KRUIZE -v- VOOYS [2023] WASC 411 (30 October 2023)

1. This is an application by the first defendant (in this judgment, the defendant) pursuant to O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA) (RSC) for the plaintiff's statement of claim to be struck out in its entirety or, in the alternative, pursuant to O 16 r 1 RSC for summary judgment.
2. In the case of each application the defendant requires an extension of time.
3. For the reasons which follow I will grant the extension of time in each case, allow the strike out application in part, and dismiss the application for summary judgment.

1. On 1 April 2022, the plaintiff filed a writ against the defendant and the Registrar of Titles as the second defendant seeking delivery up of a parcel of land from the defendant or, in the alternative, damages and interest.
2. The parcel of land lies at the centre of two residential properties in Berrigan Street, Nollamara. A garage has been constructed on it. There is no dispute that the defendant, as the registered owner of one of those properties, presently has physical possession of the land and the garage (the Land).
3. The plaintiff, as the registered owner of the other property, claims that the Land belongs to her, on the basis that it has always belonged to the registered owner of that other property, or alternatively as a result of adverse possession of the Land for more than 12 years by previous registered owners of the other property.

1. Affidavits were read on behalf of the defendant as follows:

(1) Affidavit of Vanessa Grace Vooys sworn 20 June 2023;

(2) Affidavit of Josephine Marie McAllister sworn 23 June 2023;

(3) Affidavit of Caitlin Margaret Deacy sworn 2 October 2023.

1. Affidavits were read on behalf of the plaintiff as follows:

(1) Affidavit of Roselina Kant Angeli Kruize sworn 28 June 2023;

(2) Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023.

1. The defendant objected to various sections of the plaintiff's affidavit sworn 24 August 2023 on the basis that they contained matters which were more properly characterised as submissions, or alternatively that they asserted various conclusions which were in fact no more than the plaintiff's belief or understanding as to particular facts.
2. On the basis that the plaintiff conceded that the intention was only to depose to her understanding or state of mind, it was conceded by the defendant that it was unnecessary for individual rulings on the objections and I would determine the appropriate weight to give to the particular sections, if they were relevant at all.
3. The plaintiff did not object to the admissibility of the contents of the defendant's affidavits.

1. The two properties in question are 32 and 34 Berrigan Street, Nollamara.
2. On 23 January 1976, Strata Plan 3559 was registered in respect of Certificate of Title Volume 1317 Folio 303. Lot 1 became 32 Berrigan Street, Certificate of Title Volume 1425 Folio 917. Lot 2 became 34 Berrigan Street, Certificate of Title 1425 Folio 918. The Strata Plan registered shows a plan with a building at 32 Berrigan Street and a building at 34 Berrigan Street, with an apparent common wall. The boundary between the two is shown by a dotted line.[1]
3. In about 1975, a building was constructed adjoining the pre‑existing building. It consisted of a residence, and what were referred to as 'dual car ports', all under one roof. The two car ports adjoined each other and the wall of the car port nearest 34 Berrigan Street had a common wall with 34 Berrigan Street.[2] It is apparent the building was completed by 23 January 1976, according to the Certificate of Local Authority forming part of the Strata Plan documents.[3]
4. On 23 June 1997, the then registered owners of the two residences passed a resolution which relevantly stated: [4]

(1) That in relation to the lots or parts of the lots which are buildings shown on the strata plan, the boundaries are to be fixed by reference to the external surfaces of those buildings, as provided for by section 3AB of the Strata Titles Act 1985.

Where 2 lots have a common or party wall, or have buildings on them which are joined, the centre plan of that wall or the plane at which they are joined, is the boundary.

(c) to merge land that is common property into a lot or lots on the strata plan -

(ii) by (describe merger) the prolongation of the centreline of common wall between Lot 1 and Lot 2.

