New South Wales Supreme Court CITATION : Phillips v Marrickville Municipal Council [2002] NSWSC 396 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1916/01 HEARING DATE(S) : 11, 12 February 2002 and 3 May 2002 JUDGMENT DATE : 8 May 2002 Norma Gloria Phillips (Plaintiff) PARTIES : Marrickville Municipal Council (First Defendant) The Registrar General of New South Wales (Second Defendant) JUDGMENT OF : Windeyer J at 1 Mr J B Maston with him Mr C Dimitriadis (Plaintiff) COUNSEL : Ms E A Collins (First Defendant) G Channell - (Second Defendant) Gathercole & Associates (Plaintiff) SOLICITORS : Phillips Fox (First Defendant) K C Hall (Second Defendant) CATCHWORDS : REAL PROPERTY - conveyancing - Old System Title - adverse possession - whether possession by the plaintiff was adverse to the Municipal Council documentary title owner - land in possession of plaintiff's father with consent of previous owner - on sale to Council father's occupation recognized and Council resolved to treat him as tenant on nominal rent - no evidence father told or any lease granted - on death of her father plaintiff remained in possession - various entries of Council's agents for survey and perhaps inspection - whether amounted to resumption of possession - correspondence between possessor's solicitor and Council including offer to purchase and proposals for joint sale - whether acknowledgement of title of Council or proposals made to compromise dispute - LIMITATION ACT 1969 s54 - whether statements in correspondence acknowledgement of title or in negotiations for compromise of disputed claim - whether acknowledgement could be signed by agent LEGISLATION CITED : Limitation Act 1969, 11(2)(c), s27(2), s54, s65(11), s66(1), Schedule 4 Real Property Act 1900 s74F, s122 Cawthorne v Thomas (1993) 6 BPR 13840 Edginton v Clark [1964] 1 QB 367 Hodgson v Thompson (1906) 6 SR(NSW) 436 CASES CITED : Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 Re Alison (1879) 11ChD 284 Scanlon v Campbell (1911) 11 SR(NSW) 239 Simpson v Council of the North Wester Country District (unreported Waddell J 15.9.1978 at 29) DECISION : See paragraphs 23 to 28 - 14 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J WEDNESDAY 8 MAY 2002 1916/01 NORMA GLORIA PHILLIPS V MARRICKVILLE MUNICIPAL COUNCIL & THE REGISTRAR GENERAL OF NEW SOUTH WALES JUDGMENT 1 The question to be decided in this action is whether the plaintiff is the owner of land at Marrickville having obtained title by possession. If she is not the owner another question arises as to whether or not the plaintiff's land No. 38 Newington Road, Marrickville has the benefit of a right of way and an easement for parking over the land claimed by possession. Facts 2 The plaintiff, Norma Gloria Phillips, is the owner of property 38 Newington Road, Marrickville which is Lot 9 and part of Lot 8 in Deposited Plan 150767. She moved to that property with her father, Donald Phillips, in 1934. He was originally the tenant and subsequently the owner of that property. At the rear of No. 38 is the land in question which extends from the rear boundary of No. 38, south to Pritchard Street. This land was formerly owned by a Mr Robson, who was apparently the vendor to Mr Phillips of No. 38. He allowed Mr Phillips to use the land in question, which I will call "the claimed land" as that is how it was referred to in the evidence. Mr Phillips used it for a garden for growing vegetables and probably used the shed at the north-western corner of it for his motor vehicle. There is an access gateway from No. 38 to the claimed land and there is a rough driveway from the shed to the southern end of the claimed land, where there is an entrance to Pritchard Street consisting of heavy cyclone gates covered with heavy wire and galvanised iron across them. The whole of the claimed land is securely fenced, the back fence being constructed of timber and corrugated iron. 3 Mr Phillips died on 11 December 1977. His wife had pre-deceased him. The plaintiff, Miss Phillips, lived at No. 38 with her parents and has continued to live there since her father's death. 4 Miss Phillips has maintained the fencing of the claimed land, has extended the water pipes and taps which were placed on the land, and has introduced additional lighting in the area of the garage shed. The gate between No. 38 and the claimed land is not locked and has not been locked, but the gate giving access to Pritchard Street is and it seems has continually been shut and locked with a padlock. Miss Phillips uses the claimed land to garage her car in the garage, as a garden and for growing flowers. It is reasonably well maintained and the evidence is that she has the grass cut and has a gardener to look after the land, and presumably to look after her own garden at the rear of No. 38. She has resurfaced the driveway, but it should be pointed out that it is for the most part grassed over. She has, since 1977, at different times kept three dogs as pets, which ran on the land and when they died were buried there. Unless permission is made out her possession fulfils the requirements set out in Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475 as open, peaceful and adverse. 