Plaintiff v Defendants

(a) Whether there was evidence of continuous, exclusive and adverse possession of the disputed land for 15 years. This raised an issue of fact as to when the disputed land had been built on by the plaintiff or its predecessors.

(b) Whether the occupation of the disputed land was with the intent to possess the land adversely to the defendants and their predecessors in title.

Evidence

18 The proceeding having been commenced by originating motion the evidence was given by affidavit with a right of cross-examination. In some cases counsel agreed to the tender of an affidavit without the need to call the deponent.

19 For the plaintiff evidence was given by the following:

(a) Michael John Wilkinson, a director of the plaintiff. The plaintiff conducts business as an insurance broker from the premises at 286 Main Street. He gave evidence of the purchase of the plaintiff's land, of having renovated the premises including the toilet area in 1999, as part of which a door in the east wall of the disputed land was filled in, and a history of the dispute.

(b) Ian Barclay Godson, a corrosion and remedial engineer who practises as a consultant in the area of concrete and mortar deterioration. He gave evidence of a test he conducted in June 2004 of the carbonation depth of the mortar at two points in the southern brick wall of the step. Based on the estimated age of the mortar in the brick wall, he estimated the age of the brick wall to be 35 to 50 years.

(c) The following affidavits were tendered without the need to call the deponent.

(i) John Edwin Chivers, a licensed surveyor, who prepared the plan attached hereto. He also gave evidence of the history of the plaintiff's land referring to the general law conveyances.

(ii) Judith Jacona who is now retired but was employed by Alpine at 286 Main Street from approximately 1978 to 1989. She said that the offices were shared with Brian Moore Insurance Brokers Pty Ltd ("Brian Moore"). Four persons worked in the office and shared the facilities including the kitchen and toilets. She was secretary to the proprietor of Alpine. The other persons who worked at the premises were the proprietor of Brian Moore and his secretary Elizabeth Nutbean. She referred to the south-west corner of the building and described a toilet facility and a doorway facing east which led out to a covered area. She revisited the office at 286 Main Street in August 2003 and said that the area at the south-west corner had not been increased by the plaintiff's renovations. The door facing east had been replaced but the dimensions were the same as she recalled them from when she was employed at the premises.

(iii) Elizabeth Ann Nutbean, presently an insurance broker, who was employed as the secretary to the proprietor of Brian Moore at 286 Main Street from approximately 1976 to 1986. She gave the same evidence as Jacona.

(iv) Richard Charles Wines, an estate agent who was employed by Raine & Horne, real estate agents, at 286 Main Street from 1996 to 1998. In addition to Raine & Horne, a firm of lawyers, Graham J Marsh & Co, occupied the premises. In his affidavit, which he swore on 24 November 2003, he said he had recently inspected the offices of the plaintiff at 286 Main Street and that although the area had been renovated internally, the external area had not been extended.

20 For the defendants evidence was given by the following:

(a) Ronald Charles Ward, the first defendant, who gave evidence of the purchase of the hotel at 292 Main Street, of a survey undertaken in January 2002 which identified the encroachment on the defendants' land of the structure attached to the plaintiff's building, and the history of the dispute.

(b) Frederick Cyril Bramich who owned and operated the hotel at 292 Main Street from 1 January 1973 to 27 February 1994 when he ceased to operate the hotel although he remained the owner until December 2000. As a result of his parents having owned the hotel before him, he resided there between 1961 and February 1994. In 1997 he negotiated with two parties to sell the hotel, one being FDFS which eventually purchased the hotel. In his affidavit he said that Wilkinson enquired about purchasing land of the hotel immediately behind the plaintiff's land, and said that when he owned and operated the hotel there was no building on the disputed land. I refer more fully to this evidence, and to his oral evidence below.

(c) David John Allison, a director of FDFS which commenced operating the hotel in February 1997, a few months later being granted an option to purchase the defendants' land (which, I interpolate, clearly was exercised as FDFS became the registered proprietor of the defendants' land on 9 February 2001 subject to a registered mortgage in favour of the National Australia Bank), and in November 2001 entered into a contract to sell the defendants' land to the first and second defendants which contract was settled on 23 January 2002. He gave evidence of having personally checked the boundaries of the land, first for the purpose of the bank mortgagee and subsequently when renovations were being considered. On those occasions the extension on the disputed land was not there. He said that the extension to the plaintiff's toilet area was added between early 1997 and early 2002. He also said that Wilkinson approached him to purchase "the small area of vacant hotel land immediately behind the 286 Main Street, Lilydale building". He gave a history of events with Wilkinson.

(d) The following affidavits were tendered without the deponent being called.

(i) Lindsay John Perry, a licensed surveyor, who conducted a survey of the defendants' land at the request of the first defendant in December 2001. He found that the brick structure connected to the buildings at 286 Main Street encroached on the defendants' land "practically in accordance with the relationship as described in" the plan prepared by Chivers and attached hereto. He commented on matters shown in general law conveyances of the plaintiff's land, concluding that he was unable to state from the available survey information when the original structure at the south west corner of the building was added. There was no building extension shown on field notes in 1950, and the configuration of the plaintiff's land in the plaintiff's certificate of title accorded with the application to bring the land under the TLA. There was no survey or documentary evidence to demonstrate that the disputed structure was erected prior to 1989. Enquiries to Yarra Valley Water and their search of the records of the former Lilydale Sewerage Authority do not provide any evidence of a sewer connection to the structure in the south west corner.

(ii) Donald Sutton Hunt, a building and pavement consultant, who commented upon the report of Godson. In his opinion, due to the extent of all variables and unknowns, in the initial composition, placement and subsequent conditions to which the mortar in the southern wall (which Godson considered) has been exposed, use of the carbonation test to determine the age of a brick wall by the depth of carbonation within the mortar is inaccurate, unreliable and inappropriate. He did not attend the site or undertake any test of his own to endeavour to determine the age of the structure.

The originating motion

21 As amended, the originating motion sought various declarations and an order pursuant to s 103 of the TLA that the Registrar of Titles amend the certificate of title to the plaintiff's land so as to contain a title diagram that corresponded to the dimensions of the land on the plan attached hereto. The declarations were four in number, the first being that the plaintiff has acquired a title by possession to the area cross-hatched on the attached plan. The alternative forms of declaration seem to be to the same effect or have the same result as that declaration. It was, however, explained by counsel for the plaintiff that the second declaration was framed as being appropriate to a case based not upon the occurrence of adverse possession but the conveyancing history establishing that the disputed land truly was part of the plaintiff's land and held in that ownership. That had been considered to be an alternative way to the same ultimate result of the plaintiff being the owner of and entitled to be registered as the proprietor of the disputed land. However, counsel for the plaintiff did not pursue that alternative basis of relief. The case pressed was based solely on the acquisition of title by adverse possession.

View

22 During the trial I had a view of the building on the plaintiff's land, both internally and externally, including of course the disputed land. I also viewed the subject area from the defendants' land. It was agreed by counsel that the view was not merely to enable me to better understand the evidence but that I could also use what I saw as evidence. For that reason, when the hearing resumed and counsel told me the basis on which they requested me to use the view, I advised counsel of particular matters which I had noticed. They were matters which seemed more directly relevant to matters raised in the evidence to that stage. I now describe in more detail that which is seen on inspection. Of course there will be some matters which I do not mention, not for any particular reason, and I do not repeat the description of the internal toilet area given above. On viewing the toilet area from within the plaintiff's building, my attention was directed to two strips of black tape placed on the floor in the southern toilet cubicle which, by meeting at a right angle, identified the western and northern alignments of the disputed land. Without such noticeable marking it would not be possible for a person within that area to know where the line was between the area of the step on the plaintiff's paper title and the disputed land. In the description to which I now proceed, I attempt to mention that which seems directly relevant.

23 The western side and the rear south-west corner of the plaintiff's land is not enclosed by a fence. The plaintiff's building is built to the boundary and a driveway on the neighbouring land runs along the western boundary of the plaintiff's land. The report of Godson includes a photograph of the west wall and the southern wall of the step[2].

24 Also visible on inspection is a high woven wire or cyclone-type fence on the western boundary of the defendants' land which runs south from the south-east corner of the step. This fence is depicted in the survey plan attached hereto. The pole for this fence is located within an inch or two of the plaintiff's brick wall. It is impossible for a person to pass between that wall and the pole of the wire fence.

25 Then, to the east on the defendants' land is an old single-storey building with a weatherboard face to the north. The building, which I went into, is obviously of a good age, and in poor condition, indeed dilapidated might be an understatement. The building is marked on the attached plan and the area between it and the building on the disputed land is shown as a mere 0.265 of a metre, a distance which a person could not enter. Indeed, a person wishing to view the bricks and mortar constituting the southern wall of the plaintiff's building on the disputed land could only do so by putting their face as close to the gap as possible and looking along the wall.

