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[2021] WASC 406
General information, not legal advice.
Supreme Court of WA
2021-11-22
Original judgment source is linked above.
1 This is a pleading summons. The plaintiffs originally sought to strike out certain paragraphs of the defendants' defence and counterclaim. After hearing argument, I pointed out to counsel for the defendants that I thought there were deficiencies in the pleading. I offered him the opportunity to file a further amended defence and counterclaim. That was done and a document entitled 'Amended defence and counterclaim' (ADC) was filed on 21 October 2021. The plaintiffs were still not satisfied. They maintained the ADC was still deficient. These reasons deal with that further application.
2 At the heart of this dispute is the defendants' plea of a claim for adverse possession. To explain how that plea arises, and why the plaintiffs object to the form of the pleading, it is necessary to say something of the background facts. I should emphasise that this recitation of the facts is taken from the pleadings. At trial it may or may not be possible for the parties to establish the pleaded facts. But for the purposes of this application the facts must be accepted as correct. That is particularly the case with the ADC - the pleading which is under attack on this application. It is the plaintiffs' argument that if the material facts pleaded by the defendants are accepted, there is no defence or counterclaim proved.
3 Turning then to the statement of claim, the plaintiffs reside at 42 The Esplanade, Peppermint Grove and the defendants reside at 40 The Esplanade, Peppermint Grove. In other words, they are next door neighbours. The plaintiffs plead in or about 1991 they constructed a wall which separated the two lots but which was entirely on the plaintiffs' lot. In other words, instead of building the wall on the boundary line, the plaintiffs built the wall and its footings entirely on the plaintiffs' lot. Why the wall was constructed in the position it was is of no relevance to this dispute. What is relevant is that the wall - which is described in the pleading as the 'First Wall' - was built by the plaintiffs and was built entirely on their land. The plaintiffs then plead in 2009 the defendants constructed a wall on the footings of the First Wall for a length of 26 metres from The Esplanade. This is referred to as the 'Second Wall'. The plaintiffs allege the Second Wall was constructed entirely on the plaintiffs' land.
4 The plaintiffs say that the defendants have 'previously committed the tort of trespass by planting vines and allowing them to grow over and damage the First and Second Walls'. They allege that unless restrained from doing so, the defendants intend to commit further such heinous acts and that requires this court to issue an injunction to stop the defendants painting the First and Second Walls or doing anything which is inconsistent with the plaintiffs' ownership of the walls. In addition, the plaintiffs want a declaration they are the owners of their lot up to the boundary and a declaration that the defendants have no proprietary interest in the land of which the plaintiffs claim ownership.
5 It is worth pausing at this point to marvel at the nature of the relief sought. There is nothing to indicate the plaintiffs intend to demolish either the First Wall or the Second Wall and build a wall on the boundary line. Presumably, what they wish to do is lean over the walls from time to time and ensure that the defendants are not in some way interfering with the surface of the wall facing the defendants' property. Presumably, they may also from time to time point out to the defendants that the wall is on their land and emphasise that fact ought not be forgotten. Otherwise the status quo, which has existed since 2009 when the Second Wall was constructed, would continue.
6 The defendants' ADC is an unnecessarily complicated pleading. It begins in paragraph 1 by explaining the circumstances of the defendants' acquisition of their land. What purpose that plea serves is unclear.
7 Paragraph 2 of the pleading deals with the First Wall. Although it is not entirely clear, the plea seems to be to the effect that the First Wall was built partially on the defendants' land and partially on the plaintiffs' land. On the defendants' version of events it would appear that whoever built the wall simply got the line wrong. They started on the defendants' land and built the wall in a straight line terminating on the plaintiffs' land. In other words, the wall is built straight but on a slight angle to the actual boundary line. That means the wall at some point crosses the boundary line but is partially on the defendants' land. The defendants, although they plead this to be the case, make no point about the encroachment of the First Wall on to their land. They appear to be prepared to live with that situation.
8 The defendants plead that the First Wall is, at its greatest point of deviation from the boundary, no more than 135 millimetres inside the plaintiffs' lot. In other words, this case concerns a sliver of land hardly wide enough to accommodate a punnet of petunias. Such is the value of land in Peppermint Grove.
