Rogers v Registrar General of NSW

The formalities and evidence

1. Mr Rogers moved on a summons for declaratory relief in relation to the ownership of the cottage filed on 4 August 2023. The two named defendants - the Registrar General of NSW and the Chief Commissioner of State Revenue NSW - have both filed submitting appearances (save as to costs).
2. Pursuant to directions which I made in preparing the matter for hearing, Mr Rogers also filed a notice of motion on 30 April 2024 to formalise the application for orders that the summons be heard in the absence of any legal personal representative or the persons entitled on intestacy to Mr Saric's estate.
3. The evidence consisted of affidavits from Mr Rogers and his legal representatives setting out the various searches and enquiries that had been made in relation to Mr Saric and the cottage, together with an affidavit of Mr Paul's widow, Ms Cruz. Her evidence went to Mr Paul's use of the cottage during the course of their relationship. However, the primary evidence was more than 1,400 pages of exhibits, mostly comprising documents that had been obtained from Australia and Croatia both about Mr Saric and to demonstrate Mr Paul's longstanding use of the cottage (investigation). Unless I record otherwise, the facts that are set out in these reasons are proven by those documents. The Court finds that the investigation was comprehensive and appropriately directed. It included: 1. searches with the National Archives of Australia for Mr Saric's passenger arrival and naturalisation and citizenship records; 2. searches for any divorce file relating to Mr Saric with the NSW State Archives (now part of Museums of History NSW); 3. searches for any grant of probate or letters of administration in respect of Mr Saric's estate with the Court and NSW State Archives; 4. searches of any wills deposited with the Registrar of the Court for safe­ keeping; 5. searches for any notices of intended application for probate or notice of intended application for letters of administration of Mr Saric's estate that may have been published in the Sydney Morning Herald; 6. searches for any will of Mr Saric that may be held by the NSW Public Trustee and Guardian and the Court; 7. searches with Rose Bay Presbyterian (formerly known as St Andrew's Scots Presbyterian Church, Rose Bay) for their marriage register, being the place where Mr Saric was married and the NSW Registry of Births, Deaths and Marriages; 8. searches with Calvary Hospital Kogarah for Mr Saric's medical records, being the place where Mr Saric died; 9. searches with the Law Society of NSW for solicitors' firms that may hold safe custody documents or will on behalf of Mr Saric, including firms that were known to have acted for Mr Saric; 10. searches for any safe custody held on behalf of Mr Saric by Australian legal practitioners or their successors that may hold safe custody on behalf of Mr Saric; 11. searches for and with Mrs Biba Zupan, being a woman who posted an advertisement concerning Mr Saric in the Wednesday, 19 November 1980 edition of the Australian Women's Weekly; 12. searches with Ms Lidija Sambunjak, a genealogist in Croatia and Slovenia; 13. searches with various lawyers in Croatia; 14. searches with the Embassy of the Republic of Croatia in Australia; and 15. searches of the General Register of Deeds for any dealings relating to Mr Saric.

Mr Saric and the cottage

1. Mr Saric was born in 1922 in Dubrovnik, in what was then the Kingdom of Serbs, Croats and Slovenes, later Yugoslavia and now Croatia. He first came to Australia in February 1946 aboard the MV Parrakoola, on which he had embarked at San Francisco. When later applying for naturalisation, Mr Saric deposed that he had lived in Yugoslavia from his birth until March 1941, and then in the United States until February 1946.
2. In July 1951, Mr Saric was married at St Andrew's Presbyterian Church, Rose Bay to Margaret Mary Nilsen (née Burton). In about 1954 he was naturalised as a British subject and Australian citizen. Between 1951 and 1954 he resided at 71 Victoria Street, Potts Point.
3. In September 1956, Manning J made a decree nisi dissolving Mr Saric's marriage. In April 1957, this Court made a decree absolute. Mr Saric was the respondent in the divorce suit.
4. By registration of a memorandum of transfer dated 24 November 1961, Mr Saric became the registered proprietor of the land on which the cottage stands. The land was then, and remains, under the Real Property Act 1900 (NSW) (RP Act). Thereafter the cottage was his residence in Sydney.
5. In February 1965, records show Mr Saric entering Australia in circumstances where it appears that he was working on ships as an engineer.
6. Mr Saric died on Wednesday, 31 July 1968 at Calvary Hospital, Kogarah, of laryngeal cancer. Mr Paul was the informant on Mr Saric's death certificate and arranged Mr Saric's funeral, which took place only two days later on Friday, 2 August 1968 at Woronora Crematorium. Mr Saric's death certificate records his occupation as an engineer, his usual residence as the cottage, that he had no issue and had never married. It will be apparent from [15] above that this last statement is incorrect. There is no evidence that would enable to Court to determine whether or not Mr Paul ever knew of Mr Saric's marriage to Mrs Nilsen.