26 The weatherboard building had a low window facing north about mid-way between the eastern end of the disputed land and the east boundary of the plaintiff's land if the line of that boundary was extended south. That area is enclosed by the wall of the building on the defendants' land, and to which the weatherboard building abuts. During the trial the parties referred to this enclosed area as the unoccupied area, and I will do the same. The enclosure of this area is made complete by the fact that the corrugated iron roof on the plaintiff's toilet area (including the disputed land) extends across and for all practical purpose covers the entire space of the unoccupied area. East of the building on the disputed land, the roof is in the nature of a verandah roof and is supported by three wooden posts supporting a horizontal rail which is supported also, at its western end, by the brick wall of the plaintiff's building on the disputed land.

27 The unoccupied area, the roof and its supports, the weatherboard building and the southern brick wall of the plaintiff's building east of the disputed land are depicted in Exhibit D. Exhibit E is a photograph of the window in the weatherboard building.

28 Two photographs taken from above and looking along the roof constitute Exhibit B. One is taken from a position on the defendants' land looking to the west, and the other from the western end of the plaintiff's land looking east. Each photograph depicts how the unoccupied area is enclosed by the southern brick wall on the plaintiff's land, the weatherboard building and the defendants' hotel building on the line of the plaintiff's eastern boundary. The photograph also shows PVC pipes for the removal of storm water from the roof of the plaintiff's building. Also visible in the roof above the unoccupied area is a section of clear corrugated plastic. This clear plastic is at a position immediately at the eastern end of the building on the disputed land and above a window on the southern wall of the plaintiff's building at the corner where that wall meets the east wall of the building on the disputed land. This window is to the kitchen area in the plaintiff's building, which area itself adjoins the toilet area on the east side.

29 Exhibit C consists of three photographs taken from within the unoccupied area. They show the kitchen window and the east wall of the building on the disputed land. These photographs also show a small hot water service placed in the unoccupied area below the kitchen window and which provides hot water to the plaintiff's building, and a PVC drainage pipe running from the plaintiff's building across the eastern wall. Finally, and importantly, they show, as is apparent from inspection, that the east wall on the disputed land is comprised of bricks of a different (redder) colour and make than the bricks on the southern wall of the plaintiff's building and, I add, of the bricks on the southern wall of the building on the step and the disputed land. I accept Perry's evidence that "the eastern wall has been constructed of modern style red wire cut bricks that have three cylindrical holes within each brick". The workmanship too is of a different standard; that in the east wall is of a rough and unfinished nature indicating it was performed by a different tradesman and at a different time and with different materials compared to the southern walls. The rough and ready nature of the work is apparent in the way that the bricklayer has joined the east wall to the southern wall at the south-east corner. The walls have been joined at some only of the layers of the bricks; this can be seen in the photograph marked 2 b in Exhibit C. In connecting the walls the bricklayer has at several levels placed a brick at the corner but in the line of the southern wall. In each of these instances the connecting brick is of the newer redder variety and only one such brick had been so placed. In other words a line of two or more of such bricks has not been laid into the southern wall.

30 Finally, on the view, but not in the relevant photographs (Exhibits D and E), it was seen that the defendants have replaced the window in the north wall of the weatherboard building with a door which opens to the unoccupied area.

The unoccupied area

31 It was apparent from something said during the trial that there are unresolved issues concerning the unoccupied area. However, no issue concerning that area arises for determination in this proceeding.

Facts

32 It is a feature of the plaintiff's case, on which counsel for the defendants placed much emphasis, that the plaintiff did not call its predecessors in title or any of the tradesmen that carried out the renovations in 1999 to establish the age of the building on the disputed land. As to the former point, there was no evidence that no such person was able to be called, let alone as to any evidence that any such person might be able to give. Indeed, the plaintiff's vendor, 286 Main Street Pty Ltd, was said to be controlled by the partners of Wainwright Ryan & Co, a firm of solicitors. But it was also thought that they had not occupied the building. On the relevance and effect of the failure to call such persons to give evidence of relevant matters or to explain the failure to do so, counsel for the defendant relied on the observations of Ashley J in Bayport v Watson[3]. As to the latter matter of the renovation works, the defendants contend that it was only in the course of those works in 1999 that the toilet area was extended over the disputed land. If that is correct, the necessary period of adverse possession of 15 years has not run.

33 It is convenient to emphasise that the case for determination is one of adverse possession on common law principles. Counsel addressed only that case. That was a logical consequence of the plaintiff abandoning the alternative case based on the evidence of Chivers as to what was shown or established by relevant general law conveyances. The consequence of that claim being abandoned, and the plaintiff proceeding only on adverse possession, is that the plaintiff did not challenge the description of its land in its certificate of title but sought to establish that it had acquired by possession a portion of land in the defendants' certificate of title. Thus was raised the issue of fact: when was the disputed land built upon by the plaintiff or its predecessors? That being the (or one of the) essential issues of fact, the evidence of Chivers and Perry as to the general law conveyances and surveys prior to issue of the plaintiff's certificate of title did not matter and thus was not referred to by either counsel. At the same time, two things are to be noted about the description of the plaintiff's land in its certificate of title. First, it gives the dimensions of the step as 1.52 by 1.07 metres. Secondly, it warns as to the accuracy of the stated dimensions.

34 Other than that, I note, and accept, Perry's evidence that there is no survey or documentary evidence to demonstrate that the structure built upon the disputed land was erected prior to 1989, and also as to the absence of records of a sewer connection.

35 Finally, as to Chivers, I note his opinion, expressed in para 18 of his affidavit, based on his inspection of the toilet washroom structure, that that structure on the disputed land is at least 25 years old. He based his opinion on the brickwork and mortar used. When his affidavit was received no objection was taken to this opinion evidence. I consider however that I should not accept the opinion. He does not set out the qualification or experience that would qualify him as a surveyor to be able to give opinion evidence on the matter of the age of a brick wall by reference to the brickwork and mortar contained therein.

36 I now refer to the evidence commencing with Wilkinson, noting first that he gave no evidence as to whether he had undertaken a site survey as provided for in the special condition in the contract for the purchase of the land. Whether or not such a survey had been undertaken was not raised as an issue in the case.

37 Wilkinson said that when the plaintiff purchased the land it had two commercial tenants. Raine & Horne had the ground floor and Marsh the upper floor. Those arrangements continued until 1999 when the building was refurbished, since when it has been occupied by the plaintiff. The only toilets in the building were the two adjacent toilets described above and they were used by the tenants.

38 The area where the toilets were (and are) had a concrete floor and a wooden door leading outside to an undercover verandah. This is the unoccupied area. In the past tenants used the area for storage, gaining access to the area through the door. Real estate agents stored signs there. I note that in their evidence Jacona and Nutbean said that the area was used for storage of old advertising material by the occupants of the building and that they accessed the area two to three times a year. Wines referred to a previous tenant, the Lilydale Express Newspaper, having left printing plates in the area. This accorded with evidence of Wilkinson that he cleaned the area up and that a lot of printing press plates had been left by previous tenants. The area, he said, had been used as "a junk area". The evidence is also consistent with evidence of Allison who said that when FDFS purchased the hotel there was rubbish in the area, and he referred to what he called the Yarra Valley Express and a lot of printing stuff being in the area and to a real estate agent. Allison said that he and his partners cleaned the area out in January/February 1997 before opening the hotel.

39 The east door and its associated framing filled the eastern end of the structure on the disputed land. In the renovations performed in 1999 the door was removed and the space (being the entire east face) was bricked in as it now is. The brick wall was laid on the existing concrete floor. Internally the wooden wall was removed, the interior wall was lined with plaster sheeting, and the vanity unit and basin were installed, the vanity unit being partly in the disputed land. The area occupied by the structure was not increased to the east.

40 The refurbishment works included re-roofing the area of the toilet and wash area and the entire width of the verandah. The clear roofing was installed at the same time to let light into the kitchen. The toilet pans were replaced and connected to very old cast iron pipes at the immediate exterior of the west wall of the toilets and water was run to the basin. As mentioned earlier, plaster board was placed internally, tiles were placed on the floor, and there was associated carpentry and painting work. Contractors were engaged to perform the works none of whom could be located for the purpose of giving evidence. Wilkinson said that the bricklayer he engaged to lay the east wall was called Steve. Steve had laid the wall in an afternoon, been paid in beer, not given a receipt and left a mobile telephone number which was disconnected when Wilkinson tried to contact him for the purpose of this case. Wilkinson had no other means of contacting Steve.

