NSW Caselaw
New South Wales Supreme Court
CITATION : Kerry Anne Bourke v Mark Kenneth Hooper [2007] NSWSC 1516
HEARING DATE(S) : 3, 4, 5, 6 and 7 December 2007
JUDGMENT DATE : 7 December 2007
JUDGMENT OF : McDougall J at 1
DECISION : See paragraph [84] of the judgment.
CATCHWORDS : REAL PROPERTY – Adverse possession – Intention to dispossess – Exclusive use – Limitation of action – Oral agreement - ESTOPPEL – Estoppel by representation – no detriment.
LEGISLATION CITED : Real Property Act 1900 Limitation Act 1969
CASES CITED : Newington v Windeyer (1985) 3 NSWLR 555 Shaw v Garbutt (1996) 7 BPR 14816
Kerry Anne Bourke (Plaintiff) PARTIES : Mark Kenneth Hooper (First Defendant) The Registrar-General (Second Defendant)
FILE NUMBER(S) : SC 2632 of 2006
COUNSEL : G M McGrath (Plaintiff) J A Crisp (Defendant)
Yeates Betts Solicitors (Plaintiff) SOLICITORS : Bradfield Anderson Solicitors & Attorneys (Defendant)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
McDOUGALL J
7 December 2007
2632/2006 KERRY ANNE BOURKE v MARK KENNETH HOOPER JUDGMENT 1 HIS HONOUR: The plaintiff is the registered proprietor of ten lots of rural land comprising in all about 426 hectares near Gulgong in the state of New South Wales (the undisputed lots). The first defendant, who is the plaintiff's brother, is the registered proprietor of four adjoining or adjacent lots comprising in all about 96 hectares (the disputed lots). The plaintiff claims the disputed lots. She relies on:
(1) adverse possession - see section 45D of the Real Property Act 1900; (2) an alleged oral agreement for the transfer to her and her then husband of all 14 lots; or (3) estoppel by representation. 2 Although the first defendant is now the registered proprietor of the disputed lots, the previous registered proprietors were he and his two other sisters. For convenience, but without either disrespect or condescension, I shall refer to the plaintiff as "Kerry" and to her siblings as "Mark", "Diane", and "Virginia" respectively.
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