Plaintiffs v Defendant

1 This proceeding concerns a neighbour's dispute, of an extreme kind. The defendant claims to be entitled to part of the plaintiffs' land by adverse possession. The defendant has always enjoyed easement rights over the disputed part of the plaintiffs' land. It is used as an access driveway. He now claims a possessory title.

2 The defendant has been, since 1 June 1983, the registered proprietor of Lot 9 on registered Plan of Subdivision 5234, the land described in volume 8373 folio 783 in the Register Book, known as 8 Taylor Avenue, Aspendale. The plaintiffs, on 4 June 2008, became the registered proprietor of the adjoining Lot 10, the land described in volume 8373 folio 782 in the Register Book, known as 6 Taylor Avenue, Aspendale.

3 Each lot is contiguous with the foreshore reserve of Port Phillip Bay at Aspendale. Each lot is accessed from Taylor Avenue which runs from Nepean Highway to the foreshore reserve, contiguous with the northern boundary of Lot 10. Lot 9 is dependent for access to Taylor Avenue upon a carriageway easement. Although not strictly accurate, for ease of description, I shall assume that Taylor Avenue runs east-west and Nepean Highway runs north-south.

4 On 19 December 1960 a carriageway easement was created for the benefit of Lot 9. It was memorialised in the Register in respect of volume 8373 folio 782 (Lot 10) as the servient tenement on 31 January 1962. Its terms provided to the proprietor of Lot 9 and any "tenants, servants, agents, workman and visitors

full and free right and liberty to go pass and repass and at all times hereafter and for all purposes and either with or without horses and other animals, carts, or other carriages, into and out of and from [Lot 9] or any part thereof through over and along the land delineated ... [as the easement]"

5 By the original plan of subdivision the easement affects a strip of land 12 feet wide running along the eastern end of the lot from the south corner to the north corner. A survey in July 2009 demonstrates that the title boundaries do not correlate with buildings and fences at the site. A plan of survey, which I have set out below as Figure 1, shows both the title boundaries and fenced boundaries on site. I shall refer to the land, which is the subject of the claim, as the driveway to distinguish it from the easement. They are not the same parcel of land because of encroachment of fences over title boundaries.

6 The issue in the proceeding is whether the defendant has shown that he has, in the circumstances, both factual possession of the driveway and the requisite intention to possess it. In particular, having regard to the existing easement rights, has the defendant made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner of Lot 10, the plaintiffs, from the driveway as best he can, and consequently, has dispossessed the plaintiffs. The key issue is whether the requisite animus possidendi (intention to possess) has been proved. If so, then has the defendant enjoyed factual possession of the disputed driveway, intending to possess it to the exclusion of the true owner, for the necessary period of time to claim an order vesting title in him.

7 The defendant purchased his property from Robert and Melva Gardiner in June 1983. The Gardiners owned the property during the preceding 20 years from June 1963.

8 From about March 1963 until March 1984 the plaintiffs' land was owned by Arthur Goldsmith and/or related parties. Valentine Grace Pty Ltd then acquired it. Anthony Panayi, a director of Valentine Grace Pty Ltd, gave evidence at trial. In August 1993, Richard and Jennifer Buswell purchased the plaintiffs' land from Valentine Grace Pty Ltd. Richard Buswell, too, gave evidence. The Buswells sold the property to the plaintiffs who were registered on title as proprietors in January 2008. At the same time, the National Australia Bank Ltd registered its mortgage.

9 Some 22 months later, on 25 November 2009, the defendant applied for a vesting order for possessory title pursuant to s 60 of the Transfer of Land Act 1958.

1. Application for order by person claiming title by possession

(1) A person who claims that he has acquired a title by possession to land which is under this Act may apply to the Registrar in writing in an appropriate approved form, accompanied by a plan of survey (with an abstract of field records) of the land certified by a licensed surveyor or any other plan, diagram or document describing the land which satisfies the Registrar as to description, for an order vesting the land in him for an estate in fee simple or other the estate claimed.

On 9 February 2010, the plaintiffs lodged a caveat pursuant to s 61 forbidding the Registrar from granting an order vesting the land in the defendant. This proceeding was commenced by writ, filed 1 March 2010. But for the caveat, the Registrar might pursuant to s 62, have made an order vesting the land in the applicant for an estate in fee simple, or other estate or interest acquired by the applicant, free from all encumbrances which have been determined or extinguished by such possession. The commencement of this proceeding has relieved the Registrar of any obligation to exercise that power.

10 It is appropriate to note that the disagreements between the parties developed into a claim for adverse possession although the dealings between them did not start on that basis. The first plaintiff, whom I find to be an honest and a convincing witness, and whose evidence I accept, stated that the plaintiffs contracted to purchase 6 Taylor Avenue from the Buswells on 23 June 2007. The contract was settled on 23 November 2007. The plaintiffs purchased 6 Taylor Avenue with the intention of demolishing the existing building and constructing a new home. From the Vendors Statement, they were aware that the property was burdened by a carriageway easement.

11 The Vendors Statement provided by the Buswells included a register search statement and a copy of plan of subdivision No. 005234, proffered as evidence of the Buswells' right to sell the whole of that land, including the easement. Save, perhaps, for the presence in the contract of sale of the common special condition by which the purchaser admits that the land, as offered for sale and inspected, is identical with that described in the title particulars, nothing in the Vendors Statement nor the contract alluded to any possessory title being claimed, or conceded, in respect of the driveway or the easement.