1. The accompanying documents show that 32 Berrigan Street was measured at 131m2 and 34 Berrigan Street was measured at 108m2,[5] and that the dotted line shown on the original Strata Plan was amended to a solid line which wholly transected the two lots.[6]
2. Both the plaintiff and the defendant rely upon information they depose they have obtained from the previous owners of 32 and 34 Berrigan Street. Much of the information is contained in copies of letters said to have been exchanged between those owners, although the defendant also repeats information she said she was told by the previous owners. Order 16 r 1(3) and O 16 r 2(1a) RSC permit information of this nature to be contained within affidavits on an application by a defendant for summary judgment.
3. On 1 May 2006, a couple (whom I will call the V's) purchased 34 Berrigan Street. Another couple (whom I will call the S's) purchased 32 Berrigan Street in 2008 or 2009. It is not in dispute that, at the time of the purchase by the S's, there was a brick wall between the two garages extending towards the front of the property; the V's had the exclusive use of the Land and the S's had the exclusive use of the garage adjoining 32 Berrigan Street.
4. There is presently no evidence as to when the brick wall was constructed. The plaintiff relied upon an image which she submitted was dated December 2001 which shows the wall.[7] The provenance of that image was not disclosed.
5. There is also no evidence as to the use of the garages by the owners of either property before the purchase of 32 Berrigan Street by the S's, although it could readily be inferred that the V's had possession and exclusive use of the Land from the date of their purchase of that property.
6. On 22 November 2009, the S's informed the V's in writing:

As previously discussed, we believe the current alignment of the boundary fence (including garage) between our properties, does not reflect the legal boundary shown on our Strata Plan 3559.

Based on the boundary demarcation shown on the enclosed plan, we believe the boundary fence encroaches within approximately 3 metres of our boundary (as shown in red) in the attached plan. This area also includes the garage which you are currently using.

1. The S's proposed that a licensed surveyor be engaged to resolve the matter.[8]
2. By letter dated 15 December 2009, the V's agreed to have the property surveyed, on condition, and wrote:

In the event that the surveyor's report confirms the boundary line between our properties is indeed where you indicate ... we will agree to vacate the garage we currently use and agree to the construction of a new boundary fence at your cost, on the basis of the conditions outlined below.

1. One of the conditions referred to was that the S's would be required to install their own electricity connections in the garage then being used by the V's, as the power supply for that garage was connected to 34 Berrigan Street.[9]
2. A resurvey was subsequently completed on 18 January 2010, which both parties accept shows the boundary between the two properties was such that both garages formed part of 32 Berrigan Street, and that the brick wall did not accurately reflect the boundary.[10] The V's accepted the outcome and agreed to vacate the Land by 25 March 2010.[11]
3. It appears the V's did vacate the Land, although the exact date on which they did so has not been confirmed. Thereafter, the S's converted the garage immediately adjoining 32 Berrigan Street into a bedroom forming part of their residence, and took possession of the garage forming part of the Land as their own. A new fence was constructed along the boundary as established by the resurvey.
4. The defendant deposed that Ms V told her that, after surrendering the Land to the S's, in about 2010 or 2011 the V's received compensation from the real estate agent responsible for the sale to them of 34 Berrigan Street for misdescribing the property. Both the V's and S's informed the defendant that they considered the matter closed.
5. The plaintiff purchased 34 Berrigan Street from the V's in April 2013. The plaintiff deposes that at the time she viewed the property, she was provided with a copy of the resurvey and the agent said to her words to the effect of:[12]

There is an ongoing dispute in relation to the garage next door. The garage belonged to the owners of this property but the neighbours have taken possession of it. The next door neighbours have conducted a survey of the land through surveyors which they have hired. I have to disclose this to you as part of the sale for you to consider. Here is the survey.

