Re Johnson [1999] QSC 197 (19 August 1999)

LIMITATION OF ACTIONS - LAND - ADVERSE POSSESSION - WHAT AMOUNTS TO - application for adverse possession under Land Titles Act 1994 - true owner unknown - whether relevant limitation period is 12 or 30 years - necessity of establishing a sufficient degree of exclusive physical control and intention to possess the land - application said to be brought under s.99 or s.114 of the Land Title Act - inappropriate procedure.

Asher v. Whitlock (1865) L.R. 1 Q.B. 1, considered

Bank of Victoria v. Forbes [1887] VicLawRp 146; (1887) 13 V.L.R. 760, considered

Beames v. Leader [1998] Q.Conv.R. 54-506, considered

Bligh v. Martin [1968] 1 W.L.R. 804, considered

Buckinghamshire County Council v. Moran [1990] Ch. 623, considered

Cooke v. Gill (1873) L.R. 8 C.P. 107, considered

Re Kettle (No 1 of 1987, 17 September 1987), considered

Kirby v. Cowderoy [1912] A.C. 599, considered

Kirk v. Sutherland [1949] VicLawRp 7; [1949] V.L.R. 33, considered

Lambourn v. Hosken [1912] ArgusLawRp 96; [1912] V.L.R. 394, followed

Leader v. Beames [1999] Q.Conv.R. 54-222, considered.

Mulcahy v. Curramore Pty. Ltd. [1974] 2 N.S.W.L.R. 464, considered Powell v. McFarlane (1977) 38 P. & C.R. 452, considered

Rains v. Buxton (1880) 14 Ch.D. 537, considered

Red House Farms (Thorndon) Ltd v. Catchpole [1977] E.G.D. 798, considered

Robinson v. Attorney-General [1955] N.Z.L.R. 1230, considered

Shaw v. Garbutt [1997] N.S.W. Conv.R. 55-801, considered

Acts Interpretation Act s.14(1), (2)

Land Title Act 1994 ss.18(3) 30, 99, 103, 104, 105, 106, 107, 108, 109, 144, Schedule 2

Solicitors: Griffiths McColm & Parry for the applicant

IN THE MATTER of the Land Title Act 1994

IN THE MATTER of the Limitations of Actions Act 1974

1 The applicant John Victor Godschall Johnson wishes to be registered as proprietor of a parcel of land 2,023 square metres (half an acre) in area on Moreton Island in reliance on adverse possession. In his application he seeks an order that:-

"The Registrar of Titles take all necessary steps pursuant to sections 103 and 108 of the Land Title Act 1994 to register the applicant as registered proprietor of all that land described as Lot 215 on Crown Plan B732, County of Stanley, Parish of Tiffin and contained in Certificate of Title Volume 62 Folio 109 and situate at 60 Moreton Street, Moreton Island in the State of Queensland."

2 The land is registered in the name of his great-great-grandfather Ralph Edward Godschall Johnson who died on 8 July 1876. Despite the family relationship, the applicant's case is based on title by adverse possession rather than on title by succession (or intestacy).

3 The land's frontage is on to Moreton Street, Bulwer. It is one of a number of blocks between Pilot Street and Warner Street. The property to its rear faces on to The Strand. The Valuer General's valuation is $85,000 and the market value is $150,000.

4 Sometime in the early 1960's the applicant's father Jack William Douglas Godschall Johnson began camping on the land from time to time. According to the applicant his father "continued to maintain, occupy and use the land which was uncultivated up until the date of his death of 15 April 1991."

5 The land came under the jurisdiction of the Brisbane City Council in 1974, and the first rates assessment was made on 27 September 1974. The form of the early rates notices is not in evidence. At least since early 1988 they have been addressed to Mr Ralph E. Johnson (presumably the deceased registered proprietor) c/- Mr J.W.D.G. Johnson (the applicant's father). The rates were not paid until 16 March 1979; thereafter they were paid until the years ended 30 June 1986 and 30 June 1987. Arrears were paid in early 1988 and since then the rates have been paid regularly. According to the applicant his father paid the rates until his death in 1991, and he has paid them since then.

