Gibson & Anor v The Estate of James Allard & Anor [2017] VSC 788 (20 December 2017)

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BENJAMIN JOHN GIBSON	First Plaintiff

AARON GLENN HANSEN	Second Plaintiff

v

THE ESTATE OF JAMES ALLARD	First Defendant

REGISTRAR OF TITLES	Second Defendant

JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2017; further evidence requested and supplied 12 December 2017
DATE OF JUDGMENT:	20 December 2017
CASE MAY BE CITED AS:	Gibson and anor v The Estate of James Allard and anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 788 Revised 6 March 2018

REAL PROPERTY – Adverse possession – Claimed land consists of two portions – The owner of one portion joined as a defendant – The current representative of that owner traced and does not object to the application – The other portion of the claimed land consists of ‘excess land’ being land in a Crown grant not included in a subsequent subdivision – No identification or joinder of the current owner of the excess land – No application to dispense with joinder of that owner and service on him or her – On current evidence adverse possession in excess of 15 years established – Application for declaration to that effect adjourned pending joinder of owner of excess land, or dispensation of that requirement – Limitation of Actions Act 1958 (Vic) ss 8, 9,14,16,18

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr W Rimmer	Best Hooper

For the Defendants	No appearance

1 The plaintiffs are the registered proprietors of land known as 18 George Street, Brunswick. This proceeding concerns a narrow strip of land, less than 1.5 metres in width, and approximately five square metres in area, between the weatherboard cottage erected on their land and the weatherboard cottage erected on the adjoining property, known as 16 George Street, Brunswick. In January 2016, the plaintiffs lodged an application with the Registrar of Titles claiming that they had acquired title to the strip of land (the ‘Claimed Land’) by adverse possession. The registered proprietor of 16 George Street, Brunswick, Ms Shandelle Ryan, opposed that application. She lodged a caveat, and instituted a proceeding against the current plaintiffs, S CI 2016 4434 (‘Ryan Proceeding’), in which she claimed that she and her predecessors in title had an easement over the Claimed Land. Ms Ryan also disputed the current plaintiffs’ claim for adverse possession. The plaintiffs denied the claims made by Ms Ryan, and instituted this proceeding.

2 The two proceedings travelled together before the one judicial officer, until the Ryan Proceeding settled. This proceeding then came before me on a summons for default judgment, no appearance having been filed by the only substantive defendant joined to this proceeding. An application for default judgment usually proceeds on the basis of the averments in the statement of claim. It transpired, however, that the Registrar of Titles requires a determination on the merits to support the plaintiffs’ application to him, and so the proceeding was adjourned to allow evidence to be filed and served on the first defendant.

3 This is an unusual application for title by adverse possession. In the common case, the dispute is between two adjoining registered proprietors in respect of land that is in the title of one, but has been in the possession of the other. That is not this case. Here the Claimed Land is not within the title of Ms Ryan,^[1] and she did not claim that it was in the Ryan Proceeding. The Claimed Land consists of two portions, and there are unusual aspects to each of those portions. The plaintiffs drew my attention specifically to some of the complications relating to the smaller portion of the Claimed Land on the first return date of their summons. These complications arise from the fact that that smaller portion of the Claimed Land remains registered in the names of its registered proprietors as at 1885, both of whom have since died. It was accordingly necessary for the plaintiffs to ascertain the current proper representative of those registered proprietors. As that person resides in England, there were also special requirements as to service and proceeding in the absence of appearance.

4 The plaintiffs contend that that larger portion of the Claimed Land is ‘Excess Land’, being land included in the original Crown grant but not included in its subsequent subdivision. They rely on evidence to the effect that there is no registered proprietor in respect of the larger portion of the Claimed Land, and have not joined any person as a defendant to be notified of the application in respect of the Excess Land.

5 That the Claimed Land includes the Excess Land and that no defendant is joined in respect of the Excess Land are ascertainable from the writ and statement of claim, but regrettably I did not appreciate the significance of these matters, and their significance was not made plain to me, at an early stage. I also did not know of the Ryan Proceeding until evidence was filed in this proceeding. In the absence of this fuller appreciation of the context and potential issues, I was not in a position to determine the application on 10 August 2017. I apologise for the delay thereafter.

6 As I now set out in detail, I am satisfied that the current representative of the owner of the smaller portion of the Claimed Land has been properly identified, and served, and does not oppose the plaintiffs’ application. On the evidence currently before me the plaintiffs have established that they and their predecessors in title have been in possession of the Claimed Land with the intention of excluding all others for in excess of 15 years. I do not consider appropriate, however, at this stage to finally determine that issue. This is because the plaintiffs have not identified the current owner of the Excess Land, joined that person, and served him or her, or sought to dispense with those requirements.

