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Texts Cited: Baalman & Wells, Land Titles Office Practice
Brendan Edgeworth, Butt’s Land Law (7th ed, Lawbook Co, 2017)
GE Dal Pont, Law of Limitation (2nd ed, 2021, LexisNexis)

Category: Procedural rulings

Parties: Jarrod Martin (Plaintiff – self represented)
Craig John Battams (Second Defendant)
Christina Marie Battams (Third Defendant)

Representation: Counsel:
J Armfield (Defendants)
Solicitors:
Hills Solicitors (Defendants)

File Number(s): 2024/00305138

Publication restriction: Nil

JUDGMENT

1. These proceedings were commenced by statement of claim filed on 19 August 2024. In substance, the plaintiff (Mr Martin) contends that he is entitled, by way of adverse possession, to be registered as proprietor of certain land located on Copeland Road, Copeland, in the state of New South Wales, being folio identifier X/X/XXX (Lot 5).

2. To date, Mr Martin has appeared for himself in the proceedings. The statement of claim is 26 paragraphs long, but in turn annexes a number of documents, being annexures A to P. Those documents support various contentions made in the statement of claim.

3. The first defendant is named as William Henry Gill (Mr Gill) who is the registered proprietor of Lot 5. Mr Gill was born on 15 March 1852 and passed away on 14 June 1913, apparently intestate with no children recorded on his death certificate.

4. The second and third defendants (the Battams) purchased, in about 2011, land which is adjacent to Lot 5. The Battams use Lot 5 to access their property. A defence was filed on behalf of the Battams on 13 February 2025.

5. On 14 March 2025, the Battams filed a motion seeking an order pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR) that the plaintiff’s proceedings be dismissed generally.

6. That motion was heard by me on 16 April 2025. Mr J Armfield of counsel appeared for the Battams on that application and Mr Martin represented himself.

7. In support of the motion, the Battams relied on an affidavit of the second defendant, Craig Battams, made 18 March 2025, which in turn annexed a number of documents. Mr Martin relied on an affidavit which he made on 27 March 2025 in response to the affidavit of Craig Battams. The Martin affidavit in turn annexed a number of documents. Given the nature of the application there was, understandably, no cross examination.

A brief overview of the facts

8. The allegations made in the statement of claim may relevantly be summarised as follows.

9. Mr Martin contends that Mr Gill, who is the registered proprietor of Lot 5, passed away on 14 June 1913, intestate and with no children recorded on his death certificate. Mr Martin’s maternal great grandmother, Mabel Bower was first cousin to Mr Gill’s brother in law, John Carpenter. Mabel Bower’s son, Mr Ronald Bower, was Mr Martin’s grandfather and was in possession of adjoining Lots 4 and 5 of section X, deposited plan XXX, together known as X Copeland Road, Copeland, from around 1975 until his passing in 1993.

10. Mr Martin further alleges that upon his passing, Mr Martin took possession of Lot 5 and his grandmother, Zelda Bower (Zelda), retained possession of Lot 4 (where his grandfather’s ashes were scattered).

11. Zelda had her own adverse possession proceedings in relation to Lot 4, which were apparently successful. Zelda passed away during those proceedings, and Mr Martin together with his brother was registered as joint tenants as to a 50 percent share of Lot 4.

12. It is Mr Martin’s contention that he has been in possession of Lot 5 at all times since 1993.

13. He alleges that since 1993 he has used the property as an owner would, and makes various factual assertions as to what he has done in this regard.

14. On 12 December 2019, Mr Martin alleges that he lodged possessory application dealing AP 759959, with the New South Wales Land & Registry Services (NSW Land) in Sydney, having previously paid stamp duty of $765 for the transfer of Lot 5 into his name.

15. It appears from the statement of claim that on 21 January 2020, the Battams lodged a caveat prohibiting the granting of the possessory application.

16. The statement of claim further contends that the use of Lot 5 as a through access by the Battams to their property has always been with Mr Martin’s permission.

17. The statement of claim alleges that on 23 December 2020, NSW Land made the decision that as there was a dispute over possession, the matter would need to be decided at Court.