The search for Mr Saric's legal personal representative

1. The first question is did Mr Saric leave a will? The investigation did not reveal any will or testamentary document prepared for Mr Saric or signed by Mr Saric. Based on that negative outcome, the Court finds that Mr Saric died intestate. I record for completeness that, in my respectful view, the fact that Mr Saric died without wife or children is of itself a neutral factor in determining whether or not Mr Saric is likely to have made a will.
2. Having determined that Mr Saric died intestate, the next question is who took on his death? In 1968, that question was governed by s 49(1) of the Wills Probate and Administration Act 1898 (NSW) (WPA). In summary, the estate of a man who died without a spouse or without issue in 1968 was to be applied to the following, in this descending order: 1. Parents, or the survivor of them; 2. brothers and sisters of the whole blood; 3. brothers and sisters of the half blood; 4. grandparents or the survivor(s) of them; 5. uncles and aunts, being siblings of the whole blood of the intestate's parents; 6. uncles and aunts, being siblings of the half blood of the intestate's parents; and 7. the Crown as bona vacantia.
3. I accept Mr Turnbull's submission that no issue of the Crown taking the cottage as bona vacantia arises in this case, because there is evidence that Mr Saric had siblings, who might have survived him.
4. On the question of heirs, the investigation yielded one positive result. In the Australian Women's Weekly of 19 November 1980, this advertisement appeared: "A reader is trying to trace her uncle, Josip (Jozo) Saric, born June 18, 1921 [the Court notes this date is incorrect] in Dubrovnik, Yugoslavia. He was married to an Australian and his last known address was 71 - 73 Victoria Street, Potts Point, NSW. If anyone can help with information about him or his family please contact Mrs Biba Zupan … Lugarno, NSW 2210"
5. Mrs Zupan would not have taken on Mr Saric's death, because nieces were not a relevant category on intestacy. Nevertheless, Mr Rogers' solicitors have met with Mrs Zupan and spoken to her by telephone. What emerged from those discussions was, and the Court finds, that other than Mrs Zupan and her own family, Mr Saric has no relatives in Australia and had no relatives in Australia at the time of his death, and that Mr Saric had at least one sister (being Mrs Zupan's mother).
6. In placing her advertisement, Mrs Zupan was unaware of her uncle's death some 12 years earlier. I accept Mr Turnbull's submission that the Court should infer from this that Mr Saric had, for reasons unknown, lost contact with his family in Australia before his death. If he had lost touch with that family, the Court therefore also finds he had lost touch with any family overseas on the basis he is unlikely to have stayed in touch with the latter if he had ceased any contact with local relatives. These conclusions are fortified by records which demonstrate that Mr Saric re-entered Australia in 1964 and 1965 from being at sea as a ship's engineer, having been apparently absent from Australia since 1962.
7. The outcome of the investigation, taking into account the information from Mrs Zupan, is that Mr Saric might have been survived by one sister, or possibly more siblings, who lived abroad. He may also have been survived by his mother, Ana Saric (née Pock). I will return to the significance of this outcome in [31] and following below.

