Wonson v State of New South Wales

Determination

It is important to recognise that any rights Mr Wonson may have in respect of Lot 2 in DP 837554 rest upon the circumstances in which he occupied the land. That is to say, the rights to become registered as the proprietor of the land, or any equitable rights to compensation for what he has done on the land, are based on his occupation of the land. A number of the new claims contained in the proposed pleading seek to attack the State's title to the land, but do not provide independent grounds for the assertion of rights. For example, even if the State's title was defeasible for fraud, that would not give Mr Wonson any right to displace the State as registered proprietor unless he was deprived of rights as a result of the fraud. If that was the case, he would be entitled to bring proceedings of the type described in s 118(1)(d) of the Real Property Act. Similarly, even if the land had never been purchased by the State or any predecessor instrumentality of the State, that would not itself give Mr Wonson any right to displace the State as registered proprietor. In these circumstances, it is appropriate to first consider the claims Mr Wonson makes based on his occupation of the land, namely, his claim for possessory title and his claim for compensation.
It should be stated at the outset that the evidence plainly establishes that the land now contained within Lot 2 in DP 837554 was, except for the roadway, transferred by AI & S to the Commissioner for Railways for valuable consideration in 1941. There is no evidence that instead of that transfer there was a transfer of different land located approximately 1.5km to the north east. In my opinion, Mr Wonson's contentions in that regard are entirely lacking in substance. It is also plain that in October 1961 the roadway was resumed by the Commissioner for Railways from the Minister for Public Works. There is no documentary evidence to support the contention that any of the land was ever owned by a Mr Stennis Cook. In my view, the suggestion that the land or some part of it was taken from Mr Stennis Cook without payment is also without substance.
I will therefore proceed on the basis that at all times from October 1961 title to the land that is now contained in Lot 2 in DP 837554 was held by the Commissioner for Railways (or its statutory successors) until the State became the registered proprietor on 4 May 2009. Further, as noted earlier, the land became Crown land in 2007 and has remained so ever since. In these circumstances, Mr Wonson's claim of possessory title cannot possibly succeed.
Prior to the enactment of the Limitation Act 1969 (NSW), the relevant limitation period for recovery of possession of land was 20 years (Real Property Limitation Act 1833 (Imp)), or 60 years in the case of Crown land (Crown Suits Act 1769 (Imp)). Section 27 of the Limitation Act reduced the periods to 12 years and 30 years respectively, but these only applied where the period under the former Act had not commenced by 1 January 1971 (see s 6(1)(c)).
Until 1 June 1979 it was not possible to acquire possessory title to land under the Real Property Act. However, upon the commencement on 1 June 1979 of Part VIA of the Real Property Act, the acquisition of possessory title to land under the Real Property Act was permitted in certain circumstances (see s 45C). Section 45D relevantly provided: 45D(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 a Crown grant or an ordinary certificate of title or is comprised in a qualified certificate of title 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 issue of the qualified certificate of title, 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. … (3) A possessory application may not be made in respect of an estate or interest in any land, or in any part of any land, of which: (a) Her Majesty or a Minister of the Crown, (b) a statutory body representing the Crown, (c) a corporation which is constituted by an Act and of which, in the case of a corporation aggregate, at least one of the members is appointed by the Governor or a Minister of the Crown; or (d) a council or county council within the meaning of the Local Government Act 1919, is the registered proprietor.
The Public Transport Commission of New South Wales was as at 1 June 1979 the registered proprietor of Lot 3 in DP 430285 and Lot 1 in DP 585352. It was a corporation of a type that fell within s 45D(3)(c). So, too, was the SRA, which later became the registered proprietor of those lots. Section 45D(3)(c) has remained in its original form. Accordingly, Mr Wonson could not have made any application for possessory title against either Lot 3 in DP 430285 or Lot 1 in DP 585352. In addition, any application would need to accommodate the fact that orders were made by consent on 15 March 1990 that the SRA was entitled to possession of those lots as against Mr Wonson.