18. The parties on the application before me appeared to agree that, as a practical matter, Lot 5 contains, in its southern section, an area which is described as the “Gill Access Way” which has been used to obtain access from Copeland Road to, relevantly, the Battams’ property. The area to the north of the Gill Access Way on Lot 5 was referred to as the “Gill Grazing Lands” on which, inter alia, sheep have been grazing.

19. The evidence relied on by the Battams on the present motion went essentially to the use that they have made of the Gill Access Way since acquiring their property in 2011. The evidence included:

(a) the sole means of access to their residence from Copeland Road during the period of their ownership has been via the bridge over Copeland Creek within the Crown reserve and then using the Gill Access Way; (b) at the time of the purchase of their residence in 2011 until September 2019, the Gill Access Way was fenced on both sides. In September 2019, the fence between the Gill Access Way and the Gill Grazing Lands was removed; (c) entry to and exit from the Gill Access Way was not restricted or impeded prior to May 2021, the access way was open at both ends; (d) in March 2021 the Gloucester-Copeland area was affected by a severe weather event, resulting in the bridge across Copeland Creek outside Lot 5 being washed away. Mr Battams organised for the bridge to be replaced and, a short period after the new bridge was constructed, he installed a gate on the roadside of the bridge thereby preventing access onto the bridge from Copeland Road. He subsequently relocated this gate to the boundary between Lot 5 and the Crown Reserve; (e) at the time that Mr Battams and his wife purchased their residence, the Gill Access Way was separated from the Gill Grazing Lands by a very old steel post and wire fence. Mr Battams upgraded this fence to make it “sheep proof”; (f) since they purchased the residence, Mr Battams has regularly slashed the Gill Access Way and whipper snipped the grassed verges. He further contends that at no time has he sought consent to use the Gill Access Way or made any payment to any person for its use; (g) in late 2011, Mr Battams asked Zelda whether she had any objection to him de-pasturing sheep on the Gill Grazing Lands and she granted consent, and that thereafter Mr Battams has used the Gill Grazing Lands to de-pasture sheep; (h) the fence between the Gill Access Way and the Gill Grazing Lands was removed in September 2019, it would appear by Mr Martin. The Battams continued to use the Gill Access Way during this unfenced period; (i) Mr Battams has only observed Zelda or Mr Martin accessing Lot 4 on a limited number of occasions; (j) on 10 November 2024, Mr Martin entered Lot 5 and dismantled the chain which was securing the gate lock, enabling the gate to be opened. Mr Martin also erected two signs attached to star posts. Those signs were apparently promptly removed by Mr Battams’ wife.

20. The effect of Mr Martin’s affidavit was to dispute a number of the allegations made in Mr Battams’ affidavit. The affidavit gives some details of his possession of Lot 5 since 1993 and prior to 2011 when the Battams purchased their land.

21. Relevantly, Mr Martin contended that use of Lot 5 by the Battams and previous owners has always been with permission. He annexed to his affidavit a statutory declaration signed by Mr Battams and a second statutory declaration signed by Mrs Battams in support of that contention. Mrs Battams’ statutory declaration refers to Zelda granting permission.

The test for summary dismissal

22. The Battams sought summary dismissal pursuant to r 13.4 of the UCPR. There was some discussion on the hearing of the application as to the applicable test to be applied.

23. I gratefully adopt what was recently said by Faulkner J in Westwood v Gulliver [2024] NSWSC 1323 at [70]-[74] (Westwood) as follows:

[70] The power to dismiss proceedings under this rule will only be exercised where the claim is so obviously untenable that it cannot possibly succeed: General Steels Industries v Commissioner of Railways NSW (1964) 112 CLR 125 at 129; [1964] HCA 69 (Barwick CJ). In Agar v Hyde (2000) 201 CLR 552 at 576; [2000] HCA 41 at [57], Gaudron, McHugh, Gummow and Hayne JJ said the proceedings may be dismissed where there is a high degree of certainty about the ultimate outcome of the proceedings if they were allowed to go to trial in the ordinary way.

[71] In O’Brien v Bank of Western Australia Limited [2013] NSWCA 71 at [3], Macfarlan JA, with whom Beazley P agreed, identified the following relevant principles:

1. the real issue is whether there is an underlying cause of action, not simply whether one is pleaded;

2. demonstration of the outcome of the litigation is required, not an assessment of the prospects of its success; and

3. the power summarily to terminate proceedings must be exercised with exceptional caution.