7 I have not heard the plaintiffs as to the necessity for these steps, and so the views that I express on these issues are subject to any further submissions the plaintiffs wish to put. If the plaintiffs do not wish to be heard against those views, these reasons, and the orders that I make to give effect to them, allow the plaintiffs to make application to dispense with joinder of the owner of the Excess Land, or service on that owner, if they are so advised. I also suggest that the plaintiffs consult with the Registrar of Titles in relation to the issues that I raise about the ownership of the Excess Land.

8 Before considering the plaintiffs’ application in detail, it is helpful to set out the context of their application as it emerges from the Ryan Proceeding.

9 Ms Ryan asserted that she and her predecessors in title had had access to the Claimed Land on multiple occasions, largely but not exclusively related to maintenance of the cottage on 16 George Street. The facts pleaded in her amended statement of claim include that a predecessor in title of hers had in 2006 installed the external unit of an air conditioner servicing 16 George Street on the Claimed Land, where it remained. Ms Ryan also asserted that she could access the Claimed Land directly from her land. In relation to the current plaintiffs’ claim for adverse possession, Ms Ryan claimed that a portion of the Claimed Land is un-alienated Crown land, and so no claim of adverse possession can succeed in respect of that portion of the Claimed Land.

10 In their defence to Ms Ryan’s amended statement of claim, the current plaintiffs denied that a portion of the Claimed Land is un-alienated Crown land. They pleaded that any access by Ms Ryan or her predecessors in title to the Claimed Land required their permission or that of their predecessors in title. Specifically, the current plaintiffs asserted in a cross claim that the presence of the external air conditioning unit was a continuing trespass, and that the plaintiff only had access to the Claimed Land without traversing 18 George Street from about July 2016 because Ms Ryan’s father had removed a portion of the dividing fence. They pleaded that the Claimed Land had otherwise been entirely enclosed with their land at 18 George Street since at least December 1990, i.e. for a period well in excess of 15 years.

11 The Ryan Proceeding settled following mediation, without any determination on the merits. The Terms of Settlement (‘Terms’) were handed up as an exhibit in this proceeding. Ms Ryan agreed, amongst other things, to remove the air conditioning unit and reinstate the fence. The second plaintiff gives evidence in this proceeding that the air conditioning unit has been removed, but there is no evidence as to reinstatement of the fence. The current plaintiffs agreed, amongst other things, to allow reasonable access to Ms Ryan to the Claimed Land for the purpose of maintaining her cottage at 16 George Street. Following execution of the Terms, the Ryan proceeding, including the cross claim, were discontinued.

12 The plaintiffs contend that the Claimed Land has been wholly enclosed with their land for in excess of the required period of 15 years. They seek an order in the nature of a declaration that they have acquired title by adverse possession to the Claimed Land, which is marked Parcel A on each of the Plan of Survey and Title Compilation Sketch prepared by the plaintiffs’ surveyor, Mr Signorini.^[2] Parcel B on the Title Compilation Sketch reflects a proposed adjusted boundary to the plaintiffs’ land, which is currently described as the land in Certificate of Title Volume 4586 Folio 177 and TP 421611J. The plaintiffs seek that the boundaries of their land be adjusted slightly, as well as seeking a new title to reflect their adverse possession claim.

13 Parcel A in turn consists of two portions of land. These are most clearly identified in the Title Compilation Sketch. One portion of the land is part of Reserve No 2 on LP 877 (‘Reserved Land’). The plaintiffs contend that the first defendant is the successor in title to the registered proprietors of Reserve No 2, and so the Reserved Land. They have traced the current representative of the first defendant, who resides in England. He does not oppose the application and has not entered any appearance.

14 The other, and larger, portion of the Claimed Land is described by Mr Signorini as ‘Excess Land’. His opinion, expressed in an exhibit to his affidavit,^[3] is that the Excess Land is neither Crown land nor land contained in any other registered certificate of title. If the first of these propositions is correct, it would follow that there is no barrier to the plaintiffs’ claim for adverse possession arising from this portion of the Claimed Land being un-alienated Crown land. As I will set out shortly, I am not persuaded on the current evidence that the second of Mr Signorini’s propositions set out above is correct. Further, whether or not it is correct, if the Excess Land has been alienated from the Crown it would seem that at least theoretically its owner could be identified and a current representative of that owner traced. The plaintiffs have not, however, joined as a defendant any person as the representative of the owner of the Excess Land.

