Molloy v Beehag

The plaintiff in these proceedings seeks orders for a 3.352 square metre parcel of old system land to be brought under the provisions of the Real Property Act 1900 (NSW) and seeks to be registered as the proprietor of that land on the basis that he purchased it from his predecessor in title who had acquired title by adverse possession. The defendants filed submitting appearances. For the reasons that follow, I am satisfied that it is appropriate to make declarations and orders substantially in the terms sought by the plaintiff.

The plaintiff, Mr Allan Molloy, is the registered proprietor of the land in folio 1/3XXX5, being the land comprising Lot 1 in DP3XXX5 and known as 64 Smith Street, Balmain.

64 Smith Street has one boundary in common with the land known as 66 Smith Street (comprising Lot 2 in DP3XXX5 and Lot A in DP9XXXX8) and one boundary in common with the land known as 53 Reynolds Street (comprising Lot 1 in DP7XXXX6).

Nestled between those three parcels of Torrens Title land is a 3.352 square metre triangular-shaped parcel of land shaded in yellow on the diagram below, that is the subject of these proceedings (the Subject Land):

As will be seen below, the Subject Land has never been brought under the provisions of the Real Property Act.

Mr Molloy contends that the late Mr Ronald McCarty – his predecessor in title to 64 Smith Street – was in adverse possession of the Subject Land without interruption for a period of 20 years from 1965, and continued in possession thereafter until 2020, by his occupation of the residential dwelling known as 64 Smith Street which was constructed on Lot 1 in DP3XXX5 and part of the Subject Land. Mr Molloy contends that the title of the documentary owner of the Subject Land was extinguished no later than 1985 upon the expiry of the limitation period of 20 years which applied pursuant to s 2 of the Real Property Limitation Act 1833 (Imp), the provisions of which were adopted and applied to New South Wales by the Real Estate (Limitation of Actions) Act 1837 (NSW). Mr Molloy contends that Mr McCarty thereby obtained title in fee simple to the Subject Land, good against all the world, including the true owner or documentary owner.

Mr Molloy contends that Ms Deborah McCarty – the executor of the late Mr McCarty’s estate – conveyed to him that title to the Subject Land, in addition to the title to Lot 1 in DP3XXX5, pursuant to a contract for sale and purchase dated 6 May 2023 of Lot 1 in DP3XXX5 including the dwelling at 64 Smith Street. That contract was completed in July 2023, following which Mr Molloy took steps to partially demolish and substantially rebuild the dwelling. It was during that process that a surveyor engaged by Mr Molloy identified that the Subject Land was not included in the title to the land comprising Lot 1 in DP 3XXX5. This came as a surprise to Mr Molloy and Ms McCarty, both of whom had understood and intended that the land conveyed to Mr Molloy under the 6 May 2023 contract included the Subject Land.

On 19 January 2024, Mr Molloy lodged a primary application under Part 4 of the Real Property Act to bring the Subject Land under the provisions of that Act and to register him as the proprietor of an estate in fee simple in respect of that land. The application was accompanied by an unregistered plan of survey of the Subject Land which NSW Land Registry Services designated as DPXXXXX95.

NSW Land Registry Services gave notice of the primary application to the registered proprietors of 53 Reynolds Street and 66 Smith Street.

The registered proprietors of 66 Smith Street – Mr Colin Williams and Ms Gladys Williams – objected to the application on grounds which included that:

On 29 April 2025, NSW Land Registry Services issued a requisition to Mr Molloy stating that it considered that the objection made by Mr Williams and Ms Williams raised a dispute about whether Mr Molloy and his predecessor in title had exercised exclusive physical control over the Subject Land for at least 12 years, and that the matter should be determined by the Court. NSW Land Registry Services stated that the primary application and plan would therefore be rejected on expiry of the requisition on 28 June 2025 unless court orders were received in the meantime directing NSW Land Registry Services to grant the application.

Mr Molloy applied for an internal review of that decision. That internal review was concluded on 5 June 2025 and written reasons for decision were issued on that date. NSW Land Registry Services found that it was not satisfied that it had been presented with sufficient evidence to establish that Mr Molloy had been in adverse possession of the Subject Land. However, NSW Land Registry Services did not reject the primary application, deciding instead to hold it in abeyance for a reasonable period to allow time for the matter to be determined by the Court. The written reasons for decision make no reference to the contention raised by Mr Williams and Ms Williams that the Subject Land forms part of 66 Smith Street. The reasons describe the Subject Land as part of the land contained in Book 757 No 206 of the General Register of Deeds. The reasons refer to DPXXXXX95 and note that all surveyor requisitions had been satisfied or waived. It therefore appears that NSW Land Registry Services was satisfied that the Subject Land is old system land and that DPXXXXX95 accurately shows the land as not being part of either Lot 1 in DP3XXX5 (being the lot comprising the land known as 64 Smith Street) or Lot 2 in DP3XXX5 and/or Lot A in DP9XXXX8 (being the two lots comprising the land known as 66 Smith Street).

Mr Molloy commenced these proceedings on 7 August 2025. In substance, Mr Molloy seeks:

As will be seen below, the plaintiff has adduced evidence from Mr Mark Groll, a specialist searcher, identifying Mr Richard William Hamilton Beehag as the legal representative of the documentary owner of the Subject Land. Mr Beehag is the first defendant in these proceedings. He has filed a submitting appearance.

The second defendant is the Registrar General