to rectify" (T177.40) and he had approached Mr Cutler about giving an affidavit for use in proceedings but he would not do so due to concerns that the defendant might sue him for selling the Wards Creek property without the blocks (T180.2-4) was also credible in my view, noting that the plaintiff contended that the defendant would have no standing in a rectification suit in any event.
As to the conversations between the plaintiff and the defendant at the Coaching Station in 2008 and as alleged by the plaintiff in 2009 or 2010, for the reasons set out above and below, I prefer the defendant's evidence to the extent it conflicts with that of the plaintiff.
I do not accept the plaintiff's submission that his evidence of the 2008 conversation was "more consistent with everything else that was going on at the time". For the reasons set out at [111] above, the solicitors' correspondence does not support the plaintiff's contention that he agreed to the defendant, and Leon McLennan before him, using the plaintiff's Lots for cattle grazing purposes. In my view, the defendant's evidence is more consistent with the correspondence at the time, given that the correspondence raised an assertion of mistaken ownership of the Lots and made no reference to any form of licence, agreement or consent for the defendant to use them. As the plaintiff accepted in cross-examination, the defendant was not agreeing to anything during the conversations at the Coaching Station and asserted that the land was his (T141.26-142.8).
The plaintiff's oral evidence about the conversations was unclear and at odds with his affidavit evidence. When asked about the 2008 conversation, the plaintiff did not accept that his evidence was that he told Leon McLennan that he could graze cattle or that he was happy for the defendant to keep doing so (T140.40-50) and he said, contrary to his affidavit evidence, that he told the defendant that "we'd have to fence it" (T141.27). When asked about the 2009/2010 conversation during cross-examination, the plaintiff said that they never talked about cattle, he could not recall mentioning Leon McLennan and described the conversation as about "fencing more than anything else" with "one bloke" (the defendant) arguing that the Lots were his (T142.8-49).
Accordingly, I reject the plaintiff's evidence that he told the defendant that he had allowed Leon McLennan to run his cattle on the Lots and was happy for the defendant to continue to graze cattle on them in a conversation in 2008 or in a later conversation in 2009 or 2010. I accept the defendant's account of the conversation as set out at [46] above although, based on the correspondence at the time, I consider that it is likely that the defendant also said words to the effect that the Lots did not belong to the plaintiff as there had been a mistake in relation to his father's will, and so find.
I also consider it more likely and find that there was one conversation at the Coaching Station and not two. This is based on my preference for the defendant's evidence and the plaintiff having adduced no corroborative evidence despite referring to a friend who was present at the time.
As to the timing of the conversation, the defendant says it took place after he spoke to Phillip Cooper and had seen his solicitor in August 2008. I am unable to say precisely when the conversation occurred. However, based on the topic of conversation and the solicitors' correspondence (such as the letter from Foott, Law & Co dated 8 October 2008 that referred to sending the plaintiff a copy of the defendant's solicitor's letter dated 26 August 2008, the letter sent to the plaintiff by Pollack Greening & Hampshire dated 18 November 2008 and the letter sent to the plaintiff's solicitor dated 22 April 2009), I find it likely that the conversation would not have occurred before October 2008 and it possibly took place sometime in 2009.
I do not accept the plaintiff's submission that the Court should make a factual finding that the plaintiff made more than one request for the Lots to be separately fenced from the defendant's land. The plaintiff's affidavit evidence of the 2008 conversation made no reference to fencing. Even if I were to accept the plaintiff's evidence of the conversation in 2009 or 2010 (which I do not), the plaintiff talked of putting "the fence back up" which, at that time, presumably related to the old fence along the northern boundary of Lot 1 and Sunnyside that the defendant had removed when it fell into disrepair, rather than fencing to separate the Lots from the adjacent Wards Creek property.
As to the conversation in 2021, there is little disagreement between the parties as to the substance of what was said and they were not cross-examined about it. The plaintiff and defendant both gave evidence that the plaintiff told the defendant that he had dropped his sons to the river, the defendant asserted that the plaintiff had been driving on his paddock and the plaintiff suggested building a fence. The significance of the evidence is that it highlights a factual dispute as to whether the plaintiff drove across Lot 1 from the river to Lot 2, as his evidence suggests when he refers to driving on "my land", or whether he was driving back across Lot 7, as the defendant's evidence contends. For the reasons set out at [120] above, I prefer the defendant's evidence to that of the plaintiff.

Legal principles

Title to land under the Real Property Act cannot be acquired by adverse possession, except pursuant to an application under s 45D of that Act: Sidoti v Hardy (2021) 105 NSWLR 1; (2021) 20 BPR 41,435; [2021] NSWCA 105.
Section 45D of the Real Property Act relevantly provides: 45D Application for title by possession (1) Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and-- (a) the land is a whole parcel of land, (b the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land, and (c) the land is comprised in an ordinary folio of the Register or is comprised in a qualified or limited folio of the Register and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the creation of the qualified or limited folio of the Register, that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land. … (4) A possessory application may not be made in respect of an estate or interest in land if - (a) the registered proprietor of that or any other estate or interest in the land became so registered without fraud and for valuable consideration, and (b) the whole of the period of adverse possession that would be claimed in the application if it were lodged would not have occurred after that proprietor became so registered, unless the application is made on the basis that the estate or interest applied for will be subject to the estate or interest of that registered proprietor if the application is granted.