9 The defendants plead the second wall is positioned 'on or about' the common boundary of the lots. They say that wall was built on or about September 2009. They plead there is a fence along the boundary facing The Esplanade. They also say that between 2006 and 2009 they constructed a dwelling on the lot and, in doing so, made use of the plaintiffs' land. For reasons which are not readily apparent, the defendants describe the sliver of land in dispute as the 'AP Land'. There then follows the plea of adverse possession.
10 Before detailing that plea I should make some general comments about what constitutes adverse possession. As the title of the cause of action suggests, one party must possess another's real property in a manner which is inconsistent - or adverse - to the owner's title. In other words, the party claiming title by adverse possession must trespass on the registered proprietor's property and act as if that property belonged to the trespasser. If that possession, adverse to the interests of the owner, continues for a period of 12 years, then the right and title to the property upon which the person is trespassing passes to the trespasser. Adverse possession is one of the very few, if not the only instance in Australian jurisprudence where a wrongdoer is rewarded for his or her wrongful acts.
11 What constitutes adverse possession has been the subject of numerous decisions. Perhaps the best analysis of the principles is provided by the decision of Murray J in Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 165 ‑ 168. The Transfer of Land Act 1893 (WA), by sections 68 and 222 to 225, recognise the possibility of a claim in adverse possession. But these sections do not actually deal with the legal basis of the claim. In fact, the claim is based on limitation of actions as defined in the Limitation Acts of 1935 and 2005. The act of trespass becomes actionable by a landowner when the trespass first occurs. If the landowner does nothing for 12 years the right of action for trespass is statute barred. That is how the claim arises. So properly viewed, a claim in adverse possession is really a defence to an action in trespass based upon the Limitation Act.
12 Returning to the ADC, the defendants rely principally on three matters. First, they say the plaintiffs built a wall which enclosed, on the defendants' side of the wall, the land over which adverse possession is claimed. Second, they say the AP Land has been used by the defendants and their predecessors in title for a period of more than 12 years. Third, they say that a building has been constructed on the defendants' land and, in the course of the building works, the defendants possessed the AP Land.
13 Against that, the plaintiffs make a number of points. First, and perhaps most importantly, they say adverse possession cannot lie when the enclosure of the land is undertaken, not by the defendants, but by the plaintiffs. It is true that one of the most common indicators of adverse possession is the trespasser fencing the subject land. This is seen as an unequivocal demonstration of the requisite intent to exclude the world at large. The defendants were unable to point to a case where the enclosure had been undertaken, not by the party claiming adverse possession, but by the owner. Furthermore, the plaintiffs say that even on the defendants' plea, there is a break in the chain of adverse possession such that the claim could not run. They also dispute there has been use made by the defendants of the land which is consistent only with adverse possession.
14 It is unnecessary for me to develop these arguments any further. Although this is said to be a strike out application it is really an application for summary judgment on a counterclaim. In other words, it is an application under Order 16 of Rules of the Supreme Court 1971 (WA). The plaintiffs do not complain about the form of the pleading. They say the plea does not disclose a cause of action. They go further and say no amendment to the plea will cure the defects. That is in reality a summary judgment application. The High Court has warned against determining limitation issues on a summary judgment application. Accordingly, it would be inappropriate for me to shut out the defendants on their counterclaim.
15 More than that, it does seem to me, on balance, the defendants' position is arguable. True it is, there is no authority for the proposition that enclosure by a registered proprietor can lead to a claim for adverse possession. On the face of it that would seem an odd result. But the fact is the land is enclosed and, on the defendants' case, has been used inconsistent with the plaintiffs' ownership. So the position is arguable.
16 In any event, this matter is best litigated once and for all so that the respective interests of the parties can be finally determined. If the plaintiffs are confident that the defendants' pleas in relation to adverse possession cannot be made good on the facts as pleaded, they can simply admit those facts and argue the matter on the law. It might even be possible to produce a statement of agreed facts - although the chance of these parties agreeing on anything would seem to be no more than a pious hope. Nonetheless, it remains a possibility. It is certainly an open question whether, on the facts pleaded in the statement of claim, the relief sought by the plaintiffs is open. This is one of those cases where there is nothing to be gained by interlocutory skirmishing.
1. The plaintiffs' application to strike out the defendants' amended defence and counterclaim is dismissed.
2. The defendants pay the costs thrown away by reason of the amendment made to the defence and counterclaim in any event.
3. The costs of this application be costs in the cause.
18 The great American poet, Robert Frost, said 'good fences make good neighbours'. In this case there is no doubting the quality of the fences.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
(1992) 7 WAR 163