HIS HONOUR: This is a dispute as to whether the plaintiff has established a sufficient possessory title for the Registrar General to grant her a certificate of title under s 45E of the Real Property Act 1900.

The land concerned is near Currowan on the Clyde River west of Nelligen. The deposited plan of the land would tend to show that the land was closely settled because it would appear that it is bounded on three sides by roads, Clyde Street to the south, Oldrey Street to the west and Mimosa Street to the east. The Clyde River is to the north. However, none of the streets are formed and indeed there is very little habitation for about 10 kilometres any side of the subject property. Access to the property is off a dirt road which in due course connects with a road between Nelligen and Shallow Crossing. Once one leaves that road one reaches a gate set in concrete posts and as one proceeds through the gate some distance there is another house on the righthand side of the road as one proceeds towards the river which house I will call in this judgment "the estate house" because it is owned either by the defendant or the estate of Duncan Shaw. The subject property is further down the hill and consists of a relatively dilapidated house with a rusted iron roof built on wooden pylons on land with an area of about 12,875 square metres. The land is used partly for garden and partly for grazing.

The hearing of this case lasted three days. Mr F Donhohoe appeared for the plaintiff and Mr Armfield appeared for the defendant. I pay tribute to them both for the way in which they conducted the case. On the first day I heard evidence in Sydney. On the second day I had a view of the site together with the parties and their counsel and I indicated what my observations were. These were recorded in open court and counsel had the opportunity of correcting my observations. With some minor corrections, the observations were acquiesced in by both counsel. The evidence was concluded at the Moruya Court House on the second and third days.

The plaintiff was born on 7 March 1955 and is thus now 41 years of age. She is the daughter of George Shaw. It is common ground that, prior to 28 March 1961, George Shaw was the registered proprietor of the property. On that day, George Shaw, for a consideration of 10 shillings, signed a memorandum of transfer which was later registered as H218333 by which he transferred the land plus the land in an adjoining certificate of title Volume 8005 Folio 192 to his brother Duncan Shaw. The notice of sale lodged with the Eurobodalla Shire Council noted that "The transferee accepted liability for payment of arrears as at 7th June 1957 and agreed to pay all future instalments."

As a result of that transfer, Duncan Shaw became the registered proprietor of the land. Duncan Shaw died on 31 December 1978. His widow, Marion, now Mrs Darkin, transferred the property to the defendant who became the registered proprietor on 5 February 1980. The defendant has paid all the rates on the property from 1980 to date.

Despite the transfer, George Shaw remained on the property until at least the middle to the end of 1981. The defendant, however, says it was more like 1984 before George Shaw moved from the land. George Shaw moved to Bega and died on 4 June 1989.

The defendant says that his first involvement with the land with the exception of camping occasionally around the area was in 1979. He says his father William Garbutt met Mrs Darkin at the funeral of her late husband Duncan Shaw and William Garbutt and Mrs Darkin became close friends. William Garbutt introduced Mrs Darkin to the defendant shortly afterwards. Mrs Darkin told the defendant that she had properties for sale at Shallow Crossing and the defendant said he would be interested in looking at them. Mrs Darkin informed the defendant that there were people living on the subject land. She told him, "Duncan's brother is still on the property but I am going to evict him." The defendant visited the property and saw that there were people living there. He settled the sale of the property on 29 November 1979.

In February 1980, the defendant commenced proceedings in ejectment against George Shaw being proceedings 9642 of 1980. In those proceedings George Shaw denied that he had executed transfer H218333 and said that the transfer was not his deed. George Shaw swore an affidavit in those proceedings, which, over objection, was read in the current proceedings. He swore that transfer H218333 was forged and alleged that Marion Darkin knew of the forgery. The proceedings came on before Master Sharpe as he then was, on 9 October 1981. Mr McGovern of counsel appeared for the defendant; there was no appearance for the plaintiff. The learned Master ordered the proceedings be dismissed with costs.

The defendant says his non-appearance and the subsequent dismissal of those proceedings came about by the incompetence of his then solicitors. He says that he understood that those proceedings were to be settled on the basis that George Shaw would vacate the property by the end of 1981. He further says, however, he only became aware of the fate of the proceedings in July 1995 when he read an affidavit sworn in the present proceedings.

In fact, I am sure that George Shaw did vacate the property about the end of 1981. There was some dispute about this in the evidence. The defendant presented evidence to show that George Shaw was seen on the land after 1981. However, the plaintiff gave evidence that she was cohabiting on the land with one Raymond Connolly from mid-1980 and her first son Worzil was born on 1 February 1982 and her father left before her son was born. I would accept this as being correct.

However, on 14 July 1982, George Shaw lodged caveat No T181626. That caveat claimed that George Shaw was the "Owner of the whole of the estate in Fee Simple having been deprived as registered proprietor by the fraud of Duncan Shaw in transfer registered on 13th June 1961 and of subsequent registered proprietors and, or alternatively as owner of the whole of the estate in fee simple having acquired the right by adverse possession as against registered proprietors since 13th June 1961." The plaintiff says that this caveat came about because she instructed solicitors to put a caveat on the title protecting her interest. She says that the solicitor advised her that the caveat should be put on "in dad's name". No attempt appears to have been made to remove the caveat until the defendant's present solicitors served a lapsing notice under s 74J of the Real Property Act on the plaintiff about 26 May 1995.

It would appear that no action was taken following this notice and the caveat has now lapsed. However, there are two current caveats on the title. There is caveat O251603 which is to prevent the Registrar General granting an application under s 45E of the Real Property Act. The plaintiff has also lodged a caveat O318560 which claims that George Shaw was fraudulently dispossessed of the land and that the plaintiff also has an interest by way of adverse possession claiming the interest of her "successor" (sic) in title "George Shaw".

It was contended by George Shaw (after the defendant commenced eviction proceedings against him in February 1980 and again in the caveat lodged by him on 14 July 1982) and later by the plaintiff (in her caveat lodged 17 June 1994), that he had been wrongly dispossessed of the land in question, Duncan Shaw having forged George Shaw's signature to the memorandum of transfer and thus secured a conveyance of the land to him by fraud. It is not, however, necessary to consider this question in these proceedings because Duncan Shaw and the defendant gained an indefeasible title by registration and there is no material currently before the court on which a contrary personal equity could be founded.

The plaintiff says that she first resided in the premises on the property in 1959 when she was four. She lived there with her father, George, and her brother Phillip who is now deceased, as well as her sister Cheryl. Cheryl is alive and living in Canberra, but gave no evidence in these proceedings. The plaintiff left the property in December 1971 when she was about 16 and moved to Wollongong. George, Philip and Cheryl Shaw continued to reside on the property and the plaintiff visited it from time to time. George Shaw had a heart attack sometime in 1974 and the plaintiff returned to the property at the end of that year or at the beginning of 1975 and lived there until 1979. Philip quit the property in about 1975 and Cheryl left in about 1977. The plaintiff returned to the property in 1980 and has lived there ever since. From mid-1980 until 1984 she lived on the property with Mr Connolly who is the father of her two children, Worzil and Samantha, the latter being born on 20 October 1983. Since 1984 the plaintiff, Worzil and Samantha have been the sole occupants of the property.