The Registrar General may grant a possessory application if they are satisfied that they are authorised by s 45D(1) of the Real Property Act and the application is not made in breach of s 45D(4), is in the approved form and is accompanied by such evidence and documents of title as the Registrar General requires. An application may not be granted before notice of the intention to grant the application has been given and the period specified by the notice has expired, which will not be less than one month after the date of the notice given: Real Property Act, s 45E.
Also relevant is s 45C(1) of the Real Property Act which provides: 45C Acquisition of possessory title to land under the Act (1) Except to the extent that statutes of limitation are taken into consideration for the purposes of this Part, no title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute.
The defendant contends that he is entitled to become the registered proprietor of the Lots because the plaintiff's title would have been extinguished by the statute of limitation had those statutes applied to the land, in accordance with s 45D(1)(b) of the Real Property Act.
The Limitation Act 1969 (NSW) (Limitation Act) relevantly provides: 27 General … (2) Subject to subsection (3) an action on a cause of action to recover land is not maintainable by a person other than the Crown if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. (3) Subsection (2) does not apply to an action brought by a person claiming through the Crown and brought on a cause of action which accrues to the Crown. … 28 Accrual - dispossession or discontinuance Where the plaintiff in an action on a cause of action to recover land or a person through whom the plaintiff claims - (a) has been in possession of the land, and (b) while entitled to the land, is dispossessed or discontinues his or her possession, the cause of action accrues on the date of dispossession or discontinuance. … 38 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. … 39 Formal entry and claim For the purposes of this Act - (a) a formal entry on land is not of itself possession or evidence of possession of the land, and (b) a claim upon or near land does not preserve a cause of action to recover the land. … 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. …
In Australian Retirement Holdings Pty Ltd v Higgins in her capacity as adminis of Estate of late Pritchard (2021) 20 BPR 41,633; [2021] NSWSC 1158 (Australian Retirement Holdings v Higgins), Robb J referred to the operation and effect of these provisions at [211], [214]-[217]. In summary: 1. the effect of s 38(1) is that the cause of action to the legal owner for recovering possession accrues, and the limitation period only begins to run, upon the commencement of the adverse possession by the occupier. This is so even if the legal owner had ceased to be in possession by reason of a discontinuance of possession sometime prior to the commencement of the adverse possession; 2. the effect of s 38(2) is that the accrual of the cause of action to the legal owner occurs not when the current occupier commences adverse possession but at the time when the adverse possession of the first occupier in a continuous chain of adverse possession commences. In other words, subsequent occupiers get the benefit of the adverse possession of a predecessor occupier provided that the chain of adverse possession is unbroken; 3. the effect of s 38(3)(a) is that the former adverse possession will have no effect and the limitation period will cease to run if, during the limitation period, the land ceases to be in adverse possession. A new limitation period will begin only if the land comes to be in adverse possession again; 4. it is necessary to look to the common law principles governing adverse possession to determine how the Limitation Act operates as adverse possession is defined in s 38(4)(a) as "possession by a person in whose favour the limitation period can run"; and 5. s 65 and Schedule 4 of the Limitation Act have the effect that the title of a person to land that entitles them to maintain a cause of action for the recovery of land is extinguished on the expiration of the limitation period fixed by that Act, which in this case is 12 years.
The applicable common law principles are referred to by Darke J in Braye v Tarnawskyj (2019) 19 BPR 39,213; [2019] NSWSC 277 (Braye v Tarnawskyj) at [31]-[43] and Robb J in Australian Retirement Holdings v Higgins at [231]-[260], which I respectfully adopt. The following summary draws from those decisions and the other cases cited by the parties in their written submissions: 1. the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession, and in the absence of evidence to the contrary; 2. a person asserting adverse possession must be shown to have both factual possession and the requisite intention to possess. Whether those elements are established is a question of fact; 3. factual possession signifies an appropriate degree of physical control of the land. It must be a single and conclusive possession, although there may be single possession exercised by or on behalf of several persons jointly; 4. what acts constitute a sufficient degree of exclusive physical control depend on the circumstances, in particular, the nature of the land and the manner in which land of that character is commonly used or enjoyed. Broadly, what must be shown to constitute factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might reasonably have been expected to deal with it and that no one else has done so. The question is whether the alleged possessor has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner; 5. the requisite intent to possess is referred to as the animus possidendi. This has been described as an intention to exclude the world at large, so far as is reasonably practicable and so far as the processes of the law will allow. For a person without paper title to establish the requisite intention to possess requires clear and affirmative evidence that they have made such intention clear to the world by their acts and words in relation to the land. If the acts of the claimed possessor are open to more than one interpretation and they have not made it plain by their actions or words that they intended to exclude the owner of the land as best they can, the Court will treat the claimed possessor as not having the requisite intention and consequently as not having dispossessed the owner; 6. as to the intention to possession, the relevant question may not be whether the occupier has done their best to exclude the paper owner, but whether it may be inferred from all of the acts that the occupier intended to exercise custody and control of the land on their own behalf and for their own benefit. Casual acts of trespass, such as occasional grazing of cattle and the gathering of wood and hay, will be insufficient to establish either factual possession or manifest