1. The plaintiff deposed that her understanding was therefore that the dispute as to ownership of the Land was still in dispute and that there was no agreement in writing between the previous owners to transfer the land. She nevertheless proceeded to purchase the property. She deposed that a copy of the survey was obtained from Landgate on or about 24 February 2013, which is annexed to her affidavit.[13]
2. The plaintiff claims that, after the purchase of 34 Berrigan Street, she obtained copies of documents from Landgate regarding the properties. She attempted to obtain information from the licensed surveyors who conducted the resurvey, but her request was declined. It was not until 30 May 2018, when she obtained copies of photographs of 32 Berrigan Street from the internet that she first wrote to the S's. The S's hired lawyers, who refused to provide any information to the plaintiff.
3. The plaintiff's deposed to her belief as to what could be inferred from this refusal, but that is speculative and irrelevant.
4. The plaintiff deposed that in about May 2018, the S's tried to sell 32 Berrigan Street. The plaintiff attended the home inspection and observed that the power in the garage appeared to be connected to 34 Berrigan Street. She made some checks and confirmed that the power was connected to 34 Berrigan Street. However, she did not take any action about this.
5. In October 2020, a truck damaged the power line to 34 Berrigan Street and, in reconnecting the power to her house, the plaintiff instructed the electrician not to reconnect the power to the garage being used by the S's. On or about 21 February 2021, the plaintiff became aware that alternative power had been installed in that garage.
6. In February 2021, the S's again listed 32 Berrigan Street for sale. The plaintiff wrote to the S's and copied their agent, alleging that the 'garage issue' had not been resolved and was 'still pending'. She also noted that the S's had recently replaced their roof and, in doing so, had attached siding to the wall of 34 Berrigan Street, and painted part of her property. She demanded those matters be rectified and wrote:[14]

Given your property is for sale, please treat this as due notice that if we can't reach a resolution, I will need to commence proceedings. Any buyer will need to be aware of these issues.

1. The S's replied to the plaintiff informing her that they did not intend to engage with her in relation to the matter and requesting she not contact them again, noting that she had never substantiated her claims with any evidence.[15] The plaintiff took no further action and the property was ultimately sold to the defendant in April 2021.[16]
2. The plaintiff relies on aerial images obtained from Landgate[17] to support her claim as to the location of the fences which were in place between the two properties at various times[18] after 32 Berrigan Street was built. However, only the 2005 image is of even limited assistance in this regard. Taking the plaintiff's evidence at its highest, the boundary fence was in the wrong position (that is, as it was when the S's wrote to the V's in November 2009) from 2001.
3. The plaintiff filed the writ on 1 April 2022.

1. By her statement of claim, the plaintiff alleges, in relation to the Land, that:

At all material times the land was and continued to form part of 34 Berrigan Street and was in the exclusive possession of the owner of 34 Berrigan Street. This possession remained uninterrupted since the original subdivision...until the previous owners of 32 Berrigan Street [the S's] took possession of the land.

...

In or about mid-April to June 2010, the S's took possession of the land.

(a) the land always belonged to 34 Berrigan Street:

(i) being in the exclusive possession of owners of 34 Berrigan Street, after the subdivision of the properties, for a period of 44 years; and

(ii) having the electricity supply for the Garage connected to the same electricity supply for the 34 Berrigan Street, and being paid by the owners of 34 Berrigan Street.

(b) Alternatively, the land has been adversely possessed by the owners of 34 Berrigan Street, being in their exclusive possession and control for a period exceeding;