Since her father left, the plaintiff has done work on the property. I will detail that work later in these reasons. There was a dispute as to just how much, but it seems to me that the defendant's version of how little the plaintiff did is based to a large extent on his general antipathy towards the plaintiff and he was really not in a position to see what she has in fact done. I thus accept the plaintiff's evidence on this aspect of the case.

The plaintiff commenced these proceedings on 20 June 1995. She had already applied to the Registrar General for a title under s 45D of the Real Property Act by application O852019 earlier that month, but the Registrar General was unable to grant that application because of a caveat by the defendant. Although the parties have not followed the prescribed procedure for bringing the dispute before the court, the present suit is essentially one to establish whether the plaintiff has the appropriate possessory title for the Registrar General to grant her application.

peacefully without the consent of the Defendant and

any amount, whether in respect of her occupation of

The defendant denies the matters of fact pleaded in para 15. It is accordingly necessary to look at the defendant's knowledge of the plaintiff's occupation and what the defendant did about it.

I should mention that the defendant filed a cross claim on 19 July 1995. The decision on the claim will automatically enable me to decide the cross claim.

Shortly before Christmas 1981, the defendant attended the property with his wife, his daughter and his daughter's then husband. He says that he and his then son-in law got out of the car and a man whom he now knows to be Mr Connolly, "came racing out of the house yelling: `It's private property - get off'". The defendant said, "It is my property not your property. I have come here to find out when you are getting off." Mr Connolly allegedly said, "We are not going. It took you 12 months to get before the court and it will take you another 12 months to get it going again." Mr Connolly went to the house and returned carrying a gun and with two other men. The defendant says that he got back in the car and drove off but the other men got into a car and followed them down the road. Mr Connolly's behaviour on this and subsequent occasions is of relevance insofar as it could be said to affect the quality of the plaintiff's possession of the property; this will be discussed later.

The defendant returned to his solicitor who indicated that "We will have to list the matter before the Supreme Court again." However, despite being passed from solicitor to solicitor in the firm, nothing happened and the defendant merely says he left the matter in his solicitors' hands.

The defendant then said in 1982 he met Mr Connolly and the plaintiff at his house in Port Kembla. The defendant's wife and son were also present. He says the plaintiff said to him, "I will give you the $3000 you paid for the land if you sell it to me." The defendant rejected this offer and Mr Connolly and the plaintiff got up immediately and left. The whole conversation took about five minutes.

It is common ground that the meeting took place. What was said at the meeting, however, is in dispute. Mr Connolly and Ms Shaw say that Mr Garbutt wanted $45,000. Mr Garbutt denies this. I am unable to say one way or the other which is the version which is more likely to be correct, but it does not really matter very much. The significance of the meeting is that (a) it took place; and (b) on whatever version one accepts, the plaintiff made an offer to purchase the defendant's interest.

The defendant then says that somewhere in 1982/83 he went to the property again. Again Mr Connolly ran towards him with a firearm and yelled, "This is private property - get off." In 1983 new gates were installed across the dirt access road approximately a kilometre up from the house and on subsequent visits these gates were locked and the defendant was not able to get any closer to the property than the gates.

In late 1983 the defendant says he attended the Wollongong Local Court and saw the chamber magistrate and told the magistrate that he had left the matter with a solicitor. The magistrate said, "You have to be very careful and go and get another solicitor." The defendant says he took the papers from his former solicitors to another solicitor at Warrawong and instructed him to start proceedings against "the Shaws". For the next six years the defendant says that he attended his new solicitor and was told that there were no new developments. He was, however, told in 1989 that George Shaw had died intestate. Nothing further happened until 1994 when George Shaw's caveat lapsed.

Mr Connolly gave evidence. He said that he could not remember speaking to the defendant on any occasion. He does, however, recall a couple of occasions where people strayed on to the land and it was his custom to say, "Are you in the right place? Are you lost? Can I help you?" because he found that, the place being so isolated, the only chance visits by strangers were by people who were lost by taking the wrong turning on their way to Shallow Crossing. Mr Connolly says that between 1980 and 1984 he had a shooter's licence and he would often carry a shotgun to shoot rabbits or feral pigs, but he denies that he ever yelled or shouted at anybody or forcibly ejected anybody when carrying a shotgun or at all.

The defendant's brother Kenneth Garbutt gave some evidence that in about 1980 he was attempting to sell some of the property and stayed overnight at the estate house. Kenneth Garbutt said that he was visited by Mr Connolly holding a 303 rifle in his hands who asked him, "What are you doing here mate?" When told that Kenneth Garbutt was here to sell Marion Darkin's property, Mr Connolly replied, "It's private property mate. She doesn't own it."

Mr Connolly gave evidence that he did remember on one occasion seeing a light on in the estate house at about 8 o'clock in the evening, and went up to see what was happening. He possibly had his rifle with him on that occasion, but he did not remember. Mr Connolly denies that he said that Mrs Darkin did not own the property and all he can remember of the conversation was that Kenneth Garbutt said he was thinking of buying the property.

A retired police officer, Brian Maguire gave evidence that in about 1983 he was camping on the Clyde River and was approached by a man with a rifle over his shoulder. The man said, "You are on my property. Pack up and go" and yelled at him. Mr Maguire said that he told the man he was on a public reserve and after abuse the person with the gun returned to the subject house.

The defendant's son Peter gave evidence that in 1982 he visited the property with the lady who was then his fiance but is now his wife, Andrea, and Andrea's friend, Elizabeth Meldrum. He says that they drove past the house and turned their vehicle around. He observed a man run out of the house with a rifle who yelled at them, but he drove off quickly and did not return.

The visits of the defendant and of Mr Peter Garbutt were duly corroborated.

I consider that despite what Mr Connolly says, the great bulk of the credible evidence shows there was a series of incidents where Mr Connolly came out of the house between 1980 and 1984 carrying a rifle and that this frightened members of the Garbutt family from coming near the land. I find this to be the fact.

The plaintiff gave evidence that she was pregnant in 1981 and 1982 and didn't involve herself with any intruders who may have come on to the land. She has no memory, however, of Mr Connolly taking a rifle and running out of the house. The defendant said in evidence that at the Christmas 1981 visit he saw the plaintiff standing just inside the door and she came out of the house and was in the background.

I think it is more likely than not that the plaintiff was around when at least some of the incidents which the defendant's witnesses deposed to took place. It would seem to me more likely than not that time has erased the plaintiff's memory about the incidents rather than they did not happen.

There was, however, no evidence that the plaintiff authorized Mr Connolly to repel intruders, with or without a rifle. There was also no evidence that the plaintiff was in a position to control what Mr Connolly did. Indeed, if there was a hot-tempered young man living in the house with a rifle, and a woman with two very small children, I would tend to think that it was more likely than not that the plaintiff was not in any position to control Mr Connolly. The cases decided under the Landlord & Tenant (Amendment) Act 1948, s 62(5)(d), that is, cases which raise the question whether a lessee had been guilty of conduct which is a nuisance or annoyance to adjoining occupiers, made it clear that if the acts complained of were the acts of a spouse or child, there had to be some evidence that the tenant was guilty of some lack of control. The mere fact that the act occurred was insufficient; see Fraser v Dummett (1948) 67 WN (NSW) 129; Ex parte Cranfield; Re Evans (1955) 72 WN (NSW) 463 and Blee v Kearney (1961) 79 WN (NSW) 431. It seems to me that the same principle applies here, so that it really does not matter what conclusion I come to on this matter of fact.