an intention to exclusively possess. The intention that the claimant occupier must have and must manifest is an intention to possess exclusively, not an intention to own. An acknowledgement as to who is the paper owner is not inconsistent with the requisite intent; 7. possession which will cause time to run under the Limitation Act is possession that is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner; 8. the necessity for adverse possession to be open has been described as possession which is sufficiently open and manifest that a person reasonably careful of their interests would, if living in the locality and passing the land from time to time, have reasonably discovered by observation that some person had taken possession of the land having regard to the character and position of the land. One very important circumstance is whether the act of the occupier was such that those who were interested in disputing the ownership would be aware of it; 9. possession is to be distinguished from mere use. A claimant must prove that they were in exclusive possession and that the true owners were out of possession. It is not sufficient to prove that they enjoyed the use of the land in common with the true owners. The possession relied upon must be shown to be adverse to the owner of the paper title, not possession with their permission or consent, express or tacit; and 10. the onus of proving adverse possession lies with the claimant for possessory title, even if the plaintiff is the documentary owner seeking an order for possession or a declaration that the possessory title claimed does not exist. See Powell v McFarlane (1979) 38 P&CR 452 at 470; Allen v Roughley (1955) 94 CLR 98; [1955] ALR 1017; Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475; Shaw v Garbutt (1996) 7 BPR 14,816 (Shaw v Garbutt); McFarland v Gertos (2018) 98 NSWLR 954; (2018) 19 BPR 38,969; [2018] NSWSC 1629 (McFarland v Gertos); Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188 (Whittlesea City Council v Abbatangelo) at [94]-[95], [98] and [101]; McDonell v Giblin (1904) 23 NZLR 660 at 662; Riley v Penttila 1974 [VR] 547; and Re Riley and the Real Property Act [1965] NSWR 994 at 1000.

Consideration and determination

The declaratory relief sought by the plaintiff is directed to whether the defendant is entitled to possessory title in the context of the defendant's application to the Registrar General to be registered as the proprietor of the Lots under s 45D(1)(b) of the Real Property Act.
The plaintiff did not join the Registrar General to the proceedings. The absence of the Registrar General and some provisions of the Real Property Act, such as s 122 which provides for review by this Court of decisions made by the Registrar General, were referred to in the defendant's written outline of submissions. However, no issue was raised at the hearing. The parties accepted that it was open to the Court to proceed, which it did in this case, having been referred to other decisions of this Court which have acknowledged that such issues can be determined by the Court, rather than the Registrar General: Bartlett v Ryan (2000) 10 BPR 18,077; [2000] NSWSC 807 at [11]; and McFarland v Gertos at [39].
The plaintiff's primary submission relies on the principle that possession must be adverse to the paper title owner and not by his consent, and the evidence which the plaintiff says establishes that the plaintiff consented to Leon McLennan, and subsequently the defendant in 2008, having use of the plaintiff's land.
The plaintiff submits that, as a result of that consent, even if the defendant were found to be in "possession", such possession could never be adverse to the plaintiff and time under the Limitation Act never began to run. The plaintiff submitted that the earliest point from which time could run was January 2022, when the plaintiff lodged his caveat by which he rescinded his consent for the defendant to graze cattle on the Lots.
I do not accept the submission that the plaintiff gave his consent or allowed Leon McLennan to use the Lots for grazing cattle and, for that reason, Leon and Hilton McLennan were never in possession of the Lots adverse to the plaintiff as title holder.
Based on my findings at [97]-[134] above, I am not satisfied that the evidence establishes that the defendant and his family were using the Lots from September 1996 to August 2008 with the consent of the paper title holders of the Lots at the relevant times, being the Executors on behalf of Mr Ellis' estate and the plaintiff and Phillip Cooper from 27 June 1997, or that Leon McLennan made an offer to purchase the Lots which the plaintiff declined. In my view, the evidence clearly establishes that the defendant and his family occupied and used the Lots from September 1996 because they understood they were the true owners of the Lots as a result of Leon and Hilton McLennan's purchase of the Wards Creek property and were unaware that the plaintiff and Phillip Cooper were the paper title holders.
It follows from this that I do not accept the plaintiff's submission that no claim to recover the Lots from Leon and Hilton McLennan could ever have arisen and the first time that time could start to run based on possession adverse to the plaintiff for the purposes of the Limitation Act was on 3 March 2005, upon the death of Leon McLennan.
The plaintiff submitted that even if the defendant was in possession without his permission from March 2005, the conversation between the plaintiff and the defendant in 2008 involved the plaintiff evincing his ongoing consent to the defendant grazing cattle on the Lots and amounted to permission given during the limitation period, which had the effect of cancelling any possession adverse to the plaintiff and accrued time to that point. This submission was premised on the Court accepting the plaintiff's evidence that he told the defendant that the defendant could continue to run cattle on the plaintiff's land during the 2008 conversation and the 2009/2010 conversation, which evidence I have rejected at [130] above.
As I have found, in late 2008 or early 2009, the plaintiff and the defendant had a conversation in which the plaintiff asserted the Lots were his, he was keeping them and there was nothing the defendant could do about that; the defendant asserted the Lots belonged to the Wards Creek property, were in the plaintiff's name by mistake and said "maybe we will end up in Court"; but the plaintiff did not say that he did not care about the defendant using the Lots to graze cattle, mention Leon McLennan or that the plaintiff was going to continue to use the Lots to access the river. I accept the defendant's submission that characterised the discussion as involving competing assertions as to ownership of the Lots and that it did not create a licence, agreement or amount to consent by the plaintiff for the defendant to continue to graze cattle on the Lots.
