JNM Pty Ltd v Adelaide Banner Pty Ltd [2011] VSCA 428

Limitation of Actions Act 1958 (Vic), ss 8 and 18.

1 The facts of this case are, in essence if not in detail, simple. The application to them of straightforward legal principles is nevertheless remarkably elusive.

2 The appellant, JNM Pty Ltd ('JNM') was the plaintiff in a claim for repossession of a strip of land, a little less than 86.3m in length. At the northern extremity of the strip, which is an irregular rectangle in shape and runs north/south, a heavily overgrown embankment inhibits entry, let alone activity denoting the exercise of possessory rights. At the opposite (southern) extremity, the land has been levelled and, in part at least, paved. JNM complains that the respondent, Adelaide Banner Pty Ltd ('AB Co'), is now in possession of that extremity; but (the complaint continues) since JNM is the registered proprietor of the whole of the strip, AB Co's occupation of the southern portion is unlawful.

3 At trial, AB Co defended that claim, and founded a counterclaim, on the basis that the land in question has been in its occupation to the exclusion of JNM and its predecessors in title for so long (since at least May 1989) that AB Co is entitled to retain it under the doctrine of adverse possession - a doctrine now embraced by ss 8 and 18 of the Limitation of Actions Act 1958. Indeed, the portion of the strip over which AB Co has acquired physical possession is such an integral part of the whole, including the overgrown embankment (over which AB Co has admittedly never been in occupation) that, according to AB Co, it is entitled by way of adverse possession not merely to that portion which is physically occupied, but also to the balance of the strip.

4 Three parcels of adjoining land in Footscray are involved. Lots 2, 3 and 4 in Plan of Subdivision 099955 were once in the same ownership, and within the same title: Volume 5024 Folio 733 of the Register Book. The registered proprietor was Michaelis Bayley (Vic) Pty Ltd. ('Michaelis Bayley') But, on 15 July 1974, a subdivision took effect. As a consequence, new titles were issued, the volume number of the register being the same in each case. Lot 2 is more particularly described in Certificate of Title Volume 9032 Folio 437; Lot 3 in Certificate of Title Volume 9032 Folio 438; and Lot 4 in Certificate of Title Volume 9032 Folio 439.

5 Lots 2 and 3 were, on 16 October 1996, acquired by JNM from Michaelis Bayley. These lots share a common boundary, Lot 2 being immediately to the north of Lot 3. Lot 4, which is immediately to the west of both Lot 2 and Lot 3, has been owned by AB Co for a shorter period - since 25 February 2002. Between 17 May 1989 and 25 February 2002, the registered proprietors of Lot 4 were Con Goulas and his wife, Genny Goulas, who acquired their interest from Michaelis Bayley.

6 The northern half of the eastern title boundary of Lot 4 is also the western title boundary of Lot 2; while the southern half of the title boundary of Lot 4 is the western title boundary of Lot 3. The land the subject of this appeal is a strip running the length, and immediately to the east, of the eastern boundary of Lot 4. It therefore occupies the western extremities of both Lot 2 to the north and Lot 3 to the south. The strip's western boundary is the eastern title boundary of Lot 4. From its southern extremity, at the point at which it meets Neilson Place (formerly known as Ryan Street, and shown on the Certificates of Title as such, but also sometimes shown on other plans as Neilson 'Street'), its eastern boundary extends northwards, and is physically designated in part by a chain wire fence above a retaining wall, and in part by the western extremity of a brick building on Lot 2. It has no physical boundaries beyond, and to the north, of the north-western corner of the brick building. It is here that the overgrown embankment predominates.

7 Nobody who sought to ascertain, from a view of the fence and the wall beneath it, whether - even taken with the western extremity of the brick building - these accurately marked the title boundary, could have supposed that they did. The line they formed was too irregular.