6 The applicant says that he commenced "use and occupation" of the land in or about the mid-1970's. I do not understand this to have been to the exclusion of his father. My impression is that like his father, and perhaps sometimes in company with his father, he camped there when he visited Moreton Island.

7 The land had been fenced, at least partially, but the fencing had fallen into disrepair. According to the applicant:-

"To the best of my knowledge there was part of a steel picket fence structure erected on the boundaries of the subject land closest to Pilot Street and The Strand. There was a large post of approximately 50 centimetres diameter in the back corner closest to Warner Street. There was also one old steel picket erected midway along the subject land closest to Pilot Street. I am unaware as to when these posts were erected or by whom. A steel picket fence was erected by me some time in the 1980's."

8 The applicant's father died in 1991. A copy of a will dated 17 August 1990 is in evidence. There has been no grant of probate. Clause 2 is in the following terms:-

"As to any interest and/or entitlement to receive Title that I may have to the property situated at 60 Moreton Street, Bulwer, Moreton Island and described as Lot 215 on Registered Plan No. B732, County of MacKenzie, Parish of Tiffin, currently registered in the name of RALPH EDWARD GODSCHALL JOHNSON, I grant to my son the said JOHN VICTOR JOHNSON ... ...".

9 In 1992 the applicant erected a small house on the property.

10 The applicant is unaware of any mortgage, encumbrance or claim affecting the land or that any person other than the registered owner has any claim, estate or interest in the land in law or equity. He has never been the tenant or the registered owner of the land and has never been contacted by anyone acting on behalf of the tenant or owner. He has no documents, receipts or contracts in his possession or under his control as to the registered owner or any other persons who are entitled thereunder relating to the subject land. He is unable to locate the certificate of title for the land. The adjoining owners make no claim on the land.

11 The true owner of the land has not been identified. The Registrar of Titles is holding a memorandum of conveyance dated 21 July 1865 from the registered proprietor to Fanny Lucy Sutton (his daughter) in consideration of the sum of five shillings. That was never registered. In 1990 the applicant's father lodged an application for title by adverse possession but this was rejected. In 1998 the Registrar rejected an application by the present applicant.

12 Part 6 Division 5 of the Land Title Act 1994 which is headed "Application by adverse possessor" provides for an application to the Registrar of Titles (s.99), who must give notice to all registered proprietors of the lot and adjoining lots and anyone else he considers may have an interest in the lot and require the applicant to give public notice of the application (ss. 103 and 18(3).) A person claiming an interest in the lot may lodge a caveat. Section 108 provides as follows:-

108.(1) The registrar may register the applicant as owner of all or part of the lot if the registrar is satisfied that the applicant is an adverse possessor of the lot or part of it and-

(a) no caveat has been lodged by the day specified under section 103 (Notice of application); or

(b) if a caveat is lodged by the day specified under section 103 -

(i) the caveat has lapsed or has been withdrawn, cancelled or removed; and

(ii) has not been revived or replaced under section 106 (Reviving or replacing caveat).

(2) If the registrar registers the applicant as owner of the lot, the registrar must -

(a) cancel the registration of the person previously registered as the owner of the lot; and

(b) create in the applicant's name an indefeasible title free of all other interests in the lot."

13 "Adverse possessor" is defined in the dictionary contained in schedule 2 to the Act as follows:-

"`adverse possessor' of a lot means a person -

(a) against whom the time for bringing an action to recover the lot has expired under the Limitation of Actions Act 1974; and

(b) who, apart from this Act, is entitled to remain in possession of the lot."

Thus, someone seeking title by adverse possession must establish both the expiration of the relevant limitation period and satisfaction of the common law requirements in relation to adverse possession. Because of the consequences to the true owner such applications are properly approached with great caution.

14 Sections 13 and 29 of the Limitation of Actions Act 1974 provide:-

13. An action shall not be brought by a person to recover land after the expiration of 12 years from the date on which the right of action accrued to the person or, if it first accrued to some person through whom the person claims, to that person."

29.(1) If on the date on which a right of action accrued whether before or after the commencement of this Act for which a period of limitation is prescribed by this Act the person to whom or for whose benefit it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date on which the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired.

