Doyle v Westpac Banking Corporation & Ors [2026] VCC 284

1. Westpac filed the following material in opposition:

(a) Affidavit of Shufei Qu affirmed 13 February 2026.

1. Mr Downey filed the following material in opposition to the application :

(a) Affidavit of James Downey sworn 13 February 2026; and

(b) Second affidavit of James Downey sworn 16 February 2026 (correcting a minor error in his first affidavit).

1. For the purposes of the application, it is useful to set out the background to the Property and the relationships between the parties.
2. It is also pertinent to highlight that there is a long litigious history between Ms Doyle and Mr Bourne/Mr Downey and others in relation to the ownership and possession of the Property. That history has resulted in rulings delivered in the Supreme Court of Victoria, which I will address in due course.[1]
3. Ms Doyle says that in August 2007, she and her daughters entered into possession of the Property. The precise circumstances under which this occurred is opaque. Ms Doyle under an alias "Mary Therese Bourne" became the registered proprietor of the Property on 3 November 2006.
4. On 16 October 2007, Ms Doyle transferred title to the Property to Mr Bourne, the second defendant. On the same date, Westpac registered the Mortgage over the Property.
5. On 10 July 2014 Mr Bourne was made bankrupt, and on 4 October 2016, Ms Doyle was made bankrupt. Ms Doyle remains an undischarged bankrupt.
6. On 7 August 2017, Mr Bourne was discharged from bankruptcy.
7. Ms Doyle submits that as a result of her possession of the Property from August 2007, her children became owners of the Property by adverse possession in 2022.
8. On 3 May 2023, Mr Downey as trustee of the bankrupt estate of Mr Bourne became the registered proprietor of the Property.
9. On 16 October 2024, this Court entered judgment for possession of the Property in favour of Westpac in default of the defendants filing a defence and/or appearances.
10. On 22 November 2024, Ms Doyle wrote to MinterEllison, solicitors for Westpac, refusing to deliver possession of the Property, asserting that the Property was subject to a lease predating Westpac's mortgage. I will return below to the various bases upon which Ms Downey has in the past claimed a right to possession of the Property.
11. On 11 June 2025, after a trial before Justice Judd in the Supreme Court of Victoria, Mr Downey obtained an order in the Supreme Court against Ms Doyle for possession of the Property.[2] At the trial of that proceeding Ms Doyle did not advance a claim that she or her daughters had adversely possessed the Property as against Mr Bourne or his Trustee in Bankruptcy. Rather, and possibly inconsistently with the current claim of adverse possession, she argued that Mr Bourne held the property on trust for herself and her children. The order for possession arising out of that proceeding remains in full force and effect.
12. On 18 June 2025, Serong Legal, solicitor for Mr Downey, wrote to Westpac advising that Mr Downey had surrendered possession of the Property to Westpac.
13. On 10 November 2025, this Court issued a warrant of possession of the Property to Westpac and on 2 February 2026, Ms Doyle filed this application.
14. By order of her Honour Judge Marks made on 2 February 2026 and 17 February 2026, the execution of the warrant for possession was stayed pending a full hearing of the application.

1. The issues to be determined in this application are as follows:

(a) Does Ms Doyle have standing to bring the application on behalf of her children?

(b) To the extent that Ms Doyle seeks relief in her own right, does she have any standing when she remains an undischarged bankrupt?

(c) Do special circumstances (including that Ms Doyle and/or her children have a claim of adverse possession of the Property) exist such that the stay of execution of the warrant for possession should be granted?

(d) Do Ms Doyle's childrens' alleged adverse possessory interest in the Property defeat Westpac's mortgage?