8 Set out below is a somewhat unsatisfactory attempt to illustrate more graphically than is otherwise possible the size, shape and position of the southern portion of the land of which JNM claims possession. The plan is taken from the statement of claim, and shows so much of the strip of land in issue in this appeal as is physically delineated on its eastern boundary. That delineation is by way of (a) the fence (designated on the plan as a 'brick retaining wall') which extends northward from its southern extremity on Neilson Place to the brick building shown on Lot 2, and then (b) by the western wall of that building. I noted at [6] above that, north of the western wall, in an area not shown on the plan, the disputed land has no identifiable physical boundary.

9 As can be seen, the plan has a north/south orientation. Neilson Place is at its southern extremity. Lot 4 is to the left (or west) of the unbroken line running north from Neilson Place. To the right of the unbroken line, with a frontage to Neilson Place and including an electrical substation, is Lot 3. The reference to 'brick building' is a reference to a building on Lot 2; and the plan depicts its western wall, together with an extension of that wall to the south. The horizontal (east/west) line depicted as running through the brick extension to the south of the brick building is the title boundary between Lots 2 and 3. The horizontal line to the north of the brick building is, as best I can read the statement of claim, the northern limit of the land which, by the statement of claim, JNM contended has been wrongfully occupied by AB Co. If so, that line extends eastwards well beyond the width of the strip in contention. Both Lot 2 and Lot 4 extend northwards for about 20m beyond that line, to a point adjoining the railway land which carries rail traffic through Footscray.

10 The plan shows a gap between brick retaining walls on Lot 3. Other plans depict a continuation of that retaining wall, either of brick or of sleepers, filling that gap. It is accepted by the parties that the disputed strip was and is wholly to the east of the title boundaries formed with Lot 4 and, at all points south of the north-west corner of the brick building, is physically separated from the balance of Lots 2 and 3 either by that building or by the retaining wall.

11 As noted above, the line formed by the fence and the western extremity of the brick building is too irregular to conform to what might be thought to be the title boundary. And this irregularity has the necessary consequence that the strip varies in width - as it happens, from 3.51 m to 5.04m. At its most southerly point, which has a frontage to Neilson Place, it is 3.83m wide. At the south-western corner of the brick building, it is 4.81m wide. And at the north-western corner of that building its width is 3.94m. (It follows that, as with the fence, the western wall of the building is not precisely parallel with the title boundary.) From that corner northwards to the northern title boundary of Lot 2, no fence or wall designates the eastern boundary of the strip (and therefore its width). If, north of that corner, it exists at all, its boundary would be no more than a line drawn more or less arbitrarily due north from the corner to the point where the railway reservation forms the northern title boundary of Lot 2.

12 The fall of the land is generally from west to east. Levelling has occurred on each of Lots 2 and 3, and parking areas created thereby. That on Lot 2 is lower than that on Lot 3, and both are lower than the level of the ground on Lot 4. Thus, the height of the retaining wall on Lot 3 as it meets Neilson Place is 1.2m, while it is 4.2m high at a point immediately to the south of the brick building on Lot 2. Above these walls is the chain wire fence to which I referred at [6] above.

13 The excavated areas of Lots 2 and 3 run only to the eastern boundary of the disputed strip. Doubtless the present litigation would have been averted had the then owner of Lots 2 and 3 excavated to the western title boundary of each allotment. But, of course, those title boundaries might not then have been in existence, since the evidence does not disclose whether or not these improvements were effected before the subdivision of 15 July 1974. They were certainly in place when, on 28 November 1989, the first of the aerial photographs in evidence was taken.

14 Where the land has not been excavated, and perhaps to an extent even where it has, an embankment serves to accentuate the physical separation between the disputed strip and the balance of Lots 2 and 3, and between those Lots and Lot 4. As I have already observed, at the strip's northern extremity, where there is neither fence nor retaining wall, the embankment constitutes a steep physical barrier the height of which, together with the thick vegetation at that point, makes any use or occupation of the strip unrealistic. To say that this portion of the strip is 'occupied' is to say no more than that whoever holds the title to it is by virtue of that fact the putative occupier.

