Traykof v Shanco Holdings Pty Ltd [2001] VSCA 56

Traykof v Shanco Holdings Pty Ltd [2001] VSCA 56 - VSCA 2001 case summary — Zoe

[17]

Ownership of the respondent's land was a little more complicated. Of course, the title shows the land as comprehending the disputed strip and therefore is directly to the south of the appellants' land. The respondent's land was from about 1916 divided into two titles. The western part of the land, which included the disputed strip, was first bought by the respondent's principal director, Mr Nash, and his wife in 1969 but by 1971 they had transferred the land to the respondent company which in the same year bought the eastern part of the land then held on a separate title. In consequence, eastern and western parts of the respondent's land were consolidated onto a single title in February 1972, since which time there has been no change in ownership, unless that has been affected by the appellants' claim for adverse possession of the disputed strip. Broadly, the consolidation coincided with the commencement of the building by the respondent of the warehouse which concluded in about 1974. Before that time, according to the oral evidence and, more importantly, several aerial photographs, the eastern and western parts of the respondent's land had been occupied by two derelict semi-detached houses, each of which had large unkempt yards behind them backing onto the disputed strip. One might also infer that the western dwelling was unoccupied from at least 1966 until 1969 and most likely until it was pulled down in 1972 when the warehouse was built, by reason of the fact that the former registered proprietor, one Mrs Madsen, had died in 1966 and her interest had vested in her two sons as executors and trustees, in whose names the title was registered in 1968 and who sold to the respondent in 1969. The title to the western part of the respondent's land had always included the disputed strip. It had thus been the servient tenement, so far as the easement rights of the holder of the title to the appellants' land was concerned. There was also, to this time, at least one other dominant tenement in this respect, for the registered proprietor of the eastern part of the respondent's land was likewise registered as entitled to exercise a right of way over the disputed strip. However, on consolidation of the respondent's two titles in 1972 the latter easement right merged in the registered proprietor's title over the whole of the land. Thus, from that time onwards the registered proprietor of the appellants' land became the only person entitled to a right of way over the disputed strip.

[27]

Finally, there was evidence from one Watts, a photogrammatrist, who was employed as the manager of Qasco Pty. Ltd., a company specialising in aerial photographs and their interpretation. His evidence was important in that he produced what might fairly be said to be the only objective evidence of the condition of the land in the years 1969 to 1972, namely, through three aerial photographs taken from directly above the property, the first dated December 1969 and the later two taken in 1970 and 1972. Mr Watts was able, also, to interpret those photographs by use of three dimensional images obtained from a series of photographs and which provided particular details with clarity. Apart from giving a valuable impression of the land of all parties and especially of the disputed strip before the respondent's warehouse was built, a number of specific matters are obvious to the eye from examining the photographs with care. Unfortunately, the learned judge did not recall two of those matters in an otherwise detailed examination of the facts in the judgment, even if she had observed them. The first fact was that the disputed strip was at the time of each photo clearly cut off from Abbotsford Street by a fence which Mr Watts believed to be a paling fence some five or so feet high. Secondly, there was no gate in the fence at the end of the strip but, if there was any gate (and Mr Watts was not certain about this), it was nearer the shop. Her Honour did note in her reasons, however, his evidence that such fence as existed between the appellants' land and the disputed strip was a "partitioning fence" which was "definitely not a solid construction ... probably wire with a rail on top". What her Honour did not note, but Mr Watts stated clearly, was that there was no gate in that partitioning fence, as Mr Nash had described it, but at best a gap close to the east end near the Abbotsford Street fence. Likewise, her Honour referred to Mr Watts' observations, which are confirmed by looking at any of the photographs, that there were containers or boxes of varying sizes stacked on both sides of the partition, again contrary to Mr Nash's and Mr Arceri's evidence.

[39]

It is the first and second last of these findings which are manifestly inconsistent with the objective evidence, at least as it has been presented and explained to this Court. Each of the photographs shows clearly a fence of some height shutting off the disputed strip from general use, certainly as a right of way or a lane. There is no gate shown at the end of the disputed strip and the strip is covered with a variety of boxes, crates and the like, inconsistent not only with its regular use as a right of way but more especially with Mr Nash's and Mr Arceri's evidence of a largely open lane. These are the very matters asserted by Mr Flinkier in his evidence which, however, was treated, if not with disdain, certainly as the less reliable. Moreover the conclusion that both the shop yard and the disputed strip were secured the whole way round with a fence and locked gate to Abbotsford Street would have been, so it presently seems, the natural inference from that evidence and the objective facts observed from the photographs. It therefore makes it highly unlikely, to say the least, that the shop tenants approached Mr Nash in 1972 to 1974 to get this very area secured which was already protected by a fence and locked gate. That was, of course, what Mr Nash asserted and Mr Flinkier denied and yet Mr Nash was believed, indeed he was said not to have "overstated" his case. There may have been reasons for going behind what appeared to be the objective evidence, and, since it led to various conclusions based on credibility, that will have to be again determined, but on its face it was a conclusion which made no sense. Not only that, but the condition and use of the disputed strip at that time was essential to any findings as to the necessary ingredients of the appellants' claim to adverse possession. If the appellants' predecessors in title or their tenants had in fact approached the respondent to have the strip fenced off, as Mr Nash alleged, then the encompassing of the strip into the shop's backyard was a matter of consent, so adverse possession could not be claimed. On the other hand, if there was not, and logically could not have been, any approach along those lines, then the shutting off of the yard and strip must have taken place at some time before that period, before the warehouse was built, before Mr Nash and his wife took possession and, arguably on Mr Flinkier's evidence, as early as 1967. That would give at least a firm foundation for any conclusion that the appellants' predecessors in title and their tenants had asserted the kind of exclusive control, with the intent to exclude all others, such as would form a basis for their claim to adverse possession, and, moreover, these events would have occurred at a time before Mr Nash or the respondent was putting the disputed strip to any use, so far as can be ascertained.

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)

Parties