(i) 20 years; alternatively,

(ii) 12 years,

1. The plaintiff seeks delivery up of the Land or, alternatively, damages and interest from the defendant.

1. In effect, the plaintiff submitted that there were at least 44 uninterrupted years of adverse possession of the Land by the successive owners of 34 Berrigan Street (from 1976 to 2010). She argued that, after 12 years of such adverse possession, any title in the Land by the owners of 32 Berrigan Street was extinguished and, once extinguished, the title could not be reinstated.
2. The plaintiff also argued that the V's only agreed to relinquish possession of the Land on condition that the electricity connection was transferred to 32 Berrigan Street, and as this was apparently not done, the agreement under which the V's gave the Land to the S's was void.
3. The plaintiff further submitted that, in the event that the possession by the S's and then the defendant from 2010 onwards was capable of constituting a subsequent adverse possession of the Land, the period of 12 years of such adverse possession had not passed by the time of the filing of the writ and thus could not extinguish the plaintiff's title.
4. While not referred to in the statement of claim, the plaintiff in the writ relied upon an 'error in the registered survey illustrating a misdescription or vagueness in relation to the true boundary'. In her submissions, in addition to the adverse possession claim, the plaintiff clarified this as placing reliance on s 154(b) of the Transfer of Land Act 1893 (WA) (TLA).

1. The defendant submitted that she has indefeasible title in the Land. While she accepted that a claim in adverse possession is an exception to the indefeasibility of title, she argued that the plaintiff's claim in adverse possession is doomed to fail.
2. In particular, the defendant contended that, even if one or more of the prior owners of 34 Berrigan Street had a claim to adverse possession of the Land, they could not pass title in the Land to the plaintiff without registering it with Landgate. Further, and in any event, the V's had relinquished possession of the Land, and thus relinquished any claim to adverse possession in it.
3. The defendant submitted that the plaintiff, not being privy to the agreement between the S's and the V's in 2010, was not entitled to seek to undermine it.
4. The defendant also argued that, when the plaintiff registered her title to 34 Berrigan Street in accordance with the plans, the title to 32 Berrigan Street was effectively restored.

1. The defendant has applied to strike out the statement of claim in its entirety, on the basis that it does not disclose a cause of action. In the alternative, she seeks an order for summary judgment against the plaintiff.
2. Both applications require an extension of time.
3. The application for summary judgment was required to be filed by 27 April 2023 and the application to strike out the statement of claim was required to be filed by 1 June 2023. The applications were filed on 23 June 2023.
4. Conferral between the parties did not commence until late on 2 June 2023 but then continued until 22 June 2023.
5. The plaintiff neither opposes nor consents to the grant of an extension of time and concedes she will suffer no unfair prejudice if it is granted.
6. In my view, it was not unreasonable in this case for the defendant to wait until she had been served with the statement of claim before making a decision to seek summary judgment, given the contents of the writ. Further, the plaintiff was self‑represented, and it was appropriate to seek to confer with her before filing the applications.
7. The delay is not unduly lengthy, and the plaintiff did not act to her detriment as a result of the delay. Accordingly, I will grant the extensions of time required.

1. The legal principles applicable to a strike out application were synthesised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4],[19] and endorsed by the Court of Appeal in English v Vantage Holdings Group Pty Ltd.[20] I adopt and apply them without repeating them.
2. No evidence is admissible on an application to strike out under O 20 r 19(1)(a) RSC.[21]

1. The Court of Appeal recently summarised the legal principles applicable to a defendant's application for summary judgment in Pisano v South Metropolitan Health Service.[22] They are well-established and need not be set out here.
2. In circumstances, as here, in which an application for summary judgment is combined with an application under O 20 r 19(1) RSC:[23]

... the court is not confined by the manner in which the plaintiff has formulated his case on the pleadings and may consider the undisputed facts as well as the facts which are in dispute.

1. The legal principles regarding adverse possession were summarised by Kenneth Martin J in Ben-Pelech v Royle.[24] It is sufficient for present purposes to outline them very briefly.
2. The indefeasibility of registered title provided for by s 68(1) of the TLA is qualified by s 68(1A), which relevantly states:

Despite subsection (1), the land which shall be included in any certificate of title or registered instrument shall be deemed to be subject to the reservations exceptions conditions and powers (if any) contained in the grant thereof or transfer of the fee simple or otherwise and to any rights subsisting under any adverse possession of such land ...