Issue 1: Ms Doyle's standing to bring this application on behalf of her children

1. Ms Doyle submits that this application was made by her on behalf of her adult children. Ms Doyle has not identified those children by name except in one of the last documents that she has filed. She has not provided any evidence that might suggest that any of them are not adults or are under any disability that might require a litigation guardian (such as Ms Doyle) to be appointed to conduct this litigation on their behalf. No indication in the evidence clarifies why Ms Doyle's children have not brought this application on their own behalf and under what authority Ms Doyle purports to act for them.
2. Ms Doyle's children did not appear at the hearing today.
3. The mere existence of a personal relationship, including that of a parent and adult child, does not of itself confer authority to commence proceedings on another person's behalf. Further, there is "... a presumption that everybody of full age has the mental capacity to manage their own affairs, including the commencement and defence of legal proceedings".[3] Courts therefore require actions to be brought by the person or people whose rights are said to be affected unless a lawful representative capacity is established.
4. To the extent that Ms Doyle is an undischarged bankrupt whose ability to satisfy any adverse order for costs must be negligible, she would be an unsuitable person to act in a representative capacity.
5. Ms Doyle has deposed that she is authorised by her unnamed daughters to bring this application on their behalf, however, absent any evidence from her daughters themselves, I cannot give any weight to this statement.
6. On the evidence before me, I consider that Ms Doyle has no standing to bring this application on behalf of her adult children.
7. That is sufficient to dispose of this application.

Issue 2: Ms Doyle's standing to bring this application on her own behalf as an undischarged bankrupt

1. Ms Doyle now agitates this application only on behalf of her adult daughters.
2. For example she says this, in her written submissions at [5] and [7]:

"My four children (the girls) adversely possessed the home at 42 Ardcloney Drive Sunbury Vic 3429 (the Property) in 2007 and have maintained exclusive and continuous possession of the family home since that time. Under Section 8 of the Limitation of Action. 1958 (Vic) the 15 year time limit for adverse possession ceased to run in 2022."

The girls did not seek the permission of the paper title holder, Mr Bourne, to enter into possession of the Property and Mr Bourne has never given his permission for the girls to take possession of the Property. In fact, the girls were not even aware Mr Bourne was registered on the Property title until 2014.

"At all times since the girl's possession of the Property in 2007, I have lived in the Property under a licence or lease from them. They have had and continue to exercise their control over the Property as a normal property owner would be expected to do."

1. At the conclusion of her written submissions she says:

"In good faith I filed this application as the representative for my four children who have urgent pressing family commitments including giving birth."

1. Having regard to the manner in which Ms Doyle says that she brings this application - that is, not on her own behalf but on behalf of her daughters - I do not consider that the issue of whether she has standing to bring this application on her own behalf notwithstanding that she is an undischarged bankrupt really arises.
2. Notwithstanding this, I will give brief reasons for my view that she would not have standing in any event.
3. On 4 October 2016, Ms Doyle was made bankrupt, and she remains an undischarged bankrupt. The Official Trustee is trustee of her bankrupt estate.
4. Westpac relies on Westpac v Hines,[4] to submit that by operation of s 58(1)(a) of the Bankruptcy Act (1966), Ms Doyle has no standing to be heard on this application. In Westpac v Hines, Matthews JR (as her Honour then was), said the following of a bankrupt person's standing:

[31] In Rogers v Asset Loan Co Pty Ltd the Court was dealing with an application by a bankrupt for an interlocutory injunction to prevent a secured creditor exercising a power of sale in respect of real property. In the decision in that matter, Greenwood J stated: > > > > Mr Rogers attacks the exercise of the power of sale by the secured creditor[s] on the basis of a failure to comply with the requirements of s 84 of the Property Law Act 1974 (Qld). The interest of Mr Rogers in agitating that question is his interest as owner of the property the subject of the security. That interest has become vested in the trustee. It includes the rights, powers and capacities of the bankrupt in relation to that interest which, in turn, includes the right to agitate the question of whether the secured creditor has complied with the Property Law Act 1974 (Qld). I accept the submission that only the trustee can agitate that question and the trustee chooses not to do so. > > [32] The operation of section 58(1)(a) of the Bankruptcy Act is clear, and denies the First Defendant standing to be heard in this proceeding. This has been explained in numerous authorities over the years, including those referred to above and those to which the Court was taken by the Plaintiff. Upon the First Defendant's bankruptcy the Property vested in the Trustee. This includes any choses in action attaching to the Property, such as the right to defend the present proceeding. That the First Defendant entered bankruptcy voluntarily is irrelevant to the operation of section 58(1)(a) of the Bankruptcy Act. > > [33] It is clear that as the Property has vested in the Trustee, the First Defendant no longer has standing in these proceedings, including in respect of the Property. It is the Trustee who has standing to defend this proceeding, not the First Defendant. The Trustee has indicated that he neither consents to nor opposes the summary judgment application or an order being made that the Plaintiff recover possession of the Property. > > [34] The rule in Re-Engine does not apply in the present case. No allegation has been made against the First Defendant which requires him to answer personally, nor has the First Defendant sought to limit his submissions to such a matter. The First Defendant's various allegations against the Plaintiff are irrelevant to the rule in Re-Engine.

5. It is central to the scheme of the bankruptcy regime that upon an individual becoming bankrupt, that person loses ownership and control of their divisible property. All such property becomes vested in their trustee in bankruptcy. It is also fundamental to that regime that legal actions commenced by a bankrupt person are stayed unless and until the trustee in bankruptcy makes an election to prosecute the matter.[5] The Official Trustee has not done so. Notwithstanding this, Ms Doyle's trustee in bankruptcy was aware of this proceeding, elected to take no part in it and merely attended court by Zoom link to observe.
6. Having regard to the above authority and that Ms Doyle does not purport to bring this application on her own behalf, I do consider that if she attempted to so, she would not have standing.
7. Ms Doyle filed a document purporting to be an affidavit "in Reply" on 16 March 2026 without leave. Instead of this document, she was directed to make an affidavit explaining why she had failed to meet earlier court deadlines. The document is prolix, repetitive of the matters she has previously deposed to and contains slabs of commentary and submissions.
8. Within that document she says that:

"The Court has discretion to permit a bankrupt to answer any allegations against them. I believe allegations have been made to discredit me and will respectfully request permission of the Court to correct false inferences &/or false allegations." (emphasis added)

1. As a bald statement this is uncontroversial, but overstated. Usually the issue of whether to permit a bankrupt to be heard arises in extant proceedings between the Trustee in Bankruptcy and another party, where fairness might require the bankrupt to be heard about matters alleged against them which might not be adequately dealt with by the trustee. But that is a matter for the Court's discretion and it only applies in limited circumstances.
2. In this case the plaintiff has brought this application against Mr Bourne's trustee in bankruptcy and Mr Bourne for possession of the Property upon which the bank has a registered mortgage security. Neither of them has opposed judgment for possession being entered. The Trustee in bankruptcy had no interest in defending the proceeding. The sale of the Property probably aligns with the Trustee's interest which is to dispose of the property to realise cash with which to pay the costs of the bankruptcy and see all creditors paid out.
3. It is not apparent that in obtaining judgment any allegations were made against Ms Doyle that might open the discretion to permit her to be heard, much less to commence an application in her own name to seek to vindicate any alleged interest her daughters may or may not have.
4. Having determined that Ms Doyle does not have legal standing either on behalf of her children, or in her own right to bring this application, the application must be dismissed.
5. Having so determined it is strictly unnecessary for me to consider the balance of the issues in dispute. Nevertheless, I will do so in the event I am wrong in that conclusion.