15 The plaintiffs have not joined Ms Ryan (or the purchaser of her land) to this proceeding, and there is no evidence as to whether either is aware of it. The plaintiffs say that they do not need to join Ms Ryan as she is not the registered proprietor of any portion of the Claimed Land. In relation to her claim of an easement, the plaintiffs say that even if that claim had been made out, it was not a barrier to their claim for adverse possession. If their claim was otherwise made out, they would take title subject to the easement. They further rely on the agreement by Ms Ryan in the Terms to withdraw her caveat and the release given by her in the Terms to contend that she has withdrawn her claim in any event.

16 The statutory provisions relating to adverse possession claims appear in the Limitation of Actions Act 1958 (‘Limitation Act’). The focus of the Limitation Act generally is on the time periods for the commencement of proceedings seeking to enforce rights. Accordingly, the focus of the provisions in the Limitation Act relating to adverse possession is the time at which an action to recover land is barred. Importantly, the limitation period for such an action does not commence to run unless the land in question is in the adverse possession of another. Thus, the statutory provisions assume that for adverse possession to be established there are two necessary parties - the owner of the land in dispute who would, subject to the limitation period, have the right to recover possession of that land; and the party who claims to have been in possession of the land so as to extinguish the owner’s right to recover possession. It follows that ordinarily the owner of the claimed land would be a necessary defendant to a proceeding seeking to establish adverse possession.

19 Section 9 of the Limitation Act provides when a cause of action for recovery of land accrues. Section 9 relevantly provides:

21 Interruption to a period of adverse possession which requires restart of the necessary fifteen year period is qualified by s 16 of the Limitation Act which relevantly provides:

22 The consequence of a continuous period of fifteen years adverse possession is expressed by s 18 of the Limitation Act as follows:

23 The effect of these provisions is that extinguishment of the paper title of an owner of land requires a continuous period of fifteen years’ possession of that land by another, adverse to that of the paper title owner. If there is an interruption to that adverse possession within the fifteen year period (and a mere formal claim by the paper title owner is insufficient to constitute such interruption) then the clock is reset i.e. a new fifteen year period must be proved from the resumption of the adverse possession.

24 Counsel for the plaintiffs referred me to the relevant principles as set out by the Court of Appeal in Whittlesea City Council v Laurice Abbatangelo (‘Abbatangelo’).^[4] The Court there adopted the comments made by Ashley J (as he then was) in Bayport Industries Pty Ltd v Watson,^[5] who in turn drew those principles from Powell v McFarlane,^[6] as follows:

25 These principles also assume that there is a ‘paper owner’ to land the subject of an adverse possession claim. In my view, it follow from both the Limitation Act and the case law that ordinarily the owner of the land claimed is a necessary defendant to an application for a declaration as to adverse possession. The plaintiffs have not joined any person as the owner, or representative of the owner, of the Excess Land.

26 Assuming all necessary persons have been joined to the action, the principles set out above require the plaintiffs to show that they have had factual possession of the Claimed Land for the requisite period, accompanied by the intention to exercise exclusive control over it. The required intention is to exercise control to the exclusion of the world at large, not just to the exclusion of the paper owner.

(i) The status of the Excess Land and whether any person should have been joined as a defendant in respect of it;

(ii) Identification of the proper representative of the registered proprietor of the Reserved Land, and sufficient service on that person; and

(iii) Whether the plaintiffs established that they have had the exclusive use and occupation of the Claimed Land as against all the world, for in excess of fifteen years.

28 The plaintiffs’ land is on the eastern side of George Street, Brunswick in the block between Richardson Street to the south and Victoria Street to the north. Mr Signorini surveyed the whole of the eastern alignment of George Street between Victoria Street and the next main street further south of Richardson Street, which is Albert Street. He compares his survey findings with various title plans, plans of subdivision, the Parish Plan and evidence of ‘bona fide occupation’, which I take to be structures. There were some typographical errors in his evidence, which have now been corrected. I have also requested, and obtained, from the solicitors for the plaintiffs a full title history of the plaintiffs’ land, and title and plan details of Ms Ryan’s land. I draw what follows from Mr Signorini’s evidence, as corrected, and this additional material.

29 The plaintiffs’ land was originally part of Crown Allotment 105, Parish of Jika Jika, granted by the Crown to Daniel Sodart Campbell on 31 December 1840. A five acre portion of that allotment, including the land that is now the plaintiffs’ land, became the subject of registered certificate of title Volume 131 Folio 011 on 20 June 1865. The registered proprietor of that certificate of title was Joshua Dickeson. Four acres of the land in that certificate of title was transferred by him to Alfred Cornwall on 28 February 1871, becoming the land in certificate of title Volume 396 Folio 016. The land in that title extended from the southern frontage of Victoria Street in the north to the southern boundary of Crown Allotment 105, and encompassed frontages onto both sides of George Street and both sides of Thomas Street, each of which run north/south.