[72] In considering whether the General Steels test is met, the Court is to have regard to the fact that the plaintiff is self-represented and must satisfy itself that there is no viable course of action of which the plaintiff will be deprived if the case is dismissed: Wentworth v Rogers *(*No.5) (1986) 6 NSWLR 534 at 536 (Kirby P, with whom Hope and Samuels JJA agreed).

[73] The Court may find that a pleading discloses no reasonable cause of action merely by reference to the pleading itself and without regard to any evidence. If so, the Court must assume the truth of all the allegations made in the pleading: Agius v State of New South Wales [2001] NSWCA 371 at [24] (Priestley, Powell and Giles JJA).

[74] The Court may alternatively, determine the application having regard to evidence adduced by the parties: r 13.4(2). However, if the Court receives evidence on an application like this it must not make findings of fact based on that evidence unless there is no other evidence which might emerge during the further conduct of the proceedings which could add to or qualify those “facts”: Bass v Permanent Trustee Co Limited [1999] HCA 9; 198 CLR 334 at [50] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

24. Counsel for the Battams placed some considerable reliance on what was said by Hammerschlag J (as the learned Chief Judge then was) in Simmons v Protective Commissioner of New South Wales [2012] NSWSC 455 (Simmons), and the statement of principles by Ward J (as the learned President then was) in McDonald v Grech [2012] NSWSC 717 at [26]-[33].

25. As Ward J observed at [32], what was said by Hammerschlag J in Simmons was obiter.

26. At [62] in Simmons, his Honour observed that although UCPR r 13.4 does not expressly provide (as does s 31A of the Federal Court of Australia Act 1976 (Cth)) that a proceeding need not be hopeless or bound to fail to have no reasonable prospects of success, the combination of the inclusion of the word reasonable and the operation of s 56(2) of the Civil Procedure Act, sufficiently clearly indicates that the approach to exercising the power to dismiss under the rule is the same as that elucidated by the High Court in relation to the Federal enactment. His Honour had earlier referred to what was said by French CJ and Gummow J in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (Spencer) at [25] as to whether an applicant has more than a fanciful prospect of success.

27. It is important to remember, in this regard, that in the passage from Spencer (at [25]) extracted by Hammerschlag J as setting out the test, French CJ and Gummow J observed:

Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue.

28. Hammerschlag J earlier observed at [52] that the effect of what was said by Hayne, Crennan, Keifel and Bell JJ in Spencer was that what is required is a practical judgment to be made “and the inquiry is whether there is a reasonable prospect of prosecuting the proceedings, not whether a certain and concluded determination could be made that the proceedings would necessarily fail.”.

29. Whether Hammerschlag J should be regarded as positing a different and lesser test for summary dismissal to be granted need not be determined in the present case. As will be apparent below, I do not regard Mr Martin’s claim in the present case as being fanciful. Further, there is a reasonable prospect of Mr Martin prosecuting the proceedings. It also follows that I am not satisfied that Mr Martin’s claim is so obviously untenable that it cannot possibly succeed.

The law of adverse possession

30. Having regard to some of the arguments advanced on the motion, it is appropriate to set out some basic principles with respect to adverse possession.

31. Prior to 1979, it was not possible in New South Wales to acquire a possessory title to land under the Torrens system. In 1979, the concept of title by adverse possession was imported into the Torrens system in New South Wales by the insertion of a new Part 6A (sections 45(b)-(k)) into the Real Property Act 1900 (NSW) (RPA).

32. As Young JA stated at [83] in Refina Pty Ltd v Binnie (2010) 15 BPR 28,633; [2010] NSWCA 192 (Refina) at [83]:

… the effect of s 45C is that under s 45D(1)(b) one looks to see whether, hypothetically, the title of the proprietor would have been extinguished by the statutes of limitation had those statutes applied to the land (that is had the land been Old System land). If that inquiry returns a positive result then one of the factors which may induce the registrar-General to issue a title has been satisfied.

