Carver v State of New South Wales [2024] NSWCA 10

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Carver v State of New South Wales [2024] NSWCA 10 Hearing dates: 14 November 2023 Date of orders: 6 February 2024 Decision date: 06 February 2024 Before: Meagher JA at [1]; Gleeson JA at [2]; Griffiths AJA at [3] Decision: (1) Appeal dismissed. (2) Appellant to pay the respondent's costs in this Court including the appellant's notice of motion filed 21 August 2023. (3) Vary order (3) made by Hammerschlag CJ in Eq on 14 July 2023 such that the order, relevantly, provide: "The writ is to lie in the Registry for not less than 42 days from the date of the judgment of the Court of Appeal.". Catchwords: LAND LAW — Crown land — claim by Crown for possession of Crown land — where land previously subject to a permissive occupancy — whether claim statute barred on the basis that the land has been in adverse possession for over 30 years — ss 27 and 38 of the Limitation Act 1969 (NSW) — effect of s 65 Limitation Act — whether s 13.1 of the Crown Land Management Act 2016 (NSW) precludes the appellant's defence that the Crown's action is statute barred LAND LAW — Adverse possession — Intention to possess — where rent paid to the Crown — where occupant sought to regularise his occupation of the land by seeking a permissive occupancy or licence from the Crown Legislation Cited: Crown Lands Act 1989 (NSW) s 170 Crown Lands (Amendment) Act 1931 (NSW) Crown Lands Consolidation Act 1913 (NSW) s 136K Crown Land Management Act 2016 (NSW) s 13.1 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Limitation Act 1969 (NSW) ss 8, 27, 38, 54, 65, sch 4 Limitations of Actions Act 1974 (Qld) ss 13 and 24 Cases Cited: Brisbane City Council v Amos (2019) 266 CLR 593; [2019] HCA 27 Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) (2004) 221 CLR 178; [2004] HCA 4 Carver v State of New South Wales [2023] NSWCA 223 Fairweather v St Marylebone Property Co Ltd [1963] AC 510 House v the King (1936) 55 CLR 499; [1936] HCA 40 McFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629 Phillips v Marrickville Municipal Council [2002] NSWSC 396 Price v Spoor (2021) 270 CLR 450; [2021] HCA 20 Southern Estates Pty Ltd v New South Wales Aboriginal Land Council (1991) 24 NSWLR 320 State of New South Wales v Carver [2023] NSWSC 828 Category: Principal judgment Parties: Peter Carver (Appellant) State of New South Wales (Respondent) Representation: Counsel: P Tomasetti SC/G Foster (Appellant); K C Morgan SC/I King (Respondent)