PARTIES: QASAIR INVESTMENTS PTY LTD (ACN 100 911 493)

Procedure - Supreme Court procedure - Tasmania - Procedure under rules of court - Other matters arising before trial - Power to order that in any proceeding any question be tried before any other - Estoppel - Estoppel by judgment - Issue estoppel - Application of estoppel to what matters - Matters necessary to decision.

Land Titles Act 1980 (Tas), ss138W(4), 138U.

Supreme Court Rules 2000 (Tas), rr258, 259, 559(1).

Quarmby v Keating & Qasair Investments Pty Ltd [2007] TASSC 65; Quarmby v Keating (2008) 18 Tas R 284; Blair v Curran [1939] HCA 23; (1939) 62 CLR 464; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589; Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853; Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, considered.

Judgment Number: [2013] TASSC 51

1 In 2005 and 2006 Dr Alan Quarmby and his wife commenced two actions in this Court, one on 2 February 2005 and one on 15 November 2006. They were heard together. One of the defendants in each action was Qasair Investments Pty Ltd, the registered proprietor of land which adjoins that owned by Dr Quarmby at Lady Bay Road, Southport. The other defendant in each action was Qasair Investments Pty Ltd director, Mr John Keating.

2 In action number 33/2005, the relief sought by Dr Quarmby was as follows:

"(a) An injunction to restrain the defendants whether by himself or itself or his or its agents or otherwise howsoever from entering upon the plaintiffs land or the plaintiffs' land in possession.

(d) Damages for vexation, worry and inconvenience.

3 In action number 467/2006, the relief sought by Dr Quarmby was as follows:

"(a) An injunction to restrain the defendants whether by himself or itself or his or its agents or otherwise howsoever from entering upon the plaintiffs land or the plaintiffs' land in possession, and from damaging or removing the boundary fence.

(d) Damages for Vexation, Worry and Inconvenience.

4 The two actions arose out of a dispute as to possession and/or ownership of a strip of land between four and five metres wide on the boundary between the properties owned by Qasair Investments Pty Ltd and Dr Quarmby.

5 The two actions came on for trial before Tennent J on 7 and 8 August 2007.

6 Tennent J delivered judgment on 23 August 2007 and the following summary of the background to the actions is taken from her Honour's reasons for judgment in Quarmby v Keating & Qasair Investments Pty Ltd [2007] TASSC 65 at [5] - [17]:

"5 In 1981, the male plaintiff [Dr Quarmby], who I will refer to as 'Q' for ease of reference, purchased land at Southport from persons by the name of Hay. The contract of sale was dated 9 February 1981 and listed the pieces of land which were to be the subject of the sale in the First Schedule. Relevantly one piece was described as follows:

'Part 14B C/T 3108/99 (Part) Approx. Area 5a 2r 32p'

Some remarks appeared beside this description which the agreement provided did not form part of it.

'The Vendors shall not be required to fence. These words shall have the meaning expressed by the Conveyancing and Law of Property Act. Prior to completion the Vendors will erect at their own cost upon that portion of the land identified in the First Schedule by the number 14B which is marked "XY" on the plan annexed hereto a five strand post and wire fence.'

No plan was attached to the contract. The contract provided for completion on 1 July 1981.

7 Certificate of Title Volume 3108 Folio 99 related to three areas of land, one of which was an area of 10 acres 1 rood and 25.3 perches bordering on Dover Street (now known as Lady Bay Road) in the north and a road described as 'Esplanade' in the west. That area was divided into Lots 1 and 2, which were defined on diagram of survey number 362/13D which became plan number 80157. Lot 1, according to that survey diagram, had an area of 5 acres 2 roods 21.3 perches. The area agreed to be sold to Q was not defined by reference to Lot 1 in the contract, but by reference to an approximate area.

8 In March 1981, at Hay's request, a Mr Anthony Peacock, a surveyor, did a repeg survey of the boundaries of Lot 1 for the purpose of verifying the title and to confirm boundaries so it could be fenced. He placed a line peg for that purpose. The boundaries he determined were almost identical to those shown in diagram 362/13D. On that repeg survey, he noted the existence of a post and wire fence on Lot 2 which he estimated had been there at that time for about 20 years.