1. Whether pursuant to the Limitation Act 1935 (WA) or the Limitation Act 2005 (WA), after the expiration of 12 years of exclusive possession inconsistent with the rights of the title holder, an action to recover land is statute barred and the right and title of the original owner shall be extinguished.[25]
2. As to the meaning of the phrase 'shall be extinguished', in Petkov v Lucerne Nominees Pty Ltd,[26] Murray J observed of s 30 of the Limitation Act 1935:

That provision, of course, makes it abundantly clear how the acquisition of title by adverse possession may continue to operate as an exception to indefeasibility of title conferred by a registration under the Transfer of Land Act. Not only is the right of action barred, but the title to the land is lost.

1. There is no basis to attribute a different effect to the equivalent provision in the Limitation Act 2005, namely s 75.

1. By the statement of claim, the plaintiff asserts that the Land always belonged to 34 Berrigan Street or, alternatively, was adversely possessed by the owners of 34 Berrigan Street for a period exceeding 20 years or, in the alternative, 12 years.
2. No facts are pleaded which lead to the conclusion that the Land always belonged to 34 Berrigan Street. However, at the hearing of the application, the plaintiff argued that the Strata Plan was drawn in such a manner that the Land always formed part of 34 Berrigan Street.
3. The plaintiff's argument in this regard was difficult to understand and internally inconsistent. Having regard to my ultimate decision, it is inappropriate for me to attempt to resolve it in this judgment. If the plaintiff proposes to pursue this claim, she will need to seek leave to amend the statement of claim to particularise it.
4. The plaintiff also submitted that the reference to a period exceeding 20 years set out a claim under s 154 of the TLA, which she argued was referred to in the writ. Contained in the writ is the claim for delivery up of the Land pursuant to:

The land being part of the property of 34 Berrigan Street (with an error in the registered survey illustrating a misdescription or vagueness in relation to the true boundary between 32 Berrigan Street and 34 Berrigan Street, and where in reality, the boundary was formed such that the land formed part of 34 Berrigan Street.

1. In neither the writ nor the statement of claim is there any reference to s 154, and none of the other matters which are required to be established for s 154 to operate have been pleaded. Indeed, in the course of argument it became apparent that the defendant had understood the reference in the writ to a 'misdescription' as being a reference to s 199(e) of the TLA.
2. Again, in my view, if the plaintiff seeks a remedy on the basis of s 154 of the TLA, she should seek leave to properly plead it in the statement of claim. In the absence of her having done so, I do not consider it appropriate to make any findings as to its applicability to this case.
3. In my view, the pleadings set out the claim in adverse possession in sufficient detail. The defendant is able to ascertain the case she has to meet, and it would be open to the plaintiff (on the pleadings) to prove facts at the trial which would make out that claim. That is not to say the plaintiff's case in this respect is not weak, but I do not consider that the point has been reached where it should be struck out.
4. However, the pleadings disclose no cause of action leading to a conclusion that the land always belonged to 34 Berrigan Street. Further, the reference to adverse possession and control for a period exceeding 20 years without more is vague, ambiguous and fails to state the plaintiff's case in this regard with reasonable particularity.
5. Accordingly, I grant the application in relation to paragraphs 20(a) and 20(b)(ii) of the statement of claim. However, I propose to give the plaintiff leave to amend if sought.
6. That leaves only the claim in adverse possession as requiring determination in the summary judgment application.

