Mr Pamic said he never used that gate. At the time his goats and sheep were on the land he said that there were also two horses there that belonged to Leo Kelly's son.
28 The vendor of the plaintiff's land to the plaintiff was Martom Pastoral Co Pty Limited. It had become the registered proprietor of the plaintiff's land, including the disputed land, on 15 December 1972 by transfer from Allan R Elletson Pty Ltd the previous registered proprietor. ASIC records tendered to the Court show that Martom was incorporated on 4 November 1970 and that Mary Louise Phillips and John Thomas Ivan Phillips were its directors between that date and 5 June 1986 when they resigned and Stavros Mavroudis and Norman Russo became its directors.
29 Mr Mavroudis gave evidence in this case. A Greek migrant, he said he had been in Australia for 51 years and was in business as a menswear retailer. His facility with English was adequate, if not perfect, and in assessing the weight to be given to his evidence that factor has to be taken into account. However in many instances Mr Mavroudis gave answers which were completely non responsive to the questions he was asked. I am satisfied he understood those questions. This unfortunate tendency detracted somewhat from his evidence as did his tendency to give inconsistent and, sometimes, contradictory answers.
30 Mr Mavroudis said that shortly after he acquired his interest in Martom, which he insisted was in 1984, not 1986, he became a regular visitor to the property although he didn't live there. He said his visits to the property continued until it was sold to Sunny in 2002.
31 In contrast to other witnesses who described the gate in the east-west fence on the boundary of the disputed land, Mr Mavroudis said that that gate had a chain on it, that it could be opened and that he could open it any time he wished. He said it would swing backwards and forwards without any difficulty. He said he could open the gate any time he wished but that he kept it closed so that cattle from his property would not stray through the drain onto the Kelly land.
32 Mr Mavroudis said that whilst he had an interest in the property, between the late 80's and the early 90's, there were 30 or 32 steers there which were kept until they became very big when they were sold. During the time they were there they were often on the disputed land. He said that a Barry Waterfall was responsible for buying and selling stock on the property. Mr Waterfall was referred to a number of times in the evidence but was not called as a witness. Mr Mavroudis said that he and his son also used the land; he hunted there and no one could stop him! He seemed extremely anxious to ensure that the Court was under no misconception that the disputed land was his until Martom sold it to the plaintiff. Overall his evidence was unsatisfactory and could not be accepted where it conflicted with the evidence of the defendant Leo Kelly, his son or the other witnesses called on behalf of the defendants. His insistence that his or his son's cattle ran on the disputed land was somewhat at odds with his earlier evidence that he kept the gate in the east-west fence closed to stop cattle straying across the drain and into the Kelly land.
33 Mr Mavroudis' son, Steven, told the Court that he was 37 years of age and had been involved in the plaintiff's property when Martom owned it. He described the east-west fence as being pretty dilapidated but that he did some work on it. He said that steers which he managed were kept on the disputed land for three to four months of the year but that otherwise they grazed all over the property.
34 Steven Mavroudis also said that he hunted on the Martom property. He said that he shot hares and the odd snake and that his father accompanied him from time to time and that such hunting included hunting on the disputed land.
35 Stephen Mavroudis said that on one occasion whilst he was on the disputed land he was approached by "not a super old guy" who was a bit weathered looking and riding a motor bike. He said that this man said to him "What are you shooting. I heard some shooting". He said that he replied "I'm shooting foxes and hares". When asked who he was he said that he said "Well I'm shooting on my father's and Norm's property" and that the man on the bike said "I'm your neighbour".
36 This incident was not put, in those terms, to Leo Kelly when he gave his evidence although he said that he rode a motor bike from time to time and had "kicked shooters off" the disputed land.
37 The plaintiff relies upon Steven Mavroudis' evidence as to this incident as indicating that Mavroudis was able to exercise domain over the disputed land without any interference from Kelly. However, an event which James Kelly described as having occurred in the recent past, casts considerable doubt on Steven Mavroudis' version.