In reply, the plaintiff contended that there was no need for a licence, agreement or consensus in order for the plaintiff to give consent and negate a finding of adverse possession. As was put during oral submissions, the plaintiff's consent did not need to be communicated as the plaintiff had no objection to the defendant using the Lots to graze cattle and the plaintiff's lack of objection to the defendant using the Lots explained why the plaintiff took no steps to take possession of the land because, as far as he was concerned, he had not been ousted from it.
The plaintiff's supplementary written submissions referred to the England and Wales Court of Appeal's decision of BP Properties Ltd v Buckler (1987) 284 EG 372; [1987] 2 EGLR 168; (1987) 55 P & Cr 337 (BP Properties Ltd v Buckler), a case where the Court concluded that the occupier's possession of the farmhouse was not adverse because it was possession by licence from the title holder. The plaintiff submitted that, in this case, whether the defendant accepted it or not, from August 2008, the defendant knew that the plaintiff, as the paper title holder, was allowing the defendant to be in possession such that the defendant's possession was not adverse from that point in time. I am not persuaded by that submission.
In BP Properties Ltd v Buckler, the title holder had written a letter to the occupier stating that it allowed her to remain in the residential property rent-free for the remainder of her life notwithstanding the title holder's right and title to recover the property, and had withdrawn proceedings on foot relating to a warrant for possession. In other words, the title holder had taken active steps to assert its title and then openly and expressly communicated its permission to the person claiming adverse possession that she could use the land. It was in that context that the Court of Appeal held that "whether she liked it or not, from the time of her receipt of the letters, Mrs Buckler was in possession of the farmhouse and garden by the licence of BP Properties Ltd", stating that the result may have been different if, upon receipt of the letter, she had told the title holder that she did not accept it and had maintained her claim to the title (at 346).
On the facts as I have found them, there was no communication by the plaintiff to the defendant that he could remain on and continue to use the Lots for grazing cattle and undertaking pasture improvement and other works. Indeed, even on the plaintiff's evidence, he only referred to grazing cattle and said nothing about the defendant's other activities on the Lots, such as ploughing, planting and maintaining the dam. Nor do I consider that the solicitors' correspondence in 2008 and 2009 communicated any licence or consent for the defendant to use the Lots. Consistent with the conversation between the parties, there were competing assertions as to title, with the defendant asserting that the Lots were erroneously transferred to the plaintiff (and his brother) and the matter should be put in order by transferring them to the defendant (and his brother). The plaintiff took issue with the defendant's interpretation of the Will and indicated he might consider an offer to purchase, an act which seems to me to run counter to granting consent to the defendant to be in possession and to continue to use the land in the future.
In any event, even if I were to accept that the letter from the plaintiff's solicitor could be characterised as tacit consent (which I do not), it was sent on 7 August 2009, after the expiration of the 12 year limitation period which, as accepted by the plaintiff's counsel at the hearing, could commence from September 1996 (2 November T17.45) or from 27 June 1997, when the plaintiff and his brother became the title holders.
For these reasons, I do not accept the plaintiff's submission that permission was given to the defendant to use the Lots during the limitation period in 2008 which had the effect of cancelling all accrued time to that point.
The plaintiff contended that, even if he was wrong on the element of consent, the defendant had not established factual possession or the requisite intent to possess. He submitted that, based on the facts in this case, the defendant (and Leon McLennan before him) had not dispossessed the plaintiff or taken exclusive possession of the Lots.
The plaintiff submitted that the act of running cattle and the Lots being enclosed within the defendant's surrounding land were equivocal and did not establish possession (or dispossession as the case may be), referring to Clement v Jones (1909) 8 CLR 133; (1909) 15 ALR 158; [1909] HCA 11 (Clement v Jones). He placed significant weight on that case, submitting that an analysis of the facts of this matter should result in the same conclusion as in Clement v Jones, namely, that the defendant's claim to possessory title based on adverse possession would fail.
The plaintiff referred to a range of facts in support of that submission (many of which the Court has rejected), [1] including: the plaintiff and his invitees have continuously accessed and continue to access the Lots as and when they please; the defendant refused to engage with the plaintiff in respect of a sale of the Lots in 2009; the defendant never sought any relief to rectify or undo the transfer of the Lots to the plaintiff; the defendant took no steps to confront the plaintiff about the attempts to sell the Lots and the sale sign, which was said to be an unequivocal act and the most powerful evidence that the plaintiff dealt with the Lots in a manner consistent with a registered proprietor; and "importantly", the only time the defendant engaged with the plaintiff while on the Lots was in 2021, at which time the defendant did not challenge the plaintiff for trespassing on land which the defendant claimed was his since 1994, rather he only made complaint about biosecurity issues.
The plaintiff submitted that, even if the Court were to find that possession commenced from September 1996 or June 1997, there was a clear break in the chain in August 2008, when the plaintiff told the defendant that the Lots are owned by the plaintiff (which was described as an assertion of paper title and an act of possession) and again, in 2018, when the plaintiff hung the sale sign on the gate. It was submitted, as a result, that the defendant falls short of the required statutory period.
