New South Wales Supreme Court CITATION : SEYFFER v. ADAMSON & ANOR [2001] NSWSC 1132 CURRENT JURISDICTION: EQUTIY FILE NUMBER(S) : SC 3420/2000 HEARING DATE(S) : 27-28/11/2001 JUDGMENT DATE : 11 December 2001 Michael Alan Seyffer - Plaintiff PARTIES : Jennifer Frances Adamson - First Defendant Mark Ross Adamson - Second Defendant JUDGMENT OF : Bryson J at 1 COUNSEL : A.J. Meagher SC & M.J.Leeming - Plaintiff J.S. Van Aalst - Defendants SOLICITORS : Speed and Stracey Commercial Lawyers - Plaintiff Hardings Lawyers - Defendants CATCHWORDS : EQUITY - proprietary estoppel - a strip 6 feet wide separated the parties' houses - the plaintiff and the previous owners of the defendants' house agreed to build a fence down the mid-line and occupy half each - registered proprietor subdivided in 1920, deed in 1962 and executor took no action - defendants pursued searches, located executor and obtained transfer of strip without consideration - plaintiff claimed remedies based on alleged oral arrangement with defendants that each would enjoy possession of half so that eventually a claim would be made to title - claim expressed as breach of fiduciary duty in common venture, claim for constructive trust and proprietary estoppel - on the facts, the defendants did not give any commitment or make any arrangement as alleged. LEGISLATION CITED : Real Property Act 1900 United Dominions Corporation Ltd v. Brian Pty Ltd (1985) 157 CLR 1 Banner Homes Group PLC v. Luff Developments Limited [2000] Ch 372 Keith Henry & Company Pty Ltd v. Stuart Walker & Company Pty Ltd (1958) 100 CLR 342 CASES CITED : Pallant v. Morgan [1953] 1 Ch 43 United States Surgical Corporation v. Hospital Products International Pty Ltd [1983] 2 NSWLR 157 Hospital Products Ltd v. United States Surgical Corporation (1984) 156 CLR 41 Chattock v. Muller (1878) 8 ChD 177 DECISION : Judgment for the Defendants with costs. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRYSON J TUESDAY 11 DECEMBER 2001 3420/2000 MICHAEL ALAN SEYFFER v. JENNIFER FRANCES ADAMSON & MARK ROSS ADAMSON Judgment 1 HIS HONOUR: This unfortunate conflict between neighbouring householders over a small strip of land could have been resolved by them without litigation, at a great saving of their money, time and attention, and with a better contribution to peace and order than I can make. The land claimed has an area of about 23.25 square metres and an agreed value of $45,000. Few people would go to Chancery over a piece of land like this. As in Shakespeare's Hamlet Act IV Scene 4, "We go to gain a little patch of ground That hath in it no profit but the name." The Courts of Justice, like the Ritz Hotel, are open to all, and I will give my judgment. 2 Mr Seyffer owns the house property at 12 Victory Street, Clovelly, and when the litigation began Mr and Mrs Adamson owned the neighbouring house at 14 Victory Street. Mr Seyffer has university training and experience as a Town Planner as well as much experience in property development. The litigation relates to a strip of land six feet (1.829m) wide between their lots, referred to as Lot 7. Mr Seyffer's house stands on Lot 99 Deposited Plan 1012433, which is the part of Lot 9 Section 7 of the Cliffbrook Estate which became the land in Strata Plan 4039. Mr Seyffer became registered proprietor of Lot 2, one of the two lots in the Strata Plan of the house, in August 1987, occupied Lot 2 as his family home from early 1989, acquired Lot 1 from his brother in November 1991 and obtained possession of Lot 1 about 1993. Since then Mr Seyffer and his family have occupied the entire house. Mr and Mrs Pearce acquired No. 14 Victory Street, referred to as Lot A, in 1975, and were his neighbours until they sold Lot A to the Adamsons. When the body corporate was dissolved its land became Lot 99 Deposited Plan 1012433. The consolidation of the strata lots took effect on 26 June 2000 with the issue of a Certificate of Title Folio 99 Deposited Plan 1012433. The dimensions of the boundaries of Lot 99 by plan are an eastern frontage to Victory Street of 12.19m, a southern boundary of 38.475m, a western boundary or rear line of 11.81m and a northern boundary of 38.43m. 3 In the Cliffbrook Estate the land to the south between Lot 99 and Cliffbrook Parade, (which runs above the north side of Gordons Bay), comprised a small strip of Lot 9 and Lots 10, 11, 12 and 13 of Section 7. Certificate of Title Volume 3028 Folio 71 shows that on or by 6 March 1920 Mrs O'Brien owned that land in a parcel which also included Lots 14 to 17, and a small part of Lot 18 of Section 7. By Deposited Plan 10122, verified by its surveyor on the memorable 11 November 1918, Mrs O'Brien's land was re-subdivided into 8 lots and her land south of what now is Lot 99 became Lots 4, 5, 6 and 7 in Deposited Plan 10122. Lots 4, 5 and 6 were housing lots; Lot 6 had a long frontage to Victory Street but Lots 4 and 5 only had frontage to Cliffbrook Parade. Lot 7 is the strip of land now in dispute, and was described on Deposited Plan 10122 as "Site of Proposed Right of Way". The subdivision in Deposited Plan 10122 was impractical because the topography prevents Cliffbrook Parade from actually being used by vehicles, and to this day it is no more than a footway; housing lots with frontages to Cliffbrook Parade were of little use. Lots 5 and 6 Deposited Plan 10122 were again subdivided by the plan annexed to Transfer B 70753, and 14 Victory Street stands on Lot A in that plan, which became FP 309084 and later MPS (RP) 9084. According to the plan on Certificate of Title Volume 3583 Folio 143 Lot A has frontage of 63 feet 3 inches (19.279m) to Victory Street, a rear line of 60 feet (18.288m), a northern boundary of 83 feet 4 and ¼ inches (25.406m) abutting the southern boundary of Lot 7 and a southern boundary of 82 feet 9 inches (25.223m). Lot A passed to Mr and Mrs Ross Douglas Pearce by transfer registered on 27 June 1975 and from them to Mr and Mrs Adamson the defendants by a transfer on sale registered late in 1997. 4 The dimensions of Lot 7 on the copy of DP 10122 in evidence are not all distinct. Lot 7 has an eastern frontage of 6 feet (1.829m) to Victory Street, a southern boundary abutting and equalling the northern boundary of Lot 7 which appears by summation to be 83 feet 4½ inches (25.413m) long, a rear boundary to its west 6 feet (1.829m) long, and a northern boundary abutting the southern boundary of Lot 99 and 83 feet 4½ inches (25.413m) long. Lot 99 runs deeper and further west than Lot 7; its southern boundary is 38.475m in length suggesting that 25.413m of that boundary abuts Lot 7 and west of that 13.062m by calculation abuts Lot 4 DP 10122. 5 Certificate of Title Volume 3028 Folio 71 dated 6 March 1920 showed that Mrs Florence May O'Brien was then the registered proprietor of land which included part of Lot 9, Lots 10 to 17 and part of Lot 18 of Section 7 of the Cliffbrook Estate; this was the land which was re-subdivided into Lots 1 to 8 by DP 10122. In various transfers she parted with Lots 1, 2, 3, 4, 5 and 6; the last of these transfers was registered on 14 March 1923. She remained the registered proprietor of Lots 7 and 8. According to the practice of the time her partly cancelled Certificate of Title would have remained in the Land Titles Office; no new Certificates of Title were issued to her. Lot 8 is a strip similar to Lot 7 on the far side of the land in DP 10122 and has no present importance. By four transfers and grants, the first registered on 29 September 1926 and the last on 27 July 1954, Mrs O'Brien granted rights of way over Lot 8, but she did not ever transfer or otherwise deal with Lot 7 by any registered instrument. Mrs O'Brien died on 6 October 1962 and probate of her Will dated 30 January 1962 and Codicil dated 24 May 1962 was granted by this Court on 30 April 1963 to the Union-Fidelity Trustee Company of Australia Limited, now named Trust Company of Australia Limited. The will and codicil do not mention Lot 7 or any land at Clovelly and devise residuary real estate to the trustee on trust for sale. 6 At some time which may well have been in 1988 Mr Seyffer obtained some assistance from a workmate who had surveying experience to make title searches of Lot 7. His friend reported to him to the effect that Lot 7 was the residue of an old subdivision, was owned by Florence O'Brien and that she must have died and the subdivision was made in about 1920. The friend gave Mr Seyffer a search copy of Certificate of Title Volume 3828 Folio 71 with a rough note indicating what land remained; the plan on the Certificate of Title is of limited value as it is based on the Cliffbrook Estate sub-division plan and not on DP 10122. (The plan on the Certificate of Title and the terms of the Certificate appear to show that a small strip one foot three inches wide along the southern boundary of Lot 9 Section 7 of the Cliffbrook Estate had been thrown in with the land in the Certificate of Title, so that small strip was probably included in the land re-subdivided by DP 10122 although not expressly referred to in that plan; hence later references, in Strata Plan 4039, to Lot 99 as part of Lot 9. 7 Mr Seyffer gave evidence of events which occurred before Mr and Mrs Adamson acquired Lot A. These events are significant for an understanding of Mr Seyffer's behaviour and his view of the significance of arrangements, but they cannot support his case except insofar as the Adamsons knew of them and adopted them, or participated in them. Until Mr Seyffer's discussion with Mr Pearce Lot 7 was vacant; a fence separated all of Lot 7 from No. 14 and another fence separated the front part of Lot 7 from No. 12; the western half of Lot 7 was used for storage of bins and garden refuse by Mr Seyffer and his brother, and later by Mr Seyffer and his family. The front or eastern part was overgrown by trees and shrubs. It was occasionally used for access by Mr Seyffer or the Pearces and occasionally used for temporary storage by Mr and Mrs Pearce. From time to time Mr Pearce and Mr Seyffer worked on the front part of the land to control shrubs which blocked access, and on one occasion Mr Pearce cleared the front part of the land because tree roots were affecting his plumbing. Mr Seyffer's evidence, which was not challenged by cross-examination, was: In early 1996 I had a discussion with Mr Pearce about the Land. We were both standing on it. The discussion was to the following effect: He said: I recall the name. I thought it used to be a right of way. I said: I don't think so. It's dead land. My advice is we can claim title if we have possession for 12 years. Why don't we get it cleared, put a fence down the middle and split the cost. Then we can eventually move to claim the land together. He said: That's a good idea. 8 Mr Seyffer had some acquaintance with obtaining a possessory title and had once been a member of a venture which had successfully done so, although he did not manage that process himself. 9 In July 1996 Mr Seyffer arranged for a fence to be constructed along most but not all of the mid-line of Lot 7; this cost $1020 which was shared between himself and Mr and Mrs Pearce. At the western end the fence ran for a length which has been said to be 1.3 metres along the northern boundary of Lot A; then it ran north for about 3 feet (0.914m) to approximately the mid-line, then ran generally along the mid-line eastward, but stopped several metres west of the street frontage leaving an area open to the street, illustrated by two photographs in Exhibit B. Mr Seyffer explained the fence taking a turn at the last 1.3m (he referred to it as the kink, Mrs Adamson referred to it as a jog) by saying to the effect that it was very hard to reach the back section from Lot A, and it was easier to return the fence back to a piece of fence which the Pearces had had erected on their boundary only a few years earlier than to make space to continue the fence by cleaning out all the trees and all the compost in the western end. This shows that where the fence ran at the western end was not regarded by Mr Seyffer or by Mr Pearce as of any importance. 10 Mr Seyffer also had gates constructed at the eastern end of the fence, closing off the part of Lot 7 north of the fence, for which he paid $72. He also paved the northern part of Lot 7, and his land between his house and Lot 7, for which he paid $1180. He also had an alteration made to the roofing drains which involved laying a pipe under the surface of Lot 7 to carry his roofing water to Victory Street. He used the part of Lot 7 nearer to his house including the wider part at the western end for access, for maintenance, for storage of bins, garden refuse, firewood and other items, and for a children's play area. Mr Seyffer had in his mind the prospect of obtaining possessory title at some future time, and got some information from solicitors about possessory title in December 1997. Until events in 2000 of which I will speak later he took no further step towards identifying the owner of Lot 7 or obtaining title to it. 11 So far as appears, the Trust Company took no action relating to Lot 7, and may well not have known that Mrs O'Brien was the registered proprietor of Lot 7, until late in 1999 when Mr Adamson contacted an officer of the Trust Company and sought to obtain a transfer of Lot 7. This was followed by a letter from solicitors for Mr and Mrs Adamson to the Trust Company on 21 January 2000 enclosing documents for the Trust Company to execute; these included an application for transmission of title to the Trust Company and a transfer for no consideration to Mr and Mrs Adamson of Lot 7. The Trust Company complied with this request and delivered documents to Mr and Mrs Adamson's solicitors including a transmission application and a transfer which, with some difficulty and attention including valuation and payment of stamp duty, they registered. Mr and Mrs Adamson became registered proprietors of Lot 7 by Certificate of Title Folio 7/10122 dated 10 April 2000, and the Trust Company became registered proprietor of Lot 8 burdened by four rights of way by Certificate of Title Folio 8/10122. 12 Mr Adamson pressed the project of obtaining title to Lot 7 with vigour, initiating the project by having the Adamsons' solicitors make searches of the title, scrutinising each step in the process closely and pressing the Adamsons' solicitors for expedition. Mr Adamson's object was to acquire the land so that Mr Seyffer would not acquire it or build on it, and his development would be kept as distant as possible. Mr Adamson did not know of any arrangement about Lot 7 made between the Pearces and Mr Seyffer, except that he assumed, based on what he saw in Lot 7, that the Pearces and Mr Seyffer had agreed to squat on Lot 7. He said "… There was no way I would be informing the Seyffers that we were looking for the owner" (t68) and he did not do so. The Adamsons learnt that the Trust Company was administering Mrs O'Brien's estate from Mrs Nora Coles, Mrs O'Brien's last surviving daughter and the last surviving beneficiary of her will; Mrs Adamson made contact with Mrs Coles as a result of inquiries into the history of the O'Brien family and letters sent to a number of persons named O'Brien. Both the Adamsons spoke to Mrs Coles on the telephone, but they did not make any bargain or specific arrangements with her to acquire Lot 7, for which they dealt with the Trust Company. In particular the Adamsons made no arrangement or bargain to pay either Mrs Coles or the Trust Company any money as consideration for acquiring Lot 7. On 11 August 2000 Mr and Mrs Adamson sent Mrs Coles a payment of $10,000 as a gift, saying in the accompanying letter that it expressed their thanks for information about the land. The amount of $10,000 was the amount in the valuation obtained for the purpose of stamping and transfer. 13 So Mr and Mrs Adamson gained an extra strip 6 feet (1.829m) wide for the full depth of their land along its northern boundary. In February 2001 Mr Adamson became sole registered proprietor of Lot A, but Mr and Mrs Adamson continue to be registered proprietors as joint tenants of Lot 7. 14 Considerable attempts were made in advocacy to seek to support criticisms of the Adamsons' conduct in taking all steps to acquire the title to Lot 7 without giving any information about so doing to Mr Seyffer, who learnt that they had done so only through the activities of a surveyor who set about establishing the boundary line in May 2000 for the Adamsons after they had acquired title. This conduct and its not being disclosed were characterised by the plaintiff's counsel as secrecy, and it was contended that it was in some way discreditable to the Adamsons, an indication of bad faith or a breach of faith towards Mr Seyffer. Ancillary to these contentions was the suggestion that the letter of thanks and the payment to Mrs Cole on 11 August 2000 were prompted only by the commencement of these proceedings shortly before. There is in my view no basis for seeing those events as connected in this way. The criticism directed at the defendants relating to secrecy, and indeed the concept that there was secrecy depend on its first being shown that there was some obligation or that there were some circumstances in which the Adamsons were called upon to inform Mr Seyffer of their intention to obtain title and the steps they took towards doing so. That in its turn depends on whether the Adamsons entered into some common venture with Mr Seyffer governing the use by each of parts of Lot 7, for an indefinite future and with prospects of obtaining possessory title at some future time in the absence of any positive intervention by the registered proprietor. 15 Mr Seyffer claims equitable remedies under which Mr and Mrs Adamson will be required to transfer to him the northern half of Lot 7, a strip 3 feet (0.914m) wide. To effect such a transfer it would be necessary to obtain development consent and subdivision consent and to register a plan of subdivision dividing Lot 7 into two lots; the Court's order would be conditional on those things happening and would require the Adamsons to take the steps necessary to bring them about. Evidence did not deal with whether or not that is feasible, although no particular difficulty appears. As part of his case Mr Seyffer offered to accept terms that he was to pay half the costs reasonably incurred by the defendants in having Lot 7 transferred to them, and half the costs which will need to be incurred to transfer the part which he claims to him. 16 Mr Seyffer's claim is based on personal equities alleged to arise from communications between him and Mr and Mrs Adamson and from conduct affected by those communications. As registered proprietors Mr and Mrs Adamson would be protected by s.42 of the Real Property Act 1900 against any equitable interests or equitable claims arising out of dealings and events between Mr Seyffer and Mr and Mrs Pearce, whether or not the Adamsons acquired title to Lot 7 with notice of them; and in any case Mr Seyffer and Mr and Mrs Pearce had no legal or equitable interest in Lot 7, so there could not, I would think, be any equitable interests of which notice could be had. (The Adamsons too had no legal or equitable interest in Lot 7 until they became its registered proprietors.) The claims in the Statement of Claim, as further amended at the hearing, included an alleged agreement between the parties to the effect that each would occupy half of Lot 7, and in due time would lodge possessory applications to obtain title, and that they would not independently seek to acquire Lot 7 and frustrate the agreement. The Statement of Claim went on to allege equities arising out of Part Performance. This claim was not pressed at the hearing, reasonably enough as the evidence could not support it. One claim presented at the hearing was (Statement of Claim para 33) to the effect that there was a common or shared venture among the parties to share the use of Lot 7 equally by each occupying exclusively the side nearer to his or their house. The venture was to continue indefinitely and could have led, with the elapse of time, to each side obtaining possessory title and (it may be) registered title, and the venture was carried out by making arrangements to use an existing fence which had been erected during the proprietorship of the Pearces and by arrangements under which the fence was extended to the western end of Lot 7, and was acted on by various acts of occupation and expenditure on improvements. It was then said that the Adamsons owed Mr Seyffer a fiduciary duty not to take for themselves to the exclusion of Mr Seyffer the opportunity to obtain title to and enjoy possession of the whole of Lot 7; that they were in breach of duty and that by way of remedy a constructive trust of half of Lot 7 should be imposed on them. 17 In opening, the plaintiff's counsel said to this effect: The plaintiff's case in substance is that the arrangement which was made and which continues is that each of the respective parties would enjoy the possession of their half of the strip, so that eventually a claim would be made to title to this strip; there was an arrangement, not expressed but implicit, that neither party would do anything to deny possession to the other party. On the legal principles counsel said that the informal arrangement between the parties with respect to the strip and its use and the steps to be taken to obtain title gave rise to a fiduciary relationship between the parties in the same way as joint ventures in commercial contexts can give rise to fiduciary obligations to each other; as in United Dominions Corporation Ltd v. Brian Pty Ltd (1985) 157 CLR 1. Counsel said to this effect: In consequence a fiduciary obligation was owed to refrain from obtaining or retaining for themselves any advantage in relation to the strip which was contrary to the arrangement, without the knowledge and informed consent of the other party. That however is what happened, in that Mr and Mrs Adamson without the knowledge or consent of Mr Seyffer and in a fairly secretive way went about acquiring and did acquire the land for themselves. The appropriate remedy is that the defendants should hold half the land on constructive trust for Mr Seyffer. 18 Counsel also said: The alternative analysis is that the arrangement and the plaintiff's reliance on the arrangement and reliance on the fact that he did not need to do anything to pursue or protect his interest in half the land gave rise to an equity which would entitle him in the circumstances to the same remedy. The principal decision is Banner Homes Group PLC v. Luff Developments Limited [2000] Ch 372. 19 At its highest, it was contended by the plaintiff's counsel that a constructive trust arose out of departure by the defendants from an arrangement to occupy the respective halves of the land for an indefinite period terminable upon reasonable notice. I would not accept that departure from such an arrangement would give rise to a constructive trust; examination of a claim for a constructive trust can only take place in relation to the detailed facts of each instance in which a constructive trust is said to arise; the essential core is an arrangement or shared understanding, however informal, about a common venture. 20 The Statement of Claim also pleaded and the plaintiff's counsel relied on a proprietary or equitable estoppel based on representations, in part appearing from the terms of conversations and in part implied by conduct, to the effect that an interest in land would be conferred on Mr Seyffer (and another would be conferred on Mr and Mrs Adamson) by shared occupation and co-operative conduct over a period of time, and also based on acts of Mr Seyffer in reliance on that representation, principally by not pursuing any inquiries or endeavours to obtain title himself. The estoppel was also based on a number of matters which were put forward as detriment incurred in reliance on the representations, the principal being that Mr Seyffer's plans to redevelop his property, and an application for development consent and a modification application which he presented in great detail, and pursued by undertaking the modified redevelopment, did not provide any convenient means of exterior access from Victory Street to the rear of his property because he assumed that he could use the northern part of Lot 7 for that purpose. Among the matters put forward as detrimental reliance were that Mr Seyffer caused the telegraph pole to be moved at his expense to a point adjacent to the middle of Lot 7. In considering that matter it should be observed that this move was against the wishes of the Adamsons, who put forward that the telegraph pole should be opposite the boundary line of Lot 99, or should not be moved at all. 21 Counsel referred me to statements of high authority dealing with the fiduciary obligations of participants in joint ventures and informal shared undertakings and referred me to passages in United Dominions Corporation Limited v. Brian Pty Limited (1985) 157 CLR 1 at 11-12. Counsel also referred me to Keith Henry & Company Pty Ltd v. Stuart Walker & Company Pty Ltd (1958) 100 CLR 342 at 350, in which I do not find any assistance. Counsel also referred me to authorities dealing with what is called, without much precision, the Pallant v. Morgan Equity, referring to the decision at [1953] 1 Ch 43. That decision was itself referred to in the Court of Appeal of NSW in United States Surgical Corporation v. Hospital Products International Pty Ltd [1983] 2 NSWLR 157 at 237, although it was not noticed in the judgments on appeal Hospital Products Ltd v. United States Surgical Corporation (1984) 156 CLR 41. Pallant v. Morgan was considered and cases which were seen as being related to it were reviewed in the judgment of Chadwick LJ in the Court of Appeal of England in Banner Homes Group PLC v. Luff Developments Ltd [2000] Ch 372. With respect, I regard the resolution of the decisions which his Lordship reviewed commencing with Chattock v. Muller (1878) 8 ChD 177 into a common thread of principle as quite difficult. What is altogether necessary however is that there be some agreement, arrangement or shared understanding about the way in which some interest in land will be acquired or dealt with. 22 It was an agreed fact that the current market value of Lot 7 is $90,000 and that I should treat the current market value of half of Lot 7 divided by a mid-line in the position of the fence as $45,000. The valuation of interests of this kind is always difficult and uncertain, and the precise value is not important except that it must appear, as it clearly does, that the interest is of sufficient value to justify equitable relief. 23 Before the Adamsons purchased No. 12 Victory Street, Mrs Adamson inspected the property three times. What was there to be seen is shown by a survey report obtained by the vendors' solicitors and annexed to the contract of sale. This survey report says (Ex E pp24-25): "The subject property is presently occupying from 0.74-0.79 metres of an adjoining Right of Way as shown on the sketch hereon." The sketch shows a paling fence running approximately down the mid-line of the Right of Way from a point near the building line at the front of No. 14 to a point a little distance from the rear line. The survey shows that at that point the fence returned southward to meet the northern boundary of No. 14. Special Condition 12 in the contract referred to the survey and disentitled the purchasers from relying on irregularities referred to including occupation of part of an adjoining Right of Way. When Mrs Adamson inspected the property before attending the auction she saw the position, generally as shown in the survey report, although she was unable to see beyond the fence because of its height. 24 Mrs Adamson bought the property on behalf of herself and her husband after the auction on 29 August 1997. Mr Adamson was then overseas. Before entering into the contract Mrs Adamson told her solicitors that she was concerned about the Right of Way and was given a letter of advice which pointed out that the Right of Way was not connected in any way with title to No. 14 and that the beneficiary of the Right of Way could require the fence to be removed. It is clear that at the time of the purchase and the time of taking possession Mrs Adamson, who conducted this aspect of the Adamsons' affairs herself, had no belief or intention that she would or could obtain title to part of Lot 7 and had no project of doing so; she accepted the fence and the de facto occupation up to the fence because it existed, and she was fully aware that someone with a better right could prevent this from continuing. 25 Mrs Adamson entered into possession on 21 November 1997 and Mr Adamson did so soon after. By then the position of the land was no longer exactly as shown in the survey plan. Re-development was taking place on land to the west being or including Lot 4 DP 10122; this involved extensive excavation and, later, erection of a structure which had the effect of retaining the sides of the excavation. The boundary fence at the western end of Lot 7 and of Lot A had disappeared with the excavation and there had been some collapse of land. Some of Mr Seyffer's back garden had fallen into the excavation. The jog or short return in the fence was not there, and a temporary cyclone wire fence protecting the excavation ran on Lot A and Lot 7 to the end of the paling fence in Lot 7 and to the southern boundary of Lot 99. The land surface was later restored and new fencing was erected by the builder who worked on Lot 4. The builder's trade name was Planet Build and its site supervisor was Bill Brier. 26 The evidence of Mr Seyffer is that early in 1998 he had a conversation with Mrs Adamson, on the first or second occasion he had met her. He says: In about early 1998 I had a conversation with Mrs Adamson. This was either the first or second occasion I had met her. We were standing on either side of the fence running down the middle of the Land. Our conversation was to the following effect: I said: This fence runs along the middle of a strip of land between our properties. It was the residue of an old subdivision. Ross Pearce and I put the fence down the middle and eventually we intended to claim title. Ross couldn't get to the end there so I kept all the land at that end. I have occupied that small section since 1987. However the deal was for us each to get half of the land so if you want to I will arrange for the fence to continue down the middle to the end." She said: I will speak to Mark. Within several days of the above conversation I understand and verily believe that my wife, Karina Seyffer, had a conversation with Mrs Adamson. Following that conversation, Mr and Mrs Adamson and I arranged for the owner of Lot 4 in DP 10122 to have his contract landscaper construct a fence to divide the remaining 1.3 metres of the western end of the Land. 27 Mrs Seyffer's evidence (Affidavit 1/8/00) in this relation is as follows: On or about early 1998 I had a conversation with Mrs Adamson, over the fence located on the Land, to the following effect: She said: We want the fence to go all the way to the end. I said: OK. I will speak to Michael. 28 Without Mrs Adamson's further intervention it was arranged for Planet Build to construct a fence to continue the division of Lot 7 for the remaining distance of about 1.3 metres between the end of the existing paling fence and the western boundary of Lot 4. Mrs Seyffer's letter to Planet Build of 8 January 1998 Exhibit F records this arrangement. The short return fence which had run southward from the western end of the paling fence to the boundary of Lot A was no longer there. An effect of this extension of the fence was that, for the westernmost 1.3 metres of Lot 7 Mr Seyffer only had half, not the full width of Lot 7 fenced off and apparently contiguous to his holding. For some years in the past he had had the advantage, if it can be thought of as an advantage, of having this part of Lot 7 apparently on his side of what divisions there were. It was put to little use; it was the site of a heap of compost. Its total area was a little over one square metre. The loss of whatever advantage there may have been in having ready access to this small area of land which Mr Seyffer did not own, which he put to little use and which no one else put to any use is of minimal significance. It does not have enough significance as a detriment or otherwise to be a relevant factor for any decision on whether or not he should be granted equitable relief. 29 Except for this small circumstance relating to the last 1.3 metres of fence, the Adamsons on their side and Mr Seyffer and his family on his side occupied and used half of Lot 7 after the Adamsons moved in at the end of 1997, in much the same way as they have used as other open space in the holdings to which they have title. There have been small works and improvements. Mr Seyffer has made a small garden at the western end and installed planter-pots, plants and lattice. The Adamsons have paved much of their half of Lot 7 towards the eastern end and have turfed much of the western end, and these works formed part of substantial landscaping works to their property. 30 Relations between these neighbours developed in unfortunate ways in events from about June 1998 when Mr Seyffer lodged a development application and plan with Randwick City Council for extensive re-development of Lot 99, including building a bigger garage and a new garage entrance, expanding a lounge-room and building a new deck and balconies along the front of the house. All the development proposed was to take place on Lot 99, which Mr Seyffer owned. There was no reference to use or intended use of part of Lot 7 as access, or for any other purpose, or of any claim to it, in the documents lodged with the development application. However Randwick City Council's officer preparing a report for consideration of the development application was informed or came to understand in some way that Lot 7 would be used as access. 31 Insightful expert study and consideration of the development application may well have led to the interpretation that access over part of Lot 7 was to be relied on, in the absence of other apparent provision for access to the rear of Lot 99. Access on the Northern side of Lot 99 is difficult because of the form of the re-development. Mr Seyffer gave evidence that he mentioned the fact that the strip of land was there in conversation with Council officers, including many conversations on the site. Advertence to Lot 7 is shown in the report of the Council's Assessment Planner Michael Maloof dated 4 January 1999 which was the basis of the Director of Planning's determination under delegated authority on 6 January 1999. Mr Maloof said: (Ex E pp51-52) The southern boundary of the site adjoins a right of way which has a length of 27m from the front of the site. The ROW is currently 'dead land' since the lot is unusable as it is so narrow, approximately 2m, and the owner of the lot has passed away. The ROW was originally reserved to be used to provide vehicular access to the adjoining lots to the west (rear) fronting Cliffbrook Parade given the steep fall of the adjoining land to the south. The title of the lot was never transferred and still today remains in the ownership of the original crown grantee (a Mrs Florence M. O'Brien). The Council officer was fairly well informed about Lot 7, and the information or much of it could well have come from Mr Seyffer. 32 In Exhibit E page 56 the report also said: The applicant has proposed to relocate the existing power pole in front of the adjacent dwelling located at No. 14 Victory on advice from Energy Australia as a suitable location. It is considered that this location would adversely affect the northerly aspect from the adjacent dwelling at No. 14 and should be relocated to the middle of the right of way such that it will minimise the loss of views from both No's 12 and 14 whilst not being located over the underground stairwell. This location would not interfere with the use of the right of way given it will be divided and amalgamated with each adjoining lot (No's 12 & 14). Given there are no other parties benefiting from the ROW no objection is raised. This could be addressed through the imposition of an appropriate condition of consent. This passage in the report reflects views which could only have come from Mr Seyffer. 33 In submissions counsel claimed significance for quite small details and aspects of the communication of Mr Seyffer's proposal and of responses and objections to them. These attributions and the force with which the submissions were advanced appeared to me to reflect an underlying state of conflict but not to be of real value in appraising the matters in issue. There was a conversation between Mr Seyffer and Mr Adamson in which Mr Seyffer provided Mr Adamson with a copy of the plans, the development application was discussed, Mr Adamson said to the effect that he did not like the pergola at the front, and there was discussion about the position of the telegraph pole, which was proposed to be moved southward from its then position in Victory Street a little to the north of the boundary between Lot 99 and Lot 7. Mr Seyffer told Mr Adamson that the new position of the pole on the then plan was to be changed so that the pole would be located "adjacent to our fence". According to Mr Seyffer's evidence, Mr Adamson accepted this and said that if Mr Seyffer amended the plan as discussed Mr Adamson would not lodge an objection. 34 Mr Adamson gives a different account of this conversation in which he raised objections to a number of matters and did not indicate any agreement about the power pole being placed in the position of which Mr Seyffer speaks. Mr and Mrs Adamson did in fact write to the General Manager of Randwick City Council on 7 July 1998, saying that they did not object to the development in principle, but making a number of adverse comments, one of which is to the effect that they did not agree to moving the power pole and suggested that that would produce a detrimental change to their north-east views. Randwick City Council approved the development application, subject to conditions, in January 1999. 35 It was put forward as supporting the plaintiff's case that Mr Adamson in fact accepted that the power pole would stand in the street opposite the end of the fence, and that this in some way testifies or confirms that both sides were proceeding under an arrangement or understanding in which each treated the other as owning or having some claim to Lot 7 up to the fence. If Mr Seyffer had established as a matter of fact that there was a conversation in the terms which he alleges I would not regard the conversation or Mr Adamson's position in it as establishing any significant matter tending to confirm the plaintiff's case generally. However it has not in my view been established, on the balance of probabilities, that Mr Adamson agreed to the position for the power pole to which Mr Seyffer claims Mr Adamson did agree. Both were cross-examined, each adhered to his position, and cross-examination did not show nor does anything else in the evidence show that either of them should be regarded as generally an unreliable or insincere witness. They are both men of business and each has a firm understanding of his own interests and the fortitude to state and adhere firmly to those interests. To my mind it is not probable that Mr Adamson took a completely different position about the significance of moving the power pole in his letter of 7 July 1998 to a position which he had then recently taken in a conversation. My finding then is that there was no arrangement in which Mr Adamson accepted that the power pole was to be moved to a position opposite the mid-line of Lot 7, and the plaintiff's case is not assisted by the support, if any, which such a finding would have given to it. 36 At some time about June 1998 after the development application had been lodged there was a conversation in Victory Street in front of Mr Seyffer's house at which Mrs Adamson, Mr Seyffer, Mrs Seyffer and a representative of Pacific Power named Mr Daffurn were present. Mr Daffurn was not called in evidence by either party. Mrs Adamson's evidence was to the effect that Mr Seyffer made a statement as follows "We're just discussing moving the power pole with Pacific Power. With regard to the Right of Way I have tried to find the owners and haven't met with any success, so don't try" and Mrs Seyffer said "Yes, that's right." Mrs Adamson said "The land is a residue of title and owned by someone else. It is not used as a Right of Way." Mrs Adamson puts forward the interpretation that Mr Seyffer thus accepted that a third party had title to Lot 7. 