Rogers v Registrar General of NSW [2024] NSWSC 590

Supreme Court New South Wales

Medium Neutral Citation: Rogers v Registrar General of NSW [2024] NSWSC 590 Hearing dates: 3 May 2024 Date of orders: 3 May 2024 Decision date: 16 May 2024 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Declaration of possessory title made Catchwords: LAND LAW — Adverse possession — Possessory application over Torrens title land — Intestacy — Where no legal personal representative of deceased registered proprietor able to be found after extensive local and international inquiries — Nearly fifty years adverse possession Legislation Cited: Imperial Act Adoption Act 1837 (NSW) ss 17, 34 (repealed) Limitation Act 1969 (NSW) s 6(1)(c) Real Estate (Limitation of Actions) Act 1837 (NSW) (repealed) Real Property Act 1900 (NSW) s 45D(1) Wills Probate and Administration Act 1898 (NSW) s 49(1) (repealed) Cases Cited: McFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629 Texts Cited: Alison Bashford and Stuart Macintyre (eds), Cambridge History of Australia: Volume 2: The Commonwealth of Australia (2013, Cambridge University Press) Category: Principal judgment Parties: Michael Scott Rogers (Plaintiff) Registrar General of NSW (First Defendant) Chief Commissioner of State Revenue (Second Defendant) Representation: Counsel: RD Turnbull (Plaintiff)

Solicitors: Fleming Law (Plaintiff) File Number(s): 2023/248105 Publication restriction: Nil

JUDGMENT

Summary 1. The end of World War II in Australia brought "a decisive break with previous immigration policy favouring British settlers" (Alison Bashford and Stuart Macintyre (eds), Cambridge History of Australia: Volume 2: The Commonwealth of Australia (2013, Cambridge University Press) at 108). Alfred Deakin's nation of "independent Australian Britons" (History at 518) was forever changed by thousands of migrants from war ravaged Europe. Many, if not most, were able to make lives of prosperity, family and security in their new homeland. For some, the challenges of unfamiliar habits, language and culture saw them end their days in solitude. 2. Whatever the particular reasons may have been in his life, Joseph Louis Saric, who was born in Dubrovnik in 1922, died in Kogarah in 1968 without family and, perhaps, friends. I say "perhaps" because the precise nature of Mr Saric's relationship with the late Mr Ross Paul is not apparent from the evidence. 3. What has been proven is that Mr Paul arranged Mr Saric's funeral and then treated Mr Saric's fibro cottage at Gymea Bay as his (Mr Paul's) for the next nearly 50 years until his own death in 2018. While I shall continue to refer to the cottage for convenience, strictly speaking it is the land on which the cottage stands that is the subject of these proceedings. 4. As is not uncommon with European migrants having to complete English language records, Mr Saric's name is recorded in several different ways in various documents, although there is no doubt they all refer to the same man: Josip Šarić; Josip, Joseph or Jozo Saric or Sarich; and, Joseph Louis Saric. As this last mentioned name and spelling is what appears on the relevant land titles register, it is that spelling which I will use, without disrespect, in these reasons. 5. The plaintiff, Mr Michael Rogers, is a solicitor and the executor of Mr Paul's estate. In fulfillment of his executorial obligation to get in Mr Paul's estate, Mr Rogers has brought these proceedings to advance two fundamental contentions: first, that the hearing should be conducted in the absence of any legal personal representative of Mr Saric; and, second, that Mr Paul had become the owner of the cottage by adverse possession so that the cottage forms part of Mr Paul's estate. 6. At a hearing in the Applications List on 3 May 2024, I accepted both those contentions and made these orders: 1 DECLARES that the Michael Scott Rogers, in his capacity as the executor of the estate of the late Ross Paul, late of Belmont, is entitled to become the registered proprietor under the Real Property Act 1900 of all that piece of land situate at XXX, Gymea Bay in the State of New South Wales and being the whole of the land in Lot XX in Deposited Plan XXXXX. 2 DIRECT pursuant to section 138 of the Real Property Act 1900 that upon lodgement of a copy of this order and upon payment of the prescribed fees, the first defendant record Michael Scott Rogers as the registered proprietor of the land in Lot XX in Deposited Plan XXXXX. 3 ORDER that the plaintiff's costs of this application be paid out of the estate of Ross Paul, on the indemnity basis. 4 NOTES that the Chief Commissioner of State Revenue consents to the making of these orders for the purposes of section 74H(1)(a) of the Real Property Act 1900 so as to allow any dealing to be registered to cause Michael Scott Rogers to become the registered proprietor of Lot XX in Deposited Plan XXXXX. 5 NOTES that Michael Scott Rogers shall as soon as practicable, and not later than 21 days from any Order being made making him the registered proprietor of the land comprised in Lot XX in Deposited Plan XXXXX, engage a local Real Estate Agent to submit the property XXX, Gymea Bay for sale by Public Auction on usual conveyancing terms including the withdrawal of the caveat (XXXXXXX). 6 Liberty to any party to apply in relation to the working out of these orders. 7 Direct these orders be entered forthwith. 1. I have also made these orders in chambers, which were intended to be made at the end of the hearing: 1 ORDERS, nunc pro tunc, that the proceedings continue and be determined in the absence of any legal personal representative or person entitled on intestacy in respect of the estate of Joseph Louis Saric, (also known as Josip Saric and Joseph Saric), late of Gymea Bay, who died 31 July 1968 (taken together, a "Representative"). 2 ORDERS that any requirement that the plaintiff join to these proceedings, or serve the documents filed in these proceedings, on any Representative be dispensed with. 3 Direct these orders be entered forthwith. 1. These are the reasons for the orders set out in the two preceding paragraphs. 2. Mr Rogers' application was unopposed. Mr R D Turnbull of Counsel appeared for Mr Rogers. For what follows, the Court acknowledges its grateful reliance on Mr Turnbull's eloquent and comprehensive written submissions, together with his efficient presentation of the extensive documentary evidence at the hearing.