In summary, the defendant submitted that: 1. adverse possession of the Lots started with the possession taken by Leon and Hilton McLennan in September 1996 following the acquisition of the Wards Creek property; 2. the cause of action to recover the Lots accrued and the 12 year limitation period commenced to run in September 1996 or, alternatively, in June 1997 (when the plaintiff and Phillip Cooper became the owners of the Lots) or, alternatively, in March 2005 when Leon McLennan died (the last date was based on the Court finding that a licence was granted or consent was given to Leon McLennan in 1996 which ceased upon his death); 3. the defendant's use of and work on the Lots and his mistaken belief as to ownership demonstrated an intention to possess at all relevant times; 4. the period of possession has not been broken by the various minor activities of the plaintiff in relation to the Lots and the limitation period has expired against the plaintiff; 5. the defendant was in possession of the Lots at the time of his possessory application made to the Registrar General in May 2021; and 6. the defendant is entitled to possession and to be registered as the proprietor of the Lots pursuant to s 45D(1) of the Real Property Act.
The defendant also contended that this case and Clement v Jones are markedly different, took issue with the relevance of the facts relied on by the plaintiff, submitted that the defendant's acts in relation to the Lots were unequivocal and demonstrated factual possession and an intention to possess, and maintained that there was no conduct on the part of the plaintiff that amounted to a possessory act, other than perhaps the hanging of the sale sign in 2018, by which time the limitation period had expired.
Clement v Jones involved a claim of adverse possession over rural land that was used to graze cattle. The land consisted of two square blocks of 40 acres each that were included in a ring-fence with a large quantity of other land (over 2,000 acres), most of which had been acquired by the claimant's predecessor, Mr Clement, in 1875. Mr Clement knew that title to the 80 acres was not included in the purchase.
Griffiths CJ, at 139-40, observed that there is no presumption of law or of fact that, when land of more than one owner is enclosed in one common fence, the whole of the land is in the possession of the person who is using the land and that the act of running cattle on such land is equivocal. His Honour stated: In the case of unoccupied land, the possession follows the title - that is, the person who has the title is deemed to be in possession of the land, unless the contrary is shown. That doctrine applies as much to land within fences as to land outside fences. It is not an extraordinary thing in Australia to find a paddock enclosed by one external fence, with the land within belonging to several persons. In the case of pastoral land, such as this is, grazing land, which in the early sixties was carrying only 300 bullocks upon 2000 acres, it is not to be expected that it would be subdivided more than necessary. In a paddock of that size, where land of more than one owner is enclosed, the prima facie presumption is that possession is in the owners, and that there is a tacit understanding between them that they both may put cattle into the paddock, and that neither will complain if the cattle trespass over the imaginary boundary line. This doctrine cannot depend on the relative sizes of the areas. If it is only 80 acres, or if it is a much larger area, the argument applies equally well. So that, as there is no presumption to begin with in favour of the plaintiffs, the same considerations show that whether possession is to be attributed to the person who alone runs cattle in the paddock or not is a doubtful question… The plaintiffs, therefore, in the present case, must show that the acts done were inconsistent with the enjoyment of the 80 acres by the true owner for the purposes for which he would be likely to intend to use it.
Griffith CJ said that, based on the fencing and running of cattle by the claimant, it was doubtful whether the plaintiffs had obtained exclusive possession as distinct from exclusive use in fact, noting there was no evidence after 1893 that the title holder's family ran any cattle in the paddock.
His Honour then considered evidence of other acts and concluded that they negated any intention by the claimant to take exclusive possession or exercise ownership, that evidence being: 1. the son of one of the title holders took timber from the 80 acres over the years and spoke to the occupier on occasion about taking the wood "off our [the title holder's] land as I am clearing it by doing so" and asked whether the occupier would pay rent, to which he was told not to come again unless "you come to sell"; 2. a neighbour wrote to the occupier about an offer from the owner to lease the 80 acres to which the occupier indicated that he did not care about leasing the land but wanted to buy it and asked the neighbour to see the owner about it; 3. the title holder gave notice to the occupier under the Fences Act 1890 (Vic) requiring him to contribute towards the construction of a dividing fence between the 80 acres and the rest of the land within the limitation period, to which the solicitor for the occupier responded that his client would do his part of the fencing pursuant to the notice if they would have the correct line marked out before the fence was erected; and 4. before the expiration of the limitation period, a third party under instructions from the title holder marked out the boundaries of the 80 acres.
Griffith CJ stated at 143: … the act of going upon land, ascertaining its boundaries, and adding to or removing the posts or stones, is about as strong a piece of evidence of possession as could be imagined. It is telling all the world "these are the boundaries of my land"… It is said that Frederick Jones might have disturbed the occupation Clement had of that part of the land. Why should he? He did not want to object to Clement's cattle grazing on the 80 acres. That did him no harm. He did all that reasonably could be done to assert that he took possession and acted as owner of that land… the plaintiffs fail because they fail to establish that they have successfully appropriated the land from its rightful owners. It is a singular fact that for 10 years before action the true owners had been in rightful possession of the land.