1. The plaintiff's claim in adverse possession depends on her establishing that the previous (successive) owners of 34 Berrigan Street maintained, from at least 1998, exclusive possession of the Land until 2010. At this stage, the evidence is incapable of establishing that fact.
2. At its highest, the evidence establishes that there was a brick wall between the two garages between 2001 and 2010 and that the V's used the Land exclusively from May 2006. Even assuming that the presence of the wall was capable of proving exclusive possession of the Land on the part of the owners of 34 Berrigan Street, the evidence does not establish it to have been present for the 12 years required to extinguish the title of the registered owners.
3. Further, even if the evidence were capable of establishing that the owners of 34 Berrigan Street had had exclusive possession of the Land for the 12 years (or more) preceding the handover of the Land to the S's, the plaintiff faces an additional hurdle.
4. The available evidence shows that the S's asserted their right to exclusive possession of the Land, which was acceded to by the V's on 25 January 2010. It is arguable that from that date,[27] but in any event at least from the date the V's vacated the Land, the S's were in possession of the Land to the exclusion of all others, until the defendant purchased 32 Berrigan Street, after which the defendant was in exclusive possession of the Land.
5. The writ was issued on 1 April 2022. If, as the evidence suggests, the V's vacated the Land on or before 31 March 2010, the defendant is in a position to assert adverse possession of the Land for a period of more than 12 years prior to the commencement of these proceedings. It is the plaintiff's claim which would then be statute barred, and any title claimed by the plaintiff in the Land would be extinguished.
6. In my view, there are significant weaknesses in the plaintiff's case as it presently stands. However, while I do not uncritically accept the contents of the affidavits filed on the part of the plaintiff, I am unable to find them inherently incredible on the basis of the available evidence.
7. There is a possibility that the plaintiff will be able to produce further evidence to support the claims made in the statement of claim as to the length of the period of adverse possession of the Land by the previous registered owner(s) of 34 Berrigan Street. There is also a possibility that the plaintiff will be able to adduce further evidence as to the date on which the V's vacated the Land, and the details of their agreement with the S's. Much may depend on the parties securing the cooperation of the previous owners, which has to date not been forthcoming.

1. The application for an extension of time is granted in each case.
2. The application to strike out the statement of claim is allowed in part.
3. Paragraphs 20(a) and 20(b)(ii) of the statement of claim are struck out.
4. The application for summary judgment is dismissed.
5. The defendant's costs of the application be in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023, 12 (RKAK-05) (see Annexure A to these reasons).

[2] Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023, 18 (RKAK-06).

[3] Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023, 13 (RKAK-05).

[4] Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023, 14 - 26 (RKAK-05).

[5] Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023, 14 (RKAK‑05).

[6] Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023, 15, 26 (RKAK‑05, RKAK‑06) (see Annexure B to these reasons).

[7] Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023, 93 (RKAK‑16).

[8] Affidavit of Vanessa Grace Vooys sworn 20 June 2023, 22 (VGV‑7).

[9] Affidavit of Vanessa Grace Vooys sworn 20 June 2023, 23 - 25 (VGV‑8).

[10] Affidavit of Vanessa Grace Vooys sworn 20 June 2023, 27 (VGV‑10).

[11] Affidavit of Vanessa Grace Vooys sworn 20 June 2023, 33 (VGV‑11).

[12] Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023 [6].

[13] Affidavit of Roselina Kant Angeli Kruize sworn 24 August 2023 [9], (RKAK‑05).

[14] Affidavit of Roseline Kant Angeli Kruize sworn 24 August 2023, 69 (RKAK-11).

[15] Affidavit of Roseline Kant Angeli Kruize sworn 24 August 2023, 68 (RKAK-11).

[16] Affidavit of Vanessa Grace Vooys sworn 20 June 2023 [7].

[17] Affidavit of Roseline Kant Angeli Kruize sworn 24 August 2023, 64 - 67 (RKAK-10).

[19] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] (citations omitted).

[20] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [55] - [56].

[22] Pisano v South Metropolitan Health Service [2023] WASCA 80 [48] - [52].

[23] McJannett v Gibbs [2012] WASC 369 [10]; Bride and Bride v Peat Marwick Mitchell [1989] WAR 383, 394.

[24] Ben-Pelech v Royle [2019] WASC 297 [65] - [77]; see also Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163, 165 - 168.

[25] Limitation Act 1935 (WA) s 4, s 5 and s 30; Limitation Act 2005 (WA) s 4, s 19(1) and s 75.

[26] Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163, 166.

[27] The V's thereafter occupying the land by licence.