41 Wilkinson said that consideration had been given to calling as witnesses those of the tradesmen who could testify as to whether the works extended the building east in the disputed land. Apart from Steve there were the plasterers but they could not be located. The carpenter who fixed such things as the architraves and skirtings could not testify as to the extension aspect and nor could other tradespeople.

42 Wilkinson then described the course of his dealings with the owners of the defendants' land commencing with Allison. In early 2002 Allison told him that FDFS had contracted to sell the land to the first and second defendants. A difficulty had arisen in that the first defendant had surveyed the land and found that the toilet structure addition to the plaintiff's building encroached on the defendants' land. Allison requested the plaintiff sign an acknowledgement of such encroachment[4]. Wilkinson refused on the basis that the land belonged to the plaintiff or it was unreasonable to require the plaintiff to either purchase the land or demolish the structure.

43 On 14 March 2002 FDFS wrote to the plaintiff threatening to remove bricks and property of the plaintiff situated on the disputed land in the next seven days. That was followed, on 6 June 2002, by a request from Eastside Financial Services acting for the first and second defendants, to abandon the claim to the disputed land and remove the encroachment, neither of which the plaintiff did.

44 On 11 September 2002 the first and second defendants commenced a proceeding in the Magistrates' Court at Ringwood for an order that the plaintiff remove its building on the defendants' land and restore the defendants' land to a reasonable condition, and claiming damages and mesne profits. The plaintiff filed a defence and counterclaim in which it raised the claim of adverse possession and sought a declaration as to its right, and injunctions to restrain disturbance.

45 On 4 February 2003 the plaintiff commenced a proceeding in this Court as the more appropriate jurisdiction for determination of the adverse possession claim. The proceeding in the Magistrates' Court has been stood over pending the determination of this case.

46 I now refer to certain further matters that were put to Wilkinson in his oral evidence.

47 One matter concerned evidence of the first defendant, Bramich and Allison in their affidavits as to conversations with Wilkinson. These concerned, first, when the extension to the disputed land was built and, secondly, Wilkinson discussing acquiring an area of the defendants' land. Wilkinson denied that he had said to the first defendant on 6 February 2002 that he had built the extension four or five years earlier and that it only measured two feet by three feet and was built under the overhanging roof that had existed for 50 or 60 years. A little later, in relation to para 18 of Allison's affidavit, Wilkinson said that he would have denied that the toilet had been erected in 1997 or later because that was not true. He denied evidence of Allison (in para 5 of his affidavit) that in 1997 he asked Allison if he could purchase the small area of vacant hotel land immediately behind the plaintiff's land. Rather, Wilkinson said, he asked to purchase the weatherboard dwelling on the defendants' land with the intention of doing an extension.

48 Then, in relation to para 3 of Bramich's affidavit, where Bramich said that in early 1997 Wilkinson inquired about purchasing the small strip of vacant hotel land immediately behind the plaintiff's land, and that Wilkinson described that land "as measuring a few feet deep by the width of [the plaintiff's building] which includes the area now in dispute which was owned by me [Bramich]", Wilkinson said that the inquiry was not to purchase the small strip of land but rather the weatherboard dwelling at the rear. Wilkinson said that he offered $15,000 to purchase it and that Bramich said that he should take the matter up with Allison.

49 In cross-examination Wilkinson explained that he approached Allison and Bramich in an attempt to purchase the weatherboard dwelling at the rear for the purpose of an addition, not to expand the existing toilet area. The expansion, he said, was to get access to the upstairs floor occupied by Marsh. The number of staff employed by Wilkinson was such that he was prevented from occupying the building.

50 Later in cross-examination Wilkinson said that in his conversations with Bramich the "strip of land" was not raised at all. There was no need to extend the toilet, it was not cramped. What he "was trying to purchase was the derelict weatherboard building behind my building so I could actually extend for further office space".

51 At this point he was asked about evidence in an affidavit sworn by Daniel William Jackson, a former employee at the hotel, and filed on behalf of the first and second defendants. He denied Jackson's evidence (in para 4 of the latter's affidavit) that there was no structure built on the disputed land in 1997/1998. I interpolate that, as it transpired, Jackson was not called to give evidence.

52 Godson occupied little time in the witness box, the cross-examination covering only five pages of transcript. He said that it was an unusual use of the carbon testing technology to establish the age of a brick wall. He applied the carbon test on the mortar as old bricks can be used to make a new wall. In this case the bricks looked old and he tested the mortar to estimate its age. He described by reference to his report where and how he took the tests on the southern wall west of the wire fence on the defendants' boundary. He said that "the wall appeared to be identical both inside and outside", meaning by that inside and outside the wire fence. At the eastern end of "this wall where there was apparently an old doorway there was clearly a new brick wall there, virtually like bricking up the doorway at that eastern end of this extension. I asked about that. It was clearly of modern brick, a more modern construction. I asked about that and I was advised that that was just filling in an old timber doorway that had basically failed and had deteriorated". He did not investigate that further. It was difficult to access that particular wall (meaning the eastern end). "It was clearly new, relatively new, but it was clearly just the eastern end of the wall as far as I was concerned". He did not take a mortar sample from the eastern end of the southern wall. The new red brick section was clearly just a doorway at the end that had been bricked in. He could see where the new bricks were. The southern wall by contrast "was all of the old red brick". The eastern wall where the doorway was was not of the same type of brick extension as the southern wall.

53 Godson was asked about Hunt's report. Godson said that the mortar in the wall was strong, sound and not cracked as Hunt referred to in his report. The presence of cracks would increase the rate of carbonation. He estimated that it would take quite some considerable time to carbonate to 80 millimetres in depth, which is the depth he tested to, and that was basically why he estimated the age as he did.

54 Finally, Godson explained that he did not test at the eastern end of the southern wall because the fence denied access. Nor could he see any relevance in testing further along the wall. The wall "appeared to be all of a very similar construction", the bricks were identical and the mortar appeared identical.

55 As mentioned earlier, Jacona, Nutbean and Wines were not cross-examined. I have sufficiently referred to their evidence.

56 I now refer to the evidence in support of the first and second defendants' case, commencing with Ward. In doing so I refer also to evidence of Allison.

57 Ward is an accountant. He had no personal knowledge of the site until he and his wife purchased the hotel in 2001. In January 2002 Perry, who he had engaged to survey the hotel land, advised him that the hotel land was encroached upon by a structure attached to the plaintiff's building. Ward advised Allison of this prior to settlement of the purchase from FDFS. They then viewed the encroachment together. In his affidavit, with which Ward agreed, Allison identified the encroachment as being "erected on part of the strip of previously vacant land behind the 286 Main Street building which is shown red on the plan" prepared by Perry and which Allison produced as an exhibit to his affidavit. This is the same plan as was exhibited to Bramich's affidavit. The area marked red is the area of the building east of the boundary of the step on the plaintiff's paper title.

58 According to Allison and Ward, on the view Allison "assured" Ward that "this structure was erected after we commenced operation of the hotel in February 1997". Allison said that he would contact Wilkinson and request him to sign an acknowledgement that the land on which "this recently erected structure was built was owned by the hotel". He assured Ward that the plaintiff could not have any valid claim to the subject land as the structure was erected after 1997.

59 True to his word, Allison took the matter up with Wilkinson, it would seem on 6 February 2002. Wilkinson refused to sign the acknowledgement. Allison deposed that he "asserted [to Wilkinson] that he knew he obviously had no valid legal claim to the subject land as the subject structure was erected in 1997 or later which was after [FDFS] refused to sell the vacant land on which the subject structure is now located". Allison proceeded in the next paragraph in his affidavit to say that Wilkinson did not deny or try to correct "my" statements that the structure had been erected in 1997 or later, and did not say that the plaintiff had any claim on the subject land. Wilkinson told him that he would contact Ward and offer to purchase the subject land. Wilkinson also advised that if he could not purchase the land he would oppose any planning applications lodged by the hotel.

60 At this point I return to Ward's evidence. On 6 February 2002 Wilkinson rang and told him that he had spoken to Allison that day and that his solicitor had advised him not to sign an acknowledgement that the disputed land was owned by the hotel as it would allow Ward to demolish the structure upon it.

61 Ward said (in para 5 of his affidavit) that Wilkinson told him he had built the extension four to five years earlier, that it only measured two feet by three feet and was built under a roof overhang that had existed for 50 to 60 years, that his solicitor had advised that an adverse possession claim would succeed and that he would instruct his solicitor to prepare legal documentation to transfer the disputed land to him. Ward said that he told Wilkinson he would not sell such a small piece of land; he planned to redevelop the area to the boundary and it would increase building costs to build around the structure.