In a concurring judgment, Isaacs J accepted that the fact that the title holder's family constantly for years entered the land and supplied themselves with wood afforded cogent evidence that they had never abandoned possession and said that, as the wood was collected in the presence of the occupier's manager, it was equally cogent evidence that the occupier did not think he was in exclusive possession. His Honour also referred to the case of Solling v Broughton [1893] AC 556 at 559 in which the Privy Council said that if there were two persons in a field with each asserting that the field was his and each doing some act in the assertion of the right of possession then the person who has title is in actual possession and the other person is a trespasser.
There are similarities between Clement v Jones and this case in the sense that they both involve rural land used for grazing cattle and that the land claimed to be adversely possessed in each case is fenced within the boundaries of other land owned by the occupier. However, I am not persuaded that an analysis of the facts of this case is sufficiently similar to that in Clement v Jones such as to warrant the same conclusion. Based on the facts in this case, I am satisfied that the defendant has established factual possession of the Lots from September 1996, following the acquisition of the Wards Creek property by Leon and Hilton McLennan, and the requisite intention to possess the Lots, for a continuous period of more than 12 years, such that the plaintiffs' title was extinguished: Limitation Act, s 65.
The defendant's family commenced working on and using the Lots prior to the plaintiff obtaining title to them and there was no evidence to suggest that the plaintiff intended to use them for grazing cattle or a related purpose. In that context, Griffith CJ's observations about pastoral land belonging to various persons being enclosed by an external fence with the tacit understanding between them that each may put his cattle on the paddock owned by one of them and none will complain if they trespass over the imaginary boundary lines does not seem to have much weight in this case, even assuming that his Honour's comment that it is not unusual for rural land within an enclosed fence to belong to different land owners remains pertinent today.
In Whittlesea City Council v Abbatangelo at [79] and [81], the Victorian Court of Appeal said that it cannot be said that grazing stock on land, of itself, will never be sufficient to establish possession and the maintenance of a boundary fence, in combination with other circumstances, was indicative of an exercise of control and exclusive possession in the requisite sense.
In any event, in this case, the defendant and his family did not just graze cattle on the Lots. They also undertook significant works to improve and maintain the Lots as grazing pastures while incurring expenses in doing so. Even if it was accepted that the defendant's grazing of cattle over the Lots, by itself, was equivocal, the works undertaken by the defendant to the Lots from September 1996 (as described at [72]-[74] above) were not. They show that the defendant made considerable improvements to the Lots as grazing lands, consistent with the acts of an occupying owner. As Young J observed in Shaw v Garbutt at 14,832-3: … people do not work on another person's property without good reason and it is far more likely that if a person has done substantial work she has done it so that her own property will be improved rather than give the benefit to somebody else.
The defendant's maintenance of the fencing along Armidale Road boundary of the Lots, the repair and maintenance of the gates to Lots 1 and 2, and the removal of the fence on Lot 1 in October 1999, which effectively absorbed that Lot into the lands of Sunnyside and Wards Creek, are also indicative that the defendant treated the Lots as part of the surrounding land owned by his family and had taken and was maintaining exclusive possession and control of the Lots.
I am satisfied that, at all relevant times from September 1996 to August 2008, the defendant and Hilton and Leon McLennan did not know that the plaintiff and Phillip Cooper had title to the Lots and believed that they had acquired them as part of the purchase of the Wards Creek property. That mistaken belief does not prevent the acquisition of title by adverse possession. To the contrary, in my view, it reinforces the defendant's claim that he had the necessary intent to possess the Lots: Malter v Procopets (2000) V ConvR 54-624; [2000] VSCA 11 at [7].
After becoming aware in August 2008 that the plaintiff and Phillip Cooper were registered as the proprietors of the Lots, the defendant's view was that the plaintiff's title was the result of an error made by the solicitor who acted in Mr Ellis' estate and he regarded the Lots as belonging to him. The defendant maintained that view throughout, including at the hearing. As I have said at [123] above, I do not consider that the defendant's view was unreasonably held. The defendant's view is a relevant factor to the question of his intention to possess.
I do not accept the plaintiff's submission that the fact the defendant never sought any relief to rectify or undo the transfer supports a finding that there was no possession adverse to the plaintiff. The defendant explained that he found the process "too difficult" and gave other reasons why, as set out at [126] above. I am satisfied that the defendant's continued occupation and use of the Lots after August 2008 has been on the basis of his expressed belief that he, and not the plaintiff, should be the true owner of the Lots and he has not been a mere user.
I do not accept the plaintiff's submission that it is significant to the issue of factual possession that there is no evidence that the defendant ever attempted to lock or secure the gate on Lot 2 so as to prevent the plaintiff from ingress or egress, even when the sale sign was hung in 2018 or when the defendant confronted the plaintiff at the gate in 2021.
The question of what acts constitute a sufficient degree of exclusive physical control depends on the circumstances, with absolute physical control normally impracticable in the case of open land, if only because it is generally impossible to secure every part of a boundary to prevent access: Braye v Tarnawskyj at [31].