9 Q and his wife moved into the property in February 1981 prior to settlement. At some point, in the absence of the plan referred to in the contract of sale, Q and the vendor Hay agreed between themselves where the fence provided for in clause 7 of the contract between the parties would be. Q did not obtain any survey to check that the southern boundary of the property to which he was to take title was in fact on the fence line he agreed with Hay. Hay retained ownership of the land to the south of that purchased by Q. Initially no fence was built on the line to which Q and Hay agreed. Hereafter in these reasons I will refer to the block purchased by Q as 'the northern block' and that retained by Hay as 'the southern block'.

10 Early in 1982, Q took title to the northern block. The documentary title to that block is now reflected in Folio of the Register Volume 139705 Folio 1. The plan attached to that title is plan number 139705 which shows the block, described in that title as Lot 1, with an area of 2.280 hectares. Plan number 139705 refers to the original survey for the block as being 362/13D. The documentary title to the southern block is now reflected in Folio of the Register Volume 242728 Folio 1 which has an area of 1.932 hectares.

11 In November 1981, Hay decided to sell the southern block. He approached Q and asked him to build a fence between the two blocks, but on another line further north from that they had initially discussed. Q constructed a fence on that second line, again not obtaining any survey, in mid-November 1981. The southern lot was sold to a person by the name of Ransom. There was no precise evidence as to the date. However I infer from Q's affidavit that it was late 1981 or early 1982. There were no discussions between Q and Ransom about the boundary line between the two blocks. Ransom sold his block in September 1992 to people by the name of Norris, who in turn sold to the second named defendant [Qasair Investments Pty Ltd] in 2003.

12 In about April 2003 a surveyor, Mr Tony Carrick, was asked to survey the southern block at the request of the then owner, Norris. He did so and established a boundary line between the two blocks. He also noticed a fence. He determined that the fence was encroaching on the southern block by about 4 to 5 metres. He looked at the survey which had been done by Mr Peacock in 1981 and noted that no such fence existed at the time Mr Peacock did his survey. The fence Mr Carrick found was not on the boundary line between the original lots 1 and 2 as found by Mr Peacock. While he was at the property, Mr Carrick said he was approached by Q, who told him the fence was the boundary and he was not to put any pegs north of that line. He did not do so for that reason.

13 By the date of Mr Carrick's survey, Mrs Norris had already entered into a contract to sell the southern block to the second named defendant. That contract was subject to an identification survey. At some stage in June 2003 the solicitors for the second named defendant became aware of the existence of Mr Carrick's survey and that the fence he referred to was encroaching on the southern block. They asked questions about the matter. The issue was not resolved in any way and the defendants settled the purchase on 16 July 2003 knowing the fence was apparently not on the title boundary.

14 By a letter dated 23 August 2003, Q wrote to the defendants. The letter sought to enter into an agreement for him to use the southern block to graze his cattle. There is no mention at all about any possible dispute about the boundary line. Coincidentally, by letter dated 26 August 2003 solicitors for the defendants wrote to Q about the boundary. I say 'coincidentally' because it is unlikely that the defendants had already received Q's letter to them of 23 August. The letter written by those solicitors was in the following terms:

I advise that I act for QASAIR Investments, who have purchased the property adjacent to your property on the esplanade in Southport.

I enclose* a copy of the title plans of your property and my clients property together with a surveyors certificate.

My client wishes to erect a fence along the boundary and it appears to be an appropriate time for the old stock fence that is internal to the boundary to be removed and a proper boundary fence to be erected.

I would be pleased if you could confirm your agreement to the above. My client is content to pay for the erection of the fence given that previously no boundary fence has been required, and the existing stock fence was suitable in respect to stock and other movement.

I look forward to your advice at your earliest convenience.'