62 Ward said that at his request Wilkinson stated his position as being:

• He would not acknowledge that the encroachment was part of the hotel title.

• Removing the structure was not an option.

• He will pursue an adverse possession claim or Ward could accept his offer of $2,000 to purchase the disputed land.

• He would provide evidence of adverse possession.

63 I interpolate that the first and second defendants would not accept $2,000. Ward explained that it would cost more to build around the disputed structure.

64 Later in February and in March 2002 there were further discussions. Ward involved Allison who on 14 March 2002 wrote to the plaintiff on the letterhead of FDFS a letter which I have referred to earlier and in which he stated that:

"Regrettably I am left with no alternative other than to inform you that we will be removing your bricks and other pieces of property that belong to you situated on our property in the next seven days. However if you have resolved this matter with Mr Ward please advise by close of business Friday the 15th March 2002.

As you are aware I have an obligation under the terms of Contract of Sale to pass over to Mr Ward all of the property described on Certificate of Title Vol: 9439 Fol: 934 ..."

65 On 16 March the plaintiff's solicitor sent a facsimile to Allison confirming that an adverse possession claim is currently being made on behalf of the plaintiff. On 19 March 2002 the plaintiff's solicitors wrote to Allison in relation to his 14 March letter. The solicitors gave notice that any attempt to remove any property belonging to the plaintiff will be reported to the police and dealt with as theft. The letter advised that an adverse possession claim had been commenced. In fact, however, no such claim had been commenced.

66 Ultimately, after further correspondence, the first and second defendants commenced their proceeding in the Magistrates' Court.

67 I note that neither Allison nor the first and second defendants have attempted self-help as threatened by Allison.

68 As I have referred to so much of Allison's evidence it is convenient to complete the references to his affidavit although he gave evidence after Bramich and was in fact the last witness. He gave evidence by video link from Queensland.

69 In his affidavit and oral evidence Allison referred to checks of the title boundary. I summarised this evidence at [20](c) above, where I also referred to Allison's evidence (in para 6 of his affidavit) that a few months after execution of the option Wilkinson approached him wanting to purchase "the small area of vacant hotel land immediately behind the 286 Main Street, Lilydale building". On this occasion Allison and Wilkinson met at the hotel. Allison said that Wilkinson offered to pay the costs of the transfer, with the price of the land to be determined by FDFS. The directors of FDFS rejected the proposal.

70 I note that in the preceding paragraph of his affidavit (para 5) Allison referred to the area that Wilkinson was interested in as "the small strip of vacant land" behind the 286 Main Street building.

71 Allison said that Wilkinson spoke to him a couple more times about purchasing "the subject land". Allison also said that he asked Wilkinson if the plaintiff would sell its land to FDFS, Wilkinson then apparently being interested in purchasing another building in Main Street. That other building was sold and negotiations to purchase 286 Main Street did not proceed.

72 In his oral evidence in chief Allison said that the red bricks used in the encroachment on the hotel land were on the hotel property and purchased from the hotel by the "guy [who] was doing some building work for Wilkinson". In cross-examination Allison said that these bricks did not have cylindrical hollow holes. He said that the same bricks may be seen as used at the back of the hotel. In this evidence as to bricks it is important to note that Allison was distinguishing between the bricks used in the southern wall of the extension and the brighter red bricks that do have cylindrical holes in them used in the eastern wall of the extension.

73 Further in his oral evidence in chief, Allison said that Wilkinson never discussed purchasing any part of the hotel's land other than "the small strip of vacant land". He never referred to the storerooms west of the hotel's kitchen. A freezer was located there and there was no way he would have sold that. A little later he said that Wilkinson never mentioned the outbuildings in any conversation in which he spoke about purchasing "the subject land".

74 Referring to the meeting at the hotel referred to in para 6 of his affidavit, Allison said that they looked through the window in the storeroom and that Wilkinson said that that was the piece of land he wanted. He did not say why he wanted it.

75 In cross-examination Allison said that the measurements he took could be in a file somewhere but he did not have access to them. He agreed there was always a toilet attached to the plaintiff's building but it was a very small section and he accessed the strip between the properties through the window in the weatherboard building.

76 Allison said that when Ward showed him the area he was "amazed to see the building there". There was, he said, no doubt that an addition was made to the toilet on the plaintiff's property between early 1997 and early 2002. He did not have "a clue when it was put on", he ran another business and had a manager at the hotel.

77 Then, in concluding an answer as to why he had sent the letter on 14 March 2002 when FDFS no longer owned the hotel, Allison said that "we would have had to have compensated Mr Ward if we hadn't given him the land that he purchased". He said that he had not discussed that with Ward. His interest was to ensure that FDFS delivered to the first and second defendants that which they had paid for.

78 I now deal with the evidence of Bramich.

79 Further to the note of his evidence at [20](b) above, it is necessary to set out more fully what he said in his affidavit. In para 3 he said that Wilkinson telephoned on two or three occasions and inquired about purchasing "the small strip of vacant Hotel land immediately and directly behind [the plaintiff's land], described by Michael Wilkinson as measuring a few feet deep by the width of the building at 286 Main Street, Lilydale which includes the area now in dispute, which was owned by me". In para 4 Bramich said that Wilkinson explained that he had just recently purchased the 286 Main Street property, that Marsh "would not vacate the top floor of the building and that he required the additional land to enable his ground floor business to operate in the manner that he wanted". Bramich said that he advised Wilkinson he was negotiating to sell the entire hotel land, that he did not intend to sell the land separately, and advised him to contact one of the potential purchasers, whose name he provided, about purchasing the land.

80 Bramich concluded his affidavit with the following paragraph:

"7. On Saturday 25 January 2003 I met Ronald Charles Ward one of the new owners of the Hotel at the Hotel premises at 292 Main Street, Lilydale and was shown the survey plan prepared by L.J. Perry & Associates Pty. Ltd. and personally viewed the portion of the building that is in dispute and say that while I owned and operated the Hotel up to and including 27 February 1994, there was no building on the area coloured red on the plan exhibited hereto but I cannot indicate further the actual date of construction as I was no longer involved with the Hotel. Now produced and shown to me and marked with the letters 'FCB1' is the plan referred to herein."

81 It is important to refer to Bramich's oral evidence. He was asked a few questions in chief to clarify his evidence as to "the small strip" of land that Wilkinson inquired about purchasing. It was, he said, "in terms of buying so many feet". He could not say "exactly how many feet, but I think that was the general drift of it all". He was then asked and answered as follows:

"A number of feet where precisely? --- Well, immediately south of his building line, sort of thing. Immediately at the back of his property that fronts the Main Street. At the back.

What approximate area did you understand Mr Wilkinson to be referring to? --- The line taken sort of in a southerly direction might have been 16 feet or something like that, that way, and that would have been by the width of his existing building. Something of that order, as I recall."

That completed his evidence in chief.

82 Cross-examination of Bramich was concerned only with his evidence in para 7 of his affidavit. That is to say it was concerned only with the matter of the extension at the rear of the plaintiff's land. In summary, it may be said that Bramich did not swear up to para 7 but the evidence is revealing and it should be referred to. In short, para 7, in the same way as the glib reference to "the small strip" in para 3, misrepresented the true situation.

83 The first thing to note concerns the survey plan referred to in para 7. Bramich was asked if that was the same as the plan exhibited to his affidavit. He said that the plan was produced to him at a meeting he attended with Ward and the first and second defendants' solicitor at which he was told that in Ward's view there had been a recent encroachment on the hotel's land by some additional building. He believed what he was told. The meeting occurred in a rush as he was going overseas later that day, and while he thought the survey plan would be the plan exhibited to his affidavit, he did not "know for sure" because it was nearly two years ago.

84 The next thing to note is that whereas para 7 states that he "personally viewed the portion of the building that is in dispute" the fact is, as he ultimately conceded and I find to be the fact, he did not view the building at that time. The explanation for this false statement may have been that the affidavit was drawn in a rush in view of Bramich's imminent departure and perhaps thinking that he would have had time to view the building. But he did not view the building and in consequence the affidavit was misleading. It was apparent to me, observing Bramich and attending to his answers, that he appreciated this error in the affidavit, and that he did so at the time. He said that following his return to Australia in November 2004, in April 2005 he viewed the building because he wanted to make sure he was not in error in any way. He had "to verify before I came [to court] because otherwise I might have had to resile from my affidavit".

85 Hence, Bramich had sworn an affidavit committing himself to a position, and swearing falsely as to a view, when he had not had a chance to view the relevant building and area. In truth, all that Bramich did on 25 January 2003 was view a survey plan.