Mr Paul's possession of the cottage

1. The Court accepts Mr Turnbull's submission that the objective evidence of Mr Paul's possession of the cottage is overwhelming. The documentary evidence in support of that proposition goes back to October 1995. The only question is what, if any, conclusion the Court should draw about the extent to which Mr Paul's possession of the cottage precedes that date.
2. The Court finds: 1. Mr Paul was renting the cottage to third party tenants as landlord from at least July 1995. 2. Ms Cruz first visited the cottage with Mr Paul in September 2004 and regularly visited it with him from that date until his death in 2018. To her observation, in all respects Mr Paul treated the cottage as his own and represented to all the world that it was such. 3. Ms Cruz's evidence demonstrates that from September 2004, to her observation no person had access to the cottage other than Mr Paul and those who had his permission to be there. 4. Mr Paul was paying the water rates for the cottage with Sydney Water's bills addressed to him, the earliest such bill in evidence being in October 1995. 5. In December 2003, Mr Paul split the cost with his neighbour to erect a boundary fence, and in February 2004 he was sued at the Local Court in Sutherland with respect to fencing work done at the cottage. In 2006, he had a pergola built at the back of the cottage and had the carpets replaced. 6. Mr Paul insured the cottage, with the earliest documentary evidence dating to 2003. 7. Sutherland Shire Council addressed its rates notices to Mr Paul for the cottage, with the earliest notice in evidence being from January 1996. 8. Mr Paul paid for the electricity supply to the cottage, with the earliest bill in his name in evidence being from 2007.
3. Did Mr Paul go into possession of the cottage at some earlier date than the documentary evidence establishes? I accept Mr Turnbull's submission that the Court should draw such an inference, to the effect that Mr Paul went into possession of the cottage sometime shortly after Mr Saric's death on 31 July 1968.
4. The Court finds by inference from the following facts and matters that by 1 January 1969 Mr Paul had taken possession of the cottage: 1. Mr Paul and Mr Saric must have known each other to some extent for Mr Paul to have been the person who informed authorities of Mr Saric's death and arranged Mr Saric's funeral. 2. By reference to the address of Mr Paul recorded on Mr Saric's death certificate, at the time of Mr Saric's death Mr Paul and Mr Saric were living in nearly adjoining suburbs, Mr Paul's home being only 8 kilometres from the cottage. That proximity favours the conclusion that taking possession of the cottage promptly would not have been a practical difficulty for Mr Paul. 3. The death certificate demonstrates (because he was the informant) that Mr Paul knew the cottage was Mr Saric's residence. 4. The Court has already inferred (see [24] above) that by the time of his death Mr Saric had lost touch with his family, such as it was, in Australia and overseas. Why that occurred cannot be determined from the evidence. However, a funeral arranged at a crematorium by a non-relative within 48 hours of the deceased's death, as occurred in relation to Mr Saric, is strongly suggestive of a private occasion, although again it is impossible to determine whether that was because Mr Paul did not know of anyone to notify; or had been instructed by Mr Saric not to notify anyone; or knowing of such people, Mr Paul had decided not to notify anyone. 5. The parish register relating to Mr Saric's funeral, for which Mr Paul must also be the informant because it refers to him as the arranger of the funeral, records Mr Saric as having "no relatives". When this is taken together with the error I have noted in [18] above, either Mr Paul did not know of any relatives for Mr Saric or, if he had such knowledge, he decided not to tell anyone, or not attempt to contact any such relatives. Further and alternatively, as I have already noted, Mr Saric may have told him not to notify anyone. All of these possibilities support the finding, which the Court makes, that Mr Paul regarded himself as being at liberty to take over the cottage without further notice to anyone. 6. On any view (including the possibility - about which there is no evidence - that Mr Saric may have told Mr Paul that the latter could have the cottage, perhaps in return for care provided by Mr Paul) Mr Paul must have thought he had gained a windfall. Given the matters referred to in the preceding sub-paragraphs, and in the ordinary course of human nature when someone receives a substantial windfall or gift, the Court finds it highly unlikely that Mr Paul would have let the cottage fall into disrepair or have otherwise delayed in taking possession of the cottage as his own. The absence of documentary evidence before 1995 to support that conclusion is more than adequately explained by the passage of time and is not a sufficient reason to prevent the Court reasoning as it has.

