State of New South Wales v Carver [2023] NSWSC 828

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Carver [2023] NSWSC 828 Hearing dates: 26 and 27 June 2023 Date of orders: 14 July 2023 Decision date: 14 July 2023 Jurisdiction: Equity - Real Property List Before: Hammerschlag CJ in Eq Decision: Judgment for possession. Catchwords: REAL PROPERTY – Crown Land – Permissive Occupancy – Crown Land Management Act 2016 (NSW), s 13.1 – Crown Lands Act 1989 (NSW), ss 170(1)(d), 170(5)(b)(1) – Crown Lands (Continued Tenures) Act 1989 (NSW), s 11 – Limitation Act 1969 (NSW), ss 27, 38, 65 – claim by Crown for possession of Crown land upon which is constructed a residence which is, and has been, occupied by the defendant for 25 years – defence by defendant to claim by the Crown for possession of Crown land that the claim is statute barred on the basis that the land has been in adverse possession for over 30 years – claim by the defendant that the cottage on the land, which has been occupied by him, is a chattel owned by him which cannot be removed because it is Heritage Listed – where land was subject to a Permissive Occupancy – where defendant claims that prior occupiers were in adverse possession in respect of which he has the benefit – HELD – defendant's claim to adverse possession is unmaintainable against the Crown by reason of s 13.1 of the 2016 Act – neither the defendant's predecessors, nor the defendant, were in adverse possession – building not a chattel but a fixture – order for possession made Legislation Cited: Crown Land Management Act 2016 (NSW) Crown Lands Act 1989 (NSW) Crown Lands (Amendment) Act 1931 (NSW) Crown Lands Consolidation Act 1913 (NSW) Crown Lands (Continued Tenures) Act 1989 (NSW) Limitation Act 1969 (NSW) Cases Cited: Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270 BP Properties Ltd v Buckler (1987) 55 P & Cr 337 Braye v Tarnawskyj [2019] NSWSC 277; (2019) 19 BPR 39,213 Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) (2004) 221 CLR 178; [2004] HCA 4 Cooke v Dunn (1998) 9 BPR 16,489 Forge Group Power Pty Limited (in liq) (mgrs and recs apptd) v General Electric International Inc [2016] NSWSC 52; (2016) 305 FLR 101 Healey v Fraine [2023] EWCA Civ 549 Hughes v Griffin [1969] 1 WLR 23 JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30 Lee v Ferno Holdings Pty Ltd (1993) 33 NSWLR 404 McFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629 McGuren v Simpson [2004] NSWSC 35 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 National Australia Bank Ltd v Blacker (2000) 104 FCR 288; [2000] FCA 1458 National Australia Bank Ltd v Golden Sea Dragon (Hobart) Pty Ltd (1992) 4 Tas R 250 Powell v McFarlane (1979) 38 P & Cr 452 Shaw v Garbutt (1996) 7 BPR 14,816 Texts Cited: B Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Company) Category: Principal judgment Parties: The State of New South Wales (Plaintiff) Peter Carver (Defendant) Representation: Counsel: I J King (Plaintiff) G Foster (Defendant)