15 For a time following the 1974 subdivision, each of the three lots remained under the ownership of Michaelis Bayley. It seems clear that, whether effected before or after that subdivision, improvements to the land were made without regard to the true title boundaries of the present allotments. Fences and buildings were constructed, land was excavated and retaining walls were erected, according to the then present needs of the owner. Following these works, the improvements formed a natural boundary between the land to the east and the land to the west of them; and, once the subdivision was effected,[1] between Lots 3 and 4, as well as the southern portion of Lots 2 and 4. Consistently with the physical configuration of the land, its use and occupation adapted to these physical barriers between allotments, rather than to the title boundaries. That, at least was and is the contention put forward by AB Co in support of its claim, based on adverse possession, to the disputed strip.

16 None of the improvements now said by AB Co to mark the boundary between, on the one hand, Lots 2 and 4 and, on the other, between Lots 3 and 4 were effected by either of the parties to this appeal. Indeed, according to the trial judge, 'it is accepted that the present situation has existed since 1989, at least'.[2] If this is the case, the particulars to paragraph 5 of the statement of claim are incorrect in alleging that AB Co 'has fenced off a strip of the plaintiff's land.' I accept his Honour's finding that AB Co did not do this.

17 JNM challenges AB Co's version of the use to which it and its predecessors in title put the land. It asserts that AB Co has not ever possessed any of the land beyond the eastern title boundary of Lot 4; or at least has not possessed it in circumstances which gave rise to an entitlement by way of adverse possession. It contends that, put at its highest, the claim of AB Co rests upon irregular and intermittent possession of the southernmost 20 metres of the disputed strip for less than the required period of 15 years.

18 It is this 20 metres of disputed strip upon which the claim of AB Co principally rests. It is physically part of Lot 4. It sits above the retaining wall which marks the western extremity both of the parking area on Lot 3 and of the electrical substation in the south-western corner of that allotment. Some portion of it has been paved, forming a contiguous paved surface into Lot 4 proper on which vehicles have parked from time to time. A crossing has been constructed from Neilson Place into this area. The crossing, and the gate through which one must pass to enter Lot 4 from Neilson Place, straddle the title boundary between Lot 3 and Lot 4.

19 AB Co does not assert past or present physical possession of the strip of land to the north of the paved area described above. It does, however, contend that its physical possession of the land at the southern extremity of the disputed strip gives it the right, pursuant to the doctrine of constructive possession, to the northern portion of the disputed strip.

20 The doctrine of constructive possession holds that, in appropriate circumstances, possession of part carries with it possession of the whole. The qualifying circumstances apply when the whole is so closely linked to the part that it would be unrealistic or unjust to separate them. In Clark v Elphinstone & Anderson the Privy Council expressed the position in the following words:[3]

There is no doubt that in many cases acts done upon parts of a district of land may be evidence of the possession of the whole. If a large field is surrounded by hedges, acts done in one part of it would be evidence of the possession of the whole.

21 JNM issued its proceedings on 8 June 2007. The statement of claim was annexed to the Writ. AB Co, in its defence and counterclaim, admits incorporation of the parties, and their registration as proprietors of their respective allotments, is admitted. By paragraph 5 of the statement of claim, JNM asserts that AB Co is 'wrongfully in possession of part of Lot 2 and part of Lot 3', being the strip of land shown on the plan reproduced at [8] above. The statement of claim then concludes with the prayer for relief, which includes a claim for 'Possession of the land described above' [that is, as illustrated by the plan].

22 By its defence, AB Co admits that it is in possession of parts of Lots 2 and 3, but denies that its possession is wrongful. Between at least May 1989 and 25 February 2002, it asserts, the disputed strip was in the exclusive possession of Con Goulas and his wife. Since that time it has been in the exclusive possession of AB Co, which possession has therefore been to the exclusion of JNM. Accordingly, its right to recover the strip accrued no later than May 1989. Having accrued then, the right has since been extinguished 'by reason of the provisions of s 8 of the Limitation of Actions Act 1958 (Vic),' with the result that JNM is 'unable to maintain its action for possession herein.'

23 So far as is presently relevant, s 8 of the Limitation of Actions Act provides, in effect, that no action shall be brought to recover any land after the expiration of 15 years from the date on which the right of action accrued. Given that the Writ was issued on 7 June 2007, AB Co need only prove its exclusive possession since 8 June 1992.