Leave to proceed in the absence of Mr Saric's legal personal representative

1. UCPR Part 7 r 7.10 provides: 7.10 Interests of deceased person (1) This rule applies to any proceedings in which it appears to the court - (a) that a deceased person's estate has an interest in the proceedings, but is not represented in the proceedings, or (b) that the executors or administrators of a deceased person's estate have an interest in the proceedings that is adverse to the interests of the estate. (2) The court - (a) may order that the proceedings continue in the absence of a representative of the deceased person's estate, or (b) may appoint a representative of the deceased person's estate for the purposes of the proceedings, but only with the consent of the person to be appointed. (3) Any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings. (4) Before making an order under this rule, the court may order that notice of the application be given to such of the persons having an interest in the estate as it thinks fit.
2. Consideration of the question of Mr Saric's heirs concluded (see [25] above) with the possibility of relatives in Croatia. For present purposes that could not be confined to immediate relatives. If a sibling of Mr Saric or his mother survived him, that person's heirs would be entitled to whatever share of Mr Saric's estate passed on intestacy to Mr Saric's sibling or mother. The investigation included a number of communications with lawyers and a genealogist in Croatia about what would be involved in attempting to locate Mr Saric's heirs (if any). The initial outcome of those communications was that to undertake the necessary enquiries in archives, state records offices and parish registers in an endeavour to locate the relevant relatives of Mr Saric would cost up to $35,000 and would take several months.
3. This evidence was later supplemented by further advice of two serious difficulties. First, it transpired that, contrary to original expectations, some of the records that would need to be consulted had not been digitised. This would make it a slower, more labour-intensive and expensive process. Second, Mr Saric's Croatian name was an extremely common one in that country, being not dissimilar to "John Smith" in English, thereby complicating the genealogical task even further in terms of having any certainty that any Josip Šarić found in local records was in fact Mr Saric. By reason of the matters in this and the preceding paragraph, the Court finds that further searches in Croatia would have been expensive and unlikely to have found anyone who might have an interest in the cottage.
4. Taking into account: 1. the matters set out in the preceding two paragraphs; 2. the long period of time that has elapsed since Mr Saric's death, 3. the fact (as the Court has found in [24] above) that Mr Saric had lost touch with this family; and 4. that there is no evidence of any family member, including Mrs Zupan, having ever made a claim to the cottage, 5. I would have been prepared, based on those matters, to have ordered that these proceedings continue in the absence of a representative of the deceased person's estate. However, Mr Turnbull pressed a further and more obviously conclusive basis for the exercise of that discretion, being that owing to the lapse of time, any right to possession of the cottage that may have existed in Mr Saric's heirs has been definitively extinguished by operation of the applicable limitation legislation.
5. It follows from the Court's finding (see [29] above) that any cause of action on behalf of Mr Saric's estate to recover possession of the cottage came into existence on 1 January 1969. The current legislation (being the Limitation Act 1969 (NSW) did not commence until 1 January 1971 and, by s 6(1)(c), did not apply to the extinction of title to land under the pre-existing imperial legislation where the limitation period had commenced to run before 1 January 1971.
6. The Court therefore accepts Mr Turnbull's submission that the applicable limitation legislation is 8 Will IV, No 3 (NSW), the colonial statute being referred to as the Real Estate (Limitation of Actions) Act 1837 (NSW) (repealed), or on the NSW Legislation website as Imperial Act Adoption Act 1837 (NSW) (repealed) (1837 Act). This latter designation is because the 1837 Act adopted into the colony of New South Wales the Imperial Act 3 & 4 Will IV, c. 37, being "An Act for the limitation of Actions and Suits relating to Real Property and for simplifying the Remedies for trying the Rights thereto".
7. Section 17 of the 1837 Act created what is now called a long-stop period of 40 years (equivalent to the ultimate bar of 30 years - with some exceptions - under the current legislation): 17. Provided nevertheless and be it further enacted That (sic) no entry distress or action shall be made or brought by any person who at the time at which his right to make an entry or distress or to bring an action to recover any land or rent shall have first accrued shall be under the disabilities hereinbefore mentioned or by any person claiming through him but within forty years next after the time at which such right shall have first accrued although the person under such disability at such time may have remained under one or more of such disabilities during the whole of such forty years or although the term of ten years from the time at which he shall have ceased to under any such disability or have died shall not have expired.
8. Section 34 of the 1837 Act has the effect of abolishing the paper owner's title upon expiry of the long-stop period: 34. And be it further exacted That (sic) at the determination of the period limited by this Act to any person for making an entry or distress or bringing any writ of quare impedit or other action or suit the right and title of such person to the land rent or advowson for the recovery whereof such entry distress action or suit respectively might have been made or brought within such period shall be extinguished.
9. The result is that, by applying the finding of fact which the Court has made in [29] above, the Court concludes that any cause of action to recover possession of the cottage by Mr Saric's legal personal representatives was completely extinguished from 1 January 2009. For this reason, further and in addition to the matters referred to in [33], the Court was satisfied that it was appropriate to order that the proceedings continue in the absence of a representative of Mr Saric's estate because his estate no longer has a cause of action to retake possession of cottage.