5 So far as the documentary title to the claimed land is concerned, the evidence shows that Mr Robson purchased the land in question by conveyance dated 18 October 1910. In 1946 the Council of the Municipality of Marrickville agreed to purchase the property for £75.0.0 and it appears that a deposit of £10.0.0 was paid but nothing further was done. Mr Robson died in 1948, leaving a will of which the Public Trustee was appointed executor. By conveyance dated 27 October 1960, registered Number 96 Book 255 the claimed land was conveyed by the Public Trustee as the executor of the will of Mr Robson, to the Council of the Municipality of Marrickville. It is this documentary title upon which the Council now relies. The minute book of the Council records a resolution passed at the Council meeting of 20 January 1947 which refers to the claimed land and which is as follows: 27. Bartier Perry & Purcell 49. Referring to the contract in the matter of property purchased – Council from Robson – and to a reference therein which reads as follows:- "The subject land sold does not include any improvements which may belong to the tenant of property No. 38 Newington Road, Marrickville, Mr Phillips." And asking that Council furnish further information so that this matter may be finalised in a manner satisfactory to Council. Resolved that the letter be received and that the tenant of this property be now granted a tenancy on a monthly basis at nominal rental of 1/-d. per year plus rates and taxes and that seal of Council be attached to all necessary documents. The reference to Mr Phillips as tenant was of No. 38 not the claimed land. 6 There is no evidence in Council records or from anything else as to what happened between 1947 and 1960. There is no evidence that nominal rent was paid. There is no evidence Mr Phillips knew of the resolution. The evidence, such as it is, is that the rates were not paid by Mr Phillips, and that no documents were brought into existence to give effect to the arrangements set out in the minutes. In fact the matter seems to have gone into oblivion until 1960. 7 There is no evidence of anything being done in respect of the claimed land until 1987 other than its use and occupation by Mr Phillips, until the date of his death, and from the date of his death its use and occupation by the plaintiff. 8 On 27 July 1987, Messrs Delves & Wain solicitors, acting for the plaintiff, wrote to the Council stating that they had been instructed to: "check with Council as to the position with regard to the property outlined in red ink on the attached plan". They went on to state that Mr Phillips purchased No. 38 in 1951 and had been in possession of the claimed area since then. They said that Miss Phillips believed that the property formed part of a property owned by her father and by her and then went on to say: "It would seem to us that our client would have a possessory claim to the property as outlined in the plan. However, prior to instructing us to proceed with such an application, we write to Council to ascertain Council's views as to our client's proposal". The solicitors wrote a follow up letter on 24 September 1987. Council responded by letter dated 13 November 1987 setting out some details of the claimed land, including the fact that there was a gateway to it from 38 Newington Road and that a rough shed and carport had been built on the claimed land, housing a car which "according to a neighbour belongs to an occupier of No. 38 Newington Road". The letter then said: "In Council's opinion the owners of No. 38 Newington Road are trespassing on Council's land and consequently Council requires that the vehicles or parts thereof and the temporary structures be removed within twenty eight days". The response to this by Messrs Delves & Wain was by letter dated 20 January 1988 that they were instructed to proceed with the possessory title application and that their client did not intend to remove the structures or her vehicle and would resist any action by the Council to obtain possession. Council responded saying that it would object to any possessory title application and had written to the Director of the Land Titles Office to inform him of this. Miss Phillips continued in occupation. 9 From 11 February 1988 until 1991, and again from 1995 to 2000 there was correspondence between solicitors for the plaintiff and the Council about the claimed land. In that correspondence the plaintiff's representatives stated that the plaintiff had a good claim for possessory title, but nevertheless suggested that problems about the claimed land be resolved in a way suitable to both Miss Phillips and the Council, including a suggestion for purchase by Miss Phillips and subsequent suggestions as to disposal of the property in a sale of the claimed property and No. 38 with some agreement as to shared disposition of the proceeds of sale. The first response from Council was by letter dated 24 March 1988, stating that the land was of no use to Council, that a valuation would be obtained with a view to the property being auctioned. From 24 March 1988 a new firm of solicitors, Messrs Barrie Ennis & Associates commenced to act for Miss Phillips and by letter of 24 March informed Council that the possessory title application would proceed. There was subsequent correspondence about valuations, sale or joint sale, most of which referred to the plaintiff's claim for possessory title and which culminated in a letter from Council to the plaintiff's solicitors dated 18 July 1989, where Council proposed arrangements for a sale of No. 38 and the claimed land, subject to certain conditions, one of which was that Council obtained $90,000 from the sale and another of which was that the plaintiff agreed to withdraw any application for possessory title. 