Issue 3: Do Ms Doyle's children have a prima facie adverse possessory claim to the Property and do any such rights defeat Westpac's mortgage

The application before the Court: stay of execution of warrant for possession

1. It is important to recall the application itself. Ms Doyle applies for a permanent stay of the execution of the warrant of possession granted in favour of Westpac. The defendants to the proceeding have not sought to set aside the judgment for possession granted to the plaintiff.
2. Under rule 66.16 of the County Court Civil Procedure Rules 2018, the Court may stay execution of judgment. For the purposes of this rule, a "judgment" includes an order of the Court.[6]
3. In Hu v H & Q Café Pty Ltd,[7] Niall and Kaye JJA set out the principles that apply to applications under the same provision in the Supreme Court Rules:

[49] The principles, which apply to such an application are well-established. The starting point is that, ordinarily, a successful party is entitled to the benefit of a judgment. Accordingly, the onus is on the applicant for a stay to establish that the grant of such a stay is justified in the circumstances. It is recognised that the power to order a stay is to be exercised only where special or exceptional circumstances exist. Such circumstances may exist where there is a real risk that, if a stay is not granted, the appeal will be rendered nugatory.

[50] In exercising its jurisdiction to grant a stay, the court has a wide discretion, and all relevant factors should be taken into account...

1. In Snowball v Capital Securities XVII Pty Ltd,[8] John Dixon J summarised the general principles on a stay application under r 66.16:

(a) the prima facie position is that a party entitled to judgment is entitled to immediately enforce that judgment;

(b) any exercise of the inherent jurisdiction to order otherwise 'must be exercised on grounds relevant to a stay of the enforcement proceedings, rather than on grounds which may bear upon the validity or correctness of the judgment'; and

(c) the applicant for a stay bears the onus of demonstrating the stay sought is justified.

1. I understand the import of the highlighted section of John Dixon J's decision to mean that judicial focus must be fixed on the circumstances which are relevant to the question of whether a stay ought to be granted. Circumstances that might be relevant to the determination whether to set aside a default judgment (such as whether the defendant has a defence that enjoys real prospects of success and delay) are different and should not be improperly conflated with the true circumstances to be considered.
2. Merkel J in the Federal Court of Australia observed the following of a Victorian Court of Appeal order staying execution of judgment:[9]

In my view, a distinction is to be drawn between a stay of execution of a judgment and a stay on the operation of the judgment. In principle, a stay of execution relates solely to a stay in respect of the legal processes of enforcement which are available in respect of the judgment but does not, of itself, suspend or otherwise affect the validity or operation of the judgment. A stay on the operation of the judgment, suspends the operation and the legal effect of, and the rights conferred under, the judgment. > > The legal consequences of a stay of execution were stated succinctly by Denning J in Clifton Securities Ltd v Huntley and Others [1948] 2 All ER 283 at 284: > > "A stay of execution only prevents the plaintiffs from putting into operation the machinery of law - the legal processes of warrants of execution and so forth - in order to regain possession. It does not take away any other rights which they have. It does not prevent their exercising any right or remedy which they have apart from the process of the court."

3. That is to say, even if I were disposed to grant a stay on the execution on the warrant, there is no application before me to set aside any default judgment entered in favour of Westpac and that judgment will remain in full force and effect.
4. In Efektiv Pty Ltd v Jescal Nominees,[10] Ierodiaconou AsJ adopted the following principles as set out by the Court of Appeal in Maher v Commonwealth Bank of Australia:

In Cellante and Ors. v G Kallis Industries Pty Ltd ('Cellante'), Young CJ (with whom Brooking J agreed), cited with approval the observation of Mahony JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Pty Ltd (in liq) that: > > ...where an applicant for a stay has not demonstrated an appropriate case but has left the situation in a state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party. > > Young CJ concluded that an applicant for a stay under r 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay. ... > > In Cellante, Young CJ stated that special circumstances would 'exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed.