15 It seems there was then correspondence between the parties and/or their solicitors which culminated in two letters. The first was from Q's solicitors to the defendant's solicitors dated 13 February 2004, which read as follows:

'RE: QUARMBY AND QASAIR INVESTMENTS - BOUNDARY FENCE

Thank you for your letter of the 11th February 2004.

Our client's instructions are that he does not believe that your client will be successful with their claim and as a consequence can see no further benefit in continuing with this mutual correspondence. He therefore invites your client to make the appropriate application if it considers it has sufficient grounds to do so. Please note however that any attempt to interfere with our client's present boundary fence without the benefit of an appropriate Court order, will result in an application for a restraint order and/or injunction against your client.

Should your client decide to institute proceedings against our client in relation to this matter, we don't presently have instructions to accept service of proceedings and we would need to obtain those.'

In reply, the defendant's solicitors wrote on 25 February:

I advise there is no appropriate application where it is regarded by everyone including the Surveyor General and your clients previous owners own survey as to where the boundary is.

My client will allow your client to remove his fence within the next 30 days or he will regard himself as being entitled to remove it himself if he so desires.

Clearly your client cannot take out an injunction to restrain my client from doing something on his own property.'

16 At this point in time, there had been no overt step taken by Q to, for example, obtain title by adverse possession to the area of land which appeared to have been fenced by him but was part of the documentary title to the southern block ('the disputed area'). He had not lodged any caveat claiming an interest in the area.

17 In this climate, three incidents occurred which form the basis for the relief now sought by the plaintiffs."

7 As to Dr Quarmby's claim that he was entitled to possession of the disputed area as against the defendants such as to be able to bar the defendants from the area and mount a case in trespass, Tennent J held, relevantly at [43] and [56] - [60]:

"43 The plaintiffs submit that there is nothing in the LTA [Lands Titles Act 1980, (Tas)] which obliges them to apply to be registered as proprietors pursuant to Div 5, and that they have acquired rights by virtue of the LA, [Limitation Act 1974, (Tas)], s10(2), which are sufficient to ground their claims in trespass without being so registered. If this argument is correct, it will create a somewhat unusual situation whereby the plaintiffs will be able to assert a right to possession of the disputed area to the exclusion of the defendants without ever being able to obtain title to the area.

56 This Court has no jurisdiction to make an order vesting the registered title to the disputed area in the plaintiffs. Indeed, the plaintiffs do not seek that. What they want is a finding that any rights they may have acquired by reference to the LA are a sufficient basis for an action in trespass. Counsel for the plaintiffs submits they have acquired what he describes as a possessory title which is still recognised by the LTA as a consequence of s138W, independently of any issue of vesting of legal title by virtue of possession. Counsel for the defendants submits that any rights which may have been acquired by possession cannot ever be converted into a legal title, that the title of the registered proprietor remains indefeasible against any such rights, and hence the registered proprietor has a better title, better right to possession or simply a better right to the property than that of the plaintiffs, such that it would defeat any claim in trespass.

57 The authorities to which counsel have referred clearly establish that when considering issues of adverse possession of unregistered land, the legal title can be extinguished by reference to the appropriate statute of limitations and the passage of time. In those circumstances the person claiming possession becomes the legal owner, provided he can establish a better title. The law in Tasmania has, however, modified that position insofar as it relates to registered land and there are some important aspects of s138W which affect the present case.

58 The LTA, Pt IXB, deals with the rights of persons to acquire a registered title to land by virtue of adverse possession. It specifically provides that where a person who has been in possession of land wishes to acquire title, they may do so, but only in accordance with the Division. While the LTA, s138W(1), provides that the LA applies to the title of a registered proprietor in the same manner as it applies to a title in unregistered land, it does so 'subject to this section'. That is, the position provided for in subs(1) operates, not in a vacuum, but subject to the rest of the section. The first qualification to the position that the LA applies to registered land is that which appears in s138W(2), namely, the title of the registered proprietor is not extinguished but he is taken to hold his interest in trust 'for the person who ... would have acquired title ...' had the land been unregistered. The next matter to which the position is subject is s138W(4), that is, any person who claims the registered proprietor holds his estate in trust may apply for the vesting of the legal estate they would have acquired had the land not been registered.