10 A survey of the property was carried out by Messrs Teerman Newton Pty Limited, surveyors, on behalf of the Council in January 1989. The surveyors gained access by climbing over the fence on the Pritchard Street boundary. It is at least more likely than not that this was prepared for the purpose of an application to bring the claimed land under the Real Property Act 1900. It is important to realise, although this was not referred to in argument, that one of the conditions which Council referred to in its letter of 18 July 1989 as to the combined sale was that the title to the claimed land be converted to Real Property Act title and thus I consider that the survey plan was obtained for that purpose in accordance with the proposed agreement to go ahead with a combined sale. I should add that there is no evidence that the plaintiff ever agreed to the conditions put forward by Council although in 1991 her solicitors wrote to see whether or not the arrangement could be put back in place, though saying that they were doing that without instructions. The matter then seemed to go to sleep once again until 1995 when the solicitors once again returned to the suggestion of a joint sale, although reiterating the claim for possessory title. The Council obtained a further plan in November 1996, once again apparently for an application to bring the land in question under the Real Property Act, but whether or not this was in fulfilment of the 1988 condition or for the purpose of making its own application, the evidence does not show. 11 In August 1998 the plaintiff lodged a primary application claiming a title by possession to the claimed land. That application was rejected, apparently for the reason that the Director of Land Titles considered that the plaintiff had acknowledged Council's ownership of the land in the correspondence to which I have referred, under which Miss Phillips offered or suggested that she should buy the land from the Council. 12 The Council itself lodged a primary application in November 2000. The plaintiff lodged a caveat under s74F of the Real Property Act and then commenced these proceedings. 13 The position of the Registrar General as second defendant is that the primary application of the Marrickville Municipal Council will be granted unless the plaintiff succeeds in her claim before this Court that she is the owner of the subject property, having established title through possession. In other words, there is no doubt about the documentary title of the Marrickville Municipal Council. The question is whether or not that is defeated by a title by possession claimed by the plaintiff. If it is then it is agreed the Registrar General will reinstate her primary application and accept it. Pleadings 14 The plaintiff's claim in paragraph 4 of her amended statement of claim is that "from immediately after 11 December 1977 and continuously to date the plaintiff has occupied No. 38 together the whole of the claimed land." The limitation period being twelve years it follows that the plaintiff must establish possession from 11 December 1977 until 11 December 1989. The plaintiff having had her primary application rejected by the Registrar General seeks review of this decision under s122 of the Real Property Act and seeks an order that her application be granted and that a folio identifier in respect of the claimed land be issued with her as registered proprietor. She seeks an order that the claim of the Council to bring the claimed land under the Real Property Act and for title to issue in its name be rejected on the ground of her superior title. In the alternative the plaintiff claims an easement to park vehicles in the shed and for vehicular and pedestrian access along the driveway between the shed and Pritchard Street and between the shed and No. 38. This easement is claimed by prescription. Apart from arguing that the grant of such an easement would make use of the land impossible for the owner of the servient tenement it was not argued that a case for such an easement had not been made out. By agreement the s122 matter was not pursued in light of the agreed contest between possessory and documentary title. 15 The Council denies continuous occupation for the claimed period, says that any occupation up to and including December 1987 was with the permission of the Council exemplified by the resolution of Council dated 20 January 1947, and admits that the permission was withdrawn on 13 December 1987. In addition the Council says that during the relevant period it entered onto the claimed land in November 1987, March 1988, April 1988, January 1989, April 1989 and January 1999 and that this entry amounted to a resumption of possession which brought to an end any continued possession of the claimed land. The Council further says that the plaintiff acknowledged the right and title of the Council within the meaning of s54 of the Limitation Act 1969 in writing on 11 February 1988, 27 April 1988, 6 October 1988, 23 December 1991, 24 May 1995, 3 July 1995 and 20 July 2000. 16 By cross claim the Council claims a declaration that it is the owner of the land, a declaration that the plaintiff is trespassing on the land, an order that its primary application be granted, and an order for possession of the land. By defence to the cross-claim the plaintiff says that the cause of action in a claim for possession or ejectment was extinguished by virtue of ss27(2) and/or 66(1) and Schedule 4 of the Limitation Act. 17 There is an additional alternative claim made in the Council's cross-claim for: "The total funds paid or incurred by the cross-claimant by way of rates or taxes for the claimed land in the period 11 December 1977 to date". By defence the plaintiff says that there is no right to recover any such rates or taxes prior to the date upon which the cross claim was filed. There was no argument addressed to this claim. I should add that it appears that the claim is only for water rates, not including water usage. There is no claim by the Council for rates which would have been assessed as against the plaintiff as owner of the land, but that would of course not preclude a claim being made in the future. Discussion Occupation 18 The evidence of the plaintiff as to her continued occupation to the exclusion of others is clear, precise and was not challenged. There was some complaint made by counsel for the Council as to the lack of corroborative evidence. Apart from the fact that no such evidence is required, it is clear that the plaintiff has consistently occupied, looked after and kept secure the claimed land from the claimed date in 1977 to date. She has used it as her own. Her intention to do is clear unless the case of the Council of acknowledgement is made out. Occupation by licence 19 It is clear that the predecessor in documentary title to the Council permitted the plaintiff's father to use the land, at least for the purpose of access to the shed upon the land. There is no evidence that the plaintiff's father knew of the Council resolution as to a tenancy. In any event there is no evidence such an oral tenancy was ever granted and if it were granted then its terms were not met. I accept that the plaintiff did not know of any such arrangement and it could not be thought that any such arrangement with her father necessarily passed on to her. She is not claiming through her father's estate but through her own occupation and possession. Council in its letter of 13 November 1987 claiming that the plaintiff was trespassing made no reference to any licence. I find that the plaintiff was not occupying the property with the permission of the Council. Its letter is quite contrary to that contention. The reference in paragraph 9(c) of the defence to 13 December 1987 is an error and should be 13 November 1987. Claims of resumption of possession 20 It is necessary to deal with the particulars given by the Council as to its entry onto the claimed land, which it claims amounted to a resumption of possession. The first date is November 1987. That could only refer to the letter dated 13 November 1987 and what appears to have been an inspection by Council preceding that letter. There is nothing to show that the Councillors or Council officers actually entered upon the property prior to writing the letter. Certainly Council appears to have obtained some information from a next-door neighbour. The claim for possession was met with a letter stating that any such action would be resisted. The plaintiff, in evidence, was challenged about statutory declarations she had made in support of her primary application. These are not in evidence but she was questioned about some matters in those declarations. In rather confusing words it is clear that the plaintiff declared that in approximately 1980 the Council was contacted regarding her possession and she said: It ensued that I was served with a notice to quit to vacate the land. But in responding via litigation with a claim of holding better title, together with an interest in the land, having occupied and managed such for many, many years, together with use of the land as a right of way, Marrickville Council dropped all action to enter into possession and recover the subject land. I accept that this was misleading in connection with the claim for possessory title, but apart from that it seems to have little relevance. If what was being referred to was what happened in 1987, then it appears to have been a reasonably accurate statement of events. There was no evidence of the pleaded entries in March 1988, except a letter referring to an inspection on 12 March 1988 which could not amount to retaking possession or evidence of it. The dates April 1988 and April 1989 refer to valuation dates but they do not establish entry by the valuer. The date January 1989 refers to entry by the surveyor to which I have already referred. For reasons given I do not consider that amounted to a resumption of possession or a dispossession of the plaintiff. Entry after 11 December 1989 is irrelevant. I add that I have considered the cases of Hodgson v Thompson (1906) 6 SR(NSW) 436 and Scanlon v Campbell (1911) 11 SR(NSW) 239. Those cases concerned large areas of land, which in one case was vacant and where no person or stock was apparent. The purpose of entry was to mark boundaries and could easily have been found by the jury to be an action of repossession. The purpose of entry for survey is relevant: Simpson v Council of the North West County District (unreported Waddell J 15 September 1978 p29). The argument there was not dispossession in 1989 through the survey is supported by the lack of action or claim by the Council until 1995 and then only because the plaintiff's solicitors recommenced correspondence in which among other things they re-asserted her title. Confirmation or acknowledgement - s54 of the Limitation Act 1969 The first argument of the plaintiff was that none of the writings said to amount to confirmation or acknowledgement were such as they were not signed by the person against whom the cause of action for possession lay as required by s54(4). In other words, it was claimed that the letters relied upon were letters from the solicitor for the plaintiff. I agree with the submission of counsel for the Council that this argument falls as a result of s11(2)(c) of the Limitation Act , which provides as follows: (c) A thing done to or by or suffered by an agent is done to or by or suffered by his or her principal. There seems to me to be no reason to think that this provision does not apply to s54. As the date claimed for commencement of possession is 1977 there is no requirement to look at any of the documents claimed to amount to confirmations after 1989: Limitation Act s65(11): re Alison (1879) 11ChD 284 at 295. I am of the view that none of the letters up to 1989 claimed to amount to acknowledgements were such. While it is clear that a simple offer to purchase from the documentary title owner would usually amount to confirmation; see Edginton v Clark [1964] 1 QB 367 that cannot be said to be the position when such an offer is made as part of negotiations between parties claiming entitlement to land in dispute Edginton p377; Cawthorne v Thomas (1993) 6 BPR 13840 at 13845. The letter of 11 February 1988 is clearly written in connection with a claim by Miss Phillips that she was the owner of the property, perhaps relying at that stage on her father's possession as well, but that does not really matter. It could hardly be said that a letter which is headed among other things "possessory application" which claims continued use and occupation, which expresses upset at Council's claim but nevertheless suggests that it is sensible to negotiate a resolution and which finally says that the plaintiff has a sound claim which should be settled to the benefit of both parties is a confirmation or acknowledgement of title. Nor, I think, could it be said that the letter of 27 April 1988 which was written in response to a letter from Council about an auction and obtaining a valuation for that purpose, amounted to an acknowledgement. This correspondence commenced with a letter from the plaintiff's solicitors dated 24 March 1988 which stated that the plaintiff had instructed her solicitors to proceed with a possessory title application. In response to that the Town Clerk sent a letter dated 7 April 1988 stating that in response to an earlier letter in reference to a possessory title application Council had resolved to inspect the property and had done so on 12 March 1988. Whether it entered for that purpose is not clear. The letter of 7 April went on to say that Council had resolved to obtain a valuation of the land with a view to future auctioning and the Council had written to the Director of the Land Titles Office stating Council would object to any application for possessory title. The letter of 27 April 1988 was written in response to the letter of 7 April. It stated that the plaintiff was lodging an application for legal aid to pursue her application for possessory title, and noted that Council was obtaining a valuation, stated that Council should feel at liberty to deal privately with the plaintiff, rather than to auction the property, and asked whether the Council would enter into negotiations for her purchase of the property. In the circumstances where the letter commenced with a statement that the claim for possessory title was to be pursued, I do not consider that the last sentence about negotiation for purchase of the property could be said to amount to a confirmation of title. I should say that it is unlikely Council thought it was because by letter of 23 September 1988, Council told the plaintiff's solicitors that an opinion had been sought on the likelihood of the plaintiff succeeding with her possessory title application. It is to be remembered that things happened at a very slow pace, so far as this land was concerned, but that it was the follow up to this correspondence that the suggestion of a joint sale subject to various conditions, was made later in 1989. The letter of 6 October 1988 could in no way be said to be an acknowledgement or confirmation of title. It is a reiteration of the strength of the plaintiff's claim together with an offer to enter into negotiations either to sell No. 38 to Council or to purchase the land from the Council. Conclusion 21 I have come to the conclusion that the claim of the plaintiff as to ownership of the land through possession succeeds. Easement 22 In the circumstances it is not necessary to consider the claim for an easement. It is clear however that had it been necessary to decide this question, the claim for long time use extending over twenty years would have succeeded. The easement would have been for the benefit of parking with a right of way from the gate to the shed and from the gate on the southern boundary of No 38. It was accepted that if an easement were to be granted its precise definition would be worked out at a later date. Orders 23 Declare that the plaintiff is the owner of the land described in land described in primary application 65620. 24 Order that the Registrar General reinstate and deal with the said primary application on the basis of the foregoing declaration. 25 Order the cross claim be dismissed. 26 Order that the first defendant pay the plaintiff's costs of the proceedings. 27 No order as to costs of the second defendant. 28 Exhibit may be returned. ********** Last Modified: 05/17/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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