12 The first plaintiff inspected the property prior to purchase and observed that the driveway to 8 Taylor Avenue, which he understood to be the area burdened by the carriageway easement, was fenced in. The west boundary of the driveway, starting at the defendant's property (the southern end of the driveway), was bounded by the wall of the garage of 6 Taylor Avenue and a paling fence, which ends at the fence of the north boundary of 6 Taylor Avenue. The east boundary of the driveway was also fenced along the adjoining property to the north, 4 Taylor Avenue. The neighbours to the east, since December 1970, were the Overbergs. At the south boundary, the driveway was open to 8 Taylor Avenue while at the north boundary there were locked gates to Taylor Avenue. The plaintiffs believed the driveway was being exclusively used by 8 Taylor Avenue and did not seek any legal advice on these observations.

13 The plaintiffs have not resided on the property. They developed plans to demolish the existing residence and construct a new home. The proposal was a substantial development, apparently utilising the whole of the building envelope available under relevant planning laws and raising issues of notice to neighbours. In the period September 2008 to January 2009, the first plaintiff and his architect explained to the defendant and the Overbergs the development being proposed. It appears that neither neighbour favoured the proposed development. Possessory title was first asserted by the defendant against the plaintiffs in August 2009, in the context of opposition to the plaintiff's development proposals. I shall return, in due course, to examine the evidence in detail.

14 I was referred to a number of cases, although the applicable legal principles do not appear to be in dispute.

15 Turning first to the statutory provisions, s 8 of the Limitation of Actions Act 1958 (Vic) ("the Act") provides that no action shall be brought by any person to recover any land after the expiration of 15 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. Section 18 of the Act provides that at the expiration of that period, the person's title to the land shall be extinguished. As to when time begins to run, s 9(1) directs attention to the date upon which the person whose paper title is in issue was dispossessed or discontinued possession. Section 14 provides:

1. Right of action not to accrue or continue unless there is adverse possession

(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as "adverse possession"); and where under the foregoing provisions of this Act any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date the right of action shall not be deemed to accrue until adverse possession is taken of the land.

16 The reference to "adverse possession" in the section is to possession by a person in whose favour time can run and not to the nature of the possession.[1] The question is simply whether the putative adverse possessor has dispossessed the paper owner by going into possession of the land, for the requisite period without the consent of the paper owner, with the word "possession" being given its ordinary meaning.[2] Whether the paper owner realises that dispossession has taken place is irrelevant.[3]

17 The leading case in Victoria is the recent decision of the Court of Appeal in Whittlesea City Council v Abbatangelo.[4] In that proceeding, both at trial and on appeal, Abbatangelo's possessory title was upheld. The circumstances of acquisition of that possessory title are not analogous with the circumstances of this case. However, the applicable principles in adverse possession claims were collated from a comprehensive review of the authorities, drawing on an earlier judgment of Ashley J (as his Honour then was).[5] The Court of Appeal emphasised the basic principles which apply in adverse possession claims.

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

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

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, ... The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.

(4) The animus possidendi, which is also necessary to constitute possession, ... 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.

18 I do not consider that there is any substantial dispute concerning factual possession in this case, although counsel for the plaintiffs did not concede factual possession. I have reached my conclusion regarding factual possession, expressed below, on consideration of all the facts and circumstances of the case, including the nature, position and characteristics of the land, the uses that are available, and the course of conduct which a paper owner might be expected to follow. While previous cases can provide guidance as to relevant principles, they are treated with caution. Acts that evidence factual possession in one case may be wholly inadequate to prove factual possession in another.[6] Each case must be decided on its own particular facts.[7] Mere use falling short of possession will not suffice.[8]

19 In some circumstances, a person's use of land may amount to enjoyment of a special benefit from the land. Use and enjoyment of a special benefit, and exclusive possession are not necessarily mutually exclusive. Exclusive possession will usually entail use and special benefit. Use and enjoyment of a special benefit, on the other hand, will not necessarily amount to exclusive possession. Plainly, in this case the defendant has the special benefit of the carriageway easement, and his intentions arising from his use of the driveway, and whether an inference of exclusive possession arises, must be evaluated in that context.

20 In summary, I will note a little more of what the Court of Appeal has said of the required intention to possess the disputed land.[9]

• Factual possession requires a sufficient degree of physical custody and control. Intention to possess requires an intention to exercise such custody and control on one's own behalf and for one's own benefit. Both elements must be satisfied by a putative adverse possessor, although the intention to possess may be, and frequently is, deduced from the objective acts of physical possession.[10]
• In speaking of an intention to exclude the world at large, including the true owner, the law 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.
• Enclosure by itself, prima facie, indicates the requisite animus possidendi.
• It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner. A number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention.
• Where a claimant originally enters upon land as a trespasser, in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess.
• Statements about intention by a putative adverse possessor should be treated cautiously, as they may be self-serving. But while a statement by a person that he or she intended to possess land will not be enough in itself to establish such an intention, it may be relevant when taken in combination with other evidence suggesting an intention to possess.[11]

21 The Court of Appeal also stated[12] that there is no separate requirement that the use to which the land is put by the putative adverse possessor be inconsistent with the paper owner's present or future intended use of the land, as suggested by Leigh v Jack.[13] To the limited extent that the rule still applies its effect, now, is that where the putative adverse possessor's acts were not inconsistent with the owner's future planned use, not therefore manifesting the requisite intention of dispossessing the owner, one might conclude that the requisite elements for adverse possession had not been established.[14]

22 The Court of Appeal also noted that in Pye, Lord Browne-Wilkinson (with whom the other Law Lords agreed) said this in relation to the rule in Leigh v Jack:

The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong ... The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such an inference could be properly drawn in cases where the title owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.[15]

23 There is an analogous consideration. Where the putative possessor uses the land in accordance with a special right or benefit, which falls short of exclusive possession such as an easement, and factual possession is consistent with that use, it may be more difficult to conclude that the requisite intention to adversely possess is established. Although the title holder may have been physically excluded from the disputed land, the possessor may not have performed any acts beyond enjoying the easement. Great care needs to be exercised in evaluating whether the evidence, and the inferences reasonably open, manifest an intention to dispossess the owner.