30 The most south eastern portion of Volume 396 Folio 016, fronting the eastern side of George Street and bounded by the southern boundary of the Crown allotment, was transferred by Alfred Cornwall to Margaret McGrath on 24 March 1873, becoming the land in certificate of title Volume 580 Folio 890. That land in turn was transferred by Ms McGrath to Richard Hodgson and Horatio Beauchamp on 4 May 1874, becoming the land in certificate of title Volume 675 Folio 856. Approximately half of that land was then transferred to the plaintiffs’ predecessor in title, Georgina Mason, on 10 July 1922, becoming the land in the plaintiffs’ certificate of title, Volume 4586 Folio 177.

31 The current certificate of title to the plaintiffs’ land describes it as Lot 1 on Title Plan 421611J. That title plan does not in terms identify any earlier subdivision from which the land derives. Mr Signorini states that the land in certificate of title Volume 396 Folio 016 was subdivided in approximately 1872 by LP 92. If this date is correct, then the subdivision took place after the land was transferred to Mr Cornwall, and prior to the transfer to the plaintiffs’ predecessor in title, Ms McGrath. Mr Signorini states that the plaintiffs’ land is derived from a subdivision of Lot 17 on LP 92. Lot 17 is the most south eastern lot on LP 92. Mr Signorini’s evidence is that the plaintiffs’ land occupies the southern half of Lot 17 on LP 92, and so its southern boundary corresponds with the southern boundary of LP 92.^[8]

32 I could not locate reference to LP 92 on the certificates of title evidencing the chain of title from Mr Cornwall to the plaintiffs, or on TP 421611J. However, I accept Mr Signorini’s evidence that the plaintiffs’ land is the southern half of Lot 17 on LP 92. His evidence is supported by comparison of LP 92 and the plan of the land contained in certificate of title Volume 396 Folio 016, which identifies the portions transferred out of that title, including the land transferred to Ms McGrath, by dealing number.

33 The identification of Ms Ryan’s land is more straightforward. Her title is recorded in certificate of title Volume 1758 Folio 588 as being Lot 14 on Plan of Subdivision 877. Her land is the most northerly lot on the subdivision that fronts onto the eastern side of George Street.

34 The Claimed Land lies between the plaintiffs’ land and Ms Ryan’s land, and is comprised of Excess Land and Reserved Land.

35 Mr Signorini’s evidence is that no field records of subdivision LP 92 exist and ‘it is likely that none were ever prepared and registered’.^[9] Nevertheless, his evidence is that although the southern boundary of the plaintiffs’ land forms the southern boundary of LP 92, that boundary does not coincide with the southern boundary of Crown Allotment 105. Mr Signorini describes the land between as Excess Land on his Title Compilation Sketch.^[10]

36 Mr Signorini’s evidence is that it was common in the nineteenth century for the land pegged out as part of a Crown allotment to be slightly greater in size than the dimensions identified in the Crown grant itself. This was a deliberate policy to ensure that grantees received more than was shown on the grant, to avoid litigation between the grantee and the Crown. When the land within a Crown allotment was subdivided, however, the lots in the subdivision did not reflect the extra land included in the Crown allotment. As a consequence, Mr Signorini deposes that ‘there is often excess land found between the subdivisions and some of the fenced Crown boundaries’.^[11]

37 Discrepancies between the land in a Crown grant as pegged out and the dimensions in the Crown grant itself are dealt with in Part VII of the Property Law Act 1958 (‘PLA’). Sections 268 and 269 of that Part of the PLA provide as follows:

38 It follows that if the Excess Land was contained within Crown Allotment 105 as pegged out, then it is immaterial that it may not have been within the dimensions of the Allotment as per the grant, or the subsequent subdivision.

39 Mr Signorini’s evidence that the origin of ‘excess land’ lies in the practice for Crown grants is supported by commentary in an 1883 case identified for me by the Court researchers.^[12] It is also supported by the discussion in the 2010 Report by the Victorian Law Reform Commission on review of the PLA.^[13]

40 In the Ryan Proceeding, Ms Ryan contended that the Excess Land could not be the subject of a claim for adverse possession because it was un-alienated Crown land. She relied on s 7 of the Limitation Act, which provides as follows:

41 Mr Signorini’s evidence is that the contention advanced by Ms Ryan is incorrect. His evidence is that the Crown grant that adjoined Crown Allotment 105 to the south was Crown Allotment 102, also granted to Daniel Sodart Campbell in 1840. Mr Signorini deposes, on the basis of his study of the Parish Plan, that there is no indication on that Plan that any land was left un-alienated between Crown Allotments 105 and 102.

42 Mr Signorini’s evidence is that there is no registered title to the Excess Land to the south of the plaintiffs’ land within Crown Allotment 105.