The position was different in relation to the roadway which passed between the two lots. The roadway remained under Old System Title until May 1990 when it was included (along with the two lots) in Lot 101 in DP 801243; and until May 1995 the roadway was the subject of a qualified title caution. Accordingly, it might for a time have been possible for Mr Wonson to assert a claim for possessory title to the roadway alone. However, Mr Wonson has never made such a claim and it is doubtful that such a claim could have been made after May 1990 because it would not be a claim in respect of a whole parcel of land. In any case, from May 1990 the roadway was part of Lot 101 in DP 801243 and later Lot 2 in DP 837554, the registered proprietor of which lots was at all times until 4 May 2009 a corporation of a type that fell within s 45D(3)(c) of the Real Property Act. Any claim for possessory title to the lots (including the roadway) would have been precluded.
Moreover, when Lot 2 in DP 837554 became Crown land in 2007, s 170 of the Crown Lands Act operated to prevent the assertion or establishment of title to the lot against the Crown on the basis of adverse possession. Section 170 relevantly provided: 170(1) Title to any land of the Crown which has been: (a) set out as a road under an Act or in connection with the alienation of land of the Crown, (b) left between Crown grants for use as a road or driftway, (c) dedicated under the Crown Lands Acts or any other Act for a public purpose, or (d) reserved in a Crown grant or recorded in a folio of the Register as being reserved to the Crown, may not, on the basis of adverse possession, be asserted or established against the Crown or any persons holding the land in trust for a public purpose. (2) Title to any land of the Crown reserved under the Crown Lands Acts or any other Act for a public purpose (not being land referred to in subsection (1)) may not, on the basis of adverse possession, be asserted or established against the Crown or any persons holding the land in trust for that public purpose. (3) Title to any other Crown land may not, on the basis of adverse possession, be asserted or established against the Crown.
A provision to the same effect is now found in s 13.1 of the Crown Land Management Act 2016 (NSW). Lot 2 in DP 837554 has continued to be Crown land. The revocation of the reservation pursuant to s 90 of the Crown Lands Act did not deprive the land of its status as Crown land. I note that Mr Wonson does not seem to challenge the 2007 declaration that the land was to be Crown land.
For the above reasons, it is my opinion that Mr Wonson's claim for possessory title to Lot 2 in DP 837554 is untenable and bound to fail. No reasonable cause of action for possessory title to the lot is disclosed in the proceedings.
I turn now to consider Mr Wonson's claim for compensation. As I have said, the basis of this claim is obscure but seems to be a form of proprietary estoppel. It is alleged in the proposed pleading (paragraph 9 and 13) that it would be unconscionable for the defendant to dispossess the plaintiff, presumably without paying compensation. The claim is not further developed in the proposed pleading, but is referred to in Mr Wonson's written submissions. It appears from the submissions that the claim is said to be based on a representation made by the defendant through its conduct to the effect that by about 1990 it had waived any rights it might have to the land, and that after 1992 the defendant made no attempt to remove Mr Wonson from the land (see paragraphs 11 and 12 of Mr Wonson's submissions dated 4 June 2018). It further appears that Mr Wonson says that he had an expectation that the defendant would compensate him for his care, management and protection of the land (see Mr Wonson's submissions in reply dated 26 June 2018 at pages 2 and 13-14).
As submitted by the State, it is difficult to reconcile such a claim with the claim for possessory title. However, leaving that aside, the claim is in any event almost entirely devoid of definition. That is to say, the conduct of the defendant that is relied upon as amounting to a waiver of rights, the making of representations, or the basis of an expectation formed by Mr Wonson, and the effect that such conduct had upon Mr Wonson in relation to what he did on the land, is not adequately identified in any pleading or submission and is not referred to in any of Mr Wonson's affidavits. The tenor of Mr Wonson's evidence is that at all relevant times he believed that the land was originally owned by Stennis Cook and had been "taken over" by the New South Wales Railways, such that he did not recognise the SRA as the owner (see also paragraphs 88 and 89 of the proposed pleading).
Mr Wonson referred in his oral submissions to meetings with a member of the Commonwealth Parliament (Mr Connor MP) during which Mr Wonson gained an understanding that if he kept the land well he would be "looked after". That does not advance the case. Mr Connor was not in a position to make any representations on behalf of the State.
It should also be noted that whatever the conduct of the defendant (or its predecessors in title) up to 1990, Mr Wonson consented to orders for possession against him in favour of the SRA on 15 March 1990. The suggestion made by Mr Wonson in his submissions that at no stage did he ever go to Court is contradicted by the contents of the Court file. Moreover, the mere fact that the SRA and the State did not thereafter take steps to remove Mr Wonson from the land is not on its own capable of giving rise to any right in Mr Wonson to claim compensation. The pleadings, and the evidence adduced by Mr Wonson, failed to identify any other facts that might form the basis of such a right.