The plaintiff and his invitees could and did gain access to Lots 1 and 2 through the gate at Lot 2 and to Lot 1 from the river on occasions. But they did so in circumstances where the defendant did not know that the plaintiff had title to the Lots until August 2008, the defendant had not observed the plaintiff or anyone else on or close to the Lots until one occasion in 2021 and Leon McLennan did not mention to the defendant or Hilton McLennan that he had seen the plaintiff on the Lots between 1996 and 2005. In that context, it seems unexceptional that the defendant did not secure the gates or take other steps to try and prevent the plaintiff from gaining physical access to the Lots.
In my view, the access to Lots 1 and 2 by the plaintiff and his invitees was too infrequent and of such a character that it did not amount to entry on the Lots such as to disturb possession by the defendant and his family. Nor was it indicative that the plaintiff was in actual possession or had the requisite intent to possess the Lots. This is particularly as the occasional entries went unnoticed by the defendant and his family until one occasion in 2021, the use of the Lots was for the purpose of obtaining access to the river and its surrounding river-flat land, rather than undertaking activities on the Lots themselves (such as collecting firewood), and the use likely involved the plaintiff and his invitees trespassing on the defendant's land on Lot 7 on multiple occasions over the years.
The fencing works, the grazing of cattle and the pasture and dam improvement works undertaken by the defendant were obvious and open to the world, with the plaintiff acknowledging in cross-examination that he knew about them. It is telling, in my view, that the plaintiff knew the defendant removed the Lot 1 fence in 1999 but did not object to it or take any steps to have it replaced, such as by issuing a notice to the defendant or to Leon and Hilton McLennan at that or any other time under the Dividing Fences Act 1991 (NSW). There is also no evidence that the plaintiff undertook a survey or placed any pegs or other markings on the Lots to signify the boundaries of the land.
The payment of rates by the plaintiff and Phillip Cooper is also of no real significance given they were paid as part of the rates payable on amalgamated titles they owned: Shaw v Garbutt at 14,833-4.
Having regard to the nature of the Lots as rural grazing land and the uses to which they have been put, in my view, it was the defendant, not the plaintiff, that dealt with the Lots in a manner consistent with that which could be expected from a registered proprietor. The totality of the evidence satisfies me that, from September 1996, Leon and Hilton McLennan and then the defendant were in factual possession of the Lots with the intention of possessing that land. This possession commenced from when the defendant started working on the Lots and grazing cattle on them, after the purchase of the Wards Creek property by Leon and Hilton McLennan and the defendant moved onto the Sunnyside property and started working as caretaker and manager of that and the Wards Creek property, and continued when the defendant became co-owner of the Wards Creek and Sunnyside properties with Hilton McLennan in February 2006, when he was in possession for himself and Hilton McLennan as tenants in common.
An adverse possession claim may fail if the possession was not continuous and was broken by the plaintiff as title holder.
For the reasons set out at [130] and below, I do not accept the plaintiff's submission that the conversation in 2008 or the plaintiff's solicitor's letter sent in 2009 were actions that caused the 12 year limitation period to cease to run and broke the defendant's chain of possession.
The conversation and the correspondence from the defendant's solicitor to the plaintiff of 18 November 2008 and to the plaintiff's solicitor of 22 April 2009 make clear that the defendant considered he was the rightful owner of the Lots (as co-owner with Hilton McLennan). The fact that the defendant took no steps to engage the plaintiff in a sale negotiation after receipt of the letter from the solicitors for Mr Ellis' estate of 16 April 2009 (that said that the defendant's only recourse was to purchase the Lots), or the plaintiff's solicitor's letter of 7 August 2009 referring to the prospect of a sale, was indicative of the defendant not accepting the plaintiff's title and asserting a right to title and exclusive possession of the Lots himself, rather than any acknowledgment by the plaintiff or the defendant that the plaintiff was using and was in possession of the Lots as the owner. In my view, the assertion by the plaintiff of his paper title at this time was not a sufficient act of possession to conclude that the plaintiff resumed possession of the Lots in the circumstances of this case.
The defendant accepted that the plaintiff's attempts to sell the Lots in 2018 could be a possessory act. However, he submitted that the plaintiff did not break the lengthy chain of possession, referring to the following matters: the minimal activities undertaken by the plaintiff in respect of the sale; the defendant's long history of working and maintaining the Lots over some 22 years; the defendant's assertion in the solicitors' correspondence that the Lots were his; and the plaintiff having done nothing about the defendant's occupation of the Lots over the years.
I accept the plaintiff's submission that hanging a "For Sale" sign on the gate on Lot 2 and taking steps to sell the Lots is evidence that the plaintiff sought to deal with the Lots in a manner consistent with a registered proprietor and indicative of an assertion of title.
However, in the circumstances of this case, in my view, the plaintiff's acts in 2018 were not sufficient to dispossess the defendant of the Lots and establish a resumption of possession by the plaintiff.
The defendant did not approach the plaintiff about the "For Sale" sign or take steps to take it down. Rather, he ignored it and treated it as a joke. The defendant's lack of regard for the sign was not difficult to understand. It is fair to say that the plaintiff's activities in relation to the sale of the Lots were nominal. There was no advertising in the usual sense, the sign on the gate did not identify the land being sold or the plaintiff's name and there is no evidence that a sale contract was prepared. The plaintiff made no approach to the defendant about the sale, left the sign on the gate to fade, such that it is now illegible, and there is no evidence of any further action in respect of the sale after the dealings with Ms Stone in mid-2018. Throughout 2018 and the following years, the defendant continued to occupy and work the Lots as he and his family had done over the years without interruption from the plaintiff and without them seeing or speaking to each other until 2021.