(b) an action to recover land or money charged on land shall not be brought by virtue of this section by a person after the expiration of 30 years from the date on which the right of action accrued to that person or a person through whom the person claims;

15 The identity of the true owner is not known. The Registrar of Titles has asserted that the applicant must establish adverse possession for 30 years before he may be registered as owner. The applicant has submitted that the time referred to in the definition of "adverse possessor" in the dictionary in the Land Title Act is that in s.13 only (i.e. 12 years).

16 Time begins to run only when there is in existence someone who can sue and someone else who can be sued, and when all the facts have happened which are material to be proved to entitle a plaintiff to succeed: Cooke v. Gill (1873) L.R. 8 C.P. 107 at 116. In the context of adverse possession it starts to run when:-

(a) the owner, though entitled to possession, is not in possession; and

If the owner abandons possession, or if he dies and the next person entitled (e.g. as devisee or remainderman) does not take possession, time will begin to run as soon as adverse possession is taken by another. Whether or not the owner knows that he or she has been dispossessed is immaterial: Rains v. Buxton (1880) 14 Ch.D. 537; Powell v. McFarlane (1977) 38 P. & C.R. 452 at 480; Megarry R.E. and Wade H.W.R., The Law of Real Property, 5th ed., Stevens & Sons Limited, London, 1984 AT 1033-34.

17 The applicant's counsel submitted that the relevant period of limitation is prescribed by s.13 (12 years), and that s.29, rather than imposing a limitation period, allows for an extension in specific circumstances. The dictionary in the Land Title Act refers to a person "against whom the time for bringing an action to recover the lot has expired ...". Section 13 of the Limitation of Actions Act describes such a time in a negative fashion, by providing that an action shall not be brought after the expiration of 12 years from the accrual of the right of action. Section 29 provides in positive terms that an action may be brought before the expiration of six years from the cessation of the disability "notwithstanding that the period of limitation has expired" (sub-s. (1)) and then reverts to the negative by providing that notwithstanding sub-s. (1) an action to recover land shall not be brought after the expiration of 30 years from the accrual of the right of action (sub-s. (2)). There are two possible interpretations of s.29 - (i) that it does not extend the limitation period but rather allows an action to be brought after its expiration or (ii) that it extends the period which would otherwise apply. In my view, its effect is to extend the period which would otherwise apply. In coming to that conclusion I have derived assistance from the heading of that part of the Limitation of Actions Act in which s. 29 is found, viz. Part 3 - "Extension of Periods of Limitation." That heading is part of the Act, although the heading of the section is not: Acts Interpretation Act 1954 s.14(1) and (2).

18 The time for bringing an action to recover the lot is 12 years from the accrual of the right of action where the plaintiff is sui juris (s.13) and where the plaintiff is not sui juris, six years from his or her ceasing to be under a disability, up to a maximum of 30 years from the accrual of the right of action (s.29). If the true owner's identity is not established it will not expire until 30 years after the adverse possessor went into possession. I respectfully agree with A'Beckett J. in Lambourn v. Hosken [1912] ArgusLawRp 96; [1912] V.L.R. 394 at 395. Contrary to the submission of counsel for the applicant this is not to impose upon an applicant an onus to prove a negative (that there is no person under a disability who may have a claim); it is simply to extend the limitation period until any possible claim to true ownership has been barred.

19 The applicant's counsel submitted that if s. 29 (the 30 year period) were applicable ss. 104-108 of the Land Title Act (dealing with the caveat procedure) would be irrelevant because after 30 years all claims, even by those who may have been under a disability, would have been extinguished by reason of the Limitation of Actions Act and an applicant would have an absolute right to registration. This is not correct. The mere passage of 30 years would not give an applicant an absolute right to registration. Under s.108 the Registrar retains a residual discretion whether to register the applicant as owner. This is clear from the wording of the section (which is expressed in terms that the Registrar "may register the applicant as owner" not that he "must" do so) and from the fact that the registration is effected not by registration of an instrument but rather by the cancellation of another registration and the creation of an indefeasible title in the applicant's name. (Cf s.109 which provides for the registration of a person as trustee of an interest by the registration of an instrument. Cf also s.30 by which the Registrar "must register [an] instrument". See also Shaw v. Garbutt [1997] N.S.W. Conv.R. 55-801 at 56,293 in relation to s.45E of the Real Property Act 1900 (NSW).)