In these circumstances I have come to the conclusion that Mr Wonson's claim for compensation is also untenable and bound to fail. No reasonable cause of action for compensation is disclosed in the proceedings.
I am further satisfied that the new claims that are contained in the proposed pleading do not disclose any reasonable causes of action.
The new claims that seek to impugn the State's title to the land or attack the State's conduct in relation to its dealings with the title to the land cannot avail Mr Wonson if he has no viable claims for possessory title to Lot 2 in DP 837554 or compensation for what Mr Wonson has done on that land. The new claims referred to at 19(a), (b), (d), (f) and probably (g) above fall into this category. I would add, in relation to the claim in 19(f), that the proposed pleading contains no material facts, only conclusions. As for the claim referred to in 19(g), I note that it is alleged that the contract would have the effect of fettering the exercise of a power by the Council (which is not a party to the proceedings). The alleged agreement concerns a re-zoning of Lot 1 in DP 837554, which adjoins Lot 2 in DP 837554. Insofar as it is alleged that the contract contained a promise to give Lot 2 in DP 837554 to the Council, it is clear that no such gift was made.
I have already found that the new claim referred to in 19(c) is entirely lacking in substance.
I have reached the same conclusion about the new claim referred to in 19(e). There is simply no reasonable basis to assert that at any relevant time Mr Wonson was a creditor of the State (or any of its predecessors in title), let alone that a transfer of title from the SRA to the State was intended to defraud creditors.
Quite apart from the fact that the proposed pleading does not disclose any reasonable causes of action, its form is undoubtedly deficient in that it has a tendency to cause prejudice, embarrassment and delay. It is a pleading that is liable to be struck out pursuant to Uniform Civil Procedure Rules r 14.28. However, I have gone beyond the form of the pleadings to assess, in the light of the evidence adduced, the substance of the causes of action Mr Wonson seeks to advance.
For the reasons given above it is my view that the proceedings, including the proposed pleading, do not disclose any reasonable causes of action. Accordingly, it is open to the Court to dismiss the proceedings pursuant to Uniform Civil Procedure Rules r 13.4.
Mr Wonson urged the Court not to take that step. He submitted that he wanted the opportunity to adduce evidence, including expert evidence, to make good his assertions that the land had not been transferred to the New South Wales Railways and that instead different land located some 1.5km away was the subject of the transfer. Mr Wonson also submitted that questions of fact arose in relation to his claims, including his claims of fraudulent conduct. However, the fact remains that the Court cannot discern the existence of any causes of action that are tenable, and Mr Wonson has not been able to produce an acceptable pleading. Whilst I do not entirely discount the possibility that some tenable claim, not yet identified, may exist, I do not think that these proceedings should be allowed to continue. Mr Wonson, who has now had access to the documents that record the title history of the land, has not been able to articulate any viable causes of action. Faced with the apparent force of those documents, Mr Wonson made submissions to the effect that long ago the New South Wales Railways altered maps and plans in order to deceive the Registrar-General. These suggestions strike me as speculative at best. The proposed pleading contains no allegations of that character.
The proceedings have been on foot for some time already, and have not progressed beyond the proposed pleading which, as I have said, is deficient. It seems to me that it would accord with the overriding purpose referred to in ss 56 and 57 of the Civil Procedure Act 2005 (NSW), and the dictates of justice as referred to in s 58 of that Act, for the proceedings to be dismissed under Uniform Civil Procedure Rules r 13.4. The defendant has already expended considerable time and no doubt expense in the proceedings. I recognise, of course, that the power to summarily dismiss is one that must be exercised with caution and only in the clearest of cases. However, in my opinion this is such a case, and in all the circumstances it would not be just to put the defendant to further trouble and expense by allowing the proceedings to continue. Finally, I note that a dismissal pursuant to Uniform Civil Procedure Rules r 13.4 will not itself preclude Mr Wonson from bringing fresh proceedings in the event that he is able to properly formulate a tenable cause of action (see s 91 of the Civil Procedure Act).
The Court will therefore order that the proceedings be dismissed pursuant to Uniform Civil Procedure Rules r 13.4. The Court will further order that the plaintiff pay the defendant's costs of the proceedings, including the costs of the Notices of Motion heard on 27 June 2018.

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Judgment (7 paragraphs)

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