24 AB Co has also counterclaimed. The gravamen of its allegations in support is that 'the title of [JNM] to the land has been extinguished by reason of s 18 of the Act.' (Section 18 complements s 8 by providing that, at the expiration of the period of 15 years, the title of the person who otherwise could bring an action to recover the land from which he or she has been dispossessed 'shall be extinguished'). The prayer for relief seeks a declaration to that effect.

25 The matter came on for trial before Byrne J on 23 July 2009. Despite the limited claims made in the respective pleadings, at trial each side contended that it was entitled to the entirety of the disputed strip to the exclusion of the other. His Honour was content to deal with the matter on that basis. Accordingly, AB Co defended the claim of JNM for an order for possession of the whole by seeking to prove that it had possessory title to the whole. Neither side sought, in the alternative, orders or declarations which would result in that party's entitlement by judicial decree not to the whole, but instead to a part of the whole.

26 A view was conducted. His Honour found that '[f]or some years prior to 1989, the three lots were used for the manufacturing and wholesale purposes of the Michaelis Bayley Group save for the electrical substation on the southwest corner of Lot 3.'[4] The judge also found that the 'fence was erected at a time when the lots were in the one ownership'[5], but noted that 'the evidence does not permit me to conclude when [the] paving [on Lot 4] occurred'[6] or, more generally, 'when these improvements and structures were made or erected other than that they were already in existence in 1989 when the first of the aerial photographs was taken and when Con Goulas and his wife Genny Goulas became the owners of Lot 4.'[7]

27 A director of AB Co, Peter Van Camp, prepared a witness statement which was tendered in evidence. In it, he said that '[m]any years ago, at a time which I cannot recall but probably in the early 1990's, a driveway was installed leading from the road into Lot 4.' If it was installed at the time suggested by Mr Van Camp, it represents the only improvement effected after Michaelis Bayley ceased to be the sole owner of each of the allotments. The installation of a driveway which straddles the title boundary is of course an action by the owner of Lot 4, assuming that that allotment is in separate ownership, which denotes an intention to possess the disputed strip, or at least part of it, and to possess such part to the exclusion of the owner of Lot 3.

28 Mr Van Camp gave oral evidence. He was not asked any questions about the gateway from Neilson Place.

29 The position might have been, but was not, clarified by Mr Goulas. He made a statutory declaration, which was tendered in evidence. It says nothing about the gate. He also gave oral evidence. No questions concerning the gate were asked of him.

30 His Honour merely noted in his judgment that 'Mr Van Camp said that he thought this entrance was created in the early 1990's'.[8] Speaking more generally, however, the judge later recorded (as I have already noted, at [16] above) that 'it is accepted that the present situation has existed since 1989 at l[9]ast.'9

31 In my opinion, having reviewed the evidence, AB Co cannot rely on Mr Van Camp's rough estimate of the date when the gate was installed. It seems highly likely that a facility so important for both the security of, and accessibility to, Lot 4 would have been in place when, as his Honour found, Michaelis Bayley not only owned the land, but used it for the company's manufacturing and wholesale purposes. The burden of proving the contrary being on AB Co on this point, that burden has not been discharged.

32 AB Co argued, correctly, that the fence, together with the western wall of the brick building and the overgrown embankment directly to its west, served as a physical barrier that denied JNM ready access to the disputed strip from the east. To that extent, the strip was enclosed. And, generally speaking, where a trespasser encloses the subject land, the fact of enclosure demonstrates a prima facie intention to possess.[10] Here, however, the enclosure was effected not by the person claiming possessory title, but by the owner of both the disputed land and that by which it is surrounded.

33 Nevertheless, the physical configuration of the southern portion of the disputed strip was such that it was separated from the balance of Lot 3, and from that portion of Lot 2 which lies south of the brick building, not only by a change in levels but also by the retaining wall and the fence which was erected on the top of that wall. By contrast, that part of the strip was physically incorporated into Lot 4; and the entrance to both the strip and the allotment was, at least if one approached from Neilson Place, through a gate which was undoubtedly in the possession of the owner of Lot 4.

