Supreme Court New South Wales Medium Neutral Citation: Strel v Cordia [2016] NSWSC 1596 Hearing dates: 12, 13, 14 September 2016 Date of orders: 11 November 2016 Decision date: 11 November 2016 Jurisdiction: Equity Before: Darke J Decision: Plaintiff has established a right to obtain title to the property. Cross-Claim is dismissed. Catchwords: REAL PROPERTY – Torrens title – Terms Contract to purchase property – Incomplete evidence as to dealings between purchaser and registered proprietor – Whether available evidence supports inference that purchaser performed obligations under contract – Whether purchaser entitled to obtain title to the property REAL PROPERTY – Torrens title – Unregistered interests – Possessory title – Whether cross-claimant's use of property amounted to adverse possession – Whether cross-claimant formed view that plaintiff had abandoned property and had no right to give permission to occupy – Whether cross-claimant's use of property was pursuant to the consent or permission of plaintiff Legislation Cited: Evidence Act 1995 (NSW), s 63(2) Limitation Act 1969 (NSW), ss 27(2), 28, 34, 38, 65 Probate and Administration Act 1898 (NSW), s 44 Real Property Act 1900 (NSW), s 45D Cases Cited: J A Pye (Oxford) Limited v Graham [2003] 1 AC 419; [2002] UKHL 30 Moses v Lovegrove [1952] 2 QB 533 Mulcahy v Curramore Pty Limited [1974] 2 NSWLR 464 Newington v Windeyer (1985) 3 NSWLR 555 Category: Principal judgment Parties: Adelaide Strel (Plaintiff/First Cross-Defendant) Robert Jan Cordia (First Defendant/Cross-Claimant) Registrar-General of New South Wales (Second Defendant/Second Cross-Defendant) Sylvia Graef (Third Defendant) Representation: Counsel: M L D Einfeld QC with Mr D A Cook (Plaintiff/First Cross-Defendant) V R W Gray (First Defendant/Cross-Claimant) Solicitors: Swaab Attorneys (Plaintiff/First Cross-Defendant) Antunes Lawyers (First Defendant/Cross-Claimant) File Number(s): 2015/252441 Publication restriction: None Judgment Introduction 1. These proceedings concern competing claims to ownership of a property at 18 Bishop Street, Petersham ("the property"). The competing claimants are the plaintiff, Ms Adelaide Strel, and the cross-claimant, Mr Robert Cordia. Neither of the claimants is the registered proprietor of the property. 2. The registered proprietor of the property is Sylvia Graef. Despite comprehensive searches and inquiries, it is not known whether Sylvia Graef is still alive or, if she is alive, where she is. There is no trace of her at all. She is named as the third defendant but in these circumstances has not been served. 3. There is evidence that on 4 November 1959 Sylvia Graef entered into a Terms Contract of Sale of the property to Richard Strel. The Terms Contact has not been located. However, Richard Strel subsequently lodged a caveat to protect his interest as purchaser under the Terms Contract. Richard Strel moved into the property with his wife and their daughter Adelaide in about 1960. Adelaide lived at the property until about 1973 when she became married to Donald Young. Mrs Strel lived at the property until her death in 1981. Mr Strel lived at the property until his death in April 1987. 4. Ms Strel has had very limited involvement with the property since her father's death, even though she believed that, as his only child, she would inherit it. Nonetheless, her dealings with the property included the making of certain arrangements with Mr Cordia concerning its use and occupation. The nature of these arrangements and the subsequent use of the property by Mr Cordia are of central significance. 5. Ms Strel did not take any steps to obtain title to the property until about early 2015. She lodged a caveat in February 2015 as the sole beneficiary of her father's estate claiming an estate in fee simple. In May 2015 she obtained a grant of administration in respect of her father's estate. 6. The proceedings were commenced by Ms Strel on 28 August 2015. By her Further Amended Summons, Ms Strel claims that she is entitled to become registered as the proprietor of the property. She bases her claim upon the Terms Contract as well as the subsequent possession of the property by her father and herself. As administratrix of her father's estate, Ms Strel seeks specific performance of the Terms Contract. Alternatively, she claims an entitlement to be registered as the proprietor on the basis that the possession of the property by her father and/or her own possession of the property was adverse for a period exceeding the applicable limitation period. An order for possession is also sought. 7. Mr Cordia is a former owner of the neighbouring property at 16 Bishop Street, Petersham. By his Cross-Claim he claims that he is entitled to become registered as the proprietor of the property. His claim rests upon the contention that he has been in exclusive possession of the property since 1991, and that his possession of the property was adverse for a period exceeding the applicable limitation period. He, too, seeks an order for possession. 8. The Registrar-General, who was joined to the proceedings as a defendant and a cross-defendant, entered a submitting appearance. Summary of salient facts 1. Mr and Mrs Strel came to Australia as migrants from Europe in about 1950. They were married in Parramatta in April 1951, and Adelaide Strel was born in May 1952. Mr Strel had been a trained architect in Europe. 2. A Memorandum of Transfer dated 24 April 1959 indicates that Sylvia Graef purchased the property from Newman Investments Pty Limited for 3,000 pounds. 3. The caveat lodged by Richard Strel in respect of the property (caveat no. H363999) is dated 26 November 1959. It gives the caveator's address as 4 Ormond Street, Ashfield and describes the caveator as a "Contractor". The estate or interest claimed in the caveat is "as purchaser of the property described below under and by virtue of Terms Contract of Sale dated 4th November 1959 from Sylvia Graef, the present registered proprietor". It appears that the caveat was prepared and lodged by a solicitor, Mr John Latimer, who signed the caveat as solicitor for the caveator. 4. As noted earlier, the Terms Contract has not been located. No other documents were adduced in evidence which cast any light upon the particular terms of the agreement, or the performance of the obligations under the agreement. 