1. I also note the observation of Derham AsJ in Abikhair v Ali,[11] that:

... the Court has a discretionary power to stay execution of a judgment, but only on grounds which are relevant to a stay of enforcement of proceedings. The jurisdiction does not extend to grounds which are matters of defence, which ought to have been raised in the proceeding itself.[12] (emphasis added)

2. Ms Doyle's application is expressly put on the basis that the "special circumstances" upon which she seeks to rely are that her adult children have an adverse possessory right to the Property.
3. I do not consider that this is a proper ground to seek a stay (if agitated by the correct party). It seems to me that as currently put by Ms Doyle - which may not be the way her daughters may do so - is in fact an attack on the "validity or correctness" of the judgment that has been entered. That is, it seeks to establish that the judgment for possession was incorrectly given because the right to possession of the Property was actually held by Ms Doyle's daughters. It is more akin to a matter of defence that might have been agitated by Ms Doyle's daughters (had they intervened in this proceeding) to establish that they have a superior right of possession that might defeat Westpac's claim for possession as mortgagee.
4. It seems to me that on this basis, the agitation of a claim by Ms Doyle's daughters does not go to the issue of whether a stay should be granted but is misdirected to the correctness or validity of the judgment entered.
5. How Ms Doyle's daughters might put any claim is a matter of speculation.
6. Under those circumstances I do not consider it necessary to answer this question.
7. Having said that I do consider that Ms Doyle's affidavit material is vague and general in terms of the dates she says that she and her children occupied the Property. It is unclear which of her children, and for how long, resided at the Property. She deposes to her children having partners and children. Ms Doyle is about to be a grandmother to her 13th grandchild. It is not apparent which children may have left the home to raise families with their partners. She does not make clear who was been occupying the property and between which dates so as to satisfy me in any way that there has been continuous exclusive possession of the Property.
8. There are other matters that would give me pause before making any finding on this issue on this application.
9. Westpac submits that in correspondence and by her conduct in the Supreme Court proceeding, she expressly affirmed Mr Bourne's title to the Property but claimed that he held it on trust for her and her children. This affirmation of his legal title appears to run directly counter to her new position that she and her children possessed the Property as against his interest.
10. Westpac submits that Ms Doyle has not adduced sufficient evidence that she and/or her children were in continuous possession of the Property to the exclusion of the world at large, including Mr Bourne or Mr Downey for 15 years commencing from August 2007.
11. In a prior Supreme Court proceeding,[13] Ms Doyle claimed against Mr Bourne that the Property was held by Mr Bourne on trust for her and her children. That claim was rejected by Judd J. In reaching her decision, her Honour noted that Ms Doyle had made various inconsistent claims in relation to her relationship to the Property:

[41] Secondly, Ms Doyle's evidence as to the existence of and nature of the trust, was inconsistent, with differing versions including:

(a) that she purchased the property on trust for her four children in 2006;

(b) that Mr Bourne became a bare trustee in 2007, and his only obligation was to hold the legal title and reconvey the property on repayment of the Westpac loan;

(c) that she and Mr Bourne were co-trustees;

(d) that the caveat she lodged was in her capacity as trustee for her children; and

(e) that Mr Bourne holds the property on trust for herself and/or her children.

1. Her Honour noted that Ms Doyle belatedly and reluctantly produced a document purporting to have been signed by Mr Bourne declaring that he held the Property on trust for Ms Doyle's daughters. The document was signed 17 days after Mr Bourne entered into bankruptcy and during the course of the trial. Her Honour concluded that the document had been produced by Ms Doyle in a belated attempt to prevent the Property falling in to the divisible assets of Mr Bourne's bankrupt estate.
2. Her Honour did not accept the validity of that document and rejected all of Ms Doyle's claims that the Property was held by Mr Bourne on trust for her daughters.
3. Before Judd J, Ms Doyle also alleged that she occupied the Property pursuant to a residential tenancy agreement that she had entered into with Mr Bourne. Judd J rejected that any such residential tenancy had been entered into for reasons set out at [51] of her ruling. Her Honour also noted that in a prior proceeding at VCAT, a residential tenancy agreement purportedly entered into by Ms Doyle and Mr Bourne was held to be a sham.
4. In this proceeding, Ms Doyle has deposed as follows:

The paper title holder, Robert Bourne, did not give permission for the adverse possessors to occupy the Property and the adverse possessors have never acknowledged in writing that Robert Bourne was the registered proprietor of the Property.