86 I turn then to Bramich's evidence as to what he saw on the inspection in April 2005. When he viewed the building a door had replaced the window in the weatherboard building on the hotel land. Before that "it was difficult to actually look at it", to actually stand in there and examine the area. He said that he was not really totally satisfied about this question of the extension until about a month ago.

87 He was then asked about the east wall of the disputed building and agreed, correctly, that the bricks are a reddish colour. He agreed that the bricks fill in the eastern wall and added:

"... we are saying there is an extension if that's what you are saying. That's what this is all about. We are saying it's an extension."

A little later Bramich said in relation to the south wall that "Our view is that there is new work".

88 This use of the words "we" and "our" was concerning, and resulted, in my view, from a misguided sense that his role was to aid the first and second defendants establish their case. That was apparent from his evidence. At the same time, he was, he said, a friend of both parties and embarrassed, and he thought he had never seen anything as stupid as the case because he felt it could be resolved by the sale of the land and fixed up for a few dollars.

89 Returning to the locality of the new work and the red bricks, Bramich disputed a suggestion that there were no red bricks in the south wall of the extension, saying that "it appears that there is new work and the new work comprises these red bricks and you would certainly see all of the [east] red wall and if you went along the southern face starting at the east you would see some again". You would see some of the red bricks around the corner. I interpolate that what Bramich was referring to here were the red bricks to be seen in the east wall some of which are also seen, he said, around the corner. Bramich said that he had not taken measurements but "it looks like there has been an add-on to what was there before". He was then asked what was the proportion of the add-on, and answered "I would say a few feet". In summary, he agreed that the east wall was one colour brick, but as to whether there were one or two or a very small number of such bricks scattered among older bricks in the southern wall he found it "a bit difficult to answer. It appears to be new work for a few feet along the south wall starting from the east wall".

90 Bramich then said that "to get it right before I came here today" he had inspected the site with a bricklayer whose wife had formerly run the kitchen in the hotel. The kitchen referred to was located in the weatherboard building on the hotel land immediately south of the plaintiff's land. The bricklayer was the deponent Jackson some evidence of whom had been put to Wilkinson in his cross-examination. Bramich said that he had inspected the property with Jackson "about a month ago". That, I find, was the inspection in April which Bramich referred to earlier in his evidence. He arranged the inspection "because I wanted to come here today being totally sure of what I was talking about. I thought that he had the expertise to know the position". So he looked at the east and south wall with Jackson, having entered the unoccupied area through the doorway in the weatherboard building.

91 On inspection in that area Bramich had the impression that there were red bricks in the south wall. But, he said, he "would have to go back and have a look to be one hundred per cent". His impression was that there was new work "on [the] end" of the south wall "and it seemed to go along to some extent". He said that Jackson agreed, and that Jackson was able to say where the bricks had come from.

92 He said that you really needed Jackson "to be here today rather than me".

93 Some further evidence of Bramich indicated that he had little recollection of the area between the hotel and the plaintiff's building, which he described as a bit of no-man's land. He knew what was there "to some extent" but had to familiarise himself with the situation "as it is now". He then agreed that he had no recollection of what was there in the past because he had taken no particular notice of what was there. He had to check out the situation "as I found it now". He then agreed that he probably could not compare the past with the present, repeating that it was a little bit of no-man's land, and stating that the situation was ridiculous. He then agreed that his evidence that the plaintiff had increased the area occupied was not based on his recollection of what was there before but his opinion of what had happened in 1999.

94 In concluding his cross-examination Bramich said that in his time of operating the hotel which was 21 years he never set foot in the area. The area, he said, "was pretty inconsequential, actually, and it wasn't accessible". He would have had to put a door in to access it.

95 That Bramich had no independent recollection of the area occupied by the plaintiff's building in relation to the area between the two properties, and that in reality to justify his evidence in para 7 he had to rely on what Jackson told him at the inspection in April 2005, was made clear in re-examination when Bramich said that he relied on "Jackson's knowledge to a large extent to indicate what was new and what was not because my memory of it all was pretty vague". He added that when Jackson pointed things out to him he "was inclined to believe what he said, when he said 'this is new and that's new' ...". He then said that when he was "looking at it" at the inspection he had no recollection of the dimensions of the building as had existed before the new work was done. He added that he was "pretty vague" about what was there before.

96 I find Bramich's evidence as to his lack of recollection of the area occupied by the plaintiff's building makes sense, having regard to the irrelevant or "inconsequential" nature of the area in question in relation to the conduct of the hotel business and in the context of the otherwise very large area of the hotel land. Bramich never went into the area. It was of no interest. I find that when Bramich swore his affidavit his recollection was as he stated in evidence. He had no accurate recollection. He was not in a position to say that there was no building on the land coloured red. I find that he was led to that evidence in para 7 of his affidavit by the statements made to him at the meeting on 25 January 2003 and that he swore the affidavit relying on those statements being correct but conscious that he did not know if they were. Then, aware of the sensitivity of his position on this point, he had Jackson inspect the area with him and relied on what Jackson said to justify his evidence. In truth he had no recollection of the area occupied by the plaintiff's building at its eastern end and could not say it had been extended since February 1994. For these reasons I reject the evidence in para 7 of his affidavit and that given orally to the extent that it is to the effect that the encroachment on the disputed land did not exist prior to February 1994.

97 It is pertinent to mention again Bramich's evidence in para 3 of his affidavit as to Wilkinson inquiring as to the "small strip" of vacant land immediately behind the plaintiff's boundary described by Wilkinson as a few feet deep. In fact the unoccupied area between the plaintiff's building and the weatherboard building is in the order of three to four feet deep to the south. Any reasonable reader would have understood para 3 to be referring to that unoccupied area. And Allison gave similar evidence, referring to the small strip of vacant land. In seeming consistency with this understanding of the first and second defendants' case, at the outset of his cross-examination it was put to Wilkinson that he wanted to acquire land to enable him to enlarge his toilet area, which Wilkinson denied, saying that he attempted to purchase the weatherboard building for the purpose of addition. He was then challenged that that was not the truth, that his concern was to extend the toilet area. Then, when Bramich was called later that day, but in the afternoon, in the evidence in chief mentioned earlier he qualified his evidence as to the depth of the strip that Wilkinson was inquiring about. I have set this out because in this respect too the affidavit was seriously misleading. In addition to being misleading it was used, together with the affidavit of Allison, as a basis upon which to attack Wilkinson's credit. Bramich's misleading would not have come to light if he had not been cross-examined. As he was to be cross-examined, and thus had to go into the witness box, counsel for the first and second defendants who presumably ascertained the falsity over the luncheon adjournment, wisely had Bramich qualify his evidence, although the qualification was somewhat vague.

98 However, the qualification, when read with the evidence in para 4 of his affidavit, namely that Wilkinson "required the additional land to enable his ground floor business to operate in the manner that he wanted", is consistent with Wilkinson's own evidence in that regard.

99 The final aspect of Bramich's evidence to deal with is that concerning his observation of the red bricks in the southern wall at its eastern end as indicating new work, an add-on, for a few feet. I reject that evidence. It is just plain contrary to the observable fact. I have already stated the position as to the placement of some new red bricks at the south-east corner. Those few new bricks run south only the length of one brick, that is the brick laid at the corner. Such new red bricks did not go a few feet down the wall. Counsel for the first and second defendants agreed that this was so[5]. Furthermore, contrary to what Bramich said, it is plainly apparent on inspection, that the east wall shows new work as a result of filling in with new brick work but save for the very corner the south wall does not show signs of corresponding new work or of an "add-on" or extension of the south wall to the east.

100 The only other person to give evidence for the first and second defendants on the first day of the trial was Ward. When the trial adjourned for the day I was told that Allison and Jackson would give evidence the next day. On the following day I was told that Jackson was not able to attend Court. Counsel for the first and second defendants said that he wished to tender Jackson's affidavit but that was opposed and he did not take the matter any further. He said that he was instructed to close the defendants' case, and he did so. He did not ask for an adjournment for the purpose of securing Jackson's attendance as a witness. In consequence of this his affidavit remains on the Court file, but it was not tendered and is not part of the evidence.