The possessory title application

1. I respectfully adopt and apply as an accurate summary what fell from Darke J in McFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629: 40 A convenient starting point is s 45D [of the RP Act] itself, which relevantly provides: (1) Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and: (a) the land is a whole parcel of land, (b) the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land, and (c) the land is comprised in an ordinary folio of the Register or is comprised in a qualified or limited folio of the Register and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the creation of the qualified or limited folio of the Register, that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land. … (5) A possessory application shall be in the approved form and shall be accompanied by such evidence and documents of title, and (in the case of an application under subsection (2A)) such evidence of concurrence on the part of the local council, as the Registrar-General may require. 41 Section 45E relevantly provides: (1) Subject to section 45F, the Registrar-General may grant a possessory application if the Registrar-General is satisfied that the application: (a) was authorised by section 45D (1), (2) or (2A), (b) was not made in breach of section 45D (3) or (4), and (c) complies with section 45D (5). (2) Where the Registrar-General intends to grant a possessory application and, pursuant to section 12 (1) (h) or 12 (1A), gives notice of that intention the Registrar-General shall, in the notice, specify a period (being not less than 1 month after the date of the notice) before the expiration of which the application will not be granted. … (6) The Registrar-General may make such recordings in the Register, and take such other action, as the Registrar-General considers necessary or proper as a consequence of the grant of a possessory application. 42 These provisions need to be considered alongside s 45C(1), which is in these terms: (1) Except to the extent that statutes of limitation are taken into consideration for the purposes of this Part, no title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute. … 53 There was no real dispute as to the principles applicable to a claim based on adverse possession. I was referred by the plaintiffs to the well-known statement of Bowen CJ in Eq in Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475. His Honour there stated (in relation to the Imperial limitation statute that formerly applied in New South Wales): Possession which will cause time to run under the Act is possession which is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner. Lord Shaw of Dunfermline, giving the opinion of the Privy Council in Kirby v. Cowderoy, discussed the nature and incidents of adverse possession. Adopting earlier judicial observations, he said: "Possession 'must be considered in every case with reference to the peculiar circumstances … the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests; all these things, greatly varying as they must under various conditions, are to be taken into account in determining the sufficiency of a possession'." 54 Reference was also made by the plaintiffs to the judgment of Slade J in Powell v McFarlane (1979) 38 P&CR 452, especially at 470-472 as follows: It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law: (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. … 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, was defined by Lindley M.R., in Littledale v. Liverpool College (a case involving an alleged adverse possession) as "the intention of excluding the owner as well as other people." This concept is to some extent an artificial one, because in the ordinary case the squatter on property such as agricultural land will realise that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in a position to exclude him. What is really meant, in my judgment, is that 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 possessor, so far as is reasonably practicable and so far as the processes of the law will allow. The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation 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.