24 The defendant identified in evidence three matters pointing to factual possession of the driveway and supporting an inference of the necessary animus possidendi. These matters were:

• Enclosure by fencing;
• Payment of rates; and
• Maintenance and improvements.

25 The presence of the fencing and the gate was critical to the defendant's claim to a possessory title. I have described at [12] the fencing and gating of the driveway. The plaintiffs submitted the evidence established no more than mere use of the driveway. There was not an appropriate degree of physical control. The defendant used the land as a driveway consistently with the easement rights and for no other purpose. Two questions arise. First, whether there was factual possession of the driveway. Second, whether the construction, maintenance, or restoration of fences was for a purpose other than excluding the owner of 6 Taylor Avenue.

26 In evaluating the evidence touching this issue, I bear in mind the observations of the Court of Appeal in Abbatangelo.[16] The Court described as misconceived the premise:

... that a person who desires to possess land exclusively builds and maintains fences on the land solely for the purpose of keeping others out. Plainly, fences serve multiple purposes. Some delineate title boundaries. Others are internal. Some are ornate. Others are minimalist and purely functional. The nature and purpose of a fence will be affected by the nature, location and characteristics of the land and the uses to which it is put. Given that the use to which the Abbatangelos put the land over an extended period included grazing of livestock, it is entirely unsurprising that one purpose of maintaining the fences on the land was to prevent animals from straying on to the road. The existence of that purpose, however, did not prevent the maintenance of the fences from being included in the factual matrix from which findings could be made about factual possession and an intention to exclusively possess.

27 In Powell v McFarlane,[17] Slade J reminded us that the particular circumstances are critical. Possession bears the traditional sense of that degree of occupation or physical control which connotes a single and exclusive possession of the land. His Honour put it broadly that what must be shown is that the possessor has been dealing with the land as an occupying owner might have been expected to deal with it and that no one else has done so.

28 I make the following findings in relation to the fencing of the driveway. At all material times since at least December 1970 the driveway has been enclosed, as if part of 8 Taylor Avenue, by fencing and a gate, which is situated at the road end of the driveway. A fence has always existed along the boundary between the driveway and 4 Taylor Avenue. However, the existence of this fence is immaterial to the issues in the proceeding. The maintenance of the fence between 4 Taylor Avenue and the driveway has always been shared between the owners of 4 Taylor Avenue and 8 Taylor Avenue. The fence between 6 Taylor Avenue and the driveway existed prior to 1970. It is this fence which physically excludes access from the plaintiffs' land to the driveway. This fence was not erected by the owner of 8 Taylor Avenue. It has always been maintained, or renewed, by the owner of 6 Taylor Avenue.

29 I do not find that the fence was erected or maintained by the owners of 6 Taylor Avenue for the purpose of excluding themselves from possession of the driveway.[18] It is clear on the evidence of both the defendant and Buswell that it was convenient that the adjacent driveways to each garage be separated, and fenced, for purposes other than excluding Buswell from the driveway. Buswell's evidence, that he could access the driveway directly without permission from the defendant either through temporary fencing when it existed or through the gate, is, I consider, sufficient to displace any inference that the purpose of the fence was to exclude the owner of 6 Taylor Avenue from possession and use of the driveway. However, there was no evidence of any need for Buswell to access the driveway. Rather, the defendant's use of the driveway was accepted by Buswell as a convenient and safe use of the easement by both owners. In these circumstances, fencing the driveway in order to better use the carriageway rights provided by the easement is not, of itself, evidence from which it ought be inferred that the defendant intended to dispossess the owner of 6 Taylor Avenue of the driveway.

30 At all material times since December 1970, there has been a gate enclosing the driveway from Taylor Avenue. In the period from 1970 to 1983 the gate was latched, but not locked in the sense of requiring a key. While the gate was more easily opened from the inside; from Taylor Avenue the gate could be opened by reaching over the top.

31 In about 1983, prior to the defendant purchasing the property, the gate was renewed. The gate was in two parts, each part hinged at the fence posts and opening inwards. When closed there was a horizontal bolt latch at the top, a latch about halfway up the gate and a vertical bolt latch on one side of the gate which secured it to a concrete base in the ground. None of these latches or bolts were locked. One side of the gate contained a small access hatch, allowing access through the gate. The access hatch required a key.

32 After acquiring the property, the defendant cut a hole in the tin skin of the gate enabling access to the latch, so the gate could be more easily opened from the outside without having to use the access hatch. Precisely when this change occurred was not made clear on the evidence. However, I consider it probable that it occurred within 6 to 12 months of the defendant acquiring his property.