59 In my view, s138W(1) and (2) do not operate in a vacuum to preserve a right acquired at common law, described by counsel for the plaintiffs as a 'possessory title', independent of any capacity to convert such right to a registered title. It cannot operate to elevate the rights of a claimant above those of a registered proprietor whose registered title, by reference to the provisions of Pt IXB Div 5, cannot be defeated. It must be remembered that we are dealing with a system which relies on registration to establish title. What the plaintiffs effectively seek to do is rely on a form of title independent of the system to defeat the rights of a registered proprietor. Such a concept would only serve to undermine the system of registration.

60 The question therefore as to whether whatever rights the plaintiff has acquired to the disputed area by reference to the LA, s10(2), can be construed as better rights than those of the defendants, such that they would support a suit in trespass, must be answered in the negative. The second named defendant remains the registered proprietor of the southern block subject to a successful application by the plaintiffs pursuant to the LTA, s138W(4). Were such an application to be successfully made, the defendants may very well have no defence to these actions. It is unnecessary, however, to determine that in view of my findings or to deal with the claims for injunctive relief and damages, which must also fail."

8 As to the prospect of Dr Quarmby obtaining a registered title to the disputed strip of land by means of a successful application pursuant to the Land Titles Act 1980 ("the Act"), s138W(4), it needs to be understood that s138U of the Act provides that for the purposes of an application to acquire title to any land by possession, any period during which council rates have been or are paid by or on behalf of the owner is to be disregarded.

9 Tennent J had held that the only conclusion which could be drawn was that Dr Quarmby had never paid rates in respect of the disputed area, and that the only inference which flowed was that the registered proprietor from time to time had done so.

"42 I have already found that the plaintiffs have not paid rates in respect of the disputed area since at least late 1981 or early 1982 when Ransom purchased the southern block. Even if I am wrong as to that, there can be no doubt they did not do so from September 1992 when Norris bought that property. The consequence of this is that the plaintiffs would be precluded by operation of the LTA, s138U, from succeeding in a claim pursuant to the LTA to be registered as proprietors of the disputed area."

11 Tennent J proceeded to dismiss both of Dr Quarmby's actions.

12 Dr Quarmby appealed to the Full Court of this Court and his appeals in both actions were unanimously dismissed by Crawford CJ, Slicer and Evans JJ in Quarmby v Keating (2008) 18 Tas R 284.

13 Evans J, with whom Crawford CJ agreed, said at [64]:

"64 In the course of the appeal, counsel for the Quarmbys placed considerable emphasis on the distinction between an equitable and a legal title or estate in registered land, the former being the title obtained by an adverse possessor pursuant to s138W(2), and the latter being the title of a registered proprietor. Valid as this distinction is, it does not assist the Quarmbys. In order for them to acquire any title to the disputed land by possession, regardless of whether that title is categorised as legal or equitable, it was necessary for them to establish that they had possessed the disputed land for 12 years, excluding any period during which council rates were paid in the interests of the registered proprietor of the Qasair land. They were unable to do so. An adverse possessor of land is not entitled to the protection of the Limitations Act as against the owner where that possessor has not been in possession for the requisite statutory period, McGuire v Browne [1913] HCA 57; (1913) 17 CLR 365 and, for the reasons I have given, consistent with the applicable provisions of the Land Titles Act 1980, this period excludes any periods during which council rates were paid in the interests of the owner.

65 In my view the learned trial judge did not err in dismissing the actions."

14 In the present actions, commenced in 2009 and 2012, which have been ordered to be heard together, Qasair Investments Pty Ltd seeks a declaration as to its title to the same land as was the subject of the dispute in the 2005 and 2006 actions brought by Dr Quarmby, and further seeks declarations that Dr Quarmby is estopped from claiming that he has a possessory title to that land, and is not entitled to possession of the land, and has trespassed upon it. In addition Qasair Investments Pty Ltd seeks a permanent injunction restraining Dr Quarmby or his agents from entering upon the land or erecting any fence upon it.