33. Further, as Robb J observed in Australian Retirement Holdings Pty Ltd v Higgins (2021) 20 BPR 41,633; [2021] NSWSC 1158 (ARH v Higgins) at [210]:

The manner in which occupiers may gain a possessory title to land that prevails over the title of the legal, sometimes called the documentary, owner depends upon the principles governing the limitation of actions, so that the legal-owners title becomes extinguished when the limitation period applying to an action by the legal owner to recover possession from the occupier has elapsed, with the consequence that the legal owner’s claim is statute-barred.

34. In ARH v Higgins, Robb J set out in detail the relevant principles at [231]-[260].

35. In Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 (Mulcahy v Curramore) at 475, Bowen CJ in Eq stated (in relation to the Imperial Limitation Statute that formerly applied in NSW):

Possession which will cause time to run under the Act is possession which is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner.

…

Possession must be considered in every case with reference to the peculiar circumstances … the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests; all these things greatly bearing as they must under various conditions, are to be taken into account in determining the sufficiently of a possession.

36. At 476, Bowen CJ in Eq stated:

When a person enters into adverse possession, and so long as he continues in possession before the expiry of the statutory period, he has title to the land in the nature of a fee simple, good against all the world except the true owner, and his title may be conveyed or devised to, or devolve upon, another person… Where there has been a series of persons in adverse possession by virtue of successive transmissions of the inchoate possessory title for a period of twenty years or any extended period required by the Act, s 34 will operate to extinguish the true owner’s title. At that point of time the last successor being then in possession will acquire a title in fee simple to the land good against all the world including the true owner.

37. Reference is also often made to the judgment of Slade J in Powell v McFarlane (1979) 38 P&CR 452, especially at 470-472 as follows:

It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:

(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’).

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …

Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.

(4) The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M.R., in Littledale v Liverpool College (a case involving an alleged adverse possession) as ‘the intention of excluding the owner as well as other people.’ This concept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land will realise that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in a position to exclude him. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.

The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.

38. In Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 167, Murray J stated:

If others are shown to be using the land, it must effectively be in a way which is not inconsistent with that exclusive possession. It must ostensibly be that the others are using the land by licence or permission of the adverse possessor, behaving as if he were the owner thereof. The facts of each case will be decisive, but the general principle is clear.

39. Counsel for the Battams also relied on Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188 at [4]-[6] (extracting what was said by Ashley J in Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; [2002] VSC 206 (Bayport) at [39]-[40]) as approved by Tamberlin AJ in Bridges v Bridges [2010] NSWSC 1287 at [14]-[16]. There is nothing peculiar in the statements of principle in these cases. Of some relevance in the present context is the last of Ashley J’s propositions in Bayport at [40]:

At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned.

40. In relation to the nature of the interest of a person claiming adverse possession, the learned author of Butt’s Land Law, (Brendan Edgeworth, Butt’s Land Law (7th ed, Lawbook Co, 2017)) at [16.350] states:

Does an adverse possessor have any interest in the land in advance of being registered as proprietor under a possessory application? On one view, yes. It may be argued that an adverse possessor who has been in possession for the full limitation period and who is (by the terms of Part 6A of the Real Property Act 1900 (NSW)) entitled to lodge a possessory application, has the same status as other unregistered interest-holders in Torrens title land. Indeed, the status may be higher, being legal rather than merely equitable. Such authority as exists supports the view that the adverse possessor who has been in possession for the full limitation period has a statutory right to registration if all the other requirements of Pt 6A are met.

41. In support of this last statement, the learned author refers to the observations of Young JA in Refina that I have extracted above.

The argument advanced by the Battams for summary dismissal

42. The essence of the argument propounded by counsel for Mr Battams in favour of summary dismissal went as follows:

(a) it was necessary for Mr Martin to establish that at the time of the commencement of the proceedings, he was a person in possession of the land; (b) Mr Martin could not establish that at this time he was in possession of the land because the Battams were exclusively in possession of Lot 5 following the erection of the gated entry from the Crown Reserve; (c) Mr Martin has not had appropriate physical control to achieve singular and exclusive possession as there has been a fence separating the Gill Access Way from the Gill Grazing Lands from at least the time the Battams purchased the property in June 2011 until September 2019; (d) entry to and exit from the Gill Access Way was not impeded prior to the flooding event described by Mr Battams in his evidence; (e) Mr Battams regularly slashed the Gill Access Way and whipper snipped the grass verges; (f) the Battams have never sought consent to use the Gill Access Way from Mr Martin and have not made any payment to anyone for its use.