33 Accordingly, I find that from about 1971 until February 2006 the gate was unlocked but it was kept closed and latched. Such enclosure evinces an intention to exclude strangers. It does not, in itself, permit an inference of intention to exclude the true owner. In context of the evidence from Buswell, of his ability to access the driveway through the gate, I do not find that the gate was intended to exclude the owner of 6 Taylor Avenue.

34 In February 2006, the defendant installed a new gate fitted with a motorised opening device controlled by a keypad and a remote control. It was necessary to either operate the remote control, which would open both gates, or to enter a code into the keypad which, depending on the code, would either open one gate for pedestrian access or both gates. From this time, the gate was securely locked.

35 From the evidence, two distinct purposes for securing the gate emerged. The defendant explained that it was necessary to bolt and latch the gate because the area is windy, being close to the bay, and the gate must be properly latched to ensure it remained closed. The second reason relates to ingress and egress. The defendant did not lock the gate prior to 2006 and the hole in the gate facilitated access to the latch for convenient opening and closing of the gate. His reason was, and I quote:

I wanted to control who came in and out. I didn't want people coming in off the beach, I didn't want people coming onto the block that I didn't want to come onto the block ... The dog was there ... They have got no road sense at all so the gates were always kept closed. The risk of someone coming in. The neighbours across the road had enormous problems with people coming onto their block, and down near the beach there you are really conscious to lock up your yard to stop, you know, young colts coming through at 2 o'clock in the morning and just wandering around. So my objective was to keep them out and keep a hand over who came in and who left.

36 I find that the defendant's desire to control who went out of the property was limited to his dog. In terms of who came into the property his intention was not, at all times, to exclude everyone. I have referred to the fact that Buswell was not excluded. Later, when the motorised gate was installed, the defendant provided the access code to at least one of his neighbours and to members of his extended family. His consistent explanation, which I find to be the case, was that he intended to exclude strangers, a common intention amongst landowners and one that is not inconsistent with his rights of use of the driveway under the easement. In cross-examination, the defendant stated that he never told either Buswell or the plaintiffs that they could not access the driveway.

37 The defendant only discovered that his rates assessment included the driveway when preparing the documentation for the s 60 application. His solicitors made contact with the Council. The defendant agreed that but for the information provided by Council for the purposes of that application, he would be continuing to pay the rates in respect of the driveway in blissful ignorance of the fact that he was doing so.

38 While the cases clearly support the proposition that payment of rates is pertinent, there cannot in these circumstances be inferred from the payment of rates any relevant intention on the part of the defendant.

39 Apart from the fence between 6 Taylor Avenue and the driveway, the cost of establishment, maintenance and improvements of the driveway and fencing was borne by the defendant, or shared with the contiguous neighbour at 4 Taylor Avenue. The plaintiffs do not contest this. There are three categories of expenditure:

• In October 2004, the defendant upgraded the surface of the driveway with a crushed rock base and top surface at a cost of $631;
• In October 2004, the defendant planted some vegetation and later installed a watering system at an approximate cost of less than $100; and
• In February 2006, the defendant installed a motorised gate with remote electronic opening at a cost of $5,336.

I do not consider these expenses to unequivocally found any inference.[19]

40 Two further matters can be mentioned. The fence dividing 6 Taylor Avenue from the driveway, which was present when the Buswells purchased that property, was replaced at some point by Buswell when he constructed a new garage. The garage was located in the south-east sector of his block and the wall of the garage formed part of the western boundary of the driveway. Buswell stated he paid for the construction of the garage and paling fence, which completed the fencing along the driveway. The defendant's evidence was in conflict with this statement in a minor way. The defendant stated that he paid for the palings which were added to the post and rails constructed by Buswell and that, separately, the defendant also rendered the garage brickwork on his side. Even if I considered that either of these acts has any relevance, I prefer the evidence of Buswell as the timber supply account is inconclusive. I do not find that this expenditure related to any relevant fencing.

41 The second matter was the minor expenditure by the defendant on plants and watering systems. Like the rendering of the brickwork, these expenses and the activities financed, were, I think, irrelevant to the issue of adverse possession.

42 Considerable elucidation of the significance of these matters in drawing any inference of intention comes from the evidence of the dealings between the parties. The first plaintiff initially spoke with the defendant about the plaintiffs' development proposals in September or October 2008, on the Taylor Avenue footpath outside the property. The first plaintiff told the defendant that the driveway was part of the plaintiffs' land and the defendant responded that he knew that the driveway was part of the plaintiffs' property. The first plaintiff also explained that the plaintiffs would use the driveway for access for their proposed building works and may also use the driveway for access to their garage. The defendant offered the first plaintiff the access code for the lock on the motorised gate. He did not suggest that the plaintiffs must not access the driveway.

43 The defendant's evidence of this conversation was, I think, evasively vague. He did not swear to the content of the conversation when making his affidavit. He deposed that he recalled giving the access code to the first plaintiff or his surveyor at some point in time. The defendant asserted a conclusion, that the access code was for limited access to one of two gates only and for the limited reason of building works. The defendant did not give evidence of any conversation establishing such limitations on providing the first plaintiff with the access code, and none was put to the first plaintiff in cross-examination. The defendant did not recollect the content of the conversation when cross-examined. I accept that the conversation was in the terms deposed to by the first plaintiff.