5. The position that Ms Doyle advances before me on this application is fundamentally inconsistent with the position that she has alleged in prior proceedings - that the property was held on trust for her daughters and that a residential tenancy agreement existed in respect of the Property. These prior positions are not founded on her daughters occupying the Property in a manner adverse to the interest of Mr Bourne. Rather they are based on some other relationship closer to some consensual arrangement between them, whether by way of trust or rental agreement. Having failed in substantiating those positions in the Supreme Court of Victoria and VCAT, Ms Doyle now puts forward a different and inconsistent position of adverse possession against Mr Bourne by her daughters.
6. It is open for me to conclude that I could have no confidence in determining the nature of the possession held by Ms Doyle or her daughters in respect of the Property, based upon her assertions alone. I would need to see supporting contemporaneous evidence to substantiate the very general assertions made in her affidavits referred to in paragraph ‎69 above. She has produced no such material. If required to do so on this application, I could only conclude that Ms Doyle's claim of adverse possession in respect of her daughters is merely an opportunistic claim made in the face of her prior legal failures.
7. The general and unsupported evidence that she has advanced does not go any way to making out a prima facie case that her daughters might enjoy rights by adverse possession against Mr Bourne or his trustee in bankruptcy.
8. There is one final point that crosses over with the next issue - that is the confluence of the registration of Westpac's mortgage on 16/17 October 2007 with the transfer of the title from Ms Doyle (under her name Mary Therese Bourne) to Mr Bourne on the same day. I will address this issue further below - but it also provides a strong argument that no claim in adverse possession actually exists as between Ms Doyle's daughters and Westpac.

Can any adverse possession claim arising from possession of the Property since 2007 defeat the Mortgage registered on 16 October 2007?

1. Westpac submits that Ms Doyle's claim must fail because she cannot invoke s 42(2)(b) of the Transfer of Land Act 1958 (Vic) ('TLA') to overcome the indefeasibility of Westpac's mortgage. Section 42(2)(b) provides that the land contained in any folio of the Register or any registered instrument shall be absolutely free from all other encumbrances whatsoever, except any rights subsisting (emphasis added) under any adverse possession of the land.[14] The section is set out below.

(1) Notwithstanding the existence in any other person of any estate or interest (whether derived by grant from His Majesty or otherwise) which but for this Act might be held to be paramount or to have priority, the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from all other encumbrances whatsoever, except - ...

(2) Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to - ...

(b) any rights subsisting under any adverse possession of the land;

(d) any easements howsoever acquired subsisting over or upon or affecting the land;

notwithstanding the same respectively are not specially recorded as encumbrances on the relevant folio of the Register.

1. Westpac submits that neither Ms Doyle nor her daughters had any subsisting adverse possession rights as, on 16 October 2007 when Westpac's mortgage was registered, they had only moved into the property in August 2007 and could only have been in possession for a period less than three months at that point.
2. Westpac calls in aid the dicta of Gorton J in Valmorbida v Les Denny Pty Ltd ('Valmorbida').[15] I have replicated the section they rely on below.

... Both s 42(2)(b) and (d) of the Transfer of Land Act 1958 (Vic) use the word 'subsisting' as qualifying the adverse possessory rights and easements that fall within the proviso, which does convey that the adverse possessory rights or the easement must in fact already exist.[16]

3. In their written submissions, Westpac says that this statement should be understood as meaning that, unless and until the full time period of adverse occupation of fifteen years has been reached, the adverse possessor of property does not have any "subsisting" rights that could encumber the relevant folio of the Register or any registered instrument, including a mortgage.
4. I do not accept that this is correct for the following reasons.