I have considered the basic facts. I will now analyse the problem under the following headings:-

A. Are the conditions of s 45D (in particular subsections

(1)(b) and (4)) of the Real Property Act 1900 satisfied

other requirements are met, to grant the plaintiff's

application for registration under s 45E of that Act?

B. When, for the purposes of the plaintiff's application,

C. Did time stop running at any stage prior to the expiry

D. Has the plaintiff established that her possession

A. Are the conditions of s 45D (in particular subsections

(1)(b) and (4)) of the Real Property Act 1900 satisfied?

Prior to the enactment of Part 6A of the Real Property Act, there was little place for possessory title under Torrens System land. However, by that Part, the common law as to possessory title was virtually made applicable to Torrens Title land. Section 45D(1)(b) of that Act provides that a person in possession of land may apply at any time to the Registrar General to be recorded as the registered proprietor of the land if:

"the title of the registered proprietor of an estate

in force at that time and any earlier time applied,

It is therefore necessary, as a preliminary question and leaving aside the question as to whether the defendant's title could be said to have been "extinguished", to consider which statute or statutes of limitation would be applicable to the present case.

"Statutes of limitation" is not defined in the Act. The term obviously includes the law dealing with limitation of actions for the time being such as the Limitation Act 1969. Does, however, the expression also catch up other laws which deal with time defeating documentary titles?

It would seem that the only possible statutory provision which might be classed as a statute of limitation so as to be relevant in the instant case is s 50 of the Conveyancing Act, that is, the re-enactment of the Act 32 Henry VIII ch9 (Imp) (known as the Bill of Bracery and Buying of Titles or the Pretenced Titles Act). It will be remembered that when Duncan Shaw took his title, George Shaw was still in possession and that George Shaw was still in possession when the defendant took his title. Is it then possible that the defendant's title is detrimentally affected by not being in possession when the conveyance was taken?

The Pretenced Titles Act is not, strictly speaking, a statute of limitation. It provides not that title is to be unenforceable or extinguished after a period of time, but rather that the title is to be void ab initio as against certain persons.

In Gregory v Torquay Corp [1911] 2 KB 556, 559, Pickford, J said of a County Court rule which referred to people pleading "any statute of limitations", "There is no definition of the expression `statutes of limitations' but in my opinion it cannot be confined to statutes which by their title are so styled ... . At the same time I do not think it right to hold that every statute which imposes a limitation upon a right of action is necessarily a statute of limitations. ... It seems to me that prima facie any statute which imposes a limitation of time upon an existing right of action is properly called a statute of limitations. It is necessary, therefore, in each case to look at the particular statute and see what its effect is."

There is a definition of "limitation law" in s 78 of the Limitation Act, 1969, but that is only for the purpose of that Act and not for the purpose of the Real Property Act.

Again, if Ms Shaw only is claiming independently of George Shaw, the Pretenced Titles Act cannot assist because it only would avoid the defendant's title as against George Shaw, the person then in possession. In view of other findings, it is unnecessary to examine the complications that arise if Ms Shaw can tack her possession onto the previous possession of George Shaw.

Indeed the complications lend weight to the suggestion that the inclusion of s 50 in the Conveyancing Act was ill advised; see Baalman (1957) 31 ALJ 450. In general see also Nicholas v Anglo-Australian Investment Finance & Land Co (1890) 11 LR (NSW) (L) 354 and Kirk v Sutherland [1949] VicLawRp 7; [1949] VLR 33, 38-9.

It follows that the only relevant statute of limitation in these circumstances is the Limitation Act 1969. It is not necessary to consider any earlier statutes of limitation because, as will become apparent, the period of adverse possession with which we are concerned commences after the enactment of the current Limitation Act.

It is also necessary to consider s 45D(4) of the Real Property Act, which prevents the lodgment of a possessory application unless the whole of the period of adverse possession (in this case, twelve years) has run against the current registered proprietor if that proprietor became registered for valuable consideration and without fraud. Clearly the defendant did become registered as proprietor of the land for valuable consideration and without fraud. Accordingly, the court cannot take into account any period of adverse possession by George Shaw (or any other person, for that matter) prior to the registration of the defendant on 5 February 1980, that being the date upon which the defendant became the registered proprietor of the land. As the plaintiff's application does not rely on possession prior to that date, this provision poses no obstacle to her claim for registration.

In answer to A, the relevant requirements of s 45D of the Real Property Act 1900 have been satisfied.

B. When, for the purposes of the plaintiff's application, did time start running?

On the facts as I have found them, Ms Shaw commenced her period of independent occupation of the property somewhere between the middle and the end of 1981. I have also concluded that George Shaw had left the property by the end of 1981. On the basis of these conclusions it is necessary to fix a date from which time should be said to have started running for the purposes of the limitation period.

In the present case, time would have started running at the point at which the following requirements were satisfied: (a) the defendant, though entitled to possession was not in possession of the property; and (b) the plaintiff (or possibly her father) was in adverse occupation of the property. The first requirement is clearly made out. The second requirement is governed by s 38(1) of the Limitation Act 1969, but, as counsel for both parties have pointed out, the facts of the present case do not fit neatly into any of those provisions of the Limitation Act (ss 28-31) dealing with the first requirement. Despite this, it seems clear that the relevant period would have been the time at which the defendant became the registered proprietor of the land, that is, 5 February 1980.

Can the plaintiff add her father's period of adverse possession (since 5 February 1980) to her own for the purpose of establishing the point at which time should start running?

Clearly it is possible to count a period of possession that was amassed by a predecessor in title, or even to combine the period of occupation of a series of trespassers who do not derive title from each other, so long as there is continuous adverse possession (Limitation Act 1969 s 38(2); this was also the case under common law: see Allen v Roughly [1955] HCA 62; (1955) 94 CLR 98, 131-132; Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464, 476). On the facts of the instant case, there appears to be no reason why one would not count the period of occupation of George Shaw between the registration of the defendant as proprietor of the land, and the end of 1981. This is so even though, before the end of 1981, the plaintiff was a daughter living in the same house as her father and the normal inference one draws from that circumstance in the absence of any other factors, is that she was a licensee of her father; see Cole, Law and Practice in Ejectment (1857) p 84.

Accordingly, the earliest period of adverse possession (as against the defendant) should be counted as running from 5 February 1980.

C. Did time stop running at any stage prior to the expiry of the requisite twelve year period as a result of the conduct of the plaintiff and/or the defendant?

Having established the point at which time could be said to have started running, it is necessary to consider whether time was suspended or ceased to run prior to the expiry of the limitation period. Four events are of particular interest which I will discuss in turn:

(ii) the defendant's entry onto the property in 1981 and 1982 or 1983;

Events (i), (ii) and (iv) are relevant because they may amount to a sufficient entry to interrupt time running. Events (iii) and (iv) may amount to an acknowledgment of the defendant's title.

In Symes v Pitt [1952] VicLawRp 55; [1952] VLR 412, 430, Sholl, J said, "There is a considerable body of authority upon the question what is a sufficient resumption of possession to stop the period running. It is clear that paper claims, eg, in this case, the correspondence - do not have such effect ... (a) An entry in assertion of title by the true owner is ineffective to interrupt the period, unless it amounts to a resumption of possession by him ... (b) But it appears to have been long settled that it is unnecessary for the true owner, if he does retake possession, to stay in possession. It is immaterial how short the resumed possession may be ... (c)". I have omitted the authorities to which his Honour referred as the textbooks from which he quoted have gone into new editions.