44 I pause to observe four relevant matters. Firstly, the defendant's rights of carriageway access across the plaintiffs' property have never been disputed by the plaintiffs. Any intention of the defendant to exclusively possess the driveway was, however, directly challenged by the plaintiffs' conduct. Secondly, the defendant acknowledged that the driveway was part of the plaintiffs' property. Thirdly, although the motorised gate at Taylor Avenue prevented access to the driveway, by volunteering the relevant code to the first plaintiff, the defendant did not deny the plaintiffs access to the driveway. Finally, the defendant did not suggest that his possession of the driveway was exclusive against the plaintiffs or otherwise deny the plaintiffs access to their title land on the first occasion when it was sought. The defendant did not assert either a possessory right or title to exclude the owner of 6 Taylor Avenue from the driveway. He did not suggest it was even a matter within his contemplation. I do not consider it appropriate to infer that an intention to possess the driveway absolutely to the exclusion of the true owner, as opposed to enjoying easement rights, was held by the defendant at this time, unless it be that the defendant was reticent to express or assert his possessory title claim for some undisclosed reason.

45 Later that year, the first plaintiff visited the defendant at his home bringing drawings and a three-dimensional model of the house the plaintiffs intended to build. There was some conflict between the witnesses about precisely what was said in this conversation. I prefer the evidence of the plaintiff about the content of the conversation and the identity of the model which was used. The model is in evidence and it clearly shows how the driveway would be shared by Lots 9 and 10. A number of features of the building proposal, relevant from a planning perspective, are illustrated by the model, such as the size of the building envelope being utilised and the proximity of the proposed buildings to the boundaries. I am satisfied that the defendant understood, from this conversation, the plaintiffs' intention to use the driveway as the access point to the basement garage of their proposed new house. I find that the defendant understood he would effectively be sharing the driveway with the plaintiff, who was acknowledging the burden of the easement, because these matters were discussed between them. The defendant's responses in the conversation raised his concerns about restrictions on access, being blocked by other users parking inappropriately and the like. The defendant did not express any objection to this proposed sharing of the driveway from a perspective of having exclusive possession of it. In particular he did not assert or refer to any possessory right or title which would exclude the plaintiffs from using the driveway. This was the second occasion when the defendant could have done so. It was plain to the defendant that the plaintiffs were proceeding on the basis that the driveway was, consistently with the title, part of their land.

46 The plaintiffs' next contact with the defendant was made through Mr Geoff Hoare, an architectural draftsman employed by the plaintiffs, who also gave evidence. Hoare explained that the concept design for the plaintiffs' new home was developed through August 2008. It provided for a ramped entry into a basement via the driveway easement being used by the defendant. The design maximised the use of the available building envelope for the property. The size of the building envelope available was determined by reference to the title dimensions. In January 2009, at the request of the plaintiffs, Hoare made contact with the defendant seeking a meeting to inform him about the building proposal generally. In particular, he considered there were issues to be discussed about overshadowing or overlooking of the defendant's property; such issues are clearly demonstrated by the model of the building.

47 On 27 January 2009, Hoare met with the defendant and presented concept drawings. Over the course of a two-hour meeting, Hoare explained the proposed building works. He stated that the defendant described the issues of overshadowing or overlooking as being his main concern but so long as the building design complied with the building regulations, he would have no issue. The defendant did not dispute that this was his major concern. Use of the driveway was also discussed. Hoare told the defendant that the design provided access to the basement of the plaintiffs' house through the driveway or easement. The defendant acknowledged to Hoare the presence of the carriageway easement on the title to the plaintiffs' property. Hoare stated that the carriageway easement was not the central issue discussed at the meeting. When Hoare left the meeting he did not think it to be a concern.

48 It was not suggested to Hoare by the defendant that the defendant had a possessory title to the carriageway easement and could deny the plaintiffs access to that part of the property. The concerns raised were of a different nature. According to Hoare, the defendant told him that he was concerned to ensure that he had uninterrupted access. The defendant was worried that a car would be left parked in the driveway on short trips into the Cervi house or that the Cervis' guests would be tempted to park there. Hoare stated he was asked by the defendant to consider how the design could ensure that cars were not left parked in the carriageway, affording the defendant continual uninterrupted access to his property. There was a faint suggestion that, at some point the defendant and Hoare discussed adverse possession rights in general terms but it was not pursued with either witness by counsel and I am unable to, and do not, make a finding that the defendant raised any suggestion of a possessory title against the plaintiffs in any conversation or communication at this time.

49 However, the defendant did assert possessory title against the plaintiffs about seven months later when he wrote to the first plaintiff. This letter, dated 24 August 2009, stated:

Following discussions with yourself and your architect I have had the opportunity to obtain advice regarding your proposal to use the right of way through which I access my property as the access to your property.

Based on the advice I have gained I am now able to claim absolute ownership of that strip of land on the following bases:

• I have occupied the land exclusively for more than 15 years;
• That occupation has continued without interruption and to the exclusion of all other persons (including previous owners of 6 Taylor Avenue);
• That occupation has been evidenced by the land being fenced and gated so that it effectively forms part of my property.

I have had discussions with previous owners of your property whose recollections will support my claim.

I therefore suggest that when planning any building works to your property you do so on the basis that this land will shortly form part of my title. I intend to make the application to formally incorporate the land shortly.

50 On 27 August 2009, a further meeting was held between the plaintiffs, the defendant and Hoare. Hoare stated that during this meeting he told the defendant the plaintiffs wanted to try and reach an amicable conclusion to allow the building works to go ahead. An appropriate agreement was desired. The defendant responded that he had considered the design and that he could not countenance a shared driveway as he did not want the carriageway blocked. The defendant stated, according to Hoare, that he could see no way forward other than making an adverse possession claim on the carriageway. The first plaintiff offered the defendant any assurance he wanted that the carriageway would not be blocked, offering to arrange for a redesign of the home so that primary access was not through the carriageway but rather more directly from Taylor Avenue. The defendant responded that the only way he could guarantee his uninterrupted access was to pursue adverse possession.

