Australian Retirement Holdings Pty Ltd v Tracey Anne Higgins in her capacity as administrator of the estate of the late Monica Mary Pritchard [2021] NSWSC 1158

Supreme Court New South Wales

Medium Neutral Citation: Australian Retirement Holdings Pty Ltd v Tracey Anne Higgins in her capacity as administrator of the estate of the late Monica Mary Pritchard [2021] NSWSC 1158 Hearing dates: 7 to 10 June 2021 Decision date: 13 September 2021 Jurisdiction: Equity - Real Property List Before: Robb J Decision: See pars [261]-[288]. The Court orders that the statement of claim be dismissed with costs, and requires the first defendant to submit short minutes of order to the Associate to Robb J. The plaintiff should advise the Associate to Robb J of what it proposes concerning the making of an application for the grant of easements. Catchwords: LAND LAW — Adverse possession — Possessory application over Torrens title land — Where the plaintiff sought a declaration that it and its predecessors had exercised adverse possession over neighbouring land and that it was entitled to be registered as the proprietor of that land — Where the active defendant is the executor of the estate of the registered proprietor of that land — Where the plaintiff claimed that the defendant is statute-barred from seeking recovery of the land — Where the defendant did not admit the plaintiff's claim and put the plaintiff to strict proof of its validity — Where the plaintiff's case was that it and two predecessors had exercised adverse possession over the land in fact and had the relevant intention to possess for the required 12 year period — Where the Court found that the evidence of actual possession in fact relied upon by the plaintiff was not sufficient to establish adverse possession over the land, as opposed to mere use — Where the Court found that it was not satisfied that the plaintiff and its predecessors had the relevant intention to possess the land for the required 12 year period — Where the Court held that the plaintiff did not establish that it and its predecessors successively exercised adverse possession over the land for the relevant 12 year period LIMITATION OF ACTIONS — Operation of bar — Extinction of title after expiry — Where the plaintiff adverse possessor claimed that the defendant was statute-barred from exercising a right of recovery of land — Where the plaintiff claimed that it and its predecessors had successfully exercised adverse possession over the land for the relevant 12 year period — Where the Court found that the actions of the plaintiff were likely sufficient to establish adverse possession over the land in recent years but were insufficient to establish adverse possession over the land for the entire 12 year period Legislation Cited: Evidence Act 1995 (NSW) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Real Property (Conversion of Title) Amendment Act 1984 (NSW) Real Property (Possessory Titles) Amendment Act 1979 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Bayport Industries Pty Ltd v Watson [2002] VSC 206 Braye v Tarnawskyj [2019] NSWSC 277; (2019) 19 BPR 39213 Cawthorne v Thomas (1993) 6 BPR 13,840 Clement v Jones (1909) 8 CLR 133 Cooke v Dunn (1998) 9 BPR 16,489 J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Jones v Dunkel (1959) 101 CLR 298 Kierford Ridge Pty Ltd v Ward [2005] VSC 215 Kuhl v Zurich Financial Services Australia Pty Ltd (2011) 243 CLR 361 KY Enterprises Pty Ltd v Darby [2013] VSC 484 McDonell v Giblin (1904) 23 NZLR 660 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 Newington v Windeyer (1985) 3 NSWLR 555 Nicholas v Andrew (1920) 20 SR (NSW) 178 Powell v McFarlane (1979) 38 P & CR 452 Re Riley and the Real Property Act [1965] NSWR 994; (1965) 82 WN (Pt 1) (NSW) 373 Sidoti v Hardy [2021] NSWCA 105 Solling v Broughton [1893] AC 556 Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex & BP Ltd [1975] QB 94 Whittlesea City Council v Abbatangelo [2009] VSCA 188; (2009) 259 ALR 56 Wogama Pty Ltd v Harris [1969] 1 NSWR 250 Texts Cited: Brendan Edgeworth, Butt's Land Law (7th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Australian Retirement Holdings Pty Ltd (plaintiff) Tracey Anne Higgins in her capacity as administrator of the estate of the late Monica Mary Pritchard (first defendant) Beverly Higgins (second defendant) Nora Stuart Young (third defendant) National Australia Bank Limited (fourth defendant) Registrar General of New South Wales (fifth defendant) Representation: Counsel: D Neggo (plaintiff) B Lloyd (first defendant)