Where I have placed the "(a)", Sholl, J referred to what is now Voumard, The Sale of Land, 5th ed [10340]. In addition to the authorities there mentioned, the main one being O'Neil v Hart [1905] VicLawRp 21; [1905] VLR 107, I would add Mount Carmel Investments Ltd v Peter Thurlow Ltd [1988] 1 WLR 1078 and Butt on Land Law, 3rd ed (LBC Sydney 1996) [2228].

Where I have placed the "(b)" his Honour referred to the 2nd edition of Halsbury's Laws of England Vol 20 p 710. The corresponding paragraph in the 4th ed is [775] in Volume 28.

Where I have placed the "(c)", the learned judge discussed Randall v Stevens [1853] EngR 767; (1853) 2 El & Bl 641; 118 ER 907 and Worssam v Vandenbrande (1853) 17 WR 53.

In the former case, in 1839, the true owner physically evicted the squatter and his family after 19 years of squatting and removed all his goods from the house. The squatter almost immediately resumed possession. However when, in 1852, the squatter was again dispossessed, it was held that his title commenced in 1839 and not 1819. In the latter case, the true owner came onto the land for 45 minutes and removed a fence, the sole evidence of the squatter's possession. That was held to be a sufficient entry.

Section 39(a) of the Limitation Act 1969 provides that "a formal entry on land is not of itself possession or evidence of possession of land". What "formal entry" was meant to cover is explained in Randall v Stevens supra at 652 (ER 911-2). At law a formal entry could occur for certain purposes by re-entering stealthily at night pronouncing certain verbal formulae without any intention of retaking possession. An example is Doe d Baker v Coombes [1850] EngR 439; (1850) 9 CB 714; 137 ER 1073.

Is the issue of a summons for possession a re-entry other than a formal re-entry? Probably (though the matter is arguable) the issue and service of a statement of claim or summons for ejectment effects a re-entry, see McKinnon v Portelli (1959) 60 SR (NSW) 343, 347 and see Serjeant v Nash Field & Co [1903] 2 KB 304.

Is the issue and service of the summons a mere formal re-entry?

Professor Butt in the 3rd ed of his Land Law [2228] p 834 suggests not. It may be more precise to say that one has to look at the whole of the relevant circumstances. The mere issue and service of a summons may not be enough. However, issue and service of a summons with the intention of obtaining an order for possession is more than a formal re-entry. It matters not that that intention is subsequently changed or that the summons is dismissed.

Hence, the defendant's institution of proceedings for an order for possession of the land would have stopped time running. It has been stated that those proceedings were commenced in early 1980. However the exact date is not of consequence because the defendant's claim was dismissed on 9 October 1981 because of his non-appearance. The effect of the dismissal was that time started running anew from that date and the earlier period of possession does not count.

(ii) the defendant's entry onto the property in 1981 and

The defendant did enter the property on more than one occasion after the proceedings were dismissed in October 1981. The question is whether these entries were anything more than formal. This is really a question of fact. I have already referred to some of the leading cases. Reference should also be made to the local cases of Hodgson v Thompson [1906] NSWStRp 92; (1906) 6 SR (NSW) 436, 440 and Scanlon v Campbell [1911] NSWStRp 50; (1911) 11 SR (NSW) 239 where surveying was held to be sufficient and see Simpson v North West CC (1978) 4 BPR 9277, 9293.

In Lightwood, The Time Limit on Actions (Butterworths, London 1909) p 11, the learned author rightly points out that stronger evidence of an intention to resume possession is required in cases where the true owner knows of the squatter than otherwise.

In the present case, the actions of the defendant on each occasion could not be said to be acts reasserting his right to possession and having the necessary animus possidendi. Admittedly, the actions of Mr Connolly would most likely have

prevented the defendant from achieving anything more than a formal entry of the land, however this does not obviate the need for the documentary owner, if relying on a retaking of possession, rather than the institution of proceedings, to stop time running, to show sufficient acts of repossession. Accordingly, the entry of the defendant onto the land on various occasions did not stop time running.

(iii) the plaintiff's offer to pay the defendant $3,000

It is agreed between the parties that, some time in 1982, the plaintiff went to the defendant's home and offered him $3,000 for the property.

Section 54 of the Limitation Act 1969 provides that where the person against whom the cause of action lies confirms the cause of action, time stops running. Presumably, an offer to pay the defendant $3,000 for the property might constitute an acknowledgment to the defendant of his right or title to the property as required by s 54(2)(i) of that Act. In Edgington v Clark [1964] 1 QB 367, letters containing offers from a squatter to purchase the land from the documentary owner were held, under the circumstances, to constitute an acknowledgment for the purposes of s 23(1)(a) of the Limitation Act 1939 (UK), a provision the wording of which resembles that of s 54(2)(i) of the NSW Limitation Act 1969. That case was approved by Bryson, J in Cawthorne v Thomas (1993) 6 BPR 13,840 at 13,845 where, however, his Honour emphasised that:

Lordships' judgment shows the need for consideration

There is a considerable amount of learning over the years as to how far acts which were primarily intended to be gestures of settlement can amount to acknowledgments, see for instance Doe d Curzon v Edmonds [1840] EngR 62; (1840) 6 M & W 295; 151 ER 421; Cahuac v Cochrane (1877) 41 UCR (QB) 436; Johnston v Smith [1897] 2 IR 82. In the United States it would seem very slight acts may be held to constitute acknowledgments, though the question is always one of fact: Hunt v Guilford 4 Ham 317 (1831) (Ohio); Perkins v Blood 36 Vt 273 (1863); Horton v Davidson 19 A 934 (1890) (Pa).

However, there is no point in examining these in detail because s 54(4) of the Limitation Act 1969 specifies that the acknowledgment must be in writing and signed by the maker. It is on this basis that the plaintiff's offer to purchase the property (being, as it was, oral) cannot be said to constitute a confirmation of the defendant's title to the land.

(iv) the plaintiff's lodgment of caveats on the property

Each of these caveats refer not only to a claim to adverse possession, but also, in the alternative, to the "fraudulent dispossession of the interest of George Shaw" to the property. Could these caveats be characterised under s 54(2)(i) as an implicit acknowledgment of the defendant's right or title to the property such as to found a confirmation which would stop time running? There does not appear to be any Australian or English authority relating to this issue but the Canadian decision of Urban v Urban (1994) 21 Alta LR (3d) 405 is of some assistance. In that case, the claimant in an application for a declaration of title based on adverse possession had lodged a caveat with a claim both for adverse possession and, in the alternative, original entitlement to the land by means of an agreement with the claimant's late father. It was argued by the documentary owners that the claim in the alternative amounted to an implicit acknowledgment within the meaning of the relevant limitation statute. The Alberta Court of Appeal rejected this argument, concluding that "a claim of original entitlement and a claim for adverse possession are not entirely contradictory because they can exist together" (at 409). The court refused to infer an acknowledgment of the documentary owner's title from the existence of an alternative claim to the land in the caveat. The decision appears correct and I should follow it. In any event, the wording of the 1982 caveat and the fact of its lodgment must be taken as one of a series of facts and not in isolation. The plaintiff had only recently become the sole possessor, and once one disposes of the defendant's contention that George Shaw was still in possession in 1982, it is hard to see how the plaintiff acquiescing in a claim by George which claim would have only enhanced her own rights could be counted as putting an end to her period of possession. It certainly by itself amounts to some possible acknowledgment that she was not as at that date claiming the land as of right, but when one bears in mind that the caveat also sought to assert the claim by George Shaw in fraud, that inference is to my mind neutralised.