51 Thereafter an amended concept design was prepared limiting the access required by the plaintiffs to the carriageway to be for garden maintenance and the like. The first plaintiff and Hoare then met with the defendant on 4 September 2009. The defendant took away copies of the revised design and when later contacted by Hoare, stated that he would be pursuing an adverse possession claim on the carriageway.

52 On 9 October 2009, pursuant to s 60 of the Transfer of Land Act 1958, the defendant applied for a vesting order for an estate in fee simple in the land constituting the driveway, that is the land marked 'A' and coloured yellow in Figure 1. Thereafter, as I have already noted, the plaintiffs lodged a caveat pursuant to s 61 to forbid granting the vesting order.

53 Richard Buswell, a publican and a former proprietor, with his wife, of 6 Taylor Avenue, gave evidence that he lived there continuously for 14 years from 1993 to 2007. Buswell sold the property to the plaintiffs. He stated that during his period of ownership the driveway was enclosed on three sides by fences and a gate with an opening to the defendant's property. The defendant used the land as a driveway to access his property and had exclusive use of it. Buswell stated that the only external access to the driveway was through the gate on Taylor Avenue. Buswell said he had no reason to enter upon the driveway and did not maintain or embellish it in any way.

54 In cross-examination, Buswell stated that he did access the driveway from time to time, either through the gates onto the driveway or at times when there was not a boundary fence. When asked about the fencing he replied, "Well there was always a fence there of some descript. As I say, John [the defendant] had a dog and we had two kids, and we just had to keep them apart a little bit". Buswell stated that he did not use the driveway to access his property but when accessing the driveway, "We just accessed the gates. The gates, they weren't locked in any shape or form, they were pad-bolted but they weren't locked as such". Buswell rejected the suggestion that he needed the defendant's permission to access the driveway but agreed that he did not contribute to its maintenance because it wasn't his driveway.

55 Buswell also stated that he never attempted to claim the driveway as part of his property, treating it as part of No. 8. There was no evidence, either from Buswell or the defendant, of any express discussion or acknowledgement concerning the use, possession or ownership of the driveway. This statement serves the interests of the defendant, by whom Buswell was called. It is also incorrect. Buswell plainly sold 6 Taylor Avenue to the plaintiffs without disclosing what he stated in evidence and on the basis of the title showing the driveway as part of No. 6, subject to an easement in favour of No. 8. Buswell's statements are, I find, consistent with the fact that the driveway was enjoyed by the defendant for all the purposes of a driveway, but no more. I accept his evidence that it was convenient to the owners of both No. 6 and No. 8, when Buswell was an owner, that with the presence of children and dogs on these properties it was convenient for the driveway to be fenced off. There was no evidence that Buswell ever made any demand for use of the driveway or that, had he done so, such demand would have been refused. For most of the time he was the owner of 6 Taylor Avenue, Buswell was able to access the driveway via the gate because it was not locked and without needing to obtain the defendant's consent. That was the extent to which Buswell exercised his rights as owner until he came to sell the property.

56 On the eastern side of the driveway, at No. 4 Taylor Avenue, Mr and Mrs Overberg have resided since December 1970. Mr Overberg was, I consider, an over-enthusiastic witness for the defendant. He stated that the fences and the gate have been in place along the same boundary lines since he purchased his property. During that time the driveway has only been used as an access driveway to 8 Taylor Avenue. Each of Mr and Mrs Overberg stated that they never sought to enter upon the driveway without the consent of the owner of No. 8.

57 It is clear that the plaintiffs' development proposal is perceived by the Overbergs to affect the amenity of their property. Overberg conceded under cross-examination that he objected to the development. His objection was not upheld and he stated that, in response, he had "talked to people about it". That Mr and Mrs Overberg would not enjoy the prospect of the development being proposed by the plaintiffs is plain. The basis of his enthusiasm as a witness for the defendant's cause lies, it appeared to me, in his disappointment that his objection to the development failed. Be that as it may, I do not find any support in the Overbergs' evidence for an inference that the defendant intended to possess the driveway to the exclusion of the owners of 6 Taylor Avenue.

58 The singular most important factor in this proceeding is, I consider, that each party enjoyed rights in respect of the disputed driveway starting with the position of the plaintiffs who, as registered proprietors, had a prima facie right to possession. That right was always subject to the rights created in the defendant by the easement.

59 Although an animus possidendi may, and frequently does, arise from inference drawn from the objective acts of physical or factual possession, it is critically a separate element. In law there cannot be possession without the requisite intention. Having stated this, it is convenient to deal with the issues sequentially.

60 Leaving aside questions of intention for the moment, I am satisfied that on the findings I have expressed above, the defendant exercised a sufficient degree of exclusive physical control over the driveway to be considered to be in factual possession. Taking into account all of the circumstances as set out above, in particular the enclosure of the driveway and the operation of the gate, I consider it is clear that the defendant has been dealing with the driveway as an occupying owner might have been expected to deal with it. Counsel for the plaintiffs submitted that, in the circumstances, I should not find that there was an appropriate degree of exclusive physical control. I cannot accept this submission. In my view, the conduct exercised by the defendant on his own behalf and for his own benefit, as demonstrated on the evidence, does show a sufficient degree of exclusive physical control to constitute factual possession.

