Rogers v Registrar General of NSW

The end of World War II in Australia brought “a decisive break with previous immigration policy favouring British settlers” (Alison Bashford and Stuart Macintyre (eds), Cambridge History of Australia: Volume 2: The Commonwealth of Australia (2013, Cambridge University Press) at 108). Alfred Deakin’s nation of “independent Australian Britons” (History at 518) was forever changed by thousands of migrants from war ravaged Europe. Many, if not most, were able to make lives of prosperity, family and security in their new homeland. For some, the challenges of unfamiliar habits, language and culture saw them end their days in solitude.

Whatever the particular reasons may have been in his life, Joseph Louis Saric, who was born in Dubrovnik in 1922, died in Kogarah in 1968 without family and, perhaps, friends. I say “perhaps” because the precise nature of Mr Saric’s relationship with the late Mr Ross Paul is not apparent from the evidence.

What has been proven is that Mr Paul arranged Mr Saric’s funeral and then treated Mr Saric’s fibro cottage at Gymea Bay as his (Mr Paul’s) for the next nearly 50 years until his own death in 2018. While I shall continue to refer to the cottage for convenience, strictly speaking it is the land on which the cottage stands that is the subject of these proceedings.

As is not uncommon with European migrants having to complete English language records, Mr Saric’s name is recorded in several different ways in various documents, although there is no doubt they all refer to the same man: Josip Šarić; Josip, Joseph or Jozo Saric or Sarich; and, Joseph Louis Saric. As this last mentioned name and spelling is what appears on the relevant land titles register, it is that spelling which I will use, without disrespect, in these reasons.

The plaintiff, Mr Michael Rogers, is a solicitor and the executor of Mr Paul’s estate. In fulfillment of his executorial obligation to get in Mr Paul’s estate, Mr Rogers has brought these proceedings to advance two fundamental contentions: first, that the hearing should be conducted in the absence of any legal personal representative of Mr Saric; and, second, that Mr Paul had become the owner of the cottage by adverse possession so that the cottage forms part of Mr Paul’s estate.

At a hearing in the Applications List on 3 May 2024, I accepted both those contentions and made these orders:

I have also made these orders in chambers, which were intended to be made at the end of the hearing:

These are the reasons for the orders set out in the two preceding paragraphs.

Mr Rogers’ application was unopposed. Mr R D Turnbull of Counsel appeared for Mr Rogers. For what follows, the Court acknowledges its grateful reliance on Mr Turnbull’s eloquent and comprehensive written submissions, together with his efficient presentation of the extensive documentary evidence at the hearing.

Mr Rogers moved on a summons for declaratory relief in relation to the ownership of the cottage filed on 4 August 2023. The two named defendants - the Registrar General of NSW and the Chief Commissioner of State Revenue NSW - have both filed submitting appearances (save as to costs).

Pursuant to directions which I made in preparing the matter for hearing, Mr Rogers also filed a notice of motion on 30 April 2024 to formalise the application for orders that the summons be heard in the absence of any legal personal representative or the persons entitled on intestacy to Mr Saric’s estate.

The evidence consisted of affidavits from Mr Rogers and his legal representatives setting out the various searches and enquiries that had been made in relation to Mr Saric and the cottage, together with an affidavit of Mr Paul’s widow, Ms Cruz. Her evidence went to Mr Paul’s use of the cottage during the course of their relationship. However, the primary evidence was more than 1,400 pages of exhibits, mostly comprising documents that had been obtained from Australia and Croatia both about Mr Saric and to demonstrate Mr Paul’s longstanding use of the cottage (investigation). Unless I record otherwise, the facts that are set out in these reasons are proven by those documents. The Court finds that the investigation was comprehensive and appropriately directed. It included:

Mr Saric was born in 1922 in Dubrovnik, in what was then the Kingdom of Serbs, Croats and Slovenes, later Yugoslavia and now Croatia. He first came to Australia in February 1946 aboard the MV Parrakoola, on which he had embarked at San Francisco. When later applying for naturalisation, Mr Saric deposed that he had lived in Yugoslavia from his birth until March 1941, and then in the United States until February 1946.