15 The present actions also involve claims for damages against Dr Quarmby, and in the 2012 action, damages and an injunction against a second defendant, James Tobias Quarmby, Dr Quarmby's son.

16 In turn Dr Quarmby, as well as defending both actions, has brought counterclaims, containing no actual claim or seeking any valid relief in the case of the 2009 action but, in the case of the 2012 action, seeking damages for the cost of repairing various lengths of the disputed boundary fence after they were taken down by Qasair Investment Pty Ltd's agent.

17 In addition in the 2012 action, James Tobias Quarmby has counterclaimed against Qasair Investments Pty Ltd for damages for assault alleged against the company's director Mr Keating.

18 It would potentially be unnecessarily wasteful of the resources of the Court and would potentially, unnecessarily expose the parties to additional and wasted cost, if the two actions proceeded to trial on all of the pleaded claims and counterclaims, when, leaving aside for one moment the claim by James Tobias Quarmby for damages for assault, there can be identified a single, central and very largely, potentially dispositive, question.

19 That question may be framed as, "given the issues decided in actions 33 of 2005 and 467 of 2006, is Dr Quarmby thereby estopped in the present proceedings from claiming or asserting that he has a legal or equitable right or interest over any part of the land of which Qasair Investments Pty Ltd is the registered proprietor, arising from adverse possession of any such land by him or others, sufficient to allow him or his agents to lawfully enter upon that land and maintain a fence upon it or, conversely, sufficient to prevent Qasair Investments Pty Ltd from entering upon its own land and removing any such fence erected thereon by Dr Quarmby?"

20 Accordingly, upon the application of counsel for Qasair Investments Pty Ltd, Mr O'Farrell SC, I ordered pursuant to R559(1)(b) of the Supreme Court Rules 2000, that the question so framed, which is squarely raised by the amended statements of claim in both actions and given voice by the declaration claimed in the prayer for relief at parA(iv) in both actions, be tried before any other question in the proceedings. (The declarations sought by those paragraphs are that "the Defendant is estopped from claiming that he has a possessory title to the Plaintiff's land sufficient to allow him to enter onto it and erect a fence against the Plaintiff's documentary title").

21 It is apparent from par8 of Dr Quarmby's defence in action 397 of 2009 that he prefers a characterisation of the issue in dispute in the earlier actions as being whether he "had an equitable interest by virtue of and arising from adverse possession sufficient to ground an action for damages for certain acts of trespass and destruction of property", rather than being reliant simply on the term or concept of "possessory title". To the extent that there is any difference between those characterisations, the separate question framed for my determination is intended to embrace both of them, and my consideration of the separate question does embrace both notions.

22 The trial of the separate question required no evidence as the legal and factual issues necessary to answer the question had already been decided in actions 33 of 2005 and 467 of 2006, and those actions, their subject matter and their outcome at trial and on appeal, are admitted on the pleadings in the 2009 and 2012 actions.

23 Tennent J, as already noted, held in Quarmby v Keating & Qasair Investments Pty Ltd (supra) at [60], in dismissing both the 2005 and 2006 actions:

"The question therefore as to whether whatever rights the plaintiff has acquired to the disputed area by reference to the LA, s10(2), can be construed as better rights than those of the defendants, such that they would support a suit in trespass, must be answered in the negative." (Underlining added)

24 Evans J, with whom Crawford CJ agreed, again, as already noted, said in Quarmby v Keating (supra) at [64] - [65]:

"In the course of the appeal, counsel for the Quarmbys placed considerable emphasis on the distinction between an equitable and a legal title or estate in registered land, the former being the title obtained by an adverse possessor pursuant to s138W(2), and the latter being the title of a registered proprietor. Valid as this distinction is, it does not assist the Quarmbys. In order for them to acquire any title to the disputed land by possession, regardless of whether that title is categorised as legal or equitable, it was necessary for them to establish that they had possessed the disputed land for 12 years, excluding any period during which council rates were paid in the interests of the registered proprietor of the Qasair land. They were unable to do so.