43 The most northerly portion of Crown Allotment 102 was subdivided by LP 877 in 1885. This subdivision consists of 30 lots on either side of George Street. On the eastern side of George Street, the lots on LP 877 run northerly from Albert Street in the south, past Richardson Street to the northern edge of the subdivision. There are four lots fronting the eastern side of George Street between Richardson Street and the northern edge of the subdivision. The most northerly lot fronting onto the eastern side of George Street in LP 877 is Lot 14. That is Ms Ryan’s land. The northern edge of that Lot does not, however, form part of the northern boundary of LP 877. Between it and the northern boundary of LP 877 on the eastern side of George Street is a small portion of land marked on LP 877 as ‘Reserve No. 2’.^[14] This Reserve is one of four reserves identified on LP 877. The registered proprietors of those reserves as at 1885 were John Hill Sedgman and James Allard.^[15] The smaller and southern portion of the Claimed Land is part of Reserve 2.

44 On the evidence currently before me, I accept Mr Signorini’s evidence that the southern boundary of Crown Allotment 105 adjoins the northern boundary of Crown Allotment 102 and that there is no unalienated Crown land between these two Crown allotments. It follows that s 7 of the Limitation Act is no barrier to the plaintiffs’ claim.

45 As I have discussed earlier, ordinarily a claim for adverse possession requires joinder of the ‘paper owner’ of the land claimed. This is because adverse possession of land does not create rights to title in a vacuum – the possessor’s rights are created by the extinguishment of the right of the paper owner of the claimed land. The plaintiffs have taken this course in respect of the Reserved Land, but have not joined any person as the proper representative of the paper owner of the Excess Land.

46 Given the delay to date in publication of these reasons, I have not sought further submissions or evidence from the plaintiffs before expressing the analysis that follows. Accordingly, it should be regarded as subject to further submissions and evidence, if the plaintiffs consider it incorrect.

47 Mr Signorini’s evidence is that the Excess Land is not ‘land contained in any other registered certificate of title’.^[16] I am not persuaded that this is shown to be correct on the evidence currently before me. If Mr Signorini is correct as to the date of LP 92, being 1872, then this postdates the earliest precursor certificate of title to the plaintiffs’ land, certificate of title Volume 131 Folio 011, which was created on 20 June 1865. If that certificate of title brought into Torrens title the relevant portion of Crown Allotment 105 to the southern boundary of the Crown grant, then it included the Excess Land. The date Mr Signorini gives for LP 92 also postdates the next certificate of title in the chain of the plaintiffs’ title, that of Alfred Cornwall, Volume 396 Folio 016 dated 28 February 1870. If the transfer to Mr Cornwall that created Volume 396 Folio 016 included the land to the southern boundary of the Crown Allotment 105 and Mr Signorini is correct that LP 92 was a subdivision of the land in this title, but does not include the Excess Land, then the Excess Land would appear to have remained in the ownership of Mr Cornwall.

48 As far as I can tell without further evidence or submission, it does not appear that certificate of title Volume 396 Folio 016 has been entirely cancelled, and so it may be that the owner of the Excess Land remains the estate of Mr Cornwall, on the assumption that he has long since died.

49 If, contrary to this analysis, the Excess Land in Crown Allotment 105 was not brought into Torrens title by certificate of title Volume 131 Folio 011, then it may be that it remains old system land, in the ownership of the current successor in title to the original grantee. The only other possibility is that, contrary to Mr Signorini’s evidence, the Excess Land was not included in the original Crown grant, in which case the plaintiffs’ claim to it cannot proceed. Further evidence is required to clarify which of these possible factual conclusions is correct.

50 If the plaintiffs consider on further evidence that the Excess Land remains old system land, then it may be appropriate for them to consider the implications for their application of legislation relating to the conversion of remaining old system land to Torrens title – Transfer of Land (Conversion) Act 1986 and Transfer of Land (Single Register) Act 1998. It may be of assistance to obtain the views of the Registrar of Titles on these issues.

51 Whether the Excess Land remains old system land or has been brought under Torrens title, it should be at least theoretically possible to identify the current owner of the Excess Land and to trace the current representative of that owner, as the plaintiffs have done in the case of the Reserved Land. Strictly, in my view, the plaintiffs were required to ascertain that current owner or representative, and serve him or her, unless that requirement is dispensed with.

52 I refer to the possibility of dispensing with that requirement because I am conscious that identification of the current owner of the Excess Land may be a very onerous task, which would be out of proportion to the other circumstances of the case. This wold particularly be the case if the Excess Land remains old system land. The circumstances that might be considered to make a tracing exercise disproportionate include the small amount of land in issue; the lapse in time since the date of the first Torrens title in evidence or the original Crown grant, as the case may be; and the evidence which, as will be seen, I accept as to possession by the plaintiffs and their predecessors in title of the Excess Land and the Reserved Land for more than 15 years.