43. It was also contended that whilst Mr Martin has made two affidavits in these proceedings – one of which appears to be an affidavit verifying the statement of claim – neither of those affidavits provides any material to support the contention that Mr Martin attended Lot 5 in the period from Battams’ acquisition in June 2011 until September 2019.

44. As the above summary makes clear, an aspect of the argument in favour of summary judgment was that UCPR r 13.4(2) makes clear that it is permissible for the Court to receive evidence on the hearing of a summary judgment application and the Court should consider whether any evidence is relied on by a plaintiff in opposition to the evidence relied on by the defendant seeking summary dismissal. Reference in this regard was made to a number of authorities including Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210 (Dow Hager Lawrance v Lord Norreys) and Willis v Earl Howe [1893] 2 Ch 545.

45. Mr Martin contended that he took possession in 1993 and thus the 12 year limitation period expired in 2005. Further, that any use of the access way on Lot 5 by the Battams was with his permission, and he has attended Lot 5 on a number of occasions during the period since the Battams have owned their property.

Determination

46. I do not regard this as an appropriate case for the Court to order summary dismissal.

47. Whether the test is stated as Mr Martin’s claim being so obviously untenable that it cannot possibly succeed, or that he has no more than a fanciful prospect of success, the Battams have failed to establish the high bar for Mr Martin’s case to be summarily terminated.

48. No authority was cited in support of the proposition that Mr Martin was required to establish that at the date of filing the statement of claim, he was in possession of Lot 5. Reference was made to the text of s 45D and what was said by the learned authors of Baalman & Wells, Land Titles Office Practice at paragraph 397.15. The extract, however, does not squarely address the present point.

49. Having regard to ordinary principles, set out in the authorities that I have extracted above, it is at least arguable that Mr Martin acquired title by adverse possession in 2005, on expiry of the twelve year limitation period and well before the Battams purchased their land and commenced using the Gill Access Way. As Bowen CJ in Eq stated in Mulcahy v Curramore at 476 (extracted above) the effect of the statute is to extinguish the title of the true owner after the expiry of the relevant limitation period. Once the limitation period has expired, the interest of the adverse possessor cannot be abandoned: see Bayport (extracted above). Having regard to the observations in Butt’s Land Law (extracted above) it is at least arguable that an adverse possessor, like Mr Martin, has an interest in the land after the expiry of the limitation period and prior to registration.

50. Whether Mr Martin makes good his claim to the requisite possession between 1993 and 2005 is a matter for final hearing.

51. Even if the focus is on the period after the Battams purchased their land, there seems to me to be a triable factual issue as to whether the Battams’ use was with Mr Martin’s permission. An aspect of this issue will likely be whether any permission granted by Zelda was on Mr Martin’s behalf. A summary dismissal application is not the occasion for resolving that dispute. The fact that the Court can receive evidence on a summary dismissal application does not alter this basic proposition. The cases relied on by counsel for the Battams do not gainsay this basic proposition.

52. The present case is quite different to, for example, Dow Hager Lawrance v Lord Norreys where the evidence showed that the factual allegations in the statement of claim are a myth.

53. As Faulkner J observed in Westwood at [74] (extracted above), if the Court receives evidence on an application like this, it must not make findings of fact based on that evidence unless there is no other evidence which might emerge during the further conduct of the proceedings which could add to or qualify those facts.

54. The evidence before the Court on the present application does not suggest that the allegations made by Mr Martin are a myth. As has been observed in this area of the law, the question of possession is a “heavily fact-dependent inquiry” (see GE Dal Pont, Law of Limitation (2nd ed, 2021, LexisNexis) at [8.25]), and “must be considered in every case with reference to the peculiar circumstances of the case”: see Mulcahy v Curramore at 475 (extracted above). The peculiar circumstances of this case cannot be determined on an application for summary dismissal.

Conclusion

55. For the reasons set out above, the Court orders that:

56. The notice of motion filed 14 March 2025 is dismissed with costs.

57. The proceedings are listed for directions in the Real Property List on 9 May 2025.

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