Thus, I conclude that time did stop running when the defendant instituted proceedings against George Shaw in 1980 but that time started anew when those proceedings were dismissed on 9 October 1981. No other events occurring after that time had the effect of suspending or stopping time prior to the expiration of the limitation period on 9 October 1993.

D. Has the plaintiff established that her possession, during the relevant time period, was "adverse"?

If, as I have concluded, the plaintiff has been in possession of the property for the necessary period of twelve years since October 1981, it now remains to be considered whether the plaintiff's possession during that time could be said to be "adverse" so as to allow her to become the registered proprietor of the land. An examination of the relevant case law is necessary to determine the characteristics of "adverse possession"; the term is used in s 38 of the Limitation Act 1969 but that provision states only that "`adverse possession' is possession by a person in whose favour the limitation period can run". (s38(4)(a)).

It is helpful to start with the general statement made by Underwood, J in Woodward v Wesley Hazell Pty Ltd (Supreme Court of Tasmania, unreported, 17 March 1994, but noted in [1994] ACL 355 Tas 1 and (1994) 3 Tas LR 481) where his Honour said the following:

"It is well established by authority that to dispossess the owner of the fee simple there must be actual possession of the land without licence. That possession must consist of:

1. an appropriate degree of exclusive physical control of the land in question; and

2. an intention to possess that land to the exclusion of all others including the true owner."

See also the statement of Slade, LJ in Buckinghamshire CC v Moran [1990] Ch 623, "[i]f 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)" at 636.

Has the plaintiff established the necessary physical control of the land?

This question involves what characterises "factual possession" or "an appropriate degree" of control of the land. It is commonly stated that such possession must be actual, open, continuous and exclusive (and, of course, without the licence of the documentary owner): Re Riley and the Real Property Act (1964) 82 WN (Pt 1) (NSW) 373 at 380 per C McLelland, CJ in Eq. In Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270, 13,283, Bryson, J stated the requirements as amounting to possession which was "actual, open, visible, notorious, continuous and hostile to the title of the true owner."

In Mulcahy v Curramore [1974] 2 NSWLR 464, however, Bowen, CJ in Eq stated that "[p]ossession 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" (at 475; emphasis added). Is it a requirement that adverse possession be "peaceful, not by force", and if so, what does "peaceful" mean in this context of adverse possession?

In most cases nothing turns on whether the claimant's possession has been peaceful; the present case, however, is one where the inclusion of the requirement that possession be "peaceful, not by force" could have assumed particular significance in the light of Mr Connolly's actions in warning the defendant (and, it appears, others) off the property. I say "could" because, as I have concluded above, Mr Connolly's actions cannot be imputed to the plaintiff. If however, they had been attributed to the plaintiff, would such behaviour have prevented her from establishing the quality of possession necessary to establish possessory title?

The words used by Bowen, CJ in Eq in Mulcahy have their origins in the Latin nec (sometimes spelt neque) vi, nec clam, nec precario which, literally translated means "without force, without stealth, and as of right". There is no trouble identifying the origin of the phrase "nec vi, nec claim, nec precario". It is the words used in Justinian's Digest Book 39 Title 3.1.23. It came into English law because Bracton in his On the Laws and Customs of England who drew heavily on the Digest indicated it was the law.

Bracton's work has been translated by Thorne and published by the Harvard University Press, Cambridge, Massachusetts in 1968. In Volume 2 of the 1968 edition dealing with the subject "Acquiring Dominion" Bracton says, after dealing with livery, at pp 156-7 how a title could be obtained by "usucapion, that is, by long continuous and peaceful possession: by time and without livery, `long' but how long that time must be is not specified by law but left to rightly exercised discretion. `Continuous' I say, that is, provided it is not interrupted, for it may be interrupted in a variety of ways, as where the true lord immediately after an intruder or disseisor has entered into seisin, at once and without delay if he is present or on his return if he is absent, makes an effort to repulse and expel them by force, even though he is unsuccessful, provided that, when he fails, he is diligent in impetrating and prosecuting or without the use of force, by denunciation, by diligent impetration and diligent prosecution. Because of such interruption the possessor will never acquire a free tenement through lapse of time. `Peaceful', I say, because if possession is disputed the result will be the same as above, that is, if the dispute is rightful. A dispute may be wrongful or rightful, wrongful, if one who has no concern in the matter raises a question or brings an action ... And where there has been long, continuous and peaceful possession they begin to possess as against all, and to have a free tenement, so that they cannot be ejected without writ and judgment. Because as time is a means of extinguishing and destroying an obligation, so will it be the means of acquiring possession, and long possession, like a mother, gives birth to right in the possessor ...". Bracton is speaking not directly about limitation, but rather some medieval prescription process which is as much akin to our extinguishment by limitation as it is to the law of prescriptive easements which developed later. This passage is later taken up in Littleton's Tenures (1481) and later still by Coke on Littleton (1628) 113b.

As Hargreaves & Helmore say in their Introduction to Land Law (Law Book Co, Sydney 1963) p 141, there are three distinct categories where lapse of time affects title, viz "(1) Positive Prescription, whereby the long-continued exercise of an apparent right creates an actual right. (2) Negative Prescription, when failure to enforce a right destroys the right itself. (3) Limitation, when failure to enforce a right destroys not the right itself, but the right of action for its enforcement." The authors then go on to say that "the last two forms have been combined by statute under the name of limitation, and the differences between them are no longer important."

Positive Prescription is a different process from Limitation (including Negative Prescription) in that the former is a positive process whereby a right is acquired, whereas the latter is a negative process whereby a right is lost. With Positive Prescription, which applies virtually only to easements and profits a prendre, a person can gain a right by long user according to the old formula "nec vi, nec claim, nec precario" . Despite the processes being different, it can be seen that they have common elements.

In the case of prescriptive easements there is very little law as to what is meant by "nec vi" (see Bradbrook & Neave, Easements and Restrictive Covenants in Australia (Butterworths Melbourne 1981) [520]).

The present is one of the few cases to actually raise the case that the conduct of Mr Connolly may be indicative of otherwise than a peaceful possession. Even assuming that one can impute to the plaintiff the defence of the land which Mr Connolly asserted, one must ask whether the actions of Mr Connolly in going out with a rifle show that there was a real doubt about the plaintiff's title so that she had to reinforce her doubtful title with the use of violence.

It would seem that what is important in adverse possession cases is the intention of the squatters not the effect that their conduct has on the documentary owners. Thus it does not seem to me to be relevant to assess the effect of Mr Connolly's conduct on either Mr Garbutt or on the hypothetical reasonable human being. The reason for this is twofold: first, being frightened does not prevent one from commencing actions in the courts; secondly, it was always possible for Mr Garbutt to have amassed his own forces to accompany him to the property to talk to Ms Shaw or to Mr Connolly. Again, there were possibilities of arranging some conference on neutral territory.