53 Subject to submission to the contrary from the plaintiffs, it seems to me incumbent on the plaintiffs to at least attempt the exercise of identifying whether or not the Excess Land is Torrens title, or old system land, and the current owner thereof before any application to dispense with joinder of, and service on, that owner can properly be made. The only evidence currently before me as to ownership is that of Mr Signorini, which, as set out, above I query. The question of joinder of the owner of the Excess Land is not addressed at all in counsel’s submissions to date. Should the plaintiffs wish to pursue an application to dispense with joinder and service on the owner of the Excess Land, an affidavit giving evidence as the identification of the current owner, or steps taken in that regard, and other matters supporting dispensation of joinder and service will be sufficient.

54 If the plaintiffs consider the views I have expressed above as to the necessity of identification of the owner of the Excess Land and joinder of that person to be incorrect, I will hear them on that issue.

55 The registered proprietors of the reserves included in LP 877, including Reserve 2 and so the portion of the Claimed Land that is within that Reserve, remain the registered proprietors as at 1885 – John Hill Sedgman and James Allard, as joint tenants. In other words, there has been no other registered transfer or transmission of the reserves, despite the subsequent deaths of the registered proprietors. The solicitor for the plaintiffs has undertaken extensive enquiries which establish the following:

• John Sedgman died on 24 March 1919. The reserves then passed to James Allard, by right of survivorship.

• James Allard died 30 September 1922. His executors were two solicitors, Ralph Candy and his son Cyril Ralph Candy, appointed jointly and severally. The inventory that they prepared for their application for probate includes multiple pieces of real estate, but does not include the reserves.^[17] They were perhaps overlooked due to their comparative insignificance. Whatever other steps they took in relation to the estate of James Allard, the Register shows that Messrs Candy did not sell the reserves or transfer them to any beneficiary. In other words, that part of James Allard’s estate remained un-administered.

• Ralph Candy died on 29 January 1942. Cyril Candy was then the remaining executor of the estate of James Allard.

• Cyril Candy died on 27 February 1954. The Register shows that he died without completing the administration of the estate of James Allard in relation to the reserves.

• Probate of Cyril Candy’s will was granted to his widow, Jessica Elizabeth Candy and (presumably son) Cedric Ralph Candy, solicitor, on 25 May 1954. The grant of probate distinguishes between the real and personal estate that Cyril Candy held in his own right, and real and personal estate that he held in trust.^[18] The reserves were held by Cyril Candy as executor of the estate of James Allard, and so fell within the category of trust property. The will of Cyril Candy and the grant of probate appointed only Cedric Candy as executor in respect of trust property.

• Mr Snyder also exhibits the death certificate of Jessica Candy in support of his contention that she was a joint executor with Cedric Candy in respect of the reserves. On my reading of the grant of probate, she was not, and so it is not necessary to prove her death.

• Cedric Candy died on 13 June 2009. Probate of his will was granted jointly to Professor Edwin Ralph Candy and Mr Graham Leslie Candy. The grant of probate does not distinguish between any trust property held by Cedric Candy and property he held in his own right.^[19] It follows that Professor Candy and Graham Leslie Candy became the executors of all property held by Cedric Candy, whether in trust or in his own right.

• Professor Candy resides in England. He was personally served with the writ and statement of claim and form necessary where service is out of Australia, together with a clear covering letter,^[20] and was subsequently sufficiently served with the summons, amended summons, affidavits and Court orders. Professor Candy did not enter an appearance within the requisite time from service of the writ and statement of claim. After service of the summons seeking default judgment, Professor Candy informed the Court by letter dated 3 June 2017 that he does not oppose the application.^[21] He was subsequently served with the affidavits on which the plaintiffs rely. He did not subsequently enter an appearance, and there is no evidence that he wishes to oppose the application.

56 The Administration and Probate Act 1958 provides for the identification of the executor of an estate un-administered as at the death of the executor by s 17. That section provides as follows:

57 I am satisfied that the ‘chain of representation’ of which s 17 speaks has not been broken in any of the ways identified in the section. I find that Professor Candy is the executor pursuant to that section of the un-administered estate of James Allard in respect of the reserves. He is thus the proper person to be served in respect of that portion of the Claimed Land that forms part of Reserve No 2.

58 This proceeding concerns land solely in Victoria, and so pursuant to rule 7.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) no leave was required to serve Professor Candy in England. As he did not enter an appearance leave is required pursuant to rule 7.07 of the Rules to proceed against him. I accept the submissions of counsel for the plaintiffs that that leave should be given, and dispense with compliance with any procedural rules as to service not complied with. It is plain from all the documents that Professor Candy is well aware of the application, has given consideration to it and does not oppose it.

