Braye v Tarnawskyj

These proceedings were commenced by Summons on 14 August 2018 by Dr Keith Braye. Dr Braye died on 3 November 2018. On 5 February 2019, an order was made appointing his widow, Mrs Ellen Braye, as the representative of Dr Braye’s estate for the purposes of the proceedings.

Dr Braye is recorded as the registered proprietor of the land contained in Folio Identifier 6/741555, and known as 7 Brien Street, The Junction. Dr Braye acquired the property in December 1986.

The proceedings primarily concern a claim for possessory title over a small parcel of adjoining land, being the land contained in qualified folio 1/1063598. This land, which for convenience will be referred to as “the claimed land”, is rectangular in shape, approximately 2.743m wide and 18.288m long. It lies between the property at 7 Brien Street and the property at 5 Brien Street, which is the land contained in Folio Identifier 1/782620.

A right of way, granted in 1902, exists over the claimed land for the benefit of the 7 Brien Street property. The right of way is noted in item 5 of the Second Schedule to the folio in respect of the claimed land.

The registered proprietor of the claimed land is Mary King. She died in 1906. It appears that a grant of probate was made in August 1906. However, the first defendant, Ms Gloria Tarnawskyj, is sued as the administrator of Mary King’s estate. An appearance was filed on behalf of the first defendant but there was no appearance by her or on her behalf at the hearing.

The second defendant, Mr Simon Ward, is the registered proprietor of the 5 Brien Street property. He acquired the property in July 2015. On 22 May 2017 Mr Ward entered into a contract with Ms Tarnawskyj to purchase the claimed land for a price of $50,000. The contract has not been completed. Mr Ward was represented at the hearing. He opposed the possessory title claim brought on behalf of Dr Braye’s estate. He also opposed the claim made in the alternative that the 7 Brien Street property has the benefit of an easement by prescription over the claimed land for parking, storage and services. Mr Ward wants to complete his purchase of the claimed land.

Section 28P(1)(d) of the Real Property Act 1900 (NSW) relevantly provides:

The definition of “subsisting interest”, contained in s 28A of the Real Property Act, relevantly includes any estate or interest in the land, arising by prescription or under any statute of limitations, that was in existence or in the course of being acquired at the date on which the qualified folio of the Register was created. It can be deduced from the caution noted on the title search pursuant to s 28J of the Real Property Act that the qualified folio in respect of the claimed land was created on about 14 October 2015.

It is contended by the plaintiff, as representative of Dr Braye’s estate, that the claimed land, or at least a very substantial portion of it, has been possessed adversely to the documentary title holder (Mary King) for many years, such that the limitation period of 12 years for an action to recover the land has expired (see Limitation Act 1969 (NSW), s 27(2)). Accordingly, it is contended that the title of Mary King to the claimed land, or a portion of it, is extinguished (see Limitation Act, s 65(1)).

As mentioned earlier, the claimed land is subject to a right of way which benefits Dr Braye’s 7 Brien Street property. Under the terms of the right of way the owner, tenants and occupiers of 7 Brien Street have the right to pass and repass along the claimed land. However, it is contended by the plaintiff that from at least when Dr Braye acquired 7 Brien Street in December 1986, he and his tenants have used the claimed land in ways not authorised by the right of way, particularly by parking cars, storing goods and maintaining a garden upon it. Various other acts in relation to the claimed land are relied upon in support of the adverse possession case. These acts, all carried out without the permission of the documentary owner, include the concreting and later pebblecreting of the surface, the installation and use of pipes beneath the surface, and the payment of water rates.

The plaintiff contends that the use of the claimed land without the permission of the documentary owner amply demonstrates that the requirements for adverse possession have been satisfied. The plaintiff also relies upon the aforementioned parking, storage and use of sub-surface pipes, for a period of more than 20 years, to contend in the alternative that an easement for parking, storage and services arises by prescription.

Eleven affidavits, from eight deponents, were read in the plaintiff’s case. None of the deponents were required for cross-examination. An affidavit of the second defendant was read in his case. He, too, was not required for cross-examination. In addition, a small number of other documents, and another photograph, were admitted into evidence. One of the exhibits is an Agreed Statement of Facts, to which further reference will be made later in these reasons. It is convenient to turn now to a summary of the relevant evidence.