There has been some discussion of the meaning of "peaceable" in the context of Positive Prescriptions in Indian Courts. In Muthu Goundan v Anantha Goundan AIR [1916] Madras 1001, 1004, Sadasiva Aiyar, J said, "As regards the meaning of the word `peaceable', I am inclined to hold that it means that the plaintiff who claims to be the dominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within the 20 years expiring within two years of the suit, nor had he been prevented by the use of physical force by the defendant in his enjoyment of such right. I do not think that oral oppositions and oral expressions of dissent by the defendant can prevent the enjoyment being peaceable." Bakewell, J at 1005 indicated that "peaceably" meant, "the person who claims a right over the property of another must not have deprived him of that right by the use of force."

In Ram Sarup v Abdul Haq AIR [1931] Lah 395, 398, Tek Chand, J, with whom Agha Haidar, J agreed, said that, in India, easements are dealt with by limitation and not by prescription under the doctrine of the lost modern grant. He applied the Muthu Goundan decision and said that whilst protests and argument would not prevent time running, obstruction, contention and the use of physical force to obtain an easement would do so. See also Mayengbam v Khundrakpam AIR [1970] Mani 67.

Thus, the way in which the authorities on Positive Prescription deal with the concept of force appears to make it not so much an element that must be established, but rather evidentiary of the fact that there is a claim as of right adverse to the true owner. So that if a person uses force against the true owner or goes about his or her business stealthily, then one can take those factors into account when determining whether there is a claim as of right.

Mitra on the Limitation Act 1963 19th ed (Eastern Law House Calcutta 1994), says at p 399, "The word `peaceably' means that the plaintiff who claims to be the dominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within 20 years, nor has he been prevented by the use of physical force by the defendant in his enjoyment of such right, Muthu Goundan ... . Whether the user has been peaceable or not is a pure question of fact. Repeated obstructions or interruptions by or on behalf of the servient owner show that the enjoyment has not been as of right. Eaton v The Swansea Waterworks Co [1851] EngR 559; (1851) 17 QB 267; 117 ER 1282.

"The expression `peaceably' has not been defined in the [Indian Limitation Act]. But it is only when the user is nec vi, nec clam and nec precario that a prescriptive right to an easement can be acquired. The qualification `peaceably' lies in the words nec vi that is without violence. The obstruction or opposition to the enjoyment of the right of easement must find expression in something done on the servient tenement itself and that mere protest on the part of the servient owner orally or oral expression of opposition cannot prevent the enjoyment being peaceful. Mayengbam v Khundrakpam ...".

There may be some debate as to whether it is legitimate to apply judgments dealing with Positive Prescription and easements to Limitation. There is so little on the concept of "peaceable" in cases dealing with Limitation that there is very little choice but to go to the prescription cases and consider whether to apply them by analogy.

In Eaton v The Swansea Waterworks Co (supra), which was relied on in the Indian cases I have cited, the question was whether a watercourse had been enjoyed as of right for 20 years. There were two points involved in the case. The first was that on one occasion when the plaintiff's servant drew water from the watercourse he was summoned and the plaintiff's son attended, defended the servant and paid a fine of one shilling and did not appeal. Evidence of this incident was rejected. The second point was that a juror asked the Judge what would have been the effect in law of a state of perpetual warfare between the parties which question the Judge did not answer. The Full Court of the Queen's Bench granted a new trial on the basis that the evidence of a conviction should have been admitted as evidence as an acknowledgment that the plaintiff did not enjoy the water as of right. Campbell, CJ seemed to acquiesce in the proposition of counsel for the appellant that if there was perpetual warfare, then the jury may very well conclude that the water was not taken as of right.

In Dalton v Angus (1861) 6 App Cas 740, 786, in the course of the Judges of England advising the House of Lords, Bowen, J said, "It might, perhaps, be added with some show of reason that the user ought, if the analogy of lights and other easements were to be followed, to be neither violent nor contentious. The neighbour, without actual interruption of the user, ought perhaps, on principle, to be enabled by continuous and unmistakable protests to destroy its peaceable character, and so to annul one of the conditions upon which the presumption of right is raised." His Lordship based this statement on Eaton's case.

A brief survey of Canadian law suggests that it is not necessary that possession be "peaceful"; the claimant's occupation of the land is adverse if it is actual, continuous, exclusive and "notorious" (visible or obvious): McConaghy v Denmark (1880) 4 SCR 609; - "actual, constant, visible occupation ... to the exclusion of the true owner": Sherren v Pearson (1887) 14 SCR 581; Wood v LeBlanc (1904) 34 SCR 627; McLeod v McRae (1918) 43 DLR 350 (Ont); Clarke v Babbitt [1927] 2 DLR 7 (Canadian Supreme Court); - "open and visible, unequivocal and exclusive": Stoddard v McKay (1970) 2 NBR (2d) 366 (New Brunswick); Crowley v Crowley (1984) 51 Nfld & PEIR 140; Tobias v Nolan (1985) 71 NSR (2d) 92 (Nova Scotia); Burke Estate v Nova Scotia (Attorney General) (1991) 107 NSR (2d) 91.

Several United States decisions refer to the need for adverse possession to be "peaceable": see, for example, North Fort Worth Townsite Co v Taylor (1924) 262 SW 505 (Tex); Anna Slattery et al v Neil B Adams et al (1954) 279 SW (2d) 445 (Tex); Mascall v Murray 149 P 517 (1915) (Or). However, "peaceable possession" in these and other cases has been equated not with the use of force or threats to defend possession of the land, but merely with continuous occupation. "Peaceable possession" has been held to be "synonymous with `uninterrupted possession', and meaning only that possession must be continuous and exclusive" (Hays v De Atley (1923) 212 P 296 (Mont)). It appears that "peaceable possession" is established where possession of the land is not disturbed by the commencement of a suit for possession (Glover v Pfeuffer (1914) 163 SW 984 (Tex)) or possession is not physically interrupted (Gusheroski v Lewis (1946) 167 P (2d) 390 (Ariz)).

In two New South Wales cases the conduct of a claimant in warning people off property has been characterised as an act going to establish possession of the land. Harnett v Green (No 2) [1883] NSWLawRp 45; (1883) 4 LR (NSW) 292 (L) was an action for trespass to a large parcel of waste land. The defendant claimed adverse possession of the property on the grounds that he was accustomed to walking over the land on Sundays, had sometimes received payment from persons cutting timber on the land, and had occasionally, when finding other persons on the property, warned them off, informing them that they were trespassing. Although in that case the defendant's actions were found not sufficient (given the size of the property) to establish possessory title, what is significant is that the act of warning persons off the land was treated as an act of possession. In certain circumstances, and in conjunction with other conduct, such behaviour might support a claim to possessory title; it was not conduct which disqualified the defendant from alleging he had been in "adverse" possession of the land.

Similar conduct was found to constitute an act of possession by Bryson, J in Beever v Spaceline Engineering Pty Limited (supra), where the person in possession had warned other persons off the land and "once threatened a surveyor walking on [the land] with a shotgun". Whilst this was held to be "very unsatisfactory behaviour" nonetheless it was "an act of possession, in that it asserted a right to control the presence of the other person" (at 13,281).

If, as Mr Armfield has submitted, possession which is retained by acts of violence on the part of the possessor is not capable of extinguishing the documentary owner's title, then this would be inconsistent with the fact that the claimant's period of adverse possession can be commenced by the use of force. It is to be noted that s 28 of the Limitation Act refers both to the documentary owner being dispossessed or discontinuing his or her possession ("dispossession" having been defined as where "a person comes in drives out the others from possession": Rains v Buxton (1880) 14 Ch D 537 at 539-540; Tecbild v Chamberlain (1969) 20 P & CR 633; Harris v Wogama Pty Ltd [1969] 1 NSWR 245 at 248).