2. In considering s 45D(1) of the RP Act and applying those principles, the Court accepts Mr Turnbull's submissions that: 1. The right of Mr Saric's heirs to possession of the cottage has been extinguished (see [38] above). 2. Part 6A of the RP Act (which includes s 45D(1)) commenced on 1 June 1979. However, for that section to apply, possession need not have commenced after its commencement. That conclusion follows from the chapeau to s 45D(1) which refers to "where a person is in possession of land" "at any time after the commencement of this Part". 3. Mr Paul had both the factual possession and the requisite intention to possess the cottage and, while unnecessary as a matter of law, treated it as though he owned it. He stayed at the cottage, he rented it out, he paid for all the relevant outgoings and did not let anyone go into it without his permission as tenant or invitee. While the documentary evidence in support of those conclusions only dates from 1995, the Court finds that he had the intention to exercise possession of the cottage from the time the Court has found he in fact took possession, being by 1 January 1969 (see [29] above). 4. His possession of the cottage was open. There is evidence that his neighbours saw him and that he interacted with them in relation to the cottage (including as to its fencing). The suppliers of water, electricity and the Council knew about him, together with the fact that his wife observed him treating the cottage as his own. 5. The Court finds that Mr Paul's possession was peaceful. There is no evidence that any violence was used in his taking of possession of the cottage. Moreover, the Court infers from the matters referred to in [29] above that Mr Paul had been given a key by Mr Saric or, at least, would have had access to a key among Mr Saric's personal effects when he died. 6. The Court finds that Mr Paul's possession was not by consent. It may be accepted that Mr Rogers faced a forensic challenge in having to prove a negative in the absence of a contradictor. It must also be borne in mind that an absence of evidence of "X" does not necessarily prove "not X". Nevertheless, the Court is satisfied on the balance of probabilities that Mr Paul's possession was not by consent. The absence of any identifiable legal personal representative supports the conclusion that Mr Saric's estate never consented to Mr Paul going into possession. It might be objected that Mr Saric's eligible heirs have never had the opportunity to consent or not, but it is not a requirement that the paper owner be given a possibility of dispossessing the adverse possessor. Furthermore, there is no evidence that Mr Paul went into possession under a lease, licence or any other form of consensual relationship with Mr Saric's estate or heirs.
3. Before formally expressing the Court's final conclusion, it is also necessary to record that, conscious of the absence of a contradictor, Mr Turnbull drew to the Court's attention three matters that might adversely affect Mr Rogers' case: 1. There was evidence that in December 2010, Mr Paul appears to have caused a power of attorney to be prepared that was purportedly executed by Mr Saric on 7 December 2010. That was an impossibility, given Mr Saric had died years earlier. There is no evidence that Mr Paul ever used this purported power or attorney with respect to the cottage or any other property in Mr Saric's name. While on its face it is discreditable, I am not satisfied that the creation and registration of that power should, in the exercise of the Court's discretion to make the primary declaration sought, disentitle Mr Paul's estate to the cottage. 2. In 2016, Mr Paul asked Mr Rogers to prepare a mortgage to be registered over the cottage. This could give rise to the suggestion that Mr Paul was intending to use the mortgage as a vehicle to become the registered proprietor of the cottage by foreclosure, in circumstances where Mr Saric owed him no money (or at least there was no evidence of such a debt). Whatever the reason, the mortgage was never registered or used. Again, the fact that it was never used satisfies me that having given instructions for its creation should not disentitle Mr Paul's estate to the cottage. 3. The Court has found that the 1837 Act applies. Mr Turnbull drew to attention that if that were the Court's conclusion, it would be open to Mr Saric's heirs to argue that they laboured under a statutory disability, as being within the definition of "absence beyond seas" under s 19 of the 1837 Act. In the light of the Court's findings (see [29] and [38] above), I accept Mr Turnbull's submission that any possible disability is irrelevant, because it is conclusively overcome by the 40 year long-stop period having passed.

Conclusion

1. For these reasons, the Court was satisfied that Mr Rogers, as the executor of Mr Paul's estate, was entitled to be entered on the register in that capacity as the registered proprietor of the cottage.

Amendments 17 May 2024 - Amendment to solicitors and counsel for first defendant DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2024