In July 1951, Mr Saric was married at St Andrew’s Presbyterian Church, Rose Bay to Margaret Mary Nilsen (née Burton). In about 1954 he was naturalised as a British subject and Australian citizen. Between 1951 and 1954 he resided at 71 Victoria Street, Potts Point.

In September 1956, Manning J made a decree nisi dissolving Mr Saric’s marriage. In April 1957, this Court made a decree absolute. Mr Saric was the respondent in the divorce suit.

By registration of a memorandum of transfer dated 24 November 1961, Mr Saric became the registered proprietor of the land on which the cottage stands. The land was then, and remains, under the Real Property Act 1900 (NSW) (RP Act). Thereafter the cottage was his residence in Sydney.

In February 1965, records show Mr Saric entering Australia in circumstances where it appears that he was working on ships as an engineer.

Mr Saric died on Wednesday, 31 July 1968 at Calvary Hospital, Kogarah, of laryngeal cancer. Mr Paul was the informant on Mr Saric’s death certificate and arranged Mr Saric’s funeral, which took place only two days later on Friday, 2 August 1968 at Woronora Crematorium. Mr Saric’s death certificate records his occupation as an engineer, his usual residence as the cottage, that he had no issue and had never married. It will be apparent from [15] above that this last statement is incorrect. There is no evidence that would enable to Court to determine whether or not Mr Paul ever knew of Mr Saric’s marriage to Mrs Nilsen.

The first question is did Mr Saric leave a will? The investigation did not reveal any will or testamentary document prepared for Mr Saric or signed by Mr Saric. Based on that negative outcome, the Court finds that Mr Saric died intestate. I record for completeness that, in my respectful view, the fact that Mr Saric died without wife or children is of itself a neutral factor in determining whether or not Mr Saric is likely to have made a will.

Having determined that Mr Saric died intestate, the next question is who took on his death? In 1968, that question was governed by s 49(1) of the Wills Probate and Administration Act 1898 (NSW) (WPA). In summary, the estate of a man who died without a spouse or without issue in 1968 was to be applied to the following, in this descending order:

I accept Mr Turnbull’s submission that no issue of the Crown taking the cottage as bona vacantia arises in this case, because there is evidence that Mr Saric had siblings, who might have survived him.

On the question of heirs, the investigation yielded one positive result. In the Australian Women’s Weekly of 19 November 1980, this advertisement appeared:

Mrs Zupan would not have taken on Mr Saric’s death, because nieces were not a relevant category on intestacy. Nevertheless, Mr Rogers’ solicitors have met with Mrs Zupan and spoken to her by telephone. What emerged from those discussions was, and the Court finds, that other than Mrs Zupan and her own family, Mr Saric has no relatives in Australia and had no relatives in Australia at the time of his death, and that Mr Saric had at least one sister (being Mrs Zupan’s mother).

In placing her advertisement, Mrs Zupan was unaware of her uncle’s death some 12 years earlier. I accept Mr Turnbull’s submission that the Court should infer from this that Mr Saric had, for reasons unknown, lost contact with his family in Australia before his death. If he had lost touch with that family, the Court therefore also finds he had lost touch with any family overseas on the basis he is unlikely to have stayed in touch with the latter if he had ceased any contact with local relatives. These conclusions are fortified by records which demonstrate that Mr Saric re-entered Australia in 1964 and 1965 from being at sea as a ship’s engineer, having been apparently absent from Australia since 1962.

The outcome of the investigation, taking into account the information from Mrs Zupan, is that Mr Saric might have been survived by one sister, or possibly more siblings, who lived abroad. He may also have been survived by his mother, Ana Saric (née Pock). I will return to the significance of this outcome in [31] and following below.

The Court accepts Mr Turnbull’s submission that the objective evidence of Mr Paul’s possession of the cottage is overwhelming. The documentary evidence in support of that proposition goes back to October 1995. The only question is what, if any, conclusion the Court should draw about the extent to which Mr Paul’s possession of the cottage precedes that date.