(a) The interpretation put forward by Westpac is at odds with the meaning of the dicta extracted, when considered in context. In subsequent paragraphs of Gorton J's judgment, his Honour noted that Victorian legislation is silent on the question of whether a possessory application may be made if "the whole of the period of adverse possession that would be claimed...would not have occurred [until] after [the] proprietor became so registered.[17]" His Honour noted that there was apparent acceptance that the exception to indefeasibility provided for in s 42(2)(b) of the TLA extends to rights in the course of being acquired under a statute of limitations.[18] In support of this view, his Honour cited the authors of 'Australian Real Property Law' and 'Sackville & Neave: Australian Property Law', who said that:

...the phrase 'rights subsisting under any adverse possession of land' includes 'inchoate possessory rights' as well as 'possessory rights which have developed with the effluxion of time into the best interests in the world'. In this way, it can be said that (inchoate) rights are 'subsisting', even if the full time period has not yet been reached (emphasis added)...[19]

(b) On appeal in Les Denny Pty Ltd v Valmorbida,[20] their Honours Emerton P, Richards and Kenny JJA upheld the interpretation of s 42(2)(b) articulated by Gorton J, stating that:

Section 42(2)(b) provides an exception from indefeasibility of title for inchoate possessory rights, before a sufficient period has elapsed to establish a claim in adverse possession...Possessory title has long been recognised by the law as a right, and clearly falls within the definition of 'encumbrance' in the Transfer of Land Act.[21]

(emphasis added)

Their Honours also held that Gorton J was correct to characterise s 42 of the TLA as an ambulatory provision, noting that:

[s 42] describes the estate of the registered proprietor of land from time to time, not only at the point of registration. The registered proprietor holds the land free from any encumbrances not recorded on the Register, but subject to the exceptions provided in s 42(2).[22]

(c) This interpretation is supported by the earlier dicta of Kyrou, McLeish and Niall JJA in Laming v Jennings:[23]

...the differences in the wording of s 42(2)(b) and (d) of the TLA might support a different analysis of the circumstances in which an unregistered easement arising from long user binds the registered proprietor of the servient tenement compared to the circumstances in which title by adverse possession binds such a proprietor. The phrase 'any rights subsisting' in s 42(2)(b) may more readily be construed as rights that are continuing to accrue through user compared to the phrase 'any easements howsoever acquired subsisting' (emphasis added). The latter phrase might indicate that an easement must have already crystallised as distinct from continuing to accrue at the time a person becomes the registered proprietor of the servient tenement.[24]

1. The correct legal position regarding the exception to indefeasibility in s 42(2)(b) therefore seems to be that the adverse possessor of property has "subsisting" rights that can encumber the relevant folio of the Register or any registered instrument, including a mortgage, even if those rights were continuing to accrue at the time legal title or interest was registered.
2. As such, I consider that Westpac's mortgage could be defeated by an adverse possession claim arising from the inchoate rights of an adverse possessor who, at the time of mortgage registration, had not satisfied the fifteen-year time period but whose rights have, with the effluxion of time, developed into the best interests in the world.
3. However, in oral submissions Westpac pivoted to a different and stronger position on this point. Westpac pointed to the events on the day of registration of its mortgage as reflected in a historical title search of the Property.
4. Ms Doyle (under her name Mary Therese Bourne) became the registered proprietor of the Property on 3 November 2006, and the same day a mortgage to Perpetual Limited was registered.
5. Nearly 12 months later, on 16/17 October 2007 Ms Doyle (under the name Ms Bourne) transferred title to the property to Mr Bourne, who borrowed funds from Westpac to pay out the Perpetual mortgage that had been transacted by Ms Doyle nearly 12 months earlier.
6. Ms Doyle has consistently said that she and her daughters commenced occupation of the Property in August 2007. At that date, Ms Doyle was the registered proprietor of the Property. There is no suggestion by her that her daughters (who were children at the time) adversely possessed the property as against her. If that is correct, then as at the date that Mr Bourne was registered as the proprietor of the Property simultaneously with the registration of Westpac's mortgage, neither Ms Doyle nor her daughters had any subsisting adverse possessory right as against Mr Bourne under s 42(2)(b) of the TLA.
7. Indeed, the rearrangement of their affairs as appears to be reflected in the change in title holder and borrowings on that day strongly suggests that the continued occupation by Ms Doyle and her daughters of the Property was, at that stage, done with the consent of Mr Bourne.
8. This would negative any adverse possessory right having commenced prior to the registration of Westpac's mortgage. If that is so, then the indefeasibility of title that Westpac's mortgage attracts would be free of any adverse possession claim by Ms Doyle's daughters.