61 Counsel for the plaintiffs also contended that the use of the driveway on the evidence was consistent with the defendants rights under the easement, a use which was at all times open and consented to by the owners of the servient tenement. Counsel submitted that not only had the defendant failed to establish that he had the requisite intention to possess by excluding the owner as best he could, the defendant also failed to make such intention clear to the world. This was, as I said at the outset, the critical question in this proceeding, was factual possession exercised with an animus possidendi?

62 I find that the defendant exercised physical possession of the driveway from at least 1970, but that until some time shortly prior to August 2009, he did so with the intention of best exercising his easement rights by using the disputed land as a driveway. I do not consider that, when excluding all others, he intended to, or did exclude the owner of 6 Taylor Avenue from the driveway at any time prior to 27 January 2009. The defendant only formed that intention between January 2007 and his letter of 24 August, 2009; he has not therefore been in possession of the driveway with an intention which would cause time to commence to run under the Act at any time prior to 27 January 2009.

63 I accept that in many circumstances enclosure of the disputed land can be highly probative evidence of the animus possidendi. Here the evidence of enclosure is equivocal as regards the intention to exclude the true owner, that is, whether the defendant's control of the driveway is exclusive of the owners of 6 Taylor Avenue. Equivocation arises from various sources:

• Enclosure of the driveway from the street was, on the evidence about the gate, intended to exclude strangers. It did not, and was not intended to exclude the owner of 6 Taylor Avenue.
• Enclosure of the driveway from 6 Taylor Avenue was not effected by the defendant. I am satisfied that this fencing was maintained for its better use as a carriageway easement and for the better use of the two properties, having regard to the presence of children and dogs.
• The evidence about rates was inconclusive because the defendant simply did not know he was paying the rates.
• The issues of maintenance and improvements, which like fencing, may have been compelling if the defendant did not have the benefit of the easement, are also equivocal in context. One can test that by postulating what might have been the situation had the defendant erected on the driveway and contiguous with the Buswells' garage, more than 15 years prior to the s 60 application, a garage of his own.

64 If I am wrong about the drawing of inferences from these matters, I would nonetheless decline to draw the inference of animus possidendi because I consider that the conduct of the defendant precludes a specific inference of intention drawn from general considerations in the circumstances.

65 Once or twice, the defendant in oral evidence articulated an intention to exclude the owners of 6 Taylor Avenue from use of the driveway. I consider these were self-serving statements. For example, in evidence in chief the defendant stated:

The reason for that was because the wind blows a lot and you want to keep the gates closed. But you are also down near the beach, and there's people wandering around up on the beach all the time, so you want to basically - my thinking was to keep everyone out, including the owners of No. 6, and then decide who I wanted to come in or not. (Emphasis added)

I have considered this statement with particular care, and one or two other like statements made by the defendant. He did not swear to them in his affidavit. On such a critical issue, the absence of consistency is significant. I do not accept the defendant's statement, in court, of his intention at that earlier time. The inclusion of the phrase "including the owners of No. 6" did not fit the context of the explanation being offered. It was a gratuitous phrase intended to bolster the defendant's perceived position as he answered the question.

66 There was other contextual inconsistency. Somewhat surprisingly, the defendant suggested, for the first time in cross-examination, that when he purchased his property he assumed that the driveway was part of his block. He was unable, under questioning, to identify when he became aware that the driveway was a carriageway easement. He accepted that it came as quite a revelation to him that it was not on his title. However, he could not remember how or when he learnt this, save that it was prior to the plaintiffs purchasing 6 Taylor Avenue. The defendant did not recall what he did upon experiencing this revelation although he believed he would have checked the title. He stated:

It had never been an issue in the time that I'd been living at 8 Taylor Avenue. The previous owners have always respected my rights to the driveway, and they - the Buswells had built their garage from the driveway towards the beach, and the Panayis had no contact, no discussions with us.

The defendant recognised that he had a right of carriageway and could go forward and back across the driveway to get access to his block and that in theory he could not be stopped from getting to his block from the street.

67 I accept that a mistaken belief about ownership or property rights may not directly affect whether the claimant has the requisite intention to possess.[20] However, I do not accept the defendant's evidence that he had this belief, irrespective of its mistaken quality. It is inconceivable, having regard to the issues in this case, that the defendant would not have instructed his present legal advisers that he believed he had purchased the driveway when he acquired his property. A belief that the defendant had originally purchased the driveway was not mentioned in any dealings with any other witnesses or with the plaintiffs, nor was it alluded to in any correspondence drawn by solicitors. The defendant makes no mention of it in his affidavit and did not give evidence of it when giving his evidence-in-chief. When the defendant did, in cross-examination, suggest that he had once believed he owned the driveway his evidence was vague and unconvincing. I reject this evidence.

68 There was an absence of consistency in the defendant's conduct between September 2008 and August 2009 and it provides a persuasive basis for declining to infer an animus possidendi. The actions of the plaintiffs in informing the defendant of their intention to develop the property amounted, in my view, to a legitimate use of the servient tenement, not inconsistent with the rights of the dominant tenement, and in a way that had not previously occurred. It was however inconsistent with a claim to a possessory title. If the defendant then intended, and had so intended for the preceding 14+years, to exclusively possess the driveway to the exclusion of the true owner, there were at least three occasions on which that intention could have been expressed. Yet, not only was there no expression of that intention but access was freely granted to the plaintiffs. I consider such conduct to be inconsistent with an intention to dispossess the plaintiffs of the driveway. It is inconsistent with the concept of intentionally enclosing the disputed driveway to the exclusion of all, including the true owner, that when access to the gate is sought by the true owner the code is provided without any expressed qualification, limitation or reservation. Human frailty might admit a possible reluctance to assert rights on the first occasion, but there were three opportunities presented to the defendant over a period of about four months to say that's my driveway, not yours. Further, I did not form the impression of the defendant when he was in the witness box that he was reticent about asserting his position.