59 The plaintiffs’ statement of claim alleges that the plaintiffs and their predecessors in title have occupied the Reserved Land (described in the statement of claim as ‘Land A’) ‘adversely to the registered proprietors of all interests in Land A’ and the Excess Land (described in the statement of claim as ‘Land B’) since ‘at least the year 1990 or thereabouts’.^[22] The particulars to that paragraph allege that the Reserved Land (Land A) and the Excess Land (Land B) ‘are enclosed within the physical boundary of 18 George [Street] and have been in the exclusive possession of the plaintiffs and the predecessors in title to 18 George [Street] in excess of 15 continuous years’.

60 The plaintiffs have filed affidavits in support of these contentions from the second plaintiff (attesting in particular as to the current situation as to enclosure); a former registered proprietor of 18 George Street, Ms Tania Burney-Bysouth (attesting in particular as to enclosure during her ownership and occupation between 5 July 2001 and December 2005); and two neighbours Mr Michael Appleby of 32 George Street (attesting to enclosure since January 1994) and Mr or Ms Ifeta Alisak-Resic of 15 George Street (attesting to enclosure from 1990).

61 I have also had regard to the historical title search for 18 George Street; Mr Signorini’s Surveyor’s Report,^[23] including two photographs attached thereto which show the Claimed Land as it physically appeared while the air conditioning unit attached to 16 George Street was in place; identification by counsel on the Title Compilation Sketch of the various components of the enclosure; and, for completeness the competing allegations in the Ryan Proceeding. I appreciate that that Proceeding settled and in any event Ms Ryan made no claim to possession of the Claimed Land. Nevertheless, given the overlap between the two proceedings it would have been of assistance to have evidence directed to the allegations made by Ms Ryan, which were disputed by the plaintiffs.

• Between 1990 and 2004/2005 there was a timber paling fence from the street front of George Street that ‘ran along the boundary of 18 George Street, Brunswick’ and connected with a red brick wall at the rear of the property (evidence of Alisak-Resic from December 1990 and Mr Appleby, from January 1994).

• The red brick wall at the rear of the property has been in its current location since at least December 1990 (evidence of Alisak-Resic, and Ms Burney-Bysouth as from 2001).

• Ms Burney-Bysouth deposes that at some point while she and her husband were the owners and occupiers of 18 George Street, which was between 5 July 2001 and December 2005 (her evidence) or 4 January 2006 (historical title search), the timber paling fence was removed and replaced by:

Ms Burney-Bysouth does not give any more exact date for this change, but given the evidence of Alisak-Resic and Mr Appleby I find that the change occurred in 2004 or 2005.

• The replacements to the former timber paling fence are in the exact same location as that fence (evidence of Alisak-Resic; Mr Appleby, and Ms Burney-Bysouth).

• It follows that the ‘physical southern boundary of 18 George Street, Brunswick has been unchanged since at least December 1990’.^[25]

• The only way to access the Claimed Land during Ms Burney-Bysouth’s occupation July 2001 – December 2005 was through a gate at 18 George Street (evidence of Ms Burney-Bysouth).

• The only way to currently access the Claimed Land is via the front gate of 18 George Street, which does not adjoin the Claimed Land (evidence of the second plaintiff).

• Ms Ryan has now removed her air conditioning unit, which was formerly towards the eastern end of the Claimed Land immediately in front of a wooden fence between the two cottages (evidence of the second plaintiff).

• The dwelling at 16 George Street has a large window opening onto the Claimed Land. In the Ryan Proceeding, Ms Ryan alleged that this gave her access to the Claimed Land. There is no evidence about this in this proceeding.

63 There are some gaps in this evidence in relation to enclosure. In particular, in the Ryan Proceeding Ms Ryan alleged that she had unrestricted access to the Claimed Land by two means – a gate at the western end of the Claimed Land, accessible from Ms Ryan’s veranda; and a full length window towards the eastern end of the Claimed Land.^[26] The current plaintiffs, the defendants in the Ryan Proceeding, disputed these allegations, alleging that there were only two means of accessing the Claimed Land – the front gate of 18 George Street, which does not adjoin the Claimed Land, or a fence between 16 George Street and the Claimed Land. The current plaintiffs then alleged that that fence had been in place since at least 1990 to about 2015 (in other places said to be 2016) when it was destroyed by Ms Ryan’s father to allow his access to the Claimed Land. The current plaintiffs say that they refused a request by Ms Ryan to construct a gate to allow her access to the Claimed Land.^[27]

64 There are no photographs showing the Claimed Land from the street, which would have been of assistance in relation to access by gate at the western i.e. street frontage end of the Claimed Land. Further, although there is written evidence that there was no such access as is claimed by Ms Ryan at this western end in the period 2001-2005, and currently, there is no evidence in relation to the intervening period. In particular, there is no evidence as to whether or not the fence was in fact destroyed by Ms Ryan or her father without the permission of the plaintiffs, although this can perhaps be inferred from the Terms in the Ryan Proceeding, as Ms Ryan agreed to reinstate it.