1. Ms Doyle claims that Westpac was aware that she claimed that that the Property had been adversely possessed from Mr Bourne by reason of an email sent by Ms Doyle on 3 March 2023. She says that having regard to this notice, Westpac should have named her and or her daughters as defendants to the proceeding seeking possession of the Property in this court. She says that she would then have had the ability to advance her adverse possession claim. She says that Westpac did not name her in order to prevent her from doing so.
2. I understand her argument to be that this constitutes "special circumstances" such as to warrant a stay of execution of the warrant.
3. Westpac submits that it was not required to name any and all persons in occupation of the Property that it has a right to obtain possession from in order to conduct a mortgagee sale. It says that it is only obliged to name the registered proprietor and the mortgagor (which it has done).
4. As to this, I note that the Rule 9.07(3) of the County Court Rules provides that the court may add as a party to a proceeding for the recovery of land a person who is in possession of the land. This rather suggests that other than the registered proprietor or mortgagor, persons who may be in occupation of the land are not necessary defendants to the proceeding.
5. Westpac also notes that, as set out above, until this application the rights Ms Doyle asserted in multiple proceedings did not include adverse possessory rights held by her daughters.
6. Having regard to the matters referred to above and, what I consider to be the untenable claim that Ms Doyle's daughters' proposed adverse possession claim subsisted at the time Westpac's mortgage was registered, I do not consider that they should have been named as defendants to this proceeding.

1. For the reasons outlined above, I find that Ms Doyle has not demonstrated that special circumstances exist that warrant the grant of a stay on execution of the warrant for possession Her application will therefore be dismissed.
2. I will now hear the parties on costs.

I certify that these 22 pages are a true copy of the ruling of his Honour Judge Wise delivered on 17 March 2026.

[1] Downey as Trustee of the Bankrupt Estate of Robert Henry Bourne v Doyle [2023] VSC 664 and Downey v Doyle [2025] VSC 315.

[3] Goddard Elliott (Firm) v Fritsch [2012] VSC 87 at [546].

[4] [2020] VSC 715 at [31]- [34].

[5] Bankruptcy Act 1966 s 60.

[7] [2024] VSCA 283 at [49] to [50].

[8] [2018] VSC 588 at [29], as cited by Sloss in One Capital Pty Ltd v Casada Holdings Pty Ltd [2024] VSC 520 at [124].

[9] Re Hughes, Brent [1997] FCA 1324.

[10] [2019] VSC 628. Her Honour's reasons were upheld on appeal in Efektiv Pty Ltd v Hodge [2019] VSC 636.

[11] [2018] VSC 93.

[12] Citing TC Trustee Ltd v JS Darwen (Successors) Ltd [1969] 2 QB 295; London Permanent Benefit Building Society v de Baer [1969] 1 Ch 321, 332; State Bank of Victoria v Parry [1989] WAR 240, 244; Re S&D International Pty Ltd (in liq) No 6 [2011] VSC 119 [122].

[13] Downey v Doyle [2025] VSC 315.

[14] Transfer of Land Act 1958 (Vic) s 42(2)(b).

[15] [2023] VSC 680.

[20] [2025] VSCA 319.

[23] [2018] VSCA 335.