69 It is clear on the evidence that the plaintiffs' development proposal was unpopular with the immediate neighbours, particularly when looking carefully at the conversations which occurred in late 2008 and early 2009. The consistent concern of the defendant that his easement rights, of unrestricted access, might be affected by the proposed development is notable, as is the complete absence of any suggestion that he enjoyed a possessory title. It may be, although it is unnecessary to make any finding about motive, that the intention to assert exclusive possession was a response to the failure of the opposition to the plaintiffs' development proposal.

70 Counsel for the defendant submitted that failure to assert possessory title on these occasions was irrelevant because the plaintiffs' title had been extinguished pursuant to s 18 of the Act. However, this argument is circular. Extinguishment of title is only effected under that section at the expiration of the period prescribed by the Act. When did such period commence? As I have already stated, I am not satisfied that the defendant has established that he ever intended to do more than exercise, in a complete effectual and unrestricted way, his right of access. Having never formed an intention to possess the land exclusively, including the exclusion of the owner of the servient tenement, time did not commence to run when factual possession might be thought to have commenced more than 15 years ago. Section 18 is no answer.

71 For the foregoing reasons I will grant the plaintiffs the relief they seek in their statement of claim and I will dismiss the defendant's counterclaim. Subject to submissions from counsel as to the precise form of the relief, I propose to declare that:

(a) the defendant has not acquired a title by possession to the land marked 'A' and coloured yellow in Figure 1 above, being the land marked 'A' in the Plan of Subdivision forming part of the application, pursuant to s 60 of the Transfer of Land Act 1958 for an order vesting that land in the defendant, lodged under dealing No. AP126340V ("the land");

(b) the defendant is not entitled to an order pursuant to s 62 of the Transfer of Land Act 1958 for an order vesting the land in the defendant; and

(c) the Registrar of Titles shall be, and is, forbidden from granting the application lodged under dealing No. AP126340V.

Pursuant to s 103 of the Transfer of Land Act 1958, I will direct the Registrar to do any act or make any entry in the Register Book necessary to give effect to my order.

72 I will hear from counsel on the question of costs.

[1] J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419, 433-5 at [33]-[36](Lord Browne-Wilkinson).

[2] Pye [2002] UKHL 30; [2003] 1 AC 419, ibid 434 [36]-[37] (Lord Browne-Wilkinson).

[3] Rains v Buxton (1880) 14 Ch D 537; Re Johnson [1999] QSC 197; [2000] 2 Qd R 502, 506 (Wilson J).

[4] Whittlesea City Council v Abbatangelo [2009] VSCA 188; (2009) 259 ALR 56 at [4]- [6].

[5] Bayport Industries Pty Ltd v Watson [2006] V Conv R 54-709; [2002] VSC 206.

[6] Murnane v Findlay [1926] VicLawRp 11; [1926] VLR 80, 87 (Cussen J); Riley v Penttila [1974] VicRp 67; [1974] VR 547, 561 (Gillard J); Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd (2006) V Conv R 54-724; [2006] VSC 314, [46] (Bongiorno J).

[7] Abbatangelo [2009] VSCA 188; (2009) 259 ALR 56 at [6].

[8] Clement v Jones [1909] HCA 11; (1909) 8 CLR 133, 140 (Griffith CJ).

[9] Abbatangelo [2009] VSCA 188; (2009) 259 ALR 56 at [5]- [6].

[10] Pye [2002] UKHL 30; [2003] 1 AC 419, 435 at [40] (Lord Browne-Wilkinson).

[11] Ibid 443 at [60] (Lord Browne-Wilkinson).

[13] (1879) 5 Ex D 264.

[14] Monash City Council v Melville [2000] VSC 55 at [33]- [34]. Although in Clement [1909] HCA 11; (1909) 8 CLR 133, 140, Griffith CJ referred to Leigh v Jack with approval, that case turned on findings of fact that the paper owner of the land had performed various acts of possession within the relevant 15 year period and that the putative adverse possessor's acts of grazing cattle on the land with the owner's tacit permission were insufficient to establish either factual possession or an intention to exclusively possess.

[15] Pye [2002] UKHL 30; [2003] 1 AC 419, 438 at [45] (Lord Browne-Wilkinson).

[16] [2009] VSCA 188; (2009) 259 ALR 56 at [100].

[17] (1977) P&CR 452, 470-71 approved in Pye, op cit at 436.

[18] Dunnell v Phillips (1982) 2 BPR 9517 - there is a natural presumption that the servient owner may fence the common boundary of a right of carriageway**.**

[19] Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351, applying Newcomen v Coulsen (1877) 5 Ch D 133, 143 and Zenere v Leate (1980) 1 BPR 9300, 9304. See also Bland v Levi [2000] NSWSC 161.

[20] Malter v Procopets [2000] VSCA 11; Pye [2002] UKHL 30; [2003] 1 AC 419 at 436; Sunny Corporation Pty Ltd v Elkayess Nominees Pty Ltd [2006] VSC 314 at [47]- [53].