For these reasons, Mr Connolly's actions in warning the defendant off the land, if such behaviour had been attributed to the plaintiff, would not have disqualified her from claiming possessory title to the land.

It is clear that the plaintiff's possession was open and without stealth. The plaintiff made no secret at all of the fact that she was there on the land for the whole period.

Again, clearly the plaintiff was not in possession of the land by permission of the defendant. On the defendant's evidence the plaintiff was a trespasser; on the plaintiff's case, she was carrying on the title that her father had that was taken away from him by fraud in the distant past. Both sides claimed adversely to the other.

"Adverse possession" changed its meaning after the passing of the English Real Property Limitation Act 1833, see Lightwood op cit p 180 and Megarry and Wade, Law of Real Property 5th ed p 1034. The definition of "adverse possession" relied on by counsel is taken from Stroud's Judicial Dictionary which is in turn derived from a Missouri case which is not available in New South Wales: Alexander v Polk 39 Miss 755 (1861). The definition is good enough for present purposes, that is, that "adverse possession designates a possession in opposition to the true title and real owner; and applies that it commenced in wrong and is maintained against right."

It also must be remembered that the process of extinguishing title by limitation can only be successful because of the English doctrine of seisin which has been carried over into Australian law. For technical reasons, English law never concerned itself with ownership or absolute rights to possession, but merely with who, between a plaintiff and a defendant in a particular action had the better right to seisin? Thus a person in possession of the land had a better right to seisin to the whole of the world except the documentary owner. Titles in English law were not absolute, they were relatively good or relatively bad. Accordingly, if a person had a relatively good title as against all the world except the true owner, and then the true owner was deprived of his or her title by limitation, the person in possession had the best right to seisin. What ss 45D and 45E of the Real Property Act 1900 do in essence is to say that if the land had been under common law title, the documentary owner's title would have been extinguished then the Registrar General can issue a folio in favour of the person who had the next best title.

In determining whether there is adverse possession, one must look to the peculiar circumstances of each and every case including 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, and any other relevant fact: Lord Advocate v Lord Lovat (1880) 5 App Cas 273, 288; Murnane v Findlay [1926] VicLawRp 11; [1926] VLR 80, 87; Powell v McFarlane (1979) 38 P & CR 452; Permanent Trustee Co Ltd v Pangas (1992) 75 LGRA 412.

In America, it was said by the Supreme Court of Vermont in The Laird Properties New England Land Syndicate v Mad River Corp 305 A (2d) 562, 567 (1973), "Our well recognised rule is that a possession that will work an ouster of the owner must be open, notorious, hostile and continuous for the full statutory period ... . The tenant must unfurl his flag on the land, and keep it flying so that the owner may see, if he will, that an enemy has invaded his dominions and planted his standard of conquest...".

It is thus necessary to draw together all the circumstances including the amount of work the plaintiff did on the property. This is because people do not do work on another person's property without good reason and it is far more likely that if a person has done substantial work she has done it so that her own property will be improved rather than give the benefit to somebody else. I have already noted that I accept the plaintiff's evidence as to the work which she has done on the property.

That evidence shows that the plaintiff has made considerable improvements to the property, even though were one looking at the case through the eyes of a middle class householder in the Sydney suburban area, one might have thought that the plaintiff had done very little. The roof is still in a poor state, the house has a very unbecoming appearance and really it is quite ramshackle.

Although the outside of the property still appears to be in a very poor state of repair and in particular the roof is fairly rusty, I accept that the plaintiff has constructed a dam, installed solar power equipment, painted the interior of the premises, sump oiled the external areas of the premises and restumped the property whilst she has been living there.

The plaintiff has also planted trees including fruit trees and has openly grazed animals on the property. She has carried out some repairs to maintain fencing to ensure that animals were not straying, and constructed some new fencing, though generally speaking, to a casual observer, the fencing is not in good repair at all. There is some dispute between the parties as to whether the fences which the plaintiff has erected are on the correct boundaries. This, however, is not a matter which goes to the central question which I have to decide. The plaintiff has done relatively minimal maintenance and work on the property. However, it must be remembered that she is a person who is to a great degree cut off from civilisation with two children and of limited means. The plaintiff has in fact done work on the property. I accept she has restumped it. I accept this from my own view of the wooden pylons under the house despite the defendant's comments to the contrary. She has also subdivided off part of the house to form a bathroom; she has done work on the kitchen; she has put in solar electricity and has improved the water supply. Although none of these are mighty works, nor were they greatly expensive, when one looks at the value of the property, the status of the plaintiff and the like, one can see that she has suffered considerable expense relatively speaking and has acted as if the property has been her home since at least 1981.

The question of payment of rates was raised. There is no doubt at all that the voluntary payment of rates by a person who is not the true owner of land is a fact of the highest significance in working out whether the person who paid the rates is in adverse possession: Bank of Victoria v Forbes [1887] VicLawRp 146; (1887) 13 VLR 760, 765. However, payment of rates by the true owner, or putting it another way, non-payment of rates by the claimant, is not fatal to the plaintiff's claim; see Smaglinski v Daly (1971) 20 DLR (3d) 65.

In Bree v Scott [1904] VicLawRp 98; (1904) 29 VLR 692, 701, Madden, CJ said that if the documentary owner "anticipated a difficulty in dispossessing her [ie the plaintiff], he naturally would pay the rates, and he might do that quite unknown to her. He might procure himself to be rated. Municipal councils do not care who pays the rate, so long as it is paid. Every man who is willing to pay rates is a perfectly welcome subject with them. Therefore from that class of act a very slight inference on the question of actual possession can be drawn. A person in adverse possession who actually pays rates is in a very different case, because a person who holds possession as a tenant of the true owner when asked for rates would naturally say `You had better ask the owner'."

In O'Neil v Hart [1905] VicLawRp 21; [1905] VLR 107 at 120, Madden, CJ concluded that "the payment of rates by the person in adverse possession affords a very much stronger inference in his favour than the payment by the true owner does in his." Again, in Robinson v Attorney General [1955] NZLR 1230, 1235, FB Adams, J said, "While payment of rates by one party or the other may be strong evidence of possession ... the fact that none have been claimed or paid cannot negative a de facto possession." See also Kirby v Cowderoy [1912] AC 599 and Martin v Brown (1912) 31 NZLR 1084, 1091-4. It should be noted, to complete the picture that payment of rates by a person other than the documentary owner who is not in possession is of little evidentiary value: Kirk v Sutherland [1949] VicLawRp 7; [1949] VLR 33, 35 and see Voumard op cit at [10340].

In the instant case, there is no doubt at all that the defendant paid the rates. He was given the rate notice and he paid the rates because he believed that he was liable to pay the rates as he was the documentary owner. The plaintiff gave some evidence, which I accept, that she did call to see if she could pay the rates, but found that they had already been paid. The facts accordingly are that the plaintiff was willing to pay the rates, but in fact she did not do so. She did not do so because the rates had already been paid by the defendant. In my view these facts do not tell against her general claim to hold the land as of right.