101 I now record my assessment of the other witnesses in the course of which I further deal with the facts.

102 I assessed Wilkinson to be an honest witness. He gave evidence in a reasonable and responsive manner. It is true that in his affidavit he did not respond to some matters that had been deposed to by Bramich, Allison and Ward. In particular, in cross-examination his attention was drawn to the fact that he had not challenged what Bramich and Allison had said regarding the conversations with him as to buying more land. I do not consider that the failure to deal with this or other such matters was due to artfulness or finessing the case. I accept Wilkinson's evidence that, for the purpose of preparing the affidavit, he had been asked certain questions in relation to what he had done with the building and that he had answered those questions. That is reflected in the affidavit. I interpolate that the sense of the evidence was that his solicitor had asked him questions. Of course the affidavit could and should have dealt with the other affidavits and I take the failure to do so into account in arriving at my assessment of Wilkinson as a witness. I also take into account that brevity is a feature of the affidavits filed on behalf of the plaintiff, a brevity which at least in the case of the particular point taken up in Wilkinson's cross-examination reflects a failure of an experienced lawyer to properly consider the content of the affidavit. It is also important to take into account that when in his oral evidence Wilkinson was asked about his enquiry being to acquire the "small strip" between the buildings, he stated and insisted that he asked to purchase the weatherboard dwelling in order that he might make an addition to his building. This was before Bramich gave evidence. Thus, when Wilkinson gave evidence he knew only that Bramich and Allison said that he wished to purchase the "small strip". Wilkinson did not know that when Bramich gave evidence he was going to say that in fact Wilkinson wanted an area greater than the "small strip", 16 feet or so deep by the width of the plaintiff's building. I have already recorded my view that Bramich's affidavit was misleading without the inclusion of this qualification. Indeed, there is as much if not more room for criticism of the Bramich affidavit in this respect as there is for the above criticism of Wilkinson.

103 I have considered the evidence of Bramich in light of the evidence of Allison on the same matter, namely what Wilkinson wished to purchase, and in light of the other criticisms I have made of Bramich's evidence. I have also taken into account that if more care had been taken and responsibility exercised in the preparation of Bramich's affidavit, it is likely that it would have been much fuller and accurate, including on the matter of Wilkinson's explanation for wanting to purchase some of the hotel land. As vague as it was, Bramich's evidence, volunteered in his oral evidence in chief, is consistent with Wilkinson in stating that the area in question was greater than the small strip of vacant land between the buildings measuring a few feet deep as stated to in his affidavit. It is incredible that Bramich could ever have sworn the affidavit, but he did, and at least to his credit he commenced to volunteer the truth at the trial. But that was only because he was forced into the witness box by the plaintiff's counsel requiring him for cross-examination. Otherwise the lie would have been run. Even then, I find, Bramich did not tell the whole story. In effect, I find, he relied on vagueness in recounting to slide out of the false and incomplete affidavit. Yet what he said plainly came from a concern to tell the truth, a truth that was otherwise to be concealed. The truth was that when Wilkinson spoke to Bramich he told him that for the purpose of making an addition to his building he wanted to purchase the weatherboard building. That purpose would hardly seem to be met by purchasing merely the "small strip" between the buildings.

104 I have said that I have taken account of the evidence of Allison and I have not overlooked it in arriving at these conclusions.

105 I found Allison to be unsatisfactory for several reasons. He gave his evidence in a markedly aggressive manner, manifesting an evident determination to establish the correctness of the case he supported. He had an interest for that case to succeed, which was that FDFS not be held to have failed to give the first and second defendants possession of the disputed land under the contract of sale. He adverted to this in his evidence. The concern would be to avoid any liability to compensation. This concern is reflected in the way, indeed the vigour with which, he handled the matter with Wilkinson.

106 Then, as to Allison's insistence that Wilkinson's interest in purchasing hotel land was limited to the small strip of vacant land owned by the hotel behind the plaintiff's building, the following considerations arise. Allison's evidence is that on at least three occasions Wilkinson spoke to him about purchasing the land and that he did not say why he wanted the land. The contrast with Bramich could not be more marked. In dealing with Bramich, Wilkinson both explained why he needed more land and sought hotel land south of the "small strip" to 16 feet or so. In my view the likelihood is that in seeking to acquire more land Wilkinson would have said, however briefly, why he required it. It is overwhelmingly likely that he would have done so, either voluntarily or in response to a question by Allison out of the natural curiosity of an adjoining owner. Why would Allison, or Bramich for that matter, sell an area of his land without knowing the use to which it was to be put? Further, it is difficult to see, and no reason was suggested, that Wilkinson's need for extra land to allow for an addition to his building would be sufficiently catered for by the addition of only the "small strip". The likelihood, in my view, is that Wilkinson's approach was as he stated. Not only do I find that to be the case on the probabilities, but I conclude that I reject Allison's evidence on this aspect.

107 There is also Allison's evidence as to checking the boundaries and the extension being built between 1997 and 2002. These were important matters but he did not produce any record made on the taking of measurements as an exhibit to his affidavit or have any such records available when he gave evidence. Hence, it is simply his word that he measured the boundaries and that when he did he got into the unoccupied area and, having done so, measured it accurately and that the disputed land was not then built upon. In evaluating the likelihood that Allison did go through the window and measure the vacant area it is a consideration that the area was inconsequential, as Bramich described it and as I accept was the case for all practical purposes. It is as much likely that Allison looked out the window and acted on the impression that the vacant area between the buildings corresponded with the plaintiff's title boundary. Further, Allison did not use the area or suggest that he investigated it from the point of view of use. Furthermore, in view of the finding I make below as to the age of the building on the disputed land, if Allison truly did measure the title boundary in that area he must have found, if he had read the title measurement correctly, that the plaintiff's building was built on the disputed land. While I have reservations concerning Allison it is unlikely that he would have falsely represented the title boundary to FDFS's mortgagee. It is also likely that he would have taken the matter up with Wilkinson, but he did not do so. I conclude, in light of all the relevant circumstances, that Allison did not go out the window and physically check the boundary and find no structure on the disputed land. I so conclude not merely on the balance of probabilities but because I do not accept his evidence.

108 I can accept that Allison was surprised when he ascertained in 2002 that the disputed land was built upon but that was because he had not been on the encroachment.

109 In para 18 of his affidavit Allison made a point that Wilkinson did not deny or correct Allison's statements that the structure had been erected in 1997 or later. This seems to overlook that Wilkinson refused to sign the acknowledgement. Moreover, apart from asserting what Wilkinson did not say, Allison did not set out what Wilkinson did say apart from Wilkinson saying he would make Ward an offer to purchase the subject land. Wilkinson said in evidence that he did not recall the actual conversation, but would have denied that the addition was built in 1997 or later because "it was always there". That is consistent with his refusal to sign the acknowledgement. It is also consistent with his evidence in para 3(b) of his affidavit that in conversations with Allison he refused to sign the acknowledgement on the ground that the toilet structure belonged to the plaintiff or that it was unreasonable to require the plaintiff to purchase the land or demolish the structure. I add this in relation to the two men. In talking Allison presents a direct and aggressive manner. Wilkinson, by contrast, presented as a more quietly spoken and measured person who would have sought to avoid being drawn into an argument with Allison. In view of the way the evidence was given on both sides it is difficult to know what was actually said. I accept that Allison pressed a position on Wilkinson who, I also find, did not accept it, the best external indicator of that being the refusal to sign the acknowledgment. In relation to the matter discussed in this paragraph, I accept the above evidence of Wilkinson. I do not accept Allison's evidence.

110 Ward did not come onto the scene until 2002 by which stage the die had been cast one way or the other. His evidence occupied little time, due to his lack of involvement at relevant times. Essentially, his case rested on the evidence of other witnesses. I prefer the evidence of Wilkinson, and other witnesses for the plaintiff, to that given by Ward, just as I prefer the evidence for the plaintiff to evidence given by Bramich and Allison.

111 Specifically, I do not believe Ward's evidence that on 6 February 2002 Wilkinson told him that he had built the extension four to five years earlier and that it measured two feet by three feet and that his solicitor had advised him that an adverse possession claim would be successful. There is an inherent contradiction or improbability in these statements. Possession of the disputed land by reason of building upon it only four to five years earlier would not constitute adverse possession and it is barely conceivable that a solicitor could so wrongly have advised the plaintiff. Moreover, I do not accept that Wilkinson would have, or did, say such a thing. In truth, in my view, the explanation for this evidence is that Ward has misunderstood what Wilkinson said to him and conflated the work that filled in the east wall with the work that extended the structure over the disputed land. Thus understood, and bearing in mind Wilkinson's position being that the structure had always been over the disputed land, it is not inconsistent that Wilkinson's solicitor had advised that an adverse possession claim would succeed.

112 Ward further deposed to the conversation in paras 6-9 of his affidavit. I accept that they spoke about the situation and that in substance Wilkinson stated his position as Ward set out in para 9. That included that the plaintiff would pursue an adverse possession claim or pay $2,000 to purchase the disputed land. This making of an offer to purchase is relied on by the first and second defendants and I refer to that aspect below.