20 He submitted further that to apply s.29 in the present case would undermine the scheme of the Act, which is to permit persons in possession after 12 years to apply for registration, as had been the case under the earlier legislation. This is not correct. Neither the earlier legislation (the Real Property Acts Amendment Act 1952) nor the present legislation contains a scheme permitting persons in possession after 12 years to apply for registration; rather what must be established under both statutes is that the limitation period for the true owner to bring proceedings for recovery of the land (whatever that period may be) has expired: 1952 Act s.57; 1994 Act s. 108.

21 The relevant common law principles were summarized by Slade J. in Powell v. McFarlane at pp. 470-71 as follows:-

"(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 conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. 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. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. ... 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 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 possessors, so far as is reasonably practicable and so far as the processes of the law will allow."

See also Mulcahy v. Curramore Pty. Ltd. [1974] 2 N.S.W.L.R. 464 and Buckinghamshire County Council v. Moran [1990] Ch. 623 at 636.

22 On the question of possession it is necessary to look to all the circumstances including the character and the value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with due regard to his own interests and any other relevant fact: Shaw v. Garbutt at p. 56,290. For this purpose it is permissible to aggregate possession by the applicant's father with his own possession. As there is no need for a formal conveyance or assignment of inchoate possessory rights, the absence of formal proof of his father's will is no obstacle: see Asher v. Whitlock (1865) L.R. 1 Q.B. 1; Mulcahy v. Curramore Pty. Ltd. at 467.

23 Although the land is part of an estate which was subdivided in the 1860's, it seems to have been used for little more than camping and fishing over the succeeding 130 years. That was how the applicant's father used it and how the applicant used it until he constructed the house after his father's death. The courts have recognized that in many cases adverse possession cannot be continuous from day to day. For example in Bligh v. Martin [1968] 1 W.L.R. 804 at 812, Pennycuick J. said:-

"It would, I think, be quite wrong to regard the owner of arable farmland as having been dispossessed of that land because during certain winter months he personally makes no use of it and some other person puts cattle upon it."

And in Red House Farms (Thorndon) Ltd v. Catchpole [1977] E.G.D. 798 it was held that shooting over marshy land was which virtually useless for anything else could amount to adverse possession. The evidence does not disclose whether other people also used this lot for camping and fishing, or whether, apart from the erection of fencing sometime in the 1980's, the applicant and/or his father took steps to exclude other persons from doing so. The voluntary payment of rates by the applicant's father and subsequently by the applicant is evidence of possession (Bank of Victoria v. Forbes [1887] VicLawRp 146; (1887) 13 V.L.R. 760 at 765; Robinson v. Attorney-General [1955] N.Z.L.R. 1230 at 1235; Kirby v. Cowderoy [1912] A.C. 599; Kirk v. Sutherland [1949] VicLawRp 7; [1949] V.L.R. 33 at 35), but neither the fencing nor the payment of rates occurred 30 years ago. In short, there is not enough evidence to establish a sufficient degree of exclusive physical control over the relevant period.

24 Further, the applicant needs to establish that at all relevant times his father and then he had the intention to possess the land to the exclusion of all others. There is evidence in a newspaper article dated 12 August 1981 that the applicant's father, at least at that time, considered himself to be the rightful owner of the land. However, as Slade J. said in Powell v. McFarlane at p. 476:-

"... even contemporary declarations made by a person to the effect that he was intending to assert a claim to the land are of little evidential value for the purpose of supporting a claim that he had possession of the land at the relevant date unless they were specifically brought to the attention of the true owner. As Sachs L.J. said in Tecbild Ltd v. Chamberlain (1969) 20 P. & C. R. 633 at p. 643, `In general, intent has to be inferred from the acts themselves.'"

There is, of course, no evidence that any statements by the applicant's father ever came to the notice of the true owner, whoever that may be. Until the land was fenced in the 1980's their possession of it was equivocal and the necessary intent could not be inferred.