By 2018, there had been possession of the Lots by the defendant and his predecessor occupiers (Leon and Hilton McLennan) that was open, not secret, peaceful, not by force, and adverse, not by consent of the true owner, continuously and without interruption for around 22 years, since possession first commenced in September 1996, with the defendant being in possession for himself since July 2012, when Hilton McLennan transferred his interest in the Wards Creek and Sunnyside properties to the defendant.
This was possession by the defendant, as a person in whose favour the limitation period under the Limitation Act could run, and by previous occupiers that could be relied on by the defendant: Limitation Act, ss 38(2) and (4). The plaintiff accepted that the defendant was entitled to claim the period that Leon and Hilton McLennan were in possession of the Lots having regard to the terms of s 38(2) of the Limitation Act.
In other words, by 2018, the 12 year limitation period that ran from the date on which the cause of action to recover the Lots from the defendant had expired.
As the plaintiff's acts in 2018 were not carried out within the 12 year limitation period, they did not operate to break the chain of possession and stop time running. By 2018, the plaintiff's cause of action to recover the Lots from the defendant was statute barred and the plaintiff's title would have been extinguished under s 65 of the Limitation Act had that Act applied to the Lots. This is so whether time commenced to run under the Limitation Act from September 1996, when Leon and Hilton McLennan took possession of the Lots, or on 27 June 1997, when the plaintiff became a registered proprietor of the Lots and a person who, from that time, had a cause of action to recover the Lots from Leon and Hilton McLennan and then from the defendant. Adopting the later date, the 12 year limitation period expired on 27 June 2009.
As to the incident in 2021, I am unpersuaded by the plaintiff's submission that it was significant that the defendant's only complaint was about biosecurity issues and he did not challenge the plaintiff for trespassing on land which the defendant claimed was his since 1994. When the defendant spoke to the plaintiff, he stated "you are driving across my land". This was consistent with the defendant's view that Lot 2 was properly his land, not the land of the plaintiff, and the defendant having seen the plaintiff drive across Lot 7 (not one of the relevant Lots). The fact that the defendant raised concerns about the biosecurity of his rural property was also consistent with the defendant's other evidence that this was an issue for him.
In my view, the discussion in 2021 was not indicative of the defendant acknowledging that the plaintiff had possession of the Lots or inconsistent with the defendant's actual possession and intention to possess the Lots at that or any other time. I am also of the view that the plaintiff's entry onto Lot 2 in 2021 did not interrupt the defendant's possession of the Lots or amount to an effectual re-entry of possession of the Lots at that time.
It follows that I am satisfied that the defendant was a person in possession of the Lots in May 2021, at the time the defendant made his application for title by possession pursuant to s 45D(1) of the Real Property Act.
I am also satisfied that, had the Limitation Act applied in respect of the Lots, the plaintiff's title would have been extinguished pursuant to s 65 of the Limitation Act for the purposes of s 45D(1)(b) of the Real Property Act.
There was no dispute that the requirements of ss 45D(1)(a) and 45D(1)(c) of the Real Property Act have been met.
In these circumstances, there seems to me to be no reason for the defendant not to be recorded as the registered proprietor of the Lots in accordance with his application to the Registrar General under s 45D(1) of the Real Property Act.
Based on my findings at [192] and [195], it is unnecessary to determine the issue raised by the parties' submissions as to whether the earliest date on which the limitation period, for the purposes of the defendant's application under s 45D(1) of the Real Property Act, could start to run is September 1996, when the Executors were the title holders, as the defendant contended, or, as the plaintiff said, on 27 June 1997, when the plaintiff and Phillip Cooper became the registered proprietors of the Lots. This is because any period of adverse possession from September 1996 to 27 June 1997 makes no difference to the result in this case.

Conclusion and orders

For these reasons, the plaintiff's application for declaratory relief is refused. The plaintiff's caveat, which has prevented the Registrar General from registering the defendant as the proprietor of the Lots, should be withdrawn.
Given the outcome, I see no reason why the usual order that costs follow the event should not apply and have ordered that the plaintiff pay the defendant's costs of the proceedings. If either party seeks a different costs order, they have leave to notify my Associate by email within 14 days of the costs order sought together with a short outline of submissions (of no more than three pages) and an agreed date for submissions in response, with a view to the issue of costs being determined on the papers.
Accordingly, the Court makes the following orders: 1. Dismiss the plaintiff's summons filed 22 February 2022. 2. The plaintiff is to pay the defendant's costs of the proceedings as agreed or assessed. Addendum: When judgment was handed down, plaintiff's counsel applied for a stay of the order relating to the plaintiff's caveat (which had been extended until further order) for 14 days to enable the plaintiff to consider these reasons. There was no objection by defendant's counsel and the parties were content for the Court to make an order extending the caveat for a further 14 days. Accordingly, I make the following additional order: 1. Extend the operation of the plaintiff's caveat AR822694 until 1 December 2023.

Endnote

The Court has not made the findings of fact referred to in the plaintiff's closing written submissions at [30(a)-(f), (h), (i), and (I)(ii)]. 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: 17 November 2023

Fences Act 1890(Vic)

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