5. Ms Strel was almost 9 years old when she and her parents moved into the property in about 1960. Ms Strel deposed that she recalled that her parents always struggled to make ends meet financially "and on a number of occasions as a girl I remember my parents referring to having to make payments towards the property and that this was sometimes a cause of us being short of money". She further gave evidence that she recalled discussions taking place between her parents about making payments for the house, and that these discussions included statements that it was always difficult to make the payments. Ms Strel recalled occasions when she accompanied her father on a trip to the City in order to pay money for the house. She recalled that on these occasions they went to Latimer Potts or Potts Latimer. 6. Ms Strel deposed that when she was a child she met Sylvia Graef, who was a friend of her parents, on a number of occasions both before and after the family moved into the property. Ms Strel described her as being slightly younger than her father (who was born in 1907), about the same age as her mother (who was born in 1912). Ms Strel deposed that she had not seen or heard of Sylvia Graef since her childhood. 7. Following the death of Mrs Strel in 1981, Mr Strel lived alone at the property. In about early April 1987 he suffered a violent assault in the house one night. He was admitted to hospital for some weeks but died there on 26 April 1987. 8. Ms Strel deposed that those events significantly affected her. She deposed that she found it difficult to cope with the circumstances surrounding her father's death and that she had never emotionally recovered. At the time of her father's death Ms Strel was a single mother of two teenage children, working as a childcare worker. She gave evidence that she was in a financially difficult situation, and that she had great difficulty paying for her father's funeral. 9. Ms Strel further deposed that in these circumstances she did not know what to do about the property. She says that in the year or so following her father's death she went to the property a few times to search for any will that he may have left, but found it too upsetting to be in the property for very long. Ms Strel was unable to locate a will or any other "legal documents". 10. Ms Strel stated that after that period she went back to the property on relatively rare occasions from time to time to do basic maintenance such as mowing the lawn. She left all of her father's belongings in the house, which remained in essentially the same state as when he died. Ms Strel deposed that she believed that as the only child she had inherited the property. 11. Ms Strel deposed that at some stage in the first few years after her father's death, she had two telephone conversations with a solicitor about her father's estate. She explained to the solicitor that there was no will, and that the only assets her father had were the property, his furniture and belongings, and a bank account with very little money in it. Ms Strel was told that she could take the furniture and belongings, as well as the money in the account. She was also told that the property was in the name of Sylvia Graef, that there was nothing she could do to change that and so she should just "hold on" to the property. Ms Strel says that she made some attempts to find contact details for Sylvia Graef, but was not successful. 12. Ms Strel deposed that on some occasions when she went back to the property she spoke to the next door neighbour, Mr Cordia. He had purchased the 16 Bishop Street property in 1983, and had moved in to the house at 16 Bishop Street by 1991. 13. Ms Strel deposed: Over this period of time I spoke to him about my financial difficulties with the added costs of my father's Property. He was very sympathetic. During this period we swapped contact details but I do not remember either of us calling each other very much, if at all. Mr Cordia had a lot of items on his property, and during our conversations he told me that he needed more room to store them. After some time we both had already told the other what each of us needed, so the conversation in which I agreed to allow him to use the Property to store this things was only short, and was to the following effect: Me: "I'm still trying to sort out the situation with this place [referring to the Property - we usually spoke in the front yard or just outside on the footpath of our properties] but I can't see it happening any time soon and I need to get the bills for this place paid." Mr Cordia: "Well if you're not using it do you mind if I put some of my things on it? I can pay the bills and look after it for you until you sort it out and make sure that it looks like someone's living here. It'll get broken into if it stays looking like there's no-one in it" Me: "This sort of stuff?" [I pointed at some of the things in his front yard] Mr Cordia: "Yes, just whatever things I might need to store." Me: "Yes, that's fine with me." Mr Cordia: "Alright, thanks." 1. Mr Cordia did not deny that such a conversation occurred, although he deposed that he had no recollection of any arrangement being made for the payment of bills. On that score, he deposed that he could recall only that rate notices kept turning up at the property and the notices indicated that they were not being paid "so I paid them as I was using the property to store my items in". 2. Mr Cordia also deposed that in late 1991 he had a conversation with Ms Strel to the following effect: Mr Cordia: "If you are not doing anything with the property rather than leaving it uninhabited, can I put some stuff in it." Ms Strel: "Yes." 1. It appears that from about late 1991 Mr Cordia commenced paying the Council rates and water rates for the property. Mr Cordia also paid for the supply of electricity to the property. He said he did this to make the property look "lived in", and to facilitate his own access to the property at night. 2. These payments continued until about March 2015. Throughout that period, the Council rate notices continued to be addressed to Mr R A Strel at the property. As far as the water rate notices are concerned, it seems that from at least 1992 they were addressed to Ms A Young (Ms Strel's married name) at the property. From late 1991 the electricity bills were addressed to Ms A Young at the property. However, by 2006 the electricity bills were addressed to Mr Cordia at 16 Bishop Street. Mr Cordia gave evidence that this change was instigated by the electricity authority. 3. In the period from late 1991 to late 1998 Ms Strel went to the property on only a few occasions. She left her father's belongings in the house. Ms Strel says that in this period she saw Mr Cordia on only one or two occasions. She noticed that he had moved a lot of large items into the front and back yards of the property. 4. Mr Cordia deposed to a further conversation with Ms Strel in 1993 in which he said words to the following effect: "I am paying all of the water rates and I have done some essential maintenance and repairs mainly to the roof to ensure that no water gets in." Mr Cordia deposed that Ms Strel did not raise any objection to what he was doing. Mr Cordia also gave evidence that by that time he had removed the boundary fence that ran between 16 and 18 Bishop Street, and that Ms Strel raised no objection in that regard either. 1. Ms Strel deposed that there was never any separate conversation about the payment of water and Council rates, that being a matter that had already been agreed. She also deposed that the removal of the boundary fence (which she had not noticed) had occurred without her knowledge or consent. Ms Strel does not suggest that she made any complaint about the removal of the fence. 2. Ms Strel deposed that she had a brief conversation with Mr Cordia in about mid-1998. She says that she went to the property and had gone into the house (using the front door key she had retained) to look at an old cabinet she was thinking of using. The conversation included the following: Ms Strel: "I've just had a look around inside. I still haven't been able to sort this place out yet. It's just an ongoing headache." Mr Cordia: "Okay. Sorry, I've got to head out. I'll see you later." 1. In his first affidavit, Mr Cordia seemed to accept that such a conversation may have occurred and accepted that Ms Strel had been at the property at that time. However, in his second affidavit sworn about one month later Mr Cordia deposed that he had no recollection of seeing Ms Strel at that time, or of having any such conversation. In cross-examination Mr Cordia maintained that he had no recollection of the conversation. 2. Ms Strel deposed that in about October 1998 she moved to live in the Blue Mountains, and that she had not since returned to the property. She deposed that as far as she was aware the property was being looked after for her by Mr Cordia, and all the expenses of the property were being paid by him in exchange for him being able to use it for storage. 3. Mr Cordia deposed that in addition to paying the rates and electricity charges from about 1991 onwards, he also undertook some essential repairs and maintenance work at the property. This included repairs to parts of the roof to stop water leaks and removal and replacement of termite affected timber. At some stage some lattice fencing was erected along the front boundary. There is also evidence that at some stage Mr Cordia used a padlock and chain to secure the front gate, and that in about 2014 Mr Cordia affixed some cladding to parts of the walls of the house in order to protect it from damage during the demolition of the house on 16 Bishop Street. 4. In the period from about late 1991 onwards Mr Cordia continued to use the property for storage of various items. It was admitted by Mr Cordia that he first entered and stored items on the property consequent to an express permission granted to him by Ms Strel. Mr Cordia also admitted that since obtaining that permission storing items on the property has been the only use to which he has put the property. I note, however, that Mr Cordia gave evidence that on infrequent occasions he slept at the property, and has in recent times used it as a mailing address. 5. Mr Cordia deposed that in 2001 he conducted a title search of the property and found out that Sylvia Graef was the registered proprietor. He says that he then formed the view that the assumption he had held that Ms Strel was entitled to the property was not correct. Mr Cordia says that he further formed the view that both Ms Strel and Sylvia Graef had abandoned the property. He stated that he regarded Ms Strel as "not a person who could have given me permission to occupy the subject property or had any title to the property". However, Mr Cordia also stated that even after 2001 he assumed that Ms Strel may have been taking steps to transfer the property into her name. 6. Mr Cordia deposed that he continued to occupy the property after 2001 "in the sense of storing goods and personal effects and paying council rates, water rates and make [sic] essential repairs". Mr Cordia accepted in cross-examination that the property was never his residence. 7. Mr Cordia continued living at 16 Bishop Street until late 2014. By that time he had transferred 16 Bishop Street to his daughter as a gift. The house at 16 Bishop Street was demolished shortly thereafter to make way for a new residence for her. 8. From about 2006 Mr Cordia also lived for some of the time at his father's house in Artarmon. After his father died in 2010 Mr Cordia inherited the Artarmon property and he lived at that property on a more regular basis. That property became his only residence from late 2014. 9. Ms Strel took no steps to obtain title to the property until about early 2015. She gave evidence that even though there were times when her son asked her what she was doing about the property, she was too emotionally upset to talk about it. She explained that a serious car accident she had in 2014 was the trigger to finally get her started on dealing with her father's estate and the property. She consulted solicitors, and in February 2015 she lodged a caveat (AJ290049) over the property. She lodged a further caveat (AK700229) in August 2016. 10. Mr Cordia became aware of Ms Strel's first caveat. He sought legal advice. In March 2015 he lodged his own caveat (AJ324387) claiming an entitlement to the fee simple based on "his exclusive sole occupation and use and payment of all outgoings and repairs since 1992". 11. On 15 May 2015 Ms Strel obtained a grant of administration in respect of her father's estate. On 19 May 2015 Ms Strel's solicitors sent letters to Mr Cordia and his solicitors serving a notice to vacate the property. This was done on the basis that no admission was made that Mr Cordia was ever in occupation of the property. Mr Cordia's solicitors responded by way of letter dated 27 May 2015 in which it was asserted that Ms Strel never had any right to the title of the property, and that even if she did, her interest has been extinguished by reason of Mr Cordia's adverse possession of the property. 12. In July 2015 Mr Cordia made an application to the Registrar-General for possessory title to the property. That application did not proceed in circumstances where these proceedings were commenced on 28 August 2015. Mr Cordia now seeks to advance his claim for possessory title by his Cross-Claim in these proceedings. As noted earlier, the Registrar-General has entered a submitting appearance. Submissions 1. Mr M L D Einfeld QC appeared with Mr D A Cook (now of Senior Counsel) for Ms Strel. Mr Einfeld contended that the Court should conclude on the evidence that Mr Strel performed his payment obligations under the Terms Contract and became entitled to acquire title to the property. Mr Einfeld referred to the description of the contract as a Terms Contract in Mr Strel's caveat, and to the expert evidence given by a solicitor, Mr Danalis (who was called by Mr Cordia), to the effect that in almost every case a Terms Contract was for a fixed term, usually of three to five years. Mr Einfeld also referred to the evidence given by Ms Strel of her father making payments for the house, and the evidence given by Ms Strel's former husband, Donald Young, of statements made by Mr Strel about paying off the property and owning it. Reference was also made to the apparent absence of action by Sylvia Graef over many years to challenge the caveat, sue on the contract, or seek to disturb Mr Strel's possession of the property. It was submitted that an order for specific performance should thus be made in favour of Ms Strel as the administratrix of her father's estate. 2. Mr Einfeld submitted in the alternative that if the Court was not satisfied that Mr Strel had performed his payment obligations under the Terms Contract, it should be concluded that his possession became adverse to Sylvia Graef, and her failure to recover the property within the applicable limitation period (whether of 12 years or 20 years) meant that her title was extinguished. It was submitted that Ms Strel, as administratrix of her father's estate, would by virtue of s 45D of the Real Property Act 1900 (NSW) be entitled to be recorded as the registered proprietor. 3. Mr Einfield further submitted that the possession of the property enjoyed by Mr Strel, and after his death by Ms Strel, provided title sufficient for Ms Strel to sue Mr Cordia for possession, and that her claim was not defeated by Mr Cordia's claim for possessory title. It was submitted that Mr Cordia had failed to establish that Ms Strel had abandoned possession, or that he had been in adverse possession of the property for a period exceeding the applicable limitation period (of 12 years). Mr Einfeld submitted that Mr Cordia had not shown that he was in actual possession of the property with the necessary intention to possess the property, and that even if there was such possession it was by virtue of Ms Strel's consent, and thus could not be treated as adverse. 4. Mr V R W Gray of counsel appeared for Mr Cordia. Mr Gray submitted that the evidence did not permit the drawing of an inference that Mr Strel ever paid the total purchase price to Sylvia Graef. He submitted that if Mr Strel had paid the purchase price it is inconceivable that Mr Latimer would not have done what was necessary to effect a transfer of the property to Mr Strel. Mr Gray also pointed to the evidence that suggested that Mr Strel was in straitened financial circumstances, without employment and reliant upon social welfare payments. Mr Gray submitted that in the absence of an entitlement to specific performance, Ms Strel was no more than a successor in title to "a licensee or tenant or dispossessor from Sylvia Graef in possession of the property" and that such status terminated in 1991 when she transferred whatever interest she had to Mr Cordia. 5. Mr Gray then submitted, in the alternative, that any interest held by Ms Strel was defeated by Mr Cordia's adverse possession. It was contended that the agreement made in 1991 created a lease, of no fixed term, which could be terminated at any time, and which made no provision for the payment of rent. It was submitted that it followed that s 34 of the Limitation Act 1969 (NSW) operated so that a cause of action to recover the land from Mr Cordia accrued to Ms Strel after one year, subject to s 38 of that Act concerning adverse possession. Mr Gray submitted that Mr Cordia's possession became adverse in about 2001, when Mr Cordia came to the view that Ms Strel had no entitlement to confer rights in respect of the property. It was submitted that the payments made thereafter by Mr Cordia in respect of the property were not pursuant to any agreement with Ms Strel. Further, it was put that the nature and extent of his occupation of the property not only constituted possession in fact, but also demonstrated an intention to possess the property to the exclusion of all others. Mr Gray submitted that there was no material difference between the facts of the present case and those in the House of Lords case of J A Pye (Oxford) Limited v Graham [2003] 1 AC 419; [2002] UKHL 30. Determination Mr Strel's entitlement to acquire title 1. The first issue to determine is whether Ms Strel has established that her father was entitled to acquire title to the property. This requires consideration of the evidence concerning the dealings between Mr Strel and the registered proprietor, Sylvia Graef. 2. The evidence is incomplete. Documentary records of and relating to the Terms Contract that is described in Mr Strel's caveat have not been found. Ms Strel could not find any "legal documents" at the property, despite searching for such documents. Attempts were made to find Mr Latimer's files relating to the agreement, but without success. All attempts to find out what became of Sylvia Graef have proven fruitless. 3. However, the terms of Mr Strel's caveat leave little doubt that in November 1959 Mr Strel entered into a Terms Contract to purchase the property from Sylvia Graef. The particular terms of the agreement are not known, but the evidence given by Mr Danalis, a solicitor with considerable experience of Terms Contracts in Sydney from the mid-1960s, shows that in almost every case contracts of that description possessed certain characteristics. These included: 1. contracts were exchanged on the payment of a deposit, usually for less than 10% of the purchase price; 2. the purchaser was given possession of the property on exchange of contracts; 3. the balance of purchase money and any interest thereon was to be paid by instalments, usually weekly, fortnightly or monthly; 4. the contract was for a fixed term, usually three to five years but sometimes more; 5. the purchaser did not obtain title until the balance of purchase monies and any interest was paid; and 6. the contract provided that in the event of default in paying instalments on the due date or within a specified period thereafter the vendor could terminate the contract, forfeit the deposit, and take possession of the property. 1. Accordingly, it is my view likely that the Terms Contract included provision for: 1. Mr Strel to pay a deposit on exchange of contracts; 2. Mr Strel to go into possession of the property following exchange of contracts; 3. Mr Strel to pay the balance of the purchase price (including any interest) by periodic instalments over a number of years; and 4. Sylvia Graef to have the right to terminate the contract, forfeit the deposit, and recover possession of the property in the event that Mr Strel failed to pay the instalments as stipulated. 1. I recognise, of course, that there is nonetheless a degree of uncertainty concerning the terms of the agreement. The purchase price is unknown, although given that Sylvia Graef was a friend of Mr and Mrs Strel, the price is unlikely to have much exceeded the 3000 pounds which Sylvia Graef paid for the property only about six months earlier. The duration of the term during which the instalments of the purchase price were to be paid is also unknown. Mr Danalis' evidence was that the term was generally of three to five years duration "but sometimes more". The friendly relationship between Sylvia Graef and the Strels suggests that a more lengthy period is more likely to have been agreed than might otherwise be the case, but in my view the term is unlikely to have exceeded the usual by more than a few years. I bear in mind that Mr Strel was already 52 years of age in 1959. 2. There is evidence from Ms Strel that "over quite a few" years, commencing in about 1960, her father periodically made payments "to pay off the house". It seems that Mr Strel had some difficulty making these payments, but they continued to be made nonetheless. Ms Strel's evidence does not go so far as to indicate that the making of payments ceased at any particular time. However, there was evidence, given by Donald Young, of statements made by Mr Strel in about 1970 or 1971 to the effect that he owned the property. Mr Young, who was then living at the property as a boarder, deposed: While I was living at 18 Bishop Street as a boarder Richard always referred to it as being "my" (that is, his) property, and that he "owned" it. I was a young man and on occasions we talked about what I wanted to do with my future. I recall Richard saying to me words to the effect of: "You should buy a house and pay it off like I've done with this property" (referring to 18 Bishop Street). 1. The evidence of the representation made by Mr Strel that he had "paid off" the property suggests that by the early 1970s Mr Strel had completed his payment obligations under the Terms Contract. It also suggests that the making of payments had ceased by that time. (The hearsay rule does not apply to evidence of the representation by reason of s 63(2) of the Evidence Act 1995 (NSW).) It is appropriate to treat statements attributed to deceased persons with some caution or circumspection. Nevertheless, I have concluded that the statement is likely to be true. Whilst the evidence concerning Mr Strel's financial position was less than clear, I think it likely that he managed to find the funds necessary to make the required payments. 2. I note in this regard that Ms Strel gave evidence that she could not recall her father being in paid employment, and could only ever recall him receiving some form of welfare payment. However, she also said that he sometimes helped people out with "drawings to submit to council". Mr Strel is described on his daughter's birth certificate in 1952 as "Architect Labourer". He is described as a "Contractor" on the caveat he lodged in 1959. In cross-examination, Mr Young described Mr Strel as a very qualified man who had been involved in business over the years, and gave evidence that Mr Strel undertook architectural or design work. 3. Whatever his precise financial position in the period from about 1960 to the early 1970s, it seems that Mr Strel received income sufficient to enable him, albeit with some difficulty, to make the required payments. It appears that Mr Strel strived to make the payments, and that he succeeded in doing so over a number of years. There is no evidence to suggest that something happened during that period which henceforth made it impossible to make the payments. I therefore think it likely that by the early 1970s Mr Strel had indeed "paid off" the property. That is, he had by that time made all of the payments required by Sylvia Graef, whether strictly in accordance with the provisions of the Terms Contract, or otherwise in accordance with what she was prepared to accept as satisfaction of his obligations as purchaser. 4. That such a position was reached is supported by the apparent absence of any steps being taken by Sylvia Graef to enforce the Terms Contract or to recover possession of the property. 5. By the same token, it is curious that if Mr Strel had satisfied all his obligations as purchaser he took no steps to effect a transfer of the property into his name. Mr Strel appears to have had Mr Latimer acting for him in 1959, and Mr Strel later made payments at or through Mr Latimer's office. It seems that Mr Strel thus had the assistance of a solicitor readily available. 6. I have considered whether these circumstances ought to lead to the view that Mr Strel had not satisfied all his obligations as purchaser and was thus not entitled to a transfer of the property into his name. Ultimately, I have not come to that view. It seems to me that Mr Strel's inaction in circumstances where he remained in possession and had the protection of his caveat, is more readily explicable than would be inaction on the part of Sylvia Graef if Mr Strel failed to make the required payments. In those circumstances it is likely that Sylvia Graef would at some stage take steps to recover possession of the property from Mr Strel. Despite the existence of a friendship, there is no good reason to think that the contract would not have been enforced if necessary. 7. For the above reasons, and despite the incomplete state of the evidence, the available evidence supports the drawing of the inference that by about 1970 or 1971 Mr Strel had performed his obligations as purchaser from Sylvia Graef, and was entitled to acquire title to the property. I do not agree that to draw that inference would be to engage in an impermissible exercise in speculation. 8. It follows from the above that from the early 1970s Mr Strel became entitled to require Sylvia Graef to transfer her title in the property to him, thereby enabling him to become the registered proprietor. There is no evidence that this entitlement was ever subsequently lost. 9. By virtue of the operation of s 44 of the Probate and Administration Act 1898 (NSW), upon the grant of administration made in respect of Mr Strel's estate on 15 May 2015, all of his real and personal estate which he died seised or possessed of or entitled to in New South Wales vested, from the date of his death, in Ms Strel. That vesting includes Mr Strel's rights as against Sylvia Graef to acquire title to the property. 10. It is not necessary to consider Ms Strel's alternative argument concerning s 45D of the Real Property Act. Mr Cordia's claim for possessory title 1. It is next necessary to consider whether Ms Strel's rights in respect of the property are defeated by Mr Cordia's claim that he is entitled to become registered as the proprietor of the property. 2. Even if my conclusion about Mr Strel's entitlement to acquire title from Sylvia Graef is wrong, Mr Strel's continued possession of the property nonetheless gave him an interest in the property sufficient to enable him to exclude from the property any person who does not have a better title (see Newington v Windeyer (1985) 3 NSWLR 555 at 563). That interest would vest in Ms Strel by virtue of the operation of s 44 of the Probate and Administration Act. To the extent that Ms Strel has, since her father's death, entered into possession of the property in her personal capacity and not as a representative of his estate, her possession would give her an interest in the property sufficient to enable her to exclude from the property any person who does not have a better title. 3. Mr Cordia's claim to have a better title than Ms Strel rests upon the contention that he has been in exclusive possession of the property since 1991 and that such possession has been adverse for a period exceeding the applicable limitation period of twelve years. 4. In order to determine that claim it is necessary to consider the nature of the arrangements made between Ms Strel and Mr Cordia concerning the use and occupation of the property, and the actual use of the property subsequently made by Mr Cordia. 5. It is clear that Ms Strel and Mr Cordia had a conversation about the property in about late 1991. I accept Ms Strel's evidence concerning the terms of that conversation. I prefer her evidence on this matter to that of Mr Cordia to the extent that there is a divergence between them. I note that Mr Cordia said in cross-examination that his recollection of the conversation was hazy. I was favourably impressed by Ms Strel as a witness. I consider that she tried to give honest and accurate answers to the questions asked of her. I accept her evidence more generally as truthful, and reliable. 6. According to Ms Strel's account of the conversation, she said that she was still trying to "sort out the situation" with the property, that this was not likely to happen for a while, and that she needed to get the bills for the property paid. Mr Cordia then asked whether he could use the property to store things, and said he could pay the bills, look after the property until "you sort it out", and make sure that it looked like someone was living at the property. Ms Strel was agreeable to that occurring. Mr Cordia deposed that he had no recollection of any arrangement being made for the payment of bills. However, in cross-examination he agreed that he had offered to pay the outgoings for the property and look after the property, and that Ms Strel had accepted that offer. It is likely that the agreement made in about late 1991 did involve Mr Cordia undertaking to pay the outgoings. He began to pay the Council rates and water rates from about that time, and Ms Strel ceased making such payments from about that time. 7. I am unable to accept the submission that the agreement made in about late 1991 was a lease of no fixed term, terminable at any time. I do not think that the agreement included a grant to Mr Cordia of exclusive possession of the property. In my opinion the agreement entailed no more than a grant to Mr Cordia of a permission to make certain use of the property pending Ms Strel "sorting out the situation" with the property. The language used does not suggest that during that period Ms Strel would not be able to enter upon the property and make her own use of it. The notion of Ms Strel "sorting out the situation" with the property, in which her father's belongings remained, itself suggests that she may need to make some use of the property. There is no indication in the words used that Ms Strel would need to seek permission from, or give notice to, Mr Cordia if she wanted to go into the property. (Ms Strel later in fact returned to the property on occasions, and gained access to the house using the key she retained.) The agreement, viewed objectively in the light of the circumstances in which it was made, ought to be characterised as a contractual licence. 8. From late 1991 Mr Cordia commenced to make use of the property in accordance with the agreement. He moved various items onto the property to be stored there. He paid the Council rates and water rates, as well as the electricity charges. He undertook various repairs, including to the roof to prevent water leaking, and replaced some termite affected timber. Mr Cordia also removed the boundary fence between 16 Bishop Street and 18 Bishop Street. Mr Cordia deposed that these works were undertaken "to maintain and conserve the property so it could be used for storage". I accept Mr Cordia's evidence that in about 1993 he told Ms Strel that he had carried out some essential maintenance and repair work, and that Ms Strel raised no objection. 9. Despite Mr Cordia's lack of recollection of any conversation with Ms Strel in 1998, I accept Ms Strel's evidence that she spoke briefly to Mr Cordia in 1998 and told him that she still had not been able "to sort this place out yet", and that it was "just an ongoing headache". 10. Mr Cordia's use of the property continued throughout the lengthy period that followed that conversation, during which Ms Strel did not return to the property. The use appears to have continued much as it had before. Mr Cordia agreed in cross-examination that until 2015 he continued to use the property for storage, to pay the rates and electricity charges, and to undertake some maintenance work. Mr Cordia accepted that the property was never his residence. 11. Evidence was given by a number of neighbours who lived in Bishop Street. I note in particular that Ms Buchanan, who has lived at 12 Bishop Street for many years, deposed that she had a number of conversations with Mr Cordia in the late 1990s and early 2000s in which he said words to the following effect: "I have a deal with Adelaide where I will pay the expenses of the place and she'll let me put my things in there." "I am looking after it for her and she's letting me use it." "I am allowed to put my stuff inside." Ms Buchanan also deposed that Mr Cordia referred to the property as "her [Ms Strel's] place". That evidence was not challenged. 1. Evidence to a similar effect was given by Ms Buchanan's de facto husband, Mr Lewis, who has also lived at 12 Bishop Street for many years. He said that Mr Cordia referred to the property as "Strel's place" until about 2013. That evidence was not challenged. In cross-examination, Mr Cordia could not deny that he used that description of the property. 2. Ms Sayer, who has lived at 20 Bishop Street since 2006, gave evidence of conversations with Mr Cordia in 2013 about the property in which he described himself as the "go to person" and the "overseer" of the property. 3. There was evidence that at some stage Mr Cordia secured the front gate to the property with a padlock and chain. This was not dealt with in Mr Cordia's affidavits, aside from a photograph apparently taken by him in 2012 which faintly shows the padlock and chain. Some of the neighbours who gave evidence were asked about when the gate was first locked with a padlock and chain. None of the witnesses were able to say when that occurred, although Mr Lewis said that the gate "never used to be locked" but has "latterly" been locked. Mr Willing, a friend of Mr Cordia's, gave evidence that Mr Cordia put a lock and chain onto the front "security gate" to the property in 1991 or 1992. In the absence of corroboration from Mr Cordia (or any other witness) I do not accept that evidence. In any event, even if Mr Cordia did place a padlock and chain on the gate at that time, the evidence does not suggest that this was maintained in the years that followed. The weight of the evidence suggests that a padlock and chain was only in place from about 2012. I do not accept the suggestion that it can be inferred from some electricity bills, which refer to charges being based on estimates rather than meter readings, that the gate was locked at an earlier time. 4. Mr Cordia deposed that he formed the view in 2001 (after doing a title search that showed Sylvia Graef as the registered proprietor) that his previous assumption that Ms Strel was entitled to the property was not correct. Mr Cordia deposed that he further formed the view that both Ms Strel and Sylvia Graef had abandoned the property. He says that he then regarded Ms Strel as "not a person who could have given [him] permission to occupy the [property]". 5. I am not persuaded that Mr Cordia in fact formed all of those views in 2001. Even assuming that he found out in 2001 that Sylvia Graef was the registered proprietor, I do not think that Mr Cordia formed the view that Ms Strel had abandoned the property, or was not a person who could have given him permission to occupy the property. 6. In a statutory declaration made by Mr Cordia on 1 July 2015 for the purpose of his possessory title application to the Registrar-General, he stated: 8.2 In 2001 I found out that Adelaide Young was not registered as proprietor of the subject property and in fact, neither had her father, Mr Strel, ever been registered as the registered proprietor. It was then I also realised that the true owner was a Sylvia Graef. This fact was later confirmed by a Title Search performed by my daughter Francesca in 2013 and it came as a surprise to her and the rest of the family. Up until that time my family assumed that I owned the subject property as I had not spoken to anyone about the property. 8.3 Up until 2001 I assumed that Mr Strel's surviving relatives in particular Adelaide Young had done all that was necessary to transfer the subject property into her name and so made no claim to the title at that stage. Even after 2001 I assumed that the process was still going through but that assumption was removed in 2013 when I found out that the situation had not changed even then. 8.4 I then regarded that Adelaide Young was not a person who could have given me permission to occupy the subject property or had any title to the property and this is evident by the fact that she never made any claim on me for rental payments. By now I came to the ultimate conclusion that she had abandoned the property and in the meantime I continued to occupy the property, not personally as the property was always in an uninhabitable state, but occupy it in the sense of storing goods and personal effects and paying the council rates, water rates and make [sic] essential repairs. 1. That declaration plainly asserts a belief that after 2001 Ms Strel was taking, or would take, steps to transfer the property into her name. It further asserts that such belief was not dispelled until 2013. The existence of such a belief seems to me to be inconsistent with a belief that Ms Strel had abandoned the property. 2. Mr Cordia was challenged in cross-examination about the apparent inconsistency between the statutory declaration and his affidavit, which was sworn only four months later. Mr Cordia had difficulty attempting to explain how the discrepancy came about. He was unable to advance a plausible reason for it, and appeared to maintain that the general thrust of what he was putting was unchanged. I found this aspect of Mr Cordia's evidence to be unimpressive. 3. In my view, the content of the statutory declaration is more likely to be accurate than the affidavit on these matters. The statutory declaration was made for the purpose of supporting a possessory title application. It was not shown that some new information or fresh recollection came to light after the making of the statutory declaration which might explain the different content of the affidavit. Further, given that Mr Cordia said (and I accept) that even well before 2001 he knew that a period of twelve years of adverse possession would defeat the owner's title, if he had in fact believed in 2001 that Ms Strel (and Sylvia Graef) had abandoned the property one would expect him to have made a claim before 2015. As it happened, Mr Cordia only made his claim in 2015, after Ms Strel asserted her right to become the registered proprietor. Finally, it is unlikely that Mr Cordia would describe the property until about 2013 as "Strel's place" if he had believed that Ms Strel had abandoned the property and had no right to give him permission to occupy it. 4. I accept that Mr Cordia may have known in 2001 that the registered proprietor was Sylvia Graef, not Ms Strel, but I find that he did not then form the view that Ms Strel had abandoned the property and had no right to give him permission to occupy it. He continued to assume that Ms Strel was taking or would take steps to transfer the property into her name. It was not until 2013 that Mr Cordia came to the conclusions that Ms Strel was not in a position to give him permission to occupy the property, and that she had abandoned the property. 5. These findings undermine the submission made by Mr Gray that Mr Cordia's occupation of the property became adverse in about 2001 when he came to the view that Ms Strel had no entitlement to confer rights in respect of the property. It cannot be said that the payments of rates and charges thereafter made by Mr Cordia were not made pursuant to any agreement with Ms Strel. In my opinion, the payments continued to be made pursuant to the agreement that was made in 1991. That remained the position until at least 2013 when Mr Cordia concluded that Ms Strel was not in a position to give him permission to occupy the property, and had abandoned the property. It is also my view that Mr Cordia's occupation of the property continued until at least 2013 pursuant to the 1991 agreement whereby he was given permission to make certain use of the property. The case thereby differs from J A Pye (Oxford) Limited v Graham (supra) where the Grahams' occupation of the land from 1 September 1984 was without permission. 6. It is well established that for possession of land to cause time to run under the Limitation Act the possession must be open, not secret; peaceful, not by force; and adverse, not by consent of the true owner (see Mulcahy v Curramore Pty Limited [1974] 2 NSWLR 464 at 475). Use or occupation derived from permission or grant cannot be adverse (see Moses v Lovegrove [1952] 2 QB 533 at 544). 7. At least until 2013, any possession of the property by Mr Cordia was with Ms Strel's consent. It follows that Mr Cordia's claim that he has been in adverse possession for more than twelve years such that Ms Strel's title is extinguished (by operation of ss 27(2), 28, 38 and 65 of the Limitation Act), must fail. It is not necessary to consider the other arguments advanced by Ms Strel in opposition to Mr Cordia's claim, including that he lacked the necessary intention to possess (the animus possidendi). Mr Cordia's Cross-Claim will be dismissed. Ms Strel is entitled to an order for possession against Mr Cordia. 8. A claim was also made against Mr Cordia for equitable compensation or damages for his failure to vacate the property in accordance with the notice to vacate served in May 2015. The notice called for the property to be vacated by 19 June 2015. The evidence adduced in support of this claim consisted only of a quote from a self-storage warehouse concerning the costs per month of "Mini Warehouse" space. That evidence might provide a guide to how much it might cost Mr Cordia to store his items in such a facility. It does not provide a useful guide to what loss Ms Strel may have suffered by reason of Mr Cordia's failure to vacate by 19 June 2015. Had he done so, Ms Strel might have wanted to let the property. However, there was no evidence of such intention. Neither was there any evidence of the likely condition of the property following Mr Cordia's departure, whether money would need to be spent to ready the property for letting, or as to the likely market rent. In these circumstances, I do not think that Ms Strel has proven the extent of any loss suffered as a result of Mr Cordia's failure to vacate the property. 9. Relief should be given to Ms Strel in respect of Mr Strel's entitlement to require Sylvia Graef to transfer her title in the property to him. In circumstances where Sylva Graef cannot be located, orders for specific performance of the kind that would ordinarily be made in such a case are not suitable. The appropriate relief may be a vesting order (see s 77 of the Trustee Act 1925 (NSW) and s 86 of the Real Property Act) and/or orders pursuant to s 138 of the Real Property Act. Orders should also be made for the removal of the various caveats that have been lodged in relation to the property. 10. I direct that within 14 days the parties bring in Short Minutes to give effect to these reasons. The Court will then decide whether to proceed to make final orders in Chambers, or re-list the matter for further submissions. 11. There seems to be no reason why costs should not follow the event. Accordingly, unless any party seeks a different order, the Court will order that Mr Cordia pay Ms Strel's costs of the proceedings (including the Cross-Claim). ********** 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. Decision last updated: 11 November 2016