34 AB Co supplemented these considerations by submitting that the physical incorporation of the southern portion of the strip into that part of Lot 4 directly to its west not only strongly supported the conclusion that the person in occupation of that allotment also occupied the strip, but that evidence of use pointed to the same conclusion. The southern extremity of Lot 4 was and is paved. So is the adjoining portion of the strip. Together, they formed a parking bay. The land was conjointly used as such for more than 15 years before JNM's Writ was issued.

35 These submissions found sufficient favour with the trial judge to bring his Honour to the conclusion that AB Co had by its possession of the southernmost 20 metres of the disputed strip extinguished JNM's title to that land. In his Honour's words:

I conclude from this that [AB Co] has failed to demonstrate that it and its predecessors in title have continuously exercised dominion over the whole of the strip which it claims. Accordingly, its claim for a possessory title of the strip must fail. On the other hand, I am satisfied that the claim of JNM for possession of the whole strip must also fail because, insofar as it includes what I have called the paved southern most portion, the defence based upon the Limitation of Actions Act succeeds.

36 But, while the judge went to some pains to say why, in his opinion, AB Co was not entitled to the (unpaved) northern two-thirds of the strip, he gave no explicit reasons for his conclusion in respect of the last (paved) one-third, save to record that:

... the successive true owners of Lots 2 and 3 did not use or seek to use any part of the disputed strip at any time since 1989. They appear to have accepted that the fence line marked the title boundary.[11]

37 I noted above that, despite the limited claims made in the pleadings, the trial proceeded on the basis that each side was intent upon a claim to the entirety of the strip. In these circumstances, his Honour's finding that JNM's title to part of the disputed strip had been extinguished had the result, in the judge's opinion, that neither party succeeded. In consequence, AB Co remains in possession of the paved section of the strip, while that part of it to the north remains unoccupied; and the whole remains in the titles held by JNM to Lots 2 and 3. This is an unsatisfactory state of affairs.

38 I agree with the trial judge that AB Co has not established any right to the unpaved portion of the strip. It could not rely on constructive possession as a basis for its claim to the entire strip. His Honour held, correctly in my opinion, that proof of possession of part can only found a claim for the whole where there is an element in the character and locality of the land in question that would raise an inference that possession of part included possession of the whole: The Lord Advocate v Lord Blantyre.[12] The judge followed Higgs v Nassauvian Ltd[13] in holding that this rule will only apply where the whole of the land is sufficiently defined by a fence or physical barrier or otherwise. That was not so in this case.

39 Here, his Honour correctly held that AB Co could not establish the whole area claimed by adverse possession because there was no fence or other mark northwards from the northwest corner of the brick building, leaving uncertainty about whether one should define the claim by having regard to the topography of the embankment, or by considering 'the toe of the boundary' where there had been a wall.[14] In these circumstances, AB Co had to establish occupation of the whole of the strip, which it had not done.

40 I disagree with his Honour, however, in his conclusion that AB Co has a viable claim to a possessory title over a portion of the strip. It is for AB Co, as claimant to such a title, to prove its claim. In its favour is the fact that, physically, the southern portion of Lot 4 merges with the southern portion of the strip; and if anybody occupied or occupies that portion of the strip, it was (and is) AB Co and its predecessors in title. The physical division between Lots 2 and 3 on the one hand and Lot 4 on the other has been in place for over 15 years, as has the fence and gate with a frontage to Neilson Place.

41 Counsel for AB Co agreed with the proposition, put from the Bench at the hearing of the appeal, that the existence for over 15 years of the present physical configuration of the disputed strip, including both (a) the fence and the gate which mark its southern boundary, and (b) the fences - together with the building and retaining walls - which mark portion of its eastern boundary, is his client's strongest point. This configuration, he submitted, gave the owner of Lot 4 physical control, and therefore occupation, of the southern portion of the strip; and this was sufficient to also give AB Co, as the current owner, rights of adverse possession over the balance of the strip to the north. Counsel again placed reliance on the proposition, to which I referred at [32] above, that enclosure is, by itself, prima facie evidence of the requisite intention to control.

42 Counsel for AB Co also submitted, correctly, that the adverse possessor must be able to prove that it dealt with the land in question as an occupying owner might have been expected to deal with it. He further submitted, as properly he should have done, that the relevant expectations concerning the dealings of an occupying owner vary according to the nature of the land and the uses to which it was, and might reasonably be expected to be, put.

43 There are other considerations as well. The evidence did not support the proposition that the disputed strip had been in continuous use for any definable period, let alone 15 years. AB Co's immediate predecessors, Mr and Mrs Goulas, did not themselves use Lot 4 for much of the time of their ownership, and when they did it was to utilise the buildings on the land - none of which encroached upon the strip - as a place for storage of cartons used in their business. They did not park vehicles on the strip, or otherwise use it. In cross-examination, Mr Goulas agreed that there were times 'when nobody used the premises.'

44 Mr Goulas confirmed that all the structures by which any boundaries of the strip are identified were in place when he and his wife purchased Lot 4. It cannot be claimed, therefore, that either AB Co or any predecessor 'enclosed' the strip, or any part of it, so as to give that strong indicia of the requisite intention to control about

which counsel spoke. He also gave evidence that for much of the period of their ownership, Lot 4 (he referred to it in his evidence as 'the land') was let to tenants. No lease was, however, in evidence. In the absence of evidence to the contrary, and there was none, it is a reasonable conclusion, consistent with the balance of probabilities, that the land the subject of these leases was described in terms which confined it to Lot 4, not including any part of the strip.

45 It is true that the tenants did from time to time park vehicles on the strip. But its use in that way was far from continuous.

46 This was and is industrial land in an inner suburb of Melbourne. In the particular circumstances of its use, and of its subdivision, I do not think that either AB Co or its predecessors in title to Lot 4 acquired, by adverse possession or otherwise, title to any part of the disputed strip. In the end, the claimant for adverse possession could not point to any use of the strip, save at its southern extremity; and even then, that use was as a parking area which took the overflow from Lot 4 of vehicles parked on that Lot. Moreover, such use was intermittent; it was not continuous for any period which even approached 15 years. And to the extent that a portion of the strip - no more than about a third - was physically part of a parking lot, but not continuously used as such, the incorporation of the strip with Lot 4 in this way was effected at a time when both the strip and Lot 4 were in common ownership.

47 The appeal of JNM must therefore be allowed, and that of AB Co dismissed.

49 I have had the considerable benefit of reading in draft the reasons for

judgment of Harper JA. Subject to one factual issue which I mention below, I agree in his Honour's conclusion and the reasons he gives for reaching that conclusion.

50 For my part I would not necessarily accept that the driveway and gate from Neilson Place leading to the southern end of the strip were likely to have been put in place by Michaelis Bayley, and thus installed, prior to 1989. In my view, they may well have been put in place at a later time when Lot 4 was in separate ownership from Lot 3.

51 But, as Harper JA observes, AB Co's evidence, through Mr Van Camp, is no more precise than 'probably in the early 1990's'. Given that AB Co bears the onus of satisfying the court of continuous, exclusive possession from (at least) 9 June 1992 onwards, such imprecise evidence is not capable of satisfactorily discharging that onus, at least in so far as AB Co seeks to rely upon the installation of that facility as signifying an intention on the part of the Lot 4 owner to exclusively use, and control the use of, the strip for the required period of time.

[1] Assuming that this was after the improvements discussed above were completed.

[2] JNM Pty Ltd v Adelaide Banner Pty Ltd [2009] VSC 327 ('Judgment'), [26].

[3] (1880) 6 App Cas 164.

[10] Seddon v Smith (1887) 36 LT 168, 169.

[12] (1879) 4 AC 770, 791-2 (Lord Blackburn). Cited in Judgment [37].

[13] Judgment [38]; [1975] AC 464, 474 (Sir Harry Gibbs).