65 There is also no evidence other than what can be seen in a photograph in the Surveyor’s Report in relation to access to the Claimed Land via the full length window of 16 George Street. The photograph tends to support the allegation made by Ms Ryan that it is a full length window of a size that (depending on how it opens) would allow a person to step through it.

66 Subject to the question of access to the Claimed Land from 16 George Street, I find that the Claimed Land has been enclosed with the plaintiffs’ land at 18 George Street since at least 1990. Accordingly, I find that as against all the world, with the possible exception of Ms Ryan, the plaintiffs have had both exclusive physical possession of the Claimed Land and the intention to exclusively possess it for more than 15 years.

67 While the evidence is not perfect in relation to access from Ms Ryan’s land, on balance I find that access to the Claimed Land from her land has not been possible without the permission of the plaintiffs or their successors in title or by trespass by Ms Ryan and her agents for in excess of 15 years. I reach this conclusion for the following reasons:

• Ms Ryan did not make a claim of any paper or possessory title in the Ryan Proceeding, when it would have appropriate to do so had she wished to make such a claim;

• She has removed her physical encroachment on the Claimed Land by removing the air conditioning unit;

• She has agreed not to access the Claimed Land without the permission of the plaintiffs, as set out in the Terms in the Ryan Proceeding;

• Access by a window as opposed to a door is not a usual means of access, and so if Ms Ryan accessed the Claimed Land by the window without seeking the permission of the plaintiffs’ predecessors in title it cannot be inferred that this access was with their knowledge or permission.

68 It follows that it is a fair inference from all the evidence that to the extent access was available to the Claimed Land from Ms Ryan’s land in the period from 1990 this was only by Ms Ryan or her agents removing a physical barrier without the permission of the plaintiffs (the fence at the western ie. street end of the Claimed Land) or by accessing the Claimed Land from a window without seeking the required permission of the plaintiffs or their successors in title.

69 On the material currently before me I am satisfied that the plaintiffs and their predecessors in title have possessed the Claimed Land to the exclusion of all the world for in excess of 15 years. It would not, however, be appropriate to finally determine that question until it is determined if the current owner of the Excess Land should be joined.

70 I will hear the plaintiffs further if they consider that the preliminary views I have expressed as to the necessary joinder of, and service on, the owner of the Excess Land are not correct. If they do not wish to be heard on that question, but seek that that joinder, or service, be dispensed with, they may make that application on affidavit, accompanied if they wish by further written submissions. I will determine any such application on this written material, unless I consider that it should be listed for oral submissions.

^[1] The solicitors for the plaintiffs informed the Court by email dated 4 December 2017 that Ms Ryan sold her land at auction on 21 October 2017, although she remained the registered proprietor as at 4 December 2017.

^[2] Affidavit of Robert Signorini sworn 13 July 2017 (‘Mr Signorini’s Affidavit’), Exhibits ‘RS-2’ and ‘RS-5’.

^[8] Email dated 12 December 2017 from Mr Signorini to the solicitors for the plaintiff, clarifying his evidence.

^[12] Ex parte Rowan (1883) 9 VLR 286 per Stawell CJ, 292. There is also reference to apportionment of excess land by the Registrar of Titles in Symes v Pitt [1952] VicLawRp 55; [1952] VLR 412 and to the identification of potential excess land by the Registrar of Titles in Patsios v Glavinic [2006] VSC 92.

^[13] Victorian Law Reform Commission, Review of the Property Law Act 1958, Final Report 20, 2010, [4.1]. The principal object of the discussion that follows in that Chapter is s 270 of the PLA, which provides for aliquot distribution of excess land in the case of a Crown subdivision. The Report notes that the provision relating to distribution of excess land in the case of private subdivisions (such as LP 92) is s 102(2) of the Transfer of Land Act 1958.

^[15] Affidavit of Joel Ryan Snyder sworn 14 July 2017 (‘Mr Snyder’s Affidavit’), Exhibit ‘JRS-1’.

^[27] Ryan Proceeding, Defence to Amended Statement of Claim and Counterclaim, [13], [9].

Supreme Court of Victoria

Gibson & Anor v The Estate of James Allard & Anor [2017] VSC 788 (20 December 2017)