25 The Registrar of Titles has advised that he is not prepared to consider the application further "unless concrete evidence can be provided that satisfies [him] that the applicant and his father were [in] adverse possession for a continuous period from 1968-1998". The use of the expression "concrete evidence" is unfortunate because the legislation does not import such a standard of proof. Be that as it may, I am of the view that the evidence before me would not be sufficient to establish possession or the requisite intent 30 years ago.

26 In the applicant's written submissions the present application was said to have been brought pursuant to s. 99 of the Land Title Act. However, that section provides for an application to the Registrar of Titles rather than to this Court. In an affidavit sworn on her client's behalf the applicant's solicitor referred to having the conduct of this application pursuant to s.114 of the Land Title Act. That provision is in Part 6 Division 6 which is headed "Trusts, deceased estates and bankruptcy." It is in the following terms:

(c) a personal representative, a devisee or anyone else interested in -

(ii) a trust involving a lot of a deceased registered proprietor.

(2) A person to whom this section applies may apply to the Supreme Court for an order that a named person be registered as proprietor of a lot.

(3) The Supreme Court may make 1 or more of the following orders -

(a) that a person be registered as proprietor of the lot;

(b) that a person be removed from the freehold land register as proprietor of the lot;

(c) that a caveat be lodged to protect a person's interest in the lot;

(d) that a person advertise in a specified form, content or way;

(e) that costs be paid by any person or out of any property.

(4) The registrar must register particulars of an order if a request to register the order is lodged and an office copy of the order is deposited.

(5) An order does not vest an interest in the lot until it is registered."

This vesting provision seems to have had its origin in s.89 of the Real Property Act of 1861 which allowed "the personal representative, devisee, Public Trustee or any other person interested in the land or in any estate or interest in the land of a deceased proprietor" to apply to the Court for an order that the Registrar register him as the proprietor in place of the deceased proprietor. The present provision extends to trusts as well as deceased estates. Orders under s.89 of the 1861 Act were not readily made. In Re Kettle (No 1 of 1987, 17 September 1987) Demack J. refused to make an order under s. 89 registering the applicants as proprietors of an estate in fee simple as tenants in common of certain lands of a deceased registered proprietor. He said:-

"I was referred to Re Middleton [1974] Qd.R. 211, where Hanger C.J. allowed such an application solely because it would save costs. The land there does not appear to have been a partnership asset, and so the peculiar problems relating to partnership land, see Wolfson v. Registrar General (N.S.W.) [1934] HCA 29; (1934) 51 C.L.R. 300, at p. 312 ff., did not apply. Further Hanger C.J. recognised that s. 89 was an extraordinary remedy, and although he distinguished the reasoning of Gillard J. in Dotter v. Evans [1969] V. R. 41, he did not question the general thrust of that decision, namely, that a vesting provision such as s. 89 is only to be used as a last resort. Hanger C.J.'s opinion was stated in these words (p. 214) :

`I agree that the provisions of s. 89 should not be made use of lightly. The section does seem to me to provide something in the nature of an extraordinary remedy - to be made use of, primarily, when other means of achieving a legitimate object are not available ...'

Thus s. 89 was used in the case of a lost Will, Re Glasby, deceased [1954] Q.W.N. 33 and Re Simpson deceased [1954] Q.W.N. 42. It was also used in the case of partnerships lands where the executor of the deceased partner claimed no interest on the lands, In re Pearce [1947] Q.W.N. 30, but where different aspects of partnership law arose it was inappropriate: Re George Livanos deceased [1955] St. R. Qd. 362."

In my view Division 5 of Part 6 provides its own procedures for an application for title by adverse possession. An applicant dissatisfied with the decision of the Registrar may seek relief under the Judicial Review Act 1991: Beames v. Leader [1998] Q.Conv.R. 54-506; on appeal Leader v. Beames [1999] Q.Conv.R. 54-222. I would not be prepared to make the order sought pursuant to s. 114 even if I were satisfied that the applicant was an adverse possessor within the meaning of the Land Title Act.

27 In all the circumstances the application is dismissed.