38 James Kelly said that about two years ago he bought a suit at the Mavroudis' menswear store in Dandenong. He was served by Steven Mavroudis. He told the Court that he and Mavroudis joked about the fact that it was his, Kelly's, father who had "kicked" Mavroudis off his land. James Kelly said that this conversation occurred in July or August 2004 and that in the course of it Mavroudis accepted that he had been chased off the property by Kelly's father. James Kelly put the incident in which his father told Mavroudis to leave the property as being in about 1987 or 1988.
39 When Steven Mavroudis was cross-examined he was questioned not only about the event in which he was approached by someone on a motor bike but also about the conversation he had with James Kelly in more recent times. Upon being questioned as to the event itself Mavroudis became aggressive. He described a suggestion that the man on the motor bike had demanded that he leave the land as "rubbish". He used the same description of a suggestion that the same man had said that the land was his. With respect to the incident in the menswear shop, initially he denied that any such conversation took place. Subsequently, he conceded there may have been a conversation about his meeting James Kelly's father when he was shooting but there was nothing more to it.
40 I am satisfied that the conversation as recounted by James Kelly is accurate in substance. There was a conversation between him and Stephen Mavroudis in which Mavroudis and he joked about the fact that Leo Kelly had "kicked" Mavroudis off his land.
41 Whilst the significance of Steven Mavroudis' attempted evasion with respect to this conversation should not be over emphasised, when combined with his aggression on being questioned about his activities on the land and the general impression he gave as a witness a doubt is cast over the reliability of his evidence generally, if not its honesty. However, there is no necessity to go as far as expressing disbelief in his account of the activities carried on by him and his father on the disputed land whilst Martom was the registered proprietor. It is sufficient to say that I am unable to accept his evidence concerning the state of the east-west fence and the original gate, his evidence concerning Martom cattle grazing on the disputed land and his other evidence of use of that land for hunting, collecting firewood and the other activities he described. He may have been deliberately disingenuous in his evidence or he may have been simply mistaken. In any event I do not accept his (or his father's) account of the use of the disputed land.
42 I prefer the evidence of the defendant Leo Kelly and his son, corroborated, to the extent that they are corroborated, by Peterson, Bassette and Pamic.
43 A number of other witnesses were called by the plaintiff who deposed to various conversations with Leo Kelly and his son. The purpose of this evidence was to establish by way of express or implied admission by one or other of the Kellys that they did not exercise domain over the disputed land for the relevant period. I am satisfied that even if those conversations took place, in their context they do not establish any significant admission by either of the Kellys as contended for and would not be such as would displace the very strong evidence of exclusive possession to which reference has been made.
44 There was also evidence of some use of the disputed land by the plaintiff after it bought the Sunny land. It is not necessary to consider this evidence further as, by that time, if the defendant's possession of the disputed land has been as I have found it to have been, any relevant limitation period had well and truly expired by the time the plaintiff acquired its paper title.
45 I am satisfied that over the whole of the period that Martom was the registered proprietor of the disputed land it was effectively isolated from the rest of the Sunny land by the east-west fence. Although that fence had a gate, that gate was unusable and unused. I am satisfied that the Kellys used the disputed land as they described and that they did so to the exclusion of anyone else including the registered proprietor. Leo Kelly believed that his entitlement to do so arose from a lease he had from the DVA and, subsequently, Melbourne Water. In fact he had only a grazing licence in respect of land adjacent to the disputed land and no title to the disputed land at all. I am satisfied that possession by Leo Kelly whether on his own behalf or on behalf of himself and his brother Kevin, or on behalf of the company which now operates the market garden or on behalf of the company which has title to the Kelly land, has been continuous and uninterrupted since about 1972 and continues to the present.
46 In order to succeed in establishing their possessory title against the registered proprietor of the disputed land the defendants must prove that they have been in possession of the land for the necessary period, 15 years, and that such possession has been continuous and unequivocal: Murnane v Findlay.[3] Such possession must in every case be considered with reference to its particular circumstances:
