New South Wales Supreme Court CITATION : Bartlett v Ryan [2000] NSWSC 807 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2281/99 HEARING DATE(S) : 8 & 10 May 2000 JUDGMENT DATE : 16 August 2000 PARTIES : Garth James Bartlett as Administrator of the Estate of the late Adrian William Bartlett (P) Patricia Margaret Ryan (D) JUDGMENT OF : Hamilton J COUNSEL : B A J Coles QC and J E Armfield (P) M B Evans (D) SOLICITORS : Carneys (P) Ratner Chiu & Co (D) CATCHWORDS : CONVEYANCING [161] - Torrens system - Indefeasibility of title - Exceptions - Adverse possession of others - After certificate - NSW - Peaceable possession - Meaning - Registered proprietor claims to have refrained from curial action during limitation period through fear. LEGISLATION CITED : Limitation Act 1969, ss 8, 27(2), 40 & 65 Real Property Act 1900, ss 45 (repealed), 45C, 45D, 45E & 45F Addison v Billion [1983] 1 NSWLR 586 Cooke v Dunn (1998) 9 BPR 16,489 Hough v Taylor (1927) 29 WALR 97 Karaguleski v Vasil Bros [1981] 1 NSWLR 267 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Mulcahy v Curramore Pty Ltd [1974] 1 NSWLR 464 CASES CITED : Re Minister for Immigration and Multicultural Affairs; Ex p Fejzullahu (2000) 74 ALJR 830 Shaw v Garbutt (1996) 7 BPR 14,816 The Public Trustee v Bellotti (1986) 4 BPR 9196 Van Den Bosch v Australian Provincial Assurance Association Ltd (1968) 88 WN (Pt 1) (NSW) 357 Webeck v Foley (1992) 5 BPR 11,694 Baalman & Wells' Land Titles Office Practice (5th ed, 1998) [397.100] 14 Halsbury's Laws of England (4th ed, 1975) [83] Lightwood, The Time Limit on Actions (1909) 6 DECISION : Interlocutory injunction granted. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J WEDNESDAY, 16 AUGUST 2000 2281/99 GARTH JAMES BARTLETT as Administrator of the Estate of the Late Adrian William Bartlett v PATRICIA MARGARET RYAN JUDGMENT His Honour: 1 This is an application by the defendant for an interlocutory injunction to restrain the plaintiff and the Registrar General from proceeding further with an adverse possession application under Part 6A of the Real Property Act 1900 ("the RPA") in respect of a property known as unit 8, 23 Baden Street, Coogee ("the property"). The defendant is the registered proprietor of the property and the plaintiff is the administrator of the estate of the late Adrian William Bartlett ("the deceased"), with whom the defendant lived in a de facto relationship between 1969 and 1974, and who died about 13 February 1999. 2 The pleadings in the proceedings are as follows. By his statement of claim filed on 30 July 1999 the plaintiff alleges that in March 1973 the deceased purchased two home units at 23 Baden Street, Coogee, namely the property and unit 28. He took the title to unit 28 in his name. Although title to the property was taken in the name of the defendant, this was only done so as to obtain a lower interest rate when the property was purchased, and the whole of the purchase moneys were provided by the deceased. At all times the deceased paid all outgoings in respect of the property. There was no intention that the defendant should have any beneficial interest in the property. A declaration was sought that the defendant holds the property in trust for the plaintiff and an order that she transfer it to him. 3 By her defence filed on 31 August 1999 the defendant alleges that she was the purchaser of the property and paid the deposit from her own money and the balance of the purchase money from a loan raised by her from the St George Building Society and secured by a mortgage under which she was the sole borrower. She says that she paid all outgoings on the property up to mid 1975. She says that she was forced to leave the property in mid 1975 by the conduct of the deceased. Paragraph 5 alleges: "That conduct, in particular, included verbal abuse, harassment and physical abuse including forcibly pushing the defendant out of the unit in the early hours of one morning in mid-1975, after which time the defendant was unable, through fear of further physical and verbal abuse, to return to the property other than to collect some of her possessions." She says that she did not thereafter pay the outgoings on the property but, insofar as they were paid by the deceased, they should be regarded as an occupation fee in respect of his continued occupation of the property, which was hers. 4 By her amended cross claim filed on 8 March 2000 the defendant alleges that she lived in a de facto relationship with the deceased until late 1974. The property was purchased by her as alleged in her defence. After completion of the purchase of the property by her and of unit 28 by the deceased she and the deceased moved into the property and the deceased rented out unit 28. Until mid 1975 she paid all outgoings in respect of the property from her own moneys including instalments under the mortgage. From the termination of the de facto relationship in late 1974 she requested the deceased to move out of the property and he declined to do so. From late 1974 the behaviour of the deceased towards her became increasingly abusive and threatening, culminating in her ejection in mid 1975. Thereafter the deceased continued abusive and harassing behaviour towards her. Paragraphs 13 and 14 of the amended cross claim are as follows: "13 The continuing abusive and harassing behaviour of the deceased towards the Cross Claimant was such that she did not assert her rights to obtain vacant possession from the deceased for fear that his acts of abuse and harassment would worsen and that he might cause actual physical or other harm to herself or to someone close to her. 14 In the circumstances pleaded above, the actions of the deceased effectively and wrongfully excluded the Cross Claimant from occupation of or enjoyment otherwise of the property from mid-1975 until the date of death of the deceased." Following her exclusion from the property in mid 1975 she ceased paying outgoings including the instalments due under the mortgage and the deceased continued to live in the property. The prayers in the cross claim are for a declaration that the defendant is the beneficial owner of the property; equitable compensation for the occupation of the property after her exclusion, subject to a proper allowance for moneys paid by the deceased in respect of the property; in the alternative, equitable compensation or an account of profits for the rent received by the deceased in respect of the property; and delivery up of the certificate of title of the property. No claim is made for an order for possession. 5 The defence to the cross claim consists largely of traverses. The plaintiff does admit that in 1975 the deceased forcibly removed the defendant from the property and thereafter refused to allow her to re-enter it. He does not allege an adverse possession in law of the property or deny the right to the delivery up of the certificate title on this basis, nor does he plead any statute of limitations. 6 The evidence given on the application was as follows. The defendant by affidavit deposed to the truth of the matters alleged in her cross claim as to the purchase and occupation of and her ejection from the property, and gave details of the manner in which she had paid for the purchase of the property and outgoings in respect of it up to mid 1975. The details she gave of her ejection were that: "In the early hours of the morning in mid 1975 … Adrian physically threw me out of the unit into the 2nd floor hallway for [sic] 23 Baden Street, Coogee. At the time I was dressed only in very light night attire. I had no money or keys. Despite my requests, Adrian would not let me back into the unit, nor would he even give me any other clothes." She slept the night in the back of a taxicab at a car wash where the plaintiff worked and in the morning went to her parents' home. She went to the property the following night with her brother and picked up what she could of her possessions. She does not say whether or not the deceased was present on that occasion. 7 After the relationship had broken down and the deceased and the defendant had taken to separate bedrooms the deceased commenced a relationship with another man at her then place of work as a civilian employee of the Police Department. The defendant deposed that over the following months the deceased telephoned her at work and abused her and also waited for her outside the building where she worked and followed her after work on various occasions. 8 In oral evidence she was cross examined about the occasions on which she saw the deceased after she left the property. In reexamination she was asked: "EVANS: Q. What effect did seeing him in those circumstances have on you? A. Scared me, terrified me. Upset me to [sic], I suppose like I am now. Q. Why? A. Adrian made threats to me and towards anyone that was close to me. He would call me names, whether it be over the phone before my father died, either face to face [sic]. There was a break-in at the unit, the ground floor unit where I was; personal items got stolen. I do washing and hang my washing out on the line and by the time I went back out to hang another load of washing, my washing was gone. I would then get a phone call within the next couple of days, sort of inferring that I am missing certain items. My partner, Mr Gill's rear vision mirror was broken in [sic] and there was someone trying to break into the ground floor, in the lounge room of my unit one night when I was by myself. I managed to hit the person on the leg and they ran away. In the shadows it looked vaguely familiar - quite familiar. I can't accuse a person. Can I just --? Q. Yes. A. He would insult me. He pushed me up against a wall and put his hands around my throat one time, threw me on the bed and tried to rape me one time. He would embarrass me in front of work colleagues, outside; he rang up work constantly. He was just harassing and intimidating. He said that he'd kill me when I first left. Before we finished at the service station it was, well, there was criminal elements there that were very well known to the police. Later on one of the fellows that used it regularly, hang around there, was gunned down in the streets. So I took his threats as being a very valid one [sic]. HIS HONOUR: Q. Does that summarize it? A. I think so, yes. EVANS: Q. After you moved out Mr Coles asked you whether you saw a solicitor and you said you did. I am not asking you what that solicitor told you, but why was it that after you had seen that solicitor you did not take proceedings to have Mr Bartlett evicted from the unit? A. Fear of my life, already one close to me being hurt. Just the constant and further harassment that he would do to me." While giving this evidence, the defendant was visibly upset and agitated. Although it was given in reexamination (and, in my view, validly so) I afforded Mr Coles, of Queen's Counsel for the plaintiff, an opportunity to cross examine further, but this was declined. 9 After the defendant was ejected the deceased lived in the property for some time and then let the property out and collected the rent. The defendant did nothing to assert her rights to the property during the deceased's lifetime. After his death she was spoken to by Mr Carney, the solicitor for the plaintiff, and at that time asserted that she owned the property beneficially as well as legally. After that the plaintiff commenced these proceedings by summons filed on 7 May 1999. As already noted, the statement of claim was filed on 30 July 1999 and the defence and cross claim were filed on 26 August 1999. On 12 November 1999 the plaintiff executed an application for a possessory title under Part 6A of the RPA (which was inserted in 1979) and this was subsequently lodged with the Registrar General. The provisions of that Part which are relevant are as follows: "45C Acquisition of possessory title to land under the Act (1) Except to the extent that statutes of limitation are taken into consideration for the purposes of this Part, no title to any estate or interest in land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered proprietor be extinguished by the operation of any such statute. (2) Subsection (1) does not prevent the acquisition of a title, adverse to or in derogation of the title of the registered proprietor thereof, to an estate or interest in land brought under the provisions of this Act by the creation of a qualified or limited folio of the Register by reason of possession of the land for any length of time commencing before the creation of the folio. 45D Application for title by possession (1) Where, at any time after the commencement of this Part, a person is in possession of land under the provisions of this Act and: (a) the land is a whole parcel of land, (b) the title of the registered proprietor of an estate or interest in the land would, at or before that time, have been extinguished as against the person so in possession had the statutes of limitation in force at that time and any earlier time applied, while in force, in respect of that land, and (c) the land is comprised in an ordinary folio of the Register or is comprised in a qualified or limited folio of the Register and the possession by virtue of which the title to that estate or interest would have been extinguished as provided in paragraph (b) commenced after the land was brought under the provisions of this Act by the creation of the qualified or limited folio of the Register, that person in possession may, subject to this section, apply to the Registrar-General to be recorded in the Register as the proprietor of that estate or interest in the land. … (4) A possessory application may not be made in respect of an estate or interest in land if: (a) the registered proprietor of that or any other estate or interest in the land became so registered without fraud and for valuable consideration, and (b) the whole of the period of adverse possession that would be claimed in the application if it were lodged would not have occurred after that proprietor became so registered, unless the application is made on the basis that the estate or interest applied for will be subject to the estate or interest of that registered proprietor if the application is granted. (5) A possessory application shall be in the approved form and shall be accompanied by such evidence and documents of title as the Registrar-General may require. … (8) Where: (a) a limitation period for a cause of action to recover land to which Part 3 applies has commenced to run, and (b) after that commencement a folio of the Register is created in respect of the land pursuant to Part 3, the time which elapsed after the limitation period commenced to run and before the date on which the folio of the Register was created may be counted in the reckoning of the limitation period for the purposes of a possessory application in respect of the land. (9) Subsection (8) applies to a limitation period for a cause of action to recover land notwithstanding that: (a) the limitation period commenced to run, or (b) the folio of the Register created in respect of the land pursuant to Part 3 was created, before the commencement of that subsection. 45E Grant of possessory application (1) Subject to section 45F, the Registrar-General may grant a possessory application if the Registrar-General is satisfied that the application: (a) was authorised by section 45D(1) or (2), (b) was not made in breach of section 45D(3) or (4),and (c) complies with section 45D(5). (2) Where the Registrar-General intends to grant a possessory application and, pursuant to section 12(1)(h) or 12(1A), gives notice of that intention the Registrar-General shall, in the notice, specify a period (being not less than 1 month after the date of the notice) before the expiration of which the application will not be granted. (3) A possessory application shall be granted by recording the applicant in the Register as the proprietor of an estate or interest in the whole parcel of land the subject of the application, being the estate or interest applied for or such lesser estate or interest as the Registrar-General considers appropriate, free from all estates and interests recorded in the Register that would have been extinguished as referred to in section 45D(1)(b) other than: (a) interests referred to in subsection (4), and (b) interests to which the application has been made subject pursuant to section 45D(4). … (5) Without affecting the generality of subsection (4), the grant of a possessory application has, for the purposes of sections 51 and 52, the same effect as the registration of a transfer to the applicant. (6) The Registrar-General may make such recordings in the Register, and take such other action, as the Registrar-General considers necessary or proper as a consequence of the grant of a possessory application. … 45F Restrictions on grant of possessory applications Without prejudice to section 74H in so far as it relates to a possessory application, the Registrar-General shall not grant a possessory application if a notice referred to in section 45E(2) has been given and the period specified in that notice has not expired." 10 It is clear that the balance of convenience is heavily in favour of the grant of an injunction. If the application to the Registrar General runs its course and the plaintiff is registered as proprietor of the property before the suit is heard the defendant's claimed rights will be defeated. If the injunction is granted the plaintiff will continue to receive the rents of the property until trial and really no inconvenience to him is suggested. This means that if the plaintiff has a reasonably arguable case upon her cross claim the injunction ought be granted: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535 - 536 per McLelland J (as his Honour then was); and see the recent statement by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex p Fejzullahu (2000) 74 ALJR 830 at [7]. 11 However, it is contended by Mr Coles that the defendant has no case at all which could possibly succeed upon the cross claim. He says this on a number of bases. He contends that the intention of the RPA is that the process of determination of whether or not a title by adverse possession is established as existing and ought be recognised by registration is by legislative intent vested in the Registrar General; the Registrar General will determine whether or not title by adverse possession is established and, whatever is occurring in the Court, that process ought simply be allowed to continue. With this contention I do not agree. Part 6A, it appears to me, provides an administrative procedure for establishing title by adverse possession without the intervention of the Court where there is no dispute or no substantial dispute as to the existence of that title and permits the defeat of the previous registered proprietor's indefeasible title by the registration by the Registrar General of the adverse possessor as proprietor where appropriate. But there is nothing that excludes the jurisdiction of the Court to determine these questions in contested cases and the provisions of s 45E(2) and s 45F of the RPA appear clearly to envisage that, in case of dispute, opportunity ought be given for the matter to be taken to the Court for determination. I think it significant that there are a number of reported cases since the enactment of Part 6A in which the existence or non existence of the adverse possession has been determined by the Court rather than by the Registrar General including The Public Trustee v Bellotti (1986) 4 BPR 9196; Webeck v Foley (1992) 5 BPR 11,694; Shaw v Garbutt (1996) 7 BPR 14,816; Cooke v Dunn (1998) 9 BPR 16,489. I therefore reject that submission. 12 The second ground on which Mr Coles submits that the defendant has no arguable case is that it is clear that the defendant has no case to retain the title. This he says flows from the relevant statute of limitations and from the fact that, on the authorities, the defendant's course of action or, more accurately, inaction, means that there is no way in which she can escape the consequences of the deceased and his representative's adverse possession during the time for which it has subsisted. It was originally contended on behalf of the defendant, by Mr Michael Evans, of counsel for the defendant, that the deceased's possession was not adverse within the meaning of the law, but, in light of the evidence led on this application, this contention was abandoned. However, Mr Evans contended that the deceased and the plaintiff were deprived of the benefit of their adverse possession because it could not be said to have been nec vi nec clam nec precario, and particularly that it could not be said that it was peaceably and not by force that they had obtained and maintained possession. Mr Coles replied that the possession cannot relevantly be said to have been by force, because possession could have been recovered through the courts, and in this regard he relies particularly upon the decision of Young J in Shaw v Garbutt supra. 13 The legal framework in which these contentions arise is as follow. 14 The relevant limitation provisions contained in the Limitation Act 1969 are as follows: "27(2) Subject to subsection (3) an action on a cause of action to recover land is not maintainable by a person other than the Crown if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims." Section 65(1) provides that on the expiration of the limitation period for a cause of action for the recovery of land the title to the land of a person formerly having the cause of action is extinguished. Section 8(a) specifically excludes s 45C of the RPA (formerly s 45) from the operation of the Act and s 40 makes special provision in relation to mortgages of Torrens title land. 15 Prior to 1833 the statutes of limitations (eg, 21 Jac I c 16) barred only the action which the owner of land could bring and did not of itself affect the title to the land: see Lightwood, The Time Limit on Actions (1909) 6. By the Real Property Limitation Act 1833 (Imp), adopted in New South Wales by the Real Estate (Limitation of Actions) Act 1837, the law was changed, so that not only was the action to recover the land barred, but upon the expiry of the ultimate limitation period, the owner's title was extinguished: Imperial Act s 34. It was in this context that s 45 of the RPA (since repealed and replaced by s 45C(1)) was enacted. Section 45 provided: "No title to land adverse to or in derogation of the title of the registered proprietor shall be acquired by any length of possession by virtue of any statute of limitations relating to real estate, nor shall the title of any such registered prorpietor be extinguished by the operation of any such statute." Although different views have been expressed as to the meaning of that section, it was held by Else-Mitchell J in Van Den Bosch v Australian Provincial Assurance Association Ltd (1968) 88 WN (Pt 1) (NSW) 357 to mean that a Torrens Title could not be extinguished by adverse possession whatever the effect of the statute of limitations upon actions in respect of the land: see also the decision of Wootten J in Addison v Billion [1983] 1 NSWLR 586. So long as this regime persisted, it was not possible for a Torrens title to be defeated by a statute of limitations (and this is reflected in s 45D(1)(b)). Part 6A in 1979 provided a mechanism whereby the Registrar General could change the register upon appropriate establishment of adverse possession. However, the effect of s 45C(1), by its terms, is to maintain the law as established in Van Den Bosch , save where the title has been transferred to a new registered proprietor pursuant to a determination by the Registrar General pursuant to Part 6A. The Land Titles Office practice in this regard is correct in law: see Baalman & Wells' Land Titles Office Practice (5th ed, 1998) [397.100]. 16 The situation in this case thus is that, if the Court were to hold that the plaintiff could not establish a title by adverse possession, the defendant could as registered proprietor bring an action of ejectment (or, in modern terminology, an action for possession) in respect of the land without any ability in the present plaintiff or any other defendant to maintain against her a defence based upon a statute of limitations. If, however, the Registrar General accedes to the Part 6A application, the indefeasible title will be transferred to the plaintiff and the defendant's rights as registered proprietor lost. 17 As to the adverse possession which will in the modern law cause time to run against the owner, Bowen CJ in Eq said in Mulcahy v Curramore Pty Ltd [1974] 1 NSWLR 464 at 475: "Possession which will cause time to run under the Act is possession which is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner. Lord Shaw of Dunmfermline, giving the opinion of the Privy Council in Kirby v Cowderoy [1912] AC 599, discussed the nature and incidents of adverse possession. Adopting earlier judicial observations, he said: 'Possession "must be considered in every case with reference to the peculiar circumstances … the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests; all these things, greatly varying as they must under various conditions, are to be taken into account in determining the sufficiency of a possession".'" 18 The question raised in this case is whether the defendant has an arguable case that the plaintiff cannot obtain a title by adverse possession because his possession cannot be said not to have been maintained by force. I do not, of course, in these interlocutory proceedings, have to determine whether that is so or not. Nor am I in this case compelled, as was suggested by Mr Coles, to determine this question upon this application because it is simply a question of law. Even if it be the law, as he asserts, upon the authority of Karaguleski v Vasil Bros [1981] 1 NSWLR 267, that a Judge hearing an interlocutory application must on all occasions without option determine a question which is purely a question of law upon the hearing of that application, the question that arises in this case, it seems clear to me, is not purely a question of law. However, Mr Coles says that it is, upon the authority of Shaw v Garbutt supra; that decision, he says, as a matter of law precludes it being found that the deceased's possession was not peaceable. In that case the proprietor, who was out of possession, had gone to the property and been turned away by a man wielding a gun. That man was not the adverse possessor and in that case his Honour found that it was not established that he was acting with the authority of the adverse possessor. That ground alone was decisive of the case. In addition, his Honour said that no reason was given as to why the dispossessed could not have gone to law to assert his rights, so that he could not be said to have been kept out of possession by force. That reason was in that case an obiter dictum. In any event this case is different. The defendant was physically ejected from the property and ejected by the deceased himself. Furthermore, she says that she was in such fear of him and of threats and consequences to her and hers that she was frightened during his lifetime to go to law. Whether that case can be established factually at a trial, it appears to me to raise a serious question which merits a trial. Whether the factual proposition, if established, falls within the concept of nec vi must be decided on the basis of the facts established at trial. It seems to me that there may be a real argument that the facts alleged may fall outside the concept of peaceable possession, whatever may have been decided by Young J in Shaw v Garbutt. Authority on the ambit of peaceable possession is not easy to find. However, it seems to me arguable that the possession is not peaceable if the owner by reason of the adverse possessor's conduct was frightened to go to law and this seems to receive some support from what was said by Sir Robert McMillan CJ in Hough v Taylor (1927) 29 WALR 97 at 98: The nature of the user which the plaintiff has to prove is set out in paragraph 524 of the 11th volume of Halsbury in these words: 'The user or enjoyment of an alleged right in order to support a prescriptive claim, under the doctrine of prescription at common law, must be shown to have been user "as of right," having been enjoyed, nec vi, nec clam, nec precario, neither as the result of force, secrecy, or evasion, nor as dependent upon the consent of the owner of the servient tenement. Consent or acquiescence on the part of the servient owner lies at the root of prescription. He cannot be said to acquiesce in an act enforced by mere violence, or in an act which fear on his part hinders him from preventing, or in an act of which he has no knowledge actual or constructive, or which he contests and endeavours to interrupt, or which he sanctions only for temporary purposes, or in return for recurrent consideration.'" The Halsbury referred to was the first edition, but the latest text is virtually identical: 14 Halsbury's Laws of England (4th ed, 1975) [83]. In my view there is a serious question to be tried. 19 In those circumstances, in the light of what I have already said as to the balance of convenience, it is my view that the correct balancing exercise in this case is in favour of the grant of an interlocutory injunction as sought. I propose upon being proffered the appropriate undertaking as to damages to grant such an injunction until further order. …oOo… Last Modified: 09/27/2000 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.