Ms Anne Kelly gave evidence that between about 1948 and 1950 there was a wooden picket fence running from Brien Street about 1m to the right of the house at 5 Brien Street (looking from the Street). She said that there was also a swinging gate from the picket fence to the front of the house at 7 Brien Street. Ms Kelly recalls that the then owner of 7 Brien Street, Mr Gower, parked his car behind the gate. She also recalls that the gate was removed in about 1950.

I interpolate here that if the picket fence was located as Ms Kelly recalls it, it would have been within the claimed land, possibly in the order of about 650mm from its boundary with 5 Brien Street.

Ms Maureen Walters, who has lived across the road at 2 Brien Street almost continuously since about 1950, gave evidence that between about 1955 and 1962 Mr Gower, who was the only person in the street with a car at the time, used to park his car on “the driveway” next to 7 Brien Street. Ms Walters recalls that the driveway (plainly a reference to part of the claimed land) then consisted of dirt tyre tracks and grass in the middle. Ms Walters also recalls the picket fence running down the side of the driveway “about three feet from Number 5”. Ms Walters recalls walking down the path between 5 Brien Street and the fence in order to enter the back door to the house on 5 Brien Street. Ms Walters also recalls that there was a gate across the entrance to the path. She believes that the fence was there until at least about 1962. She does not recall when the fence was taken down.

Dr Braye deposed that since he and his wife purchased 7 Brien Street in 1986 they have always leased out the property, and the tenants have used the driveway between 5 and 7 Brien Street for parking. He states that until a lapsing notice was received in respect of his caveat on the title to the claimed land (in about August 2018) he did not have any contact with any representative of Mary King or her estate in relation to the claimed land.

Ms Ellen Braye gave evidence that when 7 Brien Street was purchased in 1986 the driveway (said to be approximately 6 feet wide) adjacent to the house was untidy and overgrown with grass. She also gave evidence that there was an old grey wooden fence running from the rear of the property up to “about the location of the pergola gate which now leads into 5 Brien Street”. It appears from other evidence that the owner of 5 Brien Street built the pergola and the nearby gate in about 2014. Mrs Braye says that she arranged for the wooden fence to be replaced with a wire fence in about the 1990’s.

Mrs Braye states that at all times since the purchase of 7 Brien Street she and her husband have rented out the property, and that the driveway has been used by tenants to park cars and store garbage bins. She says that no permission was sought from the estate of Mary King for the driveway to be used in that way. Mrs Braye states that her husband left the management of the property to her. She states that 7 Brien Street has been successively let to four tenants, and on each occasion it was her intention that the tenant would have full and complete use of the driveway adjacent to the house. There is a copy of one lease in evidence (dated 28 May 1993), which describes the premises as including “off street parking”.

Mrs Braye deposed that a few years after the purchase she arranged for the grass driveway to be replaced by a concrete driveway. Mrs Braye further deposed that in early 1993, in association with certain renovations to the house at 7 Brien Street, pebblecrete was placed on the driveway. Mrs Braye states that neither she nor her husband sought the permission of the estate of Mary King to undertake any of those works on the driveway. Similarly, Mrs Braye states that permission was not sought in 2012 for the removal, which she organised, of a palm tree that stood within the claimed land.

The tenant under the lease referred to earlier was Mr Gregory Mathieson. He gave evidence that he lived at 7 Brien Street from about 1993 to November 2015. He says that during that time there was, adjacent to the house, a pebblecrete driveway upon which he parked his car and camper trailer. Mr Mathieson states that he did not seek permission from anyone for that parking, and no one complained about him doing so. Mr Mathieson deposed that he and members of his family would normally enter the house through a side door located “just past the large palm tree” that is shown in a photograph taken in January 2010. That is likely to be the palm tree that was removed in 2012.

Mr Mathieson deposed that in 2014 he was asked by the wife of the owner of 5 Brien Street (where renovations were being undertaken) whether some building materials could be delivered and placed on the driveway, and whether carpenters could use saws in the driveway.

Mr Mathieson deposed that he regularly hosed the paved surfaces between 5 and 7 Brien Street, killed weeds that grew there, and pruned the palm tree.

Mr Mathieson gave evidence that in about 2014 the owner of 5 Brien Street built a pergola. He says that before the pergola was built there was a gate to 5 Brien Street in the same location as the presently existing pergola gate. He says that shortly before he moved out of 7 Brien Street, the wire-mesh fence that ran from the rear of the property to where the pergola gate is now located, was taken down and a colourbond fence was installed from the rear of the property up to a point near the rear of the pergola. Mr Mathieson deposed that a garden ran along the entire length of the wire-mesh fence, and that he regularly maintained that garden. He also deposed that the pebblecrete driveway extended from the street up to the garden “where it narrowed into a footpath and ran alongside the rear of the House”.

There is survey evidence that indicates that the pergola structure slightly encroaches upon the claimed land, by distances of between 0.36m and 0.18m.

Mr Karsten Smith, a grandson of Dr and Mrs Braye, has rented 7 Brien Street since November 2015. He gave evidence that he and his wife have always used the driveway to park their cars, and he also uses it to park and repair old cars which he then sells. He says that the driveway is also used to store garbage bins.

Mr Smith deposed that between about June and September 2016 he excavated the driveway to lay a connection to a sewer pipe underneath. He further deposed that in about August 2017 he “ripped up the driveway”. He then observed, amongst other things, that underneath the surface there was a stormwater pipe that was connected to downpipes from gutters on the roof of 7 Brien Street. Mr Smith replaced the stormwater pipe with a new one. He then laid a new concrete driveway. In doing so, he removed the existing narrow pebblecrete path and most of the adjacent garden, and extended the driveway up to the rear section of the house. In September 2017, Mr Smith erected a small shed on the extended part of the driveway near the rear section of the house.

Mr Ward gave evidence that since he became the owner of 5 Brien Street in July 2015 he has parked his car from time to time on the claimed land. Both Mr Smith and his wife deposed that they were not aware of this. Mr Smith says that the photographs of Mr Ward’s car in the driveway would have been taken at some time in the period from mid-November 2016 to mid-January 2017. As mentioned earlier, on 22 May 2017 Mr Ward entered into a contract with the first defendant to purchase the claimed land for $50,000.

There is documentary evidence that shows that for many years the claimed land has been rated together with the 7 Brien Street property for the purposes of water rates. That is to say, the water rates for both properties are dealt with on the one account. Mrs Braye deposed, and there is documentary evidence to corroborate, that she has “always” paid the water rates from a bank account in Dr Braye’s name.

It appears that the Newcastle City Council did not commence to levy rates against the claimed land until August 2016.

The Statement of Agreed Facts includes the following:

The much acclaimed judgment of Slade J in Powell v McFarlane (1979) 38 P&CR 452 serves as a good starting point. At 470-472 his Honour said:

In JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30 Lord Browne-Wilkinson, who delivered the leading speech, made it clear that the notion of adverse possession as found in the statutes of limitation was concerned with possession in the ordinary sense of the word. His Lordship stated (at [35]-[36]):

At [41] Lord Browne-Wilkinson expressly agreed with what Slade J said about “factual possession” in Powell v McFarlane (supra). In relation to the question of intention to possess, Lord Browne-Wilkinson said (at [42]):

Lord Hutton stated (at [76]-[77]):

Reference should also be made to the well-known statement of Bowen CJ in Eq in Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475, where his Honour stated:

In the present case, one of the circumstances which needs to be considered is the existence of the right of way over the claimed land in favour of the owner, tenants and occupiers of 7 Brien Street. Clearly, and as accepted by the plaintiff, the exercise of rights pursuant to the right of way could not support an adverse possession claim (see Weber v Ankin [2008] NSWSC 106 at [98]). However, the plaintiff submitted that the acts it relied upon were not authorised by the right of way. In relation to parking, reference was made to Laris v Lin (No 2) (2016) 18 BPR 35,917; [2016] NSWSC 560 at [118] where Slattery J stated:

I would add that whilst a person with the benefit of a right of way may have an ancillary right to lay paving on the easement area, that is only to the extent that it is reasonably necessary for the enjoyment of the right of way (see Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 at 646-7; Butler v Muddle (1995) 6 BPR 97,532 at 4; Owners of Strata Plan 48754 v Anderson (1999) 9 BPR 17,119; [1999] NSWSC 580 at [27]-[30]; Zenere v Leate (1980) 1 BPR 97,029 at 9305, cited with approval in Hare v van Brugge (2013) 84 NSWLR 41; [2013] NSWCA 74 at [29]).

Another issue which arises from the evidence in this case is whether the alleged acts of possession, at least some of which were done on only parts of the claimed land, support a conclusion that the whole of the claimed land was possessed adversely to the documentary owner.

In Lord Advocate v Lord Blantyre (1879) 4 App Cas 770 Lord Blackburn said (at 791):

That statement was cited by Sir Harry Gibbs in the Privy Council decision of Higgs v Nassauvian Ltd [1975] AC 464 at 474 in support of the proposition that it was clearly settled that acts of possession done on parts of a tract of land to which a possessory title is sought may be evidence of possession of the whole. Sir Harry continued (at 474-5):

In Powell v McFarlane (supra) Slade J stated at 471 (in a passage quoted above) that whether or not acts of possession done on parts of an area establish title to the whole area must be a matter of degree.

In Roberts v Swangrove Estates Ltd [2007] EWHC 513 (Ch), Lindsay J, after referring to the authorities including those mentioned above, stated (at [63]) that:

The plaintiff cited Seddon v Smith (1877) 36 LT 168 as an example of a case where adverse possession was established over only that part of an area over which acts of possession were done. Senior Counsel for the plaintiff seemed to accept in submissions that the present case may itself be such a case.

I turn now to consider the evidence in light of the principles I have outlined above.

It appears that the documentary title owner of the claimed land has not had any relevant dealings or contact with it until recent times. There is evidence that Ms Tarnawskyj is treated by the Newcastle City Council as the owner for the purposes of local government rates, but the claimed land has been rated for that purpose only since August 2016. The contract for sale of the claimed land was not entered into until May 2017.

The evidence concerning the claimed land in the period prior to the purchase of 7 Brien Street by Dr Braye in 1986 is quite sparse. The evidence does indicate, however, that the owners of the adjoining properties made use of the claimed land for certain purposes for at least some of that period.

The location of the wooden picket fence, as described by Ms Kelly and Ms Walters, and other evidence given by Ms Walters, suggests that between about 1948 and 1962 the owners of 5 Brien Street used a narrow strip of the claimed land between the house on 5 Brien Street and the picket fence in order to gain access to the area behind the house. The surface of that narrow strip was described by Ms Walters as a path. It is not clear whether this path is the same concrete path which can be seen in various photographs taken many years later (no earlier than when the pebblecrete surface was placed in about 1993). The picket fence was removed after about 1962, but the evidence is not clear as to when.

The evidence given by Ms Kelly and Ms Walters also establishes that between about 1948 and 1962 Mr Gower, the former owner of 7 Brien Street, used to park his car on part of the claimed land in the area between the picket fence and the house on 7 Brien Street.

It would seem likely that the owners of the adjoining properties continued to make use of the claimed land after 1962. However, the evidence does not permit any firm conclusions to be drawn as to the precise nature and extent of such use.

The picture is much clearer in respect of the period from December 1986 when Dr Braye acquired 7 Brien Street. I accept that from about that time Dr Braye, through Mrs Braye (who was in charge of managing the property), rented the property to a series of tenants who used what Mrs Braye described as the driveway for the parking of cars and the storage of garbage bins. I infer that such use was permitted by Dr Braye. As Mrs Braye said, it was her intention that the tenants would have full and complete use of the driveway adjacent to the house. In Mr Mathieson’s case, the tenancy explicitly included “off street parking”.

Mr Mathieson was in occupation for more than 22 years, from about May 1993 to November 2015. During that time he used the pebblecrete driveway area to park his car and his camper trailer. I infer from its inherent nature that the camper trailer was regularly left there for lengthy periods of time.

It should be noted that Mrs Braye described the driveway as an area approximately 6 feet wide adjacent to the house on 7 Brien Street. By reference to the photographs in evidence, and the survey sketch, that which Mrs Braye describes would seem to roughly correspond to that part of the claimed land that lies between the house on 7 Brien Street and the concrete path that runs adjacent to the house on 5 Brien Street. That concrete path would seem to be no more than about 3 feet in width. It appears to have extended to about the point where the pergola gate now stands. It is agreed that from December 1986 the concrete pathway (referred to in the Agreed Statement of Facts as “the paved pathway”) enabled access to an entrance to 5 Brien Street located at about that point.

None of the works carried out by Dr Braye on the claimed land (whether the concreting, the pebblecreting or the extended concrete driveway installed in 2017) seem to have touched or interfered with the concrete pathway.

Prior to the undertaking of the works in 2017, that part of the claimed land that was not covered by the concrete path, the pebblecrete driveway or pathway (as described by Mr Mathieson), was an area of garden. I accept that Mr Mathieson regularly maintained that area of garden, presumably in conjunction with the other garden areas at the rear of the house on 7 Brien Street.

In my opinion, for the reasons which follow, the plaintiff has established a possessory title in respect of part of the claimed land. That is to say, the plaintiff has established the existence of factual possession and an intention to possess for a period of at least 12 years over all of the claimed land save for the part that falls within what may be described as the concrete pathway area. That area consists of the strip that extends perhaps about 650mm into the claimed land from the 5 Brien Street boundary, and runs from the street frontage to a point near where the pergola gate now stands. It is shown reasonably clearly in several of the photographs that are in evidence.

From about December 1986 Dr Braye’s tenants, with his authority and permission, have made use of a substantial part of the claimed land, namely, the driveway as described by Mrs Braye, for carparking and storage. These activities were not authorised by the terms of the right of way, and could not be said to fall within the scope of any ancillary rights conferred by the easement. It was not reasonably necessary, for the enjoyment of the right to pass and repass along the claimed land, to carry out those activities. Further, I do not accept the suggestion that the parking of cars in this case should be regarded as merely a use of the land for convenience, rather than an act of possession. A parked car occupies most if not all of the width of the driveway area, which is in the order of about 6 feet. The regular parking of cars in the driveway area and the storage of items such as garbage bins or a camper trailer are acts that together largely exclude other uses of the area. They are acts that an occupying owner might be expected to carry out, and no less because they also involve an element of convenience (see Thorpe v Frank [2019] EWCA Civ 150 at [42]). That the use of the driveway area by the tenants was of that nature might explain why in 2014 the owners of 5 Brien Street sought Mr Mathieson’s permission to make use of the driveway in connection with their renovation works.

In addition, on three occasions since 1986 Dr Braye has undertaken substantial works on the surface of the driveway area. A concrete surface was initially installed. That surface was replaced in 1993 with a pebblecrete surface. Finally, a new and more extensive concrete surface was installed in 2017. Again, these are acts that go beyond what is authorised by the right of way. The works may be taken to have been intended to facilitate or enhance the parking and storage activities. Taken together with those activities, the works on the surface of the driveway area (and any associated sub-surface works) seem to me to be acts of a possessory character, of a type that an occupying owner might be expected to carry out on that area (see Thorpe v Frank (supra) at [42]-[43], [53]-[54]).

Dr Braye’s tenants, or at least Mr Mathieson, also maintained the garden area that formed part of the claimed land. That area essentially consisted of the unpaved parts of the claimed land. Mr Mathieson did that for more than 22 years. He should be taken to have done so with the authority and permission of Dr Braye. To my mind, these acts, carried out over a long period, also go beyond what might be authorised by the right of way. The existence of the paved areas meant that maintaining the garden was not something reasonably necessary for the enjoyment of the right of way, even if some individual acts (such as trimming of branches or palm fronds) might conceivably fall into that category. In my view, they are also acts of a possessory nature, of a type an occupying owner might be expected to carry out in that area of the claimed land.

The acts of possession described above demonstrate, in my view, a sufficient degree of exclusive physical control over those parts of the claimed land to warrant the conclusion that Dr Braye was in factual possession of those parts. To the extent that the acts were carried out by tenants they were acts authorised by Dr Braye, and thus may be counted by him as acts of possession against the documentary title holder (see Roberts v Swangrove Estates Ltd (supra) at [33]). Moreover, these acts of possession were all carried out openly, peacefully, and without the consent of the documentary title holder. Again, it is noteworthy that in 2014 when the owner of 5 Brien Street wanted to make use of the driveway area, permission to do so was sought from Mr Mathieson.

The evidence shows that the acts as described above have been continuously undertaken on the claimed land from about December 1986 (or at least from about May 1993 in the case of the gardening). The acts are not equivocal in the sense referred to by Lord Hutton in JA Pye (Oxford) Ltd v Graham (supra) at [76] and earlier by Slade J in Powell v McFarlane (supra) at 476. The nature of the acts themselves readily lead to the conclusion that Dr Braye had the requisite intention to possess the driveway and garden areas of the claimed land to the exclusion of all others. Mrs Braye, who managed the 7 Brien Street property for her husband, always intended that the tenants would have full and complete use of the driveway adjacent to the house. If any further evidence of intention was needed, the payment of the water rates for the claimed land in conjunction with the water rates for 7 Brien Street would remove any doubt.

I referred earlier to authorities that establish that at least where an area of land is sufficiently defined, acts of possession done on parts of the land to which a possessory title is sought may be evidence of possession of the whole. The question is one of fact and degree, and the answer depends upon all the circumstances of the case, including the nature and characteristics of the land involved, and the types of acts proven.

In the present case, even though the boundaries of the claimed land are in my view sufficiently defined, and the claimed land is only a small area, I do not think that it can be concluded that Dr Braye has possessed the whole of the claimed land, or intended to do so. The proven acts of possession were not undertaken on the concrete pathway area that runs on the 5 Brien Street side of the claimed land from the street frontage to a point near where the pergola gate now stands. Indeed, it seems that over the years the owners and occupiers of 7 Brien Street, including Dr Braye, have at least tacitly accepted that the owners and occupiers of 5 Brien Street made use of the concrete pathway area as a means of access to that property. That is so even though the right of way over the claimed land is for the benefit of 7 Brien Street only. This tacit acceptance can be discerned from the location of the wooden picket fence that existed many years ago, the fact that none of the works that have been undertaken on the claimed land since December 1986 impinge upon the concrete pathway, and the fact that no attempts have been made to prevent the concrete pathway from being used to access 5 Brien Street. The concrete pathway is itself readily apparent to any observer of the area. This is not a case where it would be reasonable to infer, from the possessory acts of Dr Braye, that he was in possession of the whole of the claimed land.

The plaintiff has established a possessory title to the claimed land save for the concrete pathway area. The plaintiff has possessed that part of the claimed land adversely to the documentary title holder since at least 1993. Accordingly, the possessory title would have arisen by no later than 2005, well prior to the creation of the qualified folio in 2015. The title of the documentary title holder was correspondingly extinguished pursuant to s 65(1) of the Limitation Act.

It is appropriate that declarations be made in accordance with these conclusions. It will be necessary for that purpose to accurately define the concrete pathway area that it is not included in the possessory title established by the plaintiff (see Kleiner v Randall [2005] NFSC 3 at [54]). Title to the concrete pathway area will remain in the name of Mary King. I note in that regard that no claim for possessory title has been made by Mr Ward in respect of that or any other part of the claimed land.

It is not necessary to consider the plaintiff’s alternative claim for an easement by prescription. It is also unnecessary to deal with a claim made by the plaintiff in respect of the minor enchroachments by the pergola upon the claimed land. That claim was abandoned in closing submissions.

The parties should consult with a view to agreeing upon orders to give effect to these reasons. The Court will direct that the parties bring in, within 28 days, Short Minutes of Orders. The Short Minutes should also deal with costs. Once the Short Minutes have been received, the Court will proceed to make orders in Chambers or, if necessary, give directions to enable further argument on any unresolved questions.