Plaintiff v Defendant

". . . I say was really rusty old gate was tied up with rusty wire, to me probably never been used for a long, long, long, time anyway."

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:

"The acts implying possession in one case may be wholly inadequate to prove it in another. 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 varying as they must under various conditions, are to be taken into account."[4]

See also the comments of Griffith CJ in Clement v Jones.[5]

47 As well as establishing factual possession of the disputed land a claimant under a possessory title must also have the requisite intention to possess the land, the animus possidendi. This intention must be an intention to exclude the true owner as well as other people: Powell v McFarlane & Anor;[6] Bayport Industries Pty Ltd v Watson.[7]

48 As already noted, the defendants have established exclusive possession of the disputed land for the necessary period. It remains to consider separately an argument by the plaintiff that a claimant in respect of a possessory title cannot have the necessary animus possidendi if, as here, he wrongly believes he is in possession of the disputed land pursuant to a lease from the registered proprietor. That is to say he can have no sufficient animus possidendi if he has no intention of possessing the land adversely to the person he erroneously believes is the true owner.

49 In Malter v Procopets[8] Brooking JA was concerned with the not uncommon situation where a land owner believes himself to be the true owner of a strip of land actually owned by his neighbour because a fence has been built outside a title boundary. His Honour had no doubt that this mistaken belief would not prevent the acquisition of a title by adverse possession. He referred to a number of authorities.[9]

50 The plaintiff in this case seeks to distinguish Malter v Procopets and the cases to which Brooking JA referred on the basis that because Leo Kelly thought he had a lease he did not intend to exercise exclusive possession over the disputed land adverse to the party he thought was the true owner. Thus, argues the plaintiff, he could not have had the necessary animus possidendi which involves an intention to exclude everyone, including the owner of the paper title, from the land.

51 What is necessary to the formation of an animus possidendi, as the Latin phrase implies, is an intention to possess. In Malter the claimant intended to possess the disputed land because he erroneously thought he was the fee simple owner as that land was included within his title. In this case Mr Kelly intended to possess the disputed land because he thought he was the lessee under a lease. In each case the claimant had an intention to possess.

52 In J A Pye (Oxford) Limited v Graham[10] Lord Browne-Wilkinson considered cases in which it had been held that a claimant under a possessory title had to demonstrate an intention to own the disputed land in order to succeed in his claim. His Lordship rejected this proposition saying:-

"Once it is accepted that in the Limitation Acts, the word 'possession' has its ordinary meaning (being the same as in the law of trespass or conversion) it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess: if a stranger enters onto land occupied by a squatter, the entry is a trespass against the possession of the squatter whether or not the squatter has any long term intention to acquire a title."[11]

The error in Mr Kelly's belief is irrelevant. What is important is that he had the requisite intention to possess. He excluded the true owner without knowing he was the true owner just as the claimant did in Malter.

53 The plaintiff also relied upon an argument based on s 13(3) of the Limitation of Actions Act 1958 which deals with the question of when time commences to run in a case where a person who is not entitled to the reversion expectant on a term nevertheless collects the rent for a property. But this provision merely regulates the situation as to when time begins to run against a lessor and in favour of a wrongful receiver of rent where a lease actually exists. In this case there is no lease. A consideration of this section does not alter the fact that Mr Kelly at all times intended to possess the disputed land to the exclusion of the true owner even if he acknowledged a non-existent title in the DVA and, later, Melbourne Water.

Conclusion

54 The defendants are entitled to the relief they seek in respect of the title to the disputed land. Having regard to the fact that Leo Kelly said in evidence that he occupied the disputed land on behalf of the entity which operated the market garden business, namely Kelly Bros Market Gardeners Pty Ltd (and all the plaintiffs by counterclaim are in agreement with this course) it is appropriate that the declaration as to title go in favour of that company.

55 There was also evidence during the trial that the plaintiff had constructed or commenced the construction of a fence on the disputed land adjacent to the southern bank of the Eastern Contour Drain. The plaintiffs by counterclaim seek relief in the nature of reinstatement with respect to that fence and there would appear to be no reason why that relief should not be granted.

56 The plaintiffs by counterclaim also seek an injunction with respect to the plaintiff entering upon the disputed land. Having regard to the declaration of title which will be made in favour of Kelly Bros Market Gardeners Pty Ltd that injunction should be refused. Should the plaintiff trespass on that land again, Kelly Bros Market Gardeners Pty Ltd will have its remedies at law.

57 The plaintiffs by counterclaim seek an order that the Registrar of Titles register the title now declared. As the Registrar was not a party to this proceeding it would be inappropriate to make such an order. Should difficulties occur with respect to registration the appropriate party can approach the Court and to that end there will be liberty to apply generally.

58 On the assumption that there are no complications with respect to costs and subject to any argument to the contrary, the plaintiff will be ordered to pay the defendants' costs of the claim and counterclaim.

59 Subject to hearing counsel as to form, the following orders are proposed:-

1. There be a declaration that, by reason of s 18 of the Limitation of Action Act 1958, the registered title of the plaintiff to the disputed land shown on the survey plan attached to these reasons for judgment has been extinguished.

2. A declaration that Kelly Bros Market Gardeners Pty Ltd is entitled to be registered as the proprietor of the disputed land.

3. It is ordered that, by 30 September 2006 the plaintiff remove the materials used in construction of the fence marked with a yellow line on the original of the survey plan a copy whereof is attached to these reasons of judgment.

4. There be liberty to apply generally.

5. It is ordered that the plaintiff pay the defendants' costs of and incidental to this proceeding both as to the claim and counterclaim.

APPENDIX

[1] [1967] VicRp 63; [1967] VR 577 at 580 per McInerney J with respect to a testamentary capacity case.

[2] [1985] VicRp 18; [1985] VR 187 at 191 per Marks J with respect to a claim on an insurance policy where fraud of the insured was in issue.

[3] [1926] VicLawRp 11; [1926] VLR 80, per Cussen J at 86

[4] Lord Advocate v Lord Lovat [1880] 5 AC 273 at 286 quoted in Murnane v Findlay by Cussen J at 87

[5] [1909] HCA 11; (1909) 8 CLR 133 at 138

[6] (1977) 38 P & CR 452 per Slade J at 470 - 472

[7] [2002] VSC 206

[8] [2000] VSCA 11

[9] Bligh v Martin [1968] 1 WLR 804, Williams v Usherwood (1981) 45 P & CR 235, Pulleyn v Hall Aggregates Thames Valley (Ltd) (1992) 65 P & CR 276, Hughes v Cork [1994] EGCS 25 and Lutz v Kawa (1981) 112 DLR (3d) 271; (1980) 23 AR 9

[10] [2002] UKHL 30; [2003] 1 AC 419

[11] at 436