113 In the course of subsequent discussions Wilkinson maintained his claim of adverse possession to the disputed land.

114 The significant issue of fact not yet resolved is the age of the structure on the disputed land. I have borne in mind all of the evidence relating to this issue in the above discussion. But certain of the witnesses I have not yet referred to, and I now do so.

115 First to consider is the evidence of Jacona, Nutbean and Wines. Notwithstanding that he chose not to cross-examine these witnesses, counsel for the first and second defendants submitted that their evidence should be given little, if any, weight. That was for the following reasons, which in the first instance were directed to Jacona and Nutbean. They were lay witnesses, and it was not to be expected that they would give evidence with the precision that might be expected from a person such as a building consultant. It was said that in the evidence of Jacona and Nutbean the expressions "from my observations" and "it appears to me", and the lack of a plan or diagram, reflected imprecision. Then it was said that Jacona and Nutbean "parrot" each other, meaning similarity in the drafting of their affidavits. Then it was said that they do not say if they looked outside as well as inside at their inspection. Next it was said that Jacona and Nutbean were not independent. It was asserted that they were colleagues of Wilkinson. It was even said that Wilkinson had "no doubt persuaded them [Jacona and Nutbean] to swear these affidavits"[6]. I interpolate that there was not a tittle of evidence to support this allegation and I asked counsel if he was being serious. He replied that: "They were employed by insurance brokers, two different insurance brokers and Mr Wilkinson is an insurance broker. They are lay witnesses, primarily, Your Honour". Then, when I asked counsel for the evidence that they knew Wilkinson or were colleagues of his, counsel stated that they had both been employed at the premises but it was really that "their occupation is the same". Finally, when counsel got to Wines he simply said that "Much the same can be said of him". He went on to refer to Wines not giving detail of the internal renovations or of measurements. It was also submitted that in weighing up the evidence of these witnesses I should consider the conflicting evidence of Allison.

116 These submissions were a bit rich coming from counsel who had opted not to cross-examine any of the witnesses in question. The decision not to cross-examine them involved a calculated (but risky) assessment that their evidence would be outweighed by the evidence of Bramich, Allison and Jackson. But the decision misfired; Jackson became a phantom and Bramich and Allison essentially fell in a hole. The consequence is that the evidence of Jacona, Nutbean and Wines stood untested. It was a deliberate decision not to cross-examine them, and the first and second defendants must bear the consequences of the decision not to do so, such as they may be.

117 I find nothing inherently improbable in the contents of their affidavits. I say that having considered the above criticisms of counsel. The fact is that for periods of years each deponent worked in the plaintiff's building. The building is not large. In a matter of moments one would be from one end of it to the other, and there was only the one toilet area. Their evidence as to material being stored in a covered area accords with the evidence of other witnesses, and they are consistent in stating that access to that area was by a door on the eastern side of the toilet area. It is only common sense that access was by such a door. In my view the affidavits clearly and directly state the view of the deponent and without more were sufficient to establish the physical facts referred to. I reject as totally without substantiation the attacks upon Jacona and Nutbean, which seemed also to go to Wines, that they were not independent or were colleagues of Wilkinson. That submission was bad enough, lacking any evidentiary basis, but the allegation of counsel that Wilkinson had persuaded Jacona and Nutbean to swear their affidavits, which seemed intended to carry an adverse inference that should lead to the affidavits being afforded no weight, and perhaps also as a slur on Wilkinson, was without any evidentiary foundation and, quite simply, outrageous. I accept the evidence of Jacona, Nutbean and Wines.

118 Then there is the evidence of Godson and Hunt. As between them I prefer the evidence of Godson. It is pertinent that Hunt did not inspect the site and make any test and upon such bases provide an opinion within his expertise as to the age of the south wall or the structure on the disputed land. All he did was identify matters relevant to consider in assessing the age of a wall by reference to the mortar, and by reason thereof express his opinion that Godson's opinion was unreliable. His report was generalised and dismissive, which doubtless was the object of his involvement. Otherwise it might have been expected that he would have been required to inspect the wall in question and undertake such test or inspection as would equip him better to form an independent opinion.

119 Godson impressed me as an honest and reliable witness. He gave evidence in a reasonable manner dealing sensibly with the matters in Hunt's report that were put to him by counsel.

120 Counsel for the first and second defendants did not submit that I should not accept Godson's evidence. I do accept his evidence. What counsel submitted was that his evidence did no more than establish what was agreed. That is, that the section of the wall he tested is not on the disputed land. That is true, but I accept Godson's opinion in relation to what he tested and his evidence generally as to the wall, and take it into consideration in determining the age of the structure on the disputed land.

121 The question is whether the plaintiff has established that it was in possession of the disputed land adverse to the true or paper owner thereof for at least 15 years prior to 11 September 2002 when the first and second defendants commenced their proceeding in the Magistrates' Court. That is the way the issue has been presented. And, as presented, the issue turns upon the period of time that the toilets and wash area structure attached to the plaintiff's building has stood on and enclosed the disputed land. I now conclude on that issue.

122 I accept the evidence of Wilkinson, Jacona, Nutbean, Wines and Godson. I find that in 1999 Wilkinson renovated but did not extend the building on the disputed land. I find that in those renovations the door at the eastern end of the building on the disputed land was filled in by the placement of the newer redder bricks and internal lining. Those newer redder bricks containing cylindrical holes are distinctive from the bricks in, and are not found in, the southern wall of the structure save for several placed at the very south-east corner. I find that the southern wall was not extended east in the course of those renovations or at any time by the plaintiff. I reject the evidence to the contrary, not merely because I prefer the evidence in the plaintiff's case but because I reject the evidence in the first and second defendants' case as untruthful.

123 The evidence of Nutbean dates the wall back to 1976 and accepting this evidence I find that the building was upon and enclosed the disputed land at least as long ago as that, and ever since. That is a period of 26 years to 2002.

124 These findings are consistent with and supported by the evidence of Godson and my observation of the southern wall (to the extent it can be seen) and the internal detail of the toilet and wash area including the impracticability in use of the area if the disputed land was not included. It is also consistent with the fact that people working in the plaintiff's building were able to carry materials through and out of the area for storage purposes.

125 The southern wall itself, from west to east, has the appearance of a single, uniform wall without any indication of an extension having been made thereto, whether relatively recently or not. Furthermore, there is no evidence that Wilkinson altered the building in that area on more than one occasion. That is to say, the only evidence is of renovations in 1999, and that is what I find. That being so it makes no sense that the south wall was extended to and over the disputed land in an apparently seamless and high standard piece of bricklaying whereas the east end was filled in with different bricks and with a quality of bricklaying that is as rough and ready as one would like to see. It is apparent, and I find, that the bricklaying was carried out at different times, and, in my view, overwhelmingly apparent that the bricklaying at the east end was an in fill of the former doorway that existed there since at least 1976. I reject Ward's evidence that the bricks on the south wall have a sprinkling of bricks the same as the east wall, which I understood to refer to more than the several new red bricks at the corner. These findings are consistent with the evidence of Godson that the southern brick wall has stood for 35 to 50 years. True it is that he tested at points west of the disputed land but in my view it is reasonable to infer from the evidence that the continuation of that wall on the disputed land is of the same age. Whatever may be the actual year of construction it is evident that it was in place by 1976 and, on Godson's evidence, for years before that. I should add, less the contrary be thought, that in making these findings I have not overlooked the submission that the plaintiff had not called the tradesmen who carried out the works in 1999. I have borne that in mind in all of the discussion of the evidence. I do accept Wilkinson's explanation as to his endeavours to locate these persons. I have also taken into account that the plaintiff did not call any predecessors in title or explain the failure to do so.

Decision

126 In light of these findings I turn to the ultimate issue whether the plaintiff has established its claim of title by adverse possession. There was no difference between counsel as to the relevant principles and the approach to be taken by the Court in accordance with those principles. Each counsel was initially content to rely on the reference to those principles in the recent decision of Ashley J in Bayport v Watson[7] where His Honour respectively quoted a passage from the well-known judgment of Slade J (as his Lordship then was) in Powell v McFarlane[8], and set out a series of propositions with reference to various cases. The latter cases include the decision of the English Court of Appeal in Buckinghamshire County Council v Moran[9] which concerned the effect of enclosure of a piece of land. In that case, Slade LJ elaborated on his earlier decision in Powell. Counsel also referred to the somewhat earlier decision of Gillard J in Riley v Pentilla[10]. To use the language of Gillard J in Riley, to succeed in its claim the plaintiff must establish that it and its predecessors in title dispossessed the true owner and were intentionally in actual possession of the disputed land adverse to the possession of and with the intent to exclude the true owner and, I would add, all other persons. A mere accidental or unintentional possession is not sufficient. Nor is it sufficient if the evidence is equivocal as to the possession of the trespasser. And, unless there be evidence sufficient to establish the contrary, the true or paper owner is deemed to be in possession of the land. As the cases make clear, the question is one of fact in each case. Regard is to be had to the nature and characteristics of the property in question, the nature of the acts in question including those of the true owner and the conduct that might have been expected of that owner in relation to the protection of his or her interest.