In my view the learned trial judge did not err in dismissing the actions." (Underlining added)

25 Such judicial determinations directly involving issues of fact or law dispose once and for all of those issues, so that they cannot afterwards be raised between the same parties or their privies; Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531, cited with approval in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason and Aickin JJ.

26 In Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at 373 Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ referred with approval to the speech of Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 where his Lordship said that for the doctrine of issue estoppel to apply in a second set of proceedings, the requirements were:

"(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised, or their privies."

27 As to the present actions and the earlier proceedings, each of those three requirements is clearly satisfied, with the result that Dr Quarmby is bound, in the sense that he is precluded in the present set of proceedings from asserting against Qasair Investments Pty Ltd to the contrary of any issue fundamental to the judgments in the earlier actions; Blair v Curran (supra) at 532 and Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466, per Fullagar J.

28 Dr Quarmby submitted that he relied on his "legal title" and that as Tennent J did not find that Qasair Investments Pty Ltd's documentary title included the disputed area, he was not estopped in that regard. However, at par[27] of her reasons for judgment, her Honour found that there was in her view, "no doubt that [Dr Quarmby's] documentary title does not include the disputed area". The converse of that is of course fundamental to her Honour's judgment and gives rise to an issue estoppel which prevents Dr Quarmby from asserting to the contrary.

29 It is unnecessary for me to decide the somewhat less obvious question of whether the rights asserted by Dr Quarmby in defence of the present actions and in support of his counterclaims have merged into the earlier judgments and are res judicata. That they are issues on which he is estopped from now relying is undeniable.

30 For completeness I observe that there can be no question, in my judgment, of any Anshun estoppel arising against any party to the present proceedings.

31 It follows from what I have said that the answer to the separate question is "yes". Dr Quarmby is thus estopped from asserting as against Qasair Investments Pty Ltd in these proceedings that he has a possessory title (or a legal or equitable interest by virtue of, or arising from, his adverse possession or that of his predecessors in title), to or in Qasair Investments Pty Ltd's land sufficient to allow him now or to have allowed him in the past, to enter onto it and erect a fence, and he is estopped in these proceedings from asserting that he has any other enforceable right against the plaintiff's documentary title.

32 Equally, Dr Quarmby is estopped from asserting the converse, that is, that Qasair Investments Pty Ltd has not had at all relevant times a complete right to enter upon its own land and remove any fence erected thereon by Dr Quarmby. The factual and legal existence of such a right is fundamental to the judgments in the earlier actions, indeed, it is a necessary corollary of them. And, for the avoidance of any doubt, my reference to Qasair Investments Pty Ltd's "documentary title", "land" or "own land", includes the disputed area.

33 The separate question having been determined in the affirmative and adversely to Dr Quarmby, the issue estoppel so arising appears to me to have two fundamental effects upon the present proceedings.

34 The first is that it would entitle Qasair Investments Pty Ltd to move immediately for the declaration sought as to the estoppel in the prayer for relief at parA(iv) in both actions.

35 The second is that it renders any assertion in Dr Quarmby's pleadings in his defences or counterclaims that raises directly or by implication an issue upon which I have found he is estopped, liable to be struck out pursuant to R258 or R259 of the Supreme Court Rules 2000, as being "embarrassing".

36 The result of that, in my view, will be to leave little or nothing by way of defence or counterclaim to Dr Quarmby, and would likely entitle Qasair Investments Pty Ltd to move, without more, for further relief on the remnant pleadings. Other issues may require Qasair Investments Pty Ltd to go into evidence, depending on an analysis of the pleadings. And of course proof of loss would remain necessary.

37 There would also remain of course, as things presently stand, the claim against James Tobias Quarmby and his counterclaim to that claim, although I note that, separately, I am asked to allow both that claim and the counterclaim to be discontinued.

38 I will hear the parties as to the effect of my finding upon Dr Quarmby's pleadings and the orders which should be made as to the further disposition of the two actions.