37 Mrs Seyffer's evidence is to the effect that she attended the meeting by chance, and that she had spoken to Mr Daffurn on an earlier occasion. She denied that Mr Seyffer said the words attributed to him about his attempts to find the owners and about not trying to find the owners. Mrs Seyffer gives some further parts of the conversation, which confirm that Mrs Adamson opposed moving the pole on the ground of impact on views. Mr Seyffer, whose evidence is that he was ill on that day and that he only attended the last part the meeting, gives an account of the part of the meeting at which he was present which does not deal with the position of the pole. 38 Mr Seyffer lodged a modification application on 23 December 1999; to the previous development this added a pool, a new room and some design changes. He gave the Adamsons a copy of the plan and application on the day they were lodged; their counsel made some complaint of his not doing so in advance but I see no substance in this. Mr and Mrs Adamson lodged a strongly expressed objection by a letter to Randwick City Council of 27 January 2000 Exhibit A MAS 23 objecting to many things including in particular movement of the power pole south of the alignment of Lot 99. They supported their objection with a written report prepared by Brett Newbold, an Urban Planning and Urban Design Consultant, which put their position forcefully and with apparent professional skill. However Randwick City Council gave a consent which, subject to conditions, in substance allowed the modification application. At the time of the hearing the development work was proceeding; it is illustrated by the photograph Exhibit 2 and is obviously very extensive. In particular the photograph clearly shows that the power pole has in fact been moved. It is Mr Seyffer's evidence that Pacific Power agreed to move the pole to this position in about 1999 over Mr and Mrs Adamsons' objection. Paragraph 44 of Mr Seyffer's affidavit of 1 August 2000 has given me to understand that the removal of the power pole may not be permanent. 39 There was a passing reference during the hearing to some project to provide Victory Street with underground power at the expense of residents; this is not my concern but it does prompt the observation how much better it would have been for the parties to give their attention and money to that project than to engage in this litigation and to labour their past debates about the position of the pole. 40 Plainly enough there is no evidence that the Adamsons ever gave to Mr Seyffer an express commitment to a long-term or indefinite common venture directed towards obtaining title to parts of Lot 7, or to maintaining possession for each of parts of Lot 7. The conversations between Mr Seyffer and Mrs Adamson and between Mrs Seyffer and Mrs Adamson of which the plaintiff's evidence speaks do not, even taken at their highest, provide a basis for any objective interpretation of Mrs Adamson's words and conduct to the effect that she on her own behalf or on behalf of both gave any such commitment. Nor do the conversations and circumstances relating to the position of the power pole indicate or support any such objective interpretation. At the most the conversations and circumstances show an arrangement to leave circumstances about the fence along the middle line of Lot 7 and occupations up to the fence in much the same situation as the Adamsons found them when they inspected the property before purchase and when they took possession, supplemented by an arrangement of minor importance about how advantage would be taken of the willingness of the builder who had carried out excavations on Lot 4 to restore the position and make good the fencing. The departure from the previous state of the fencing was very minor, was not of any obvious importance and could not reasonably have given rise to an understanding by either side that either side was gaining an advantage or incurring a disadvantage, or that any commitment about future conduct was implied. The fence was there; the Adamsons accepted that it would stay there; it is hard to see that they could do anything else. Any sense that he had entered into a commitment which Mr Seyffer may have felt cannot have been based on communications with the Adamsons and their behaviour, and may have been affected by continuation of expectations formed as a result of arrangements made with the Pearces. References in discussions about the power pole to the position to which it was to be moved can have done no more. 41 Mrs Adamson denied that there was a conversation between Mr Seyffer and herself in the terms alleged. Mrs Adamson gave an account of her early conversation with Mrs Seyffer about extending the fence in which she said "As neither of us own the land the fence should continue in a straight line", Mrs Seyffer agreed, and the builder did the work soon afterwards. 42 It is of some small force for the probabilities that no written record was made, not even a letter of confirmation, although Mr Seyffer had much experience in land development business. As a factor in the balance of probabilities the absence of written confirmation has some small force, although it is not an overwhelming circumstance. The plaintiff's counsel contended that it is a fact to favouring acceptance of Mr Seyffer's evidence in para 21 that Mr Seyffer had, in December 1997, been given by a solicitor a few pages of information from a text book on the subject of possessory title. This was put forward as tending to confirm that the subject of possessory titles was in Mr Seyffer's mind at the relevant time. In my view this has no force on the subject of what specifically if anything he said to Mrs Adamson. 43 If there was a conversation between Mr Seyffer and Mrs Adamson in the terms alleged, it could hardly have seemed to Mrs Adamson to be either important or memorable that, at her earliest meetings with Mr and Mrs Seyffer some references were made to the arrangement between Mr Pearce and Mr Seyffer to erect the fence, and, in the context of a statement about restoring the fence, a statement that the deal was for each to get half of the land cannot have been understood to refer to anything but occupations as defined by the fence; in particular it cannot have been understood to refer to any arrangement committing anyone to conduct for a long-term future or to any measures relating to obtaining title. Nor can arrangements relating to what the builder was to do with the last part of the fence have seemed important or memorable, or have had any context of long-term commitment. It was Mrs Adamson's evidence that neither Mr Seyffer or Mrs Seyffer has ever referred to acquiring title to the land by means of a possessory title application in a conversation with her. The accounts of the conversations given in evidence were challenged in cross-examination; the positions were firmly adhered to and there is no true basis for deciding that the evidence of one is more reliable than the evidence of another. 44 It was also put forward as assisting Mr Seyffer's case and injurious to Mrs Adamson's credibility that Mrs Adamson asserts that, in a conversation to which he agreed he was a party, Mr Seyffer said that he did not know who the owner of the land was; whereas it was his evidence that some years earlier, "In about the early 1990s" he had a friend undertake some title searches and the friend reported back "The land is the residue of an old subdivision. It was owned by Florence O'Brien. She must have died as the subdivision was in about 1920." Mr Seyffer produced some search material from this source. What Mrs Adamson attributes to him is a statement to the effect that he could not find the owner and that she should not try. What she says and what he says are not wholly inconsistent; a person who found from a search paper that Florence May O'Brien owned the land in 1920 and last dealt with other land in the Certificate of Title in 1954 could reasonably think and say, in 1998, that he could not find the owner and that another person should not try. There is no material making it objectively clear that Mrs Adamson's evidence on this matter is wrong, and the passages in evidence and counsel's comments do not assist me to any conclusion about her credibility. 45 The plaintiff's counsel also claimed that there was some acknowledgement by the defendants of the plaintiff's position to be observed in an exchange of correspondence in May 2000 after Mr Seyffer became aware that Lot 7 had been transferred to the Adamsons. In his letter of 10 May 2000 Mr Seyffer said among other things "We believed we were entitled to half of the property as this was the arrangement in place for many years before your purchase and it was something of which you were made aware." The Adamsons replied on 16 May 2000 saying, so far as relevant, "You have never had title to the subject land or any part of it." I do not think that this can reasonably be regarded as a concession or constructive admission that the Adamsons had been made aware of an arrangement between Mr Seyffer and the Pearces. The reply met the principal claim – "We believe we are entitled to half of the property" - head on and, on the terms of the claim, completely. Given the circumstances and terms of the letters, there is in my opinion no reason to think that the Adamsons should be taken as admitting any assertion with which they did not deal in detail. They were not called upon, in the circumstances, to state the whole of their position in detail, and indeed they were not answering a letter in which anything had been stated in detail, such as what was asserted to be the manner in which they were made aware of Mr Seyffer's belief. In the letters neither side embarked on a whole statement of his or their positions. 46 I do not see any force in the contention that what I regard as a minor anomaly in Mrs Adamsons' recollection concerning her telephone conversations with Mrs Cole had implications adverse to her credibility generally. 47 Mr Seyffer has not satisfied me and I do not find that any conversation in which Mrs Adamson participated, or any conduct of hers created an objective indication to him that any commitment was given to any long-term course of action or shared venture affecting possession or ownership of Lot 7. The most that happened was that the Adamsons accepted that the existing fence which was near but not on their land would stay where it was and would be extended by 1.3 metres. In no sense was accepting these things, for land they did not own, a commitment to do anything: acceptance was all they could do. 48 There is no basis on which the plaintiff's case can be sustained either as an alleged fiduciary obligation arising out of a shared venture, or as a proprietary estoppel. Far from there being, as for an estoppel there must be, a reasonably clear indication that an interest in Lot 7 would be conferred upon Mr Seyffer, no indication was given by the Adamsons which had any bearing at all upon title, either for the present or for any time in the future, or could reasonably form the substance of a representation on which it was reasonable for Mr Seyffer to shape his conduct, or to rely in incurring any detriment. The plaintiff has not made out a case on any ground. 49 It was put forward as a detriment incurred by Mr Seyffer in reliance on the alleged arrangement that he refrained from taking steps of his own to acquire Lot 7 or half of it from the estate of the late Mrs O'Brien. In oral evidence he said to the effect that he did not contact Mrs O'Brien's estate at the earliest opportunity because in his view there were two parties interested, the Pearces and himself, and he had an agreement with the Pearces which could deal with title. He also said to the effect that he did not wish to go down the path of contacting the estate, that he knew that would be a fairly difficult task because of the amount of work involved and because of time constraints on himself which meant that he could not pursue it. In my view I should not accept this explanation. He probably obtained information to the effect that Mrs O'Brien was the registered proprietor in 1988, or within a few years after that, and he had up to 10 years before his alleged dealings with the Adamsons during which to find time to pursue the matter. An arrangement or understanding with the Pearces could explain his course of conduct only for the later part of this time, and only while the Pearces were there. 50 In my view Mr Seyffer's explanation is improbable, and by far the more likely explanation of Mr Seyffer's not having pursued inquiries and endeavours to obtain title to Lot 7, in view of the information he obtained about the registered proprietorship in 1988 and his general knowledge of and facility in dealings in property, is that he decided that the best course was to let time pass while he continued in occupation of part of Lot 7. Persons conducting the estate might demand a price, whereas if they were left alone there was little likelihood of activity after decades of inattention, and there was a prospect of obtaining possessory title in the long term. It is not a correct view of the facts that he was induced to refrain from taking steps by reliance on his arrangement with the Pearces, or by any thought that he had some similar arrangement with the Adamsons. 51 It is doubtful whether, if the alleged venture had existed and had been pursued for an indefinite period, either the Adamsons or Mr Seyffer would ever have become entitled to succeed in an application for possessory title under s.45D of the Real Property Act, because the effect of subs.(1) is that the applicant must show long-term possession of the whole of a lot in a current plan, and in the nature of the alleged arrangement, neither was in possession of the whole of Lot 7. Even if no possessory claim for registered proprietorship were ever established under s.45D, the probability is that if the arrangement alleged had been made and had continued indefinitely, it would not have been disturbed by the Trust Company. 52 For these reasons the defendants should succeed. 53 Order: (1) Give judgment for the defendants with costs. ******** Last Modified: 12/13/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.