127 It was submitted by counsel for the first and second defendants that the plaintiff had not established continuous, exclusive and adverse possession of the disputed land for 15 years. There was no evidence of the required possession from the plaintiff's predecessor in title between 1989 and October 1996. It was further submitted that because the plaintiff's possession was accidental, it had not established the necessary intention to possess, the animus possidendi, the requirement of which was described by Slade J in Powell as follows:

"The animus possidendi, which is also necessary to constitute possession, ... 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 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."

128 In my view each submission must fail.

129 Dealing with the first submission, and even putting aside the evidence of Godson, the evidence of Nutbean takes the existence of the building on the disputed land back to 1976. Jacona takes it to 1989. In 1985 the plaintiff's vendor, 286 Main Street Pty Ltd, purchased the plaintiff's land. The building on the disputed land remained in place. There is no reason to suppose and every reason to infer that the premises were tenanted in the period to the sale to the plaintiff in 1996, or at least that there was no appreciable period when the premises were not occupied. The certificate of title to the plaintiff's land notifies the existence of two leases, the first of which to Alpine commenced on 1 December 1987 and the second to Marsh on 1 September 1988. Further, Jacona and Nutbean depose to tenants throughout 1976 to 1989. Then, when the plaintiff purchased the land Marsh was in occupation of the first floor under a further lease which had commenced on 1 September 1994. It would seem surprising if he had gone out of possession at any time prior to the commencement of that lease. But Marsh was not the only tenant, as Wilkinson states and Wines makes clear: Raine & Horne were tenants in 1996 to 1998 when Wines was employed at the property, although the date of commencement of their lease is not clear. Then following the renovation of the building in 1999, it has been occupied by the plaintiff. There was of course also evidence of occupation by a newspaper firm at a non-specified time but perhaps earlier than 1976. It is of course a reasonable inference that those who occupied the plaintiff's building used the toilets thereat. It is also clear on these facts that the plaintiff's building was occupied in the period between 1989 and October 1996, contrary to the first and second defendants' submission. It is not possible to find that the building was occupied continuously throughout the period. However in light of the known history it is a reasonable inference, and one that I draw, that there was no appreciable gap in occupancy and therefore of use of the toilet area as an essential incident to occupation of the building. Of course, if and to the extent that there might have been a time when the building was not occupied, the enclosure of the disputed land in favour of the plaintiff's building meant that the disputed land was enclosed from the owner of the hotel land.

130 It is to be noted in relation to possession by a tenant, that a tenant can acquire adverse possession on behalf of the landlord; see Doe d Lewis v Rees[11]. Further, in Nicholas v Andrew[12], where a person in adverse possession of land leased it over a period of 26 years but with intervals, one of two to three months, in which the land was not occupied, it was held by the Full Court of the Supreme Court of New South Wales that there had been continuity of possession sufficient to establish an adverse title. The question in such a case is whether the break in possession indicates a disconnection with the land or abandonment of the intention to possess such as to break the continuity of the adverse possession. As Gordon J said at 184 in giving the judgment of the Court, it is a question of fact in each case whether a trespasser has in fact abandoned his possession, and that question is not conclusively answered by showing that he may for a short time have ceased to be in physical occupation of the land. The conclusion in that case was that there was no lapse of time between the occupancy of one tenant and another that was more than would be in the ordinary case of a person holding land in the locality.

131 In the present case, for the reasons mentioned, the correct conclusion is that those who owned and occupied the plaintiff's building never abandoned possession of the disputed land and that if there was any gap in the occupancy of the building in the period relied upon it was not such as might constitute an abandonment of possession of the disputed land.

132 In submitting that the plaintiff had not established the necessary intention to possess the disputed land to the exclusion of the owner of the hotel land, counsel said that mere possession of the area by the plaintiff and its predecessors was not enough. It had to be occupation with intent, and the plaintiff had the onus of establishing that intent. Counsel submitted that the fact that the disputed land was enclosed and attached to the plaintiff's building was not enough to establish the requisite intention. The mere use of the toilet facility was not enough, what was required was evidence of the plaintiff's predecessors in title of their intention, and there was no evidence from those persons. While not overlooking that submission it is important to attend to what Slade J said in the passage quoted, in particular that the courts will require clear and affirmative evidence that the trespasser not only had the requisite intention to possess but made such intention clear to the world. It is important to understand what is meant by intention in this respect. This is referred to conveniently in Bayport at [40] as follows:

"When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804. As a number of authorities indicate, enclosure by itself, prima facie indicates the requisite animus possidendi. As Cockburn CJ said in Seddon v Smith (1877) 36 LT 168, 169: 'Enclosure is the strongest possible evidence of adverse possession.' Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487, 511A, similarly observed: 'Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner'."

133 Further, in Adverse Possession[13], it is stated that erecting a building is usually a clear act of possession regardless of the use made of it. In the succeeding paragraphs 13.40-13.47 the author cites cases that illustrate the point. However, even in a case of enclosure the question remains whether in light of all the facts the requisite intention has been established. [14]

134 In the present case one has enclosure and use for a purpose essential to enable the ordinary use and enjoyment of the building on the plaintiff's land. This was not a mere detached shed, this was enclosure to enable the use of the only toilets on the property. It would be hard to imagine a use that was more private or intended to be exclusive to those in occupation of the building on the plaintiff's land. Inherent in this was the exclusion of the owner for the time being of the defendant's land and, indeed, the world at large. Nor, having regard to the nature of the structure, could it be said that the possession of the disputed land was or had the appearance of being temporary. In short, the building of the structure upon the disputed land so as to completely enclose that area for its exclusive use as toilets by the occupants of and lawful entrants to the plaintiff's building, and the exclusion of the true owner from the disputed land since at least 1976, is clear and affirmative evidence of the intention to possess or, to put it another way, the adverse possession of the land and the dispossession of the true owner. Nothing could be clearer to constitute the necessary intention. It is apparent from the facts. I reject the first and second defendants' submission to the contrary.

135 I should mention that counsel for the first and second defendants did not make any point that the presence of the door in the east wall indicated that the possession of the disputed land was not adverse. That is, he made no point that the hotel owner might thereby have been able to enter the land, or even that the door was there for that purpose. I therefore have not mentioned that as a possibility. There may have been good reason why no point was made of this because to have done so would have conceded knowledge of the building being on the disputed land, or have gone very close to that, which was contrary to the case conducted by the first and second defendants.

136 I have left to now a further point relied on by counsel for the first and second defendants. This concerned Wilkinson's offer to purchase the disputed land for $2,000. Counsel referred to Clement v Jones[15] and submitted that the making of the offer was evidence that Wilkinson did not assert a claim to take exclusive possession of the land. I do not accept that submission. The effect of an offer is to be decided in light of the circumstances of the case. In this case the offer was made in the context of a claim of adverse possession and as an alternative way of dealing with the matter. It may be seen as a reasonable way of dealing with the dispute, but without giving away the basic claim which was, and continued to be, asserted.

137 In these circumstances the conclusion is that the plaintiff has established the claim of title by adverse possession of the disputed land. There will be a declaration accordingly. I will hear counsel on the terms of the orders and as to costs.

[1] See the diagram marked MW3 to Exhibit A.

[2] Exhibit G.

[3] [2002] VSC 206 at [26].

[4] The acknowledgment is Exhibit MW4 to Exhibit A.

[5] Transcript p102.

[6] Transcript p110.

[7] [2002] VSC 206 at [39] and [40].

[8] (1979) 38 P & CR 452 at 470-472.

[9] [1990] Ch 623.

[10] [1974] VicRp 67; [1974] VR 547 at 561-562 in particular.

[11] (1834) 6 C & D 610.

[12] [1920] 20 SR (NSW) 178.

[13] Jourdan, Butterworths, (2003) at para 13.39

[14] Riley v Pentilla [1974] VicRp 67; [1974] VR 547 (enclosure of area in a subdivision for use as a tennis court held not to be adverse possession where the lot owner who constructed it invited other owners of lots to play); Australian Real Property Law, Bradbrook MacCallum and Moore, LBC Information Services, 2nd ed, paras 16 - 19.

[15] [1909] HCA 11; (1909) 8 CLR 133