I should point out that when dealing with a claim in adverse possession I am not dealing with an equitable right. Accordingly, I do not have to consider any clean hands on behalf of the plaintiff, or any offer to do equity. If the plaintiff succeeds, there may just be some statutory right of contribution: (s 147(2) of the Local Government Act 1919 repealed in 1993 went some way towards this, but the section was not re-enacted in that form when it became s 560 of the Local Government Act 1993). Accordingly, there may be some equitable right of contribution. I do not have to concern myself with those matters. If the documentary owner's title is extinguished, it is by virtue of statute and by virtue of his not being vigilant in looking after his rights for the statutory period.

Has the plaintiff established the necessary animus possidendi?

As to the plaintiff's intention, it seems clear that she intended, by her actions, to "possess the land to the exclusion of all other persons": Buckinghamshire CC v Moran (supra). I am satisfied that, in these circumstances, the nature of the plaintiff's acts were unequivocal and clearly show the necessary animus possidendi. Little has been said about the plaintiff's intentions but this is a case, where, in my opinion, the plaintiff's actions largely speak for themselves (Buckinghamshire CC v Moran at pp 641-2) and clearly show her intention to possess the land to the exclusion of all others. This in contrast to those cases where the acts of possession or dispossession are equivocal; in such circumstances, the intention with which the acts are done must be closely examined: Clement v Jones [1909] HCA 11; (1909) 8 CLR 133 at 139-140, quoting Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19 at 23; Murnane v Findlay (supra).

The Court must examine the whole of the evidentiary material including what the defendant was doing or not doing in the relevant period.

I have already set out the provisions of Mr Garbutt's principal affidavit as to his actions. It will be seen that his principal excuses for not doing very much about the land were (a) the actions of Mr Connolly; and (b) his claim that his solicitors were looking after the matter. However, no solicitor was called to give any corroborative evidence, nor was any correspondence between Mr Garbutt and his solicitors or any of them produced in evidence. Mr Garbutt was cross examined as to paying accounts for legal work and his evidence was very vague. He insisted in cross examination that when he paid the accounts he wasn't told that the proceedings had been struck out and that he just paid the accounts without any query.

Mr Garbutt admitted that Mr Connolly made it quite clear to him in 1981 that the plaintiff was not going to vacate. He was then asked at T56:-

Q. "Since the conversation in 1982 with Mr Connolly,

Because no evidence was called from the solicitors or any correspondence tendered from the solicitors, one must assume that the solicitors would not be able to assist in the reinforcement of the story that Mr Garbutt had the problem in the hands of solicitors who did nothing for ten years or so. It seems incredible that a person would have a matter with a solicitor and not do something to galvanise the solicitor into action or alternatively change solicitors in a period of ten years.

I have a few doubts as to whether the inaction of the defendant is as significant in the matter as the action of the plaintiff. In many old system cases, where the documentary owner's title is in some doubt or where there are two possessory owners of neighbouring strips, it is very relevant to look at the activities of both claimants. However, where one of the persons involved has a Torrens title which is a government guaranteed indefeasible title, it is understandable that to a certain degree the person will just rely on his or her Torrens title and not take any action.

Any inaction by Mr Garbutt during the 1980s would to some degree be irrelevant. This is because had he taken any action in ejectment in 1990, he must have succeeded. (There would be perhaps the issue as to whether there was some fraud which would affect Mr Garbutt's title but I put that to one side). Accordingly, the fact that Mr Garbutt did not take any action to defend his title during the 1980s does not have that much significance in acting as some acknowledgment that his title was doubtful or that the plaintiff's title was good. However, notwithstanding this, it seems to me that at least during the 90s when Mr Garbutt did not take any further action, there is some material from which one could infer that he had realized that the plaintiff had perfected her title. However, I decline to draw that inference because Mr Garbutt continued to pay the rates, he put on a caveat in 1994 and his general attitude to the plaintiff has been that she has been an interloper.

Accordingly, one has the situation where the plaintiff has been in possession for at least 12 years up to the time when these proceedings were instituted and her claim under s 45D was filed with the Registrar General. Her possession has been open and notorious and hostile to Mr Garbutt. It is not disqualified from being possession as of right merely because of the rifle incidents. Although Mr Garbutt may have been frightened by Mr Connolly's conduct, Mr Connolly has not been on the premises since 1984 and there was no real excuse for Mr Garbutt not taking action in ejectment before his cross claim in the present proceedings.

On the evidence, the plaintiff has acted as the owner, even though she knew she was not the owner since at least the end of 1981. The actions of the defendant have been ineffective to disturb the plaintiff's possession. I have analysed the various matters that need to be taken into account and putting these together as a question of fact I would find there was 12 years adverse possession before the lodging of the application under s 45D or the commencement of these proceedings.

E. What is the ultimate result of the litigation?

Accordingly, the plaintiff is entitled to the declaration which she seeks and doubtless the Registrar General will now proceed as a result of this decision to grant a Torrens title to the plaintiff. Whether the Registrar General does this or not is a matter entirely up to him. However, I will reserve further consideration of the proceedings generally in case there are some problems.

Counsel for the plaintiff should bring in short minutes of order to give effect to these reasons with the appropriate declaration and order that the defendant pay the plaintiff's costs up to date reserving further consideration generally and further consideration as to costs and the cross claim should be dismissed. The proceedings will be listed before me at 9.30 am on 20 August 1996 for this purpose, provided that should that date be inconvenient to counsel, if arrangements are made with my Associate at least a week before, the date may be changed.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HIS HONOUR: These proceedings were in the list today for the purpose of deciding what formal orders should be made following my reasons for judgment on 2 August 1996. All but one of the suggested orders had essentially been agreed by the parties, that matter remains for decision.

At pp 40-41 of my earlier judgment I noted that one inequity of the decision would be that the defendant would have paid the rates on the property, yet may not be able to recover them back from the plaintiff. I said that as the plaintiff was not seeking an equitable remedy, I could not make payment of the rates a condition of the order, but it may be that there was some equitable or statutory right to contribution.

Today, Mr Armfield of counsel for the defendant, presented material to show that the defendant had paid a total of $6,517.26 in rates between 1980 and 1996. He acknowledged that because of the difficulty in finding a co-ordinate liability, his client could not obtain equitable contribution but claimed that his client could call in aid s 147 of the Local Government Act 1919. Although that section has been repealed and not replaced by any corresponding provision in the current (1993) legislation, it would have conferred vested rights in his client subject to possible problems with the Limitation Act for the years before the 1993 Act operated.

the excess by way of contribution from the others."

In my view this section cannot apply in the case where two persons have adverse claims to the same piece of real estate, one of those persons having a documentary title and the other an inchoate or complete possessory title. The section only applies where there are two or more persons who are liable on the same assessment for rates, that is, where they are jointly or severally interested in the one fee simple. It has no application where there are two separate titles existing at the same time to the one piece of land, one relatively good and one relatively bad. This is because the section is primarily aimed at councils being able to recover rates on an interest in land from all persons entitled to any part of that interest in land. The contribution aspect of the section is secondary. The section does not apply in the case where a person is involved who is not interested in the estate being rated. The Full Court decision of Dimdore v Leventhal [1936] NSWStRp 22; (1936) 36 SR (NSW) 378 makes this clear.

Accordingly, I decline to make any order for the plaintiff to contribute to the rates the defendant has paid. This of course does not preclude her, if she feels so inclined, from making any offer that she may think is fair and reasonable.