The Court finds:

Did Mr Paul go into possession of the cottage at some earlier date than the documentary evidence establishes? I accept Mr Turnbull’s submission that the Court should draw such an inference, to the effect that Mr Paul went into possession of the cottage sometime shortly after Mr Saric’s death on 31 July 1968.

The Court finds by inference from the following facts and matters that by 1 January 1969 Mr Paul had taken possession of the cottage:

UCPR Part 7 r 7.10 provides:

Consideration of the question of Mr Saric’s heirs concluded (see [25] above) with the possibility of relatives in Croatia. For present purposes that could not be confined to immediate relatives. If a sibling of Mr Saric or his mother survived him, that person’s heirs would be entitled to whatever share of Mr Saric’s estate passed on intestacy to Mr Saric’s sibling or mother. The investigation included a number of communications with lawyers and a genealogist in Croatia about what would be involved in attempting to locate Mr Saric’s heirs (if any). The initial outcome of those communications was that to undertake the necessary enquiries in archives, state records offices and parish registers in an endeavour to locate the relevant relatives of Mr Saric would cost up to $35,000 and would take several months.

This evidence was later supplemented by further advice of two serious difficulties. First, it transpired that, contrary to original expectations, some of the records that would need to be consulted had not been digitised. This would make it a slower, more labour-intensive and expensive process. Second, Mr Saric’s Croatian name was an extremely common one in that country, being not dissimilar to “John Smith” in English, thereby complicating the genealogical task even further in terms of having any certainty that any Josip Šarić found in local records was in fact Mr Saric. By reason of the matters in this and the preceding paragraph, the Court finds that further searches in Croatia would have been expensive and unlikely to have found anyone who might have an interest in the cottage.

Taking into account:

It follows from the Court’s finding (see [29] above) that any cause of action on behalf of Mr Saric’s estate to recover possession of the cottage came into existence on 1 January 1969. The current legislation (being the Limitation Act 1969 (NSW) did not commence until 1 January 1971 and, by s 6(1)(c), did not apply to the extinction of title to land under the pre-existing imperial legislation where the limitation period had commenced to run before 1 January 1971.

The Court therefore accepts Mr Turnbull’s submission that the applicable limitation legislation is 8 Will IV, No 3 (NSW), the colonial statute being referred to as the Real Estate (Limitation of Actions) Act 1837 (NSW) (repealed), or on the NSW Legislation website as Imperial Act Adoption Act 1837 (NSW) (repealed) (1837 Act). This latter designation is because the 1837 Act adopted into the colony of New South Wales the Imperial Act 3 & 4 Will IV, c. 37, being “An Act for the limitation of Actions and Suits relating to Real Property and for simplifying the Remedies for trying the Rights thereto”.

Section 17 of the 1837 Act created what is now called a long-stop period of 40 years (equivalent to the ultimate bar of 30 years - with some exceptions - under the current legislation):

Section 34 of the 1837 Act has the effect of abolishing the paper owner’s title upon expiry of the long-stop period:

The result is that, by applying the finding of fact which the Court has made in [29] above, the Court concludes that any cause of action to recover possession of the cottage by Mr Saric’s legal personal representatives was completely extinguished from 1 January 2009. For this reason, further and in addition to the matters referred to in [33], the Court was satisfied that it was appropriate to order that the proceedings continue in the absence of a representative of Mr Saric’s estate because his estate no longer has a cause of action to retake possession of cottage.

I respectfully adopt and apply as an accurate summary what fell from Darke J in McFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629:

In considering s 45D(1) of the RP Act and applying those principles, the Court accepts Mr Turnbull’s submissions that:

Before formally expressing the Court’s final conclusion, it is also necessary to record that, conscious of the absence of a contradictor, Mr Turnbull drew to the Court’s attention three matters that might adversely affect Mr Rogers’ case:

For these reasons, the Court was satisfied that Mr Rogers, as the executor of Mr Paul’s estate, was entitled to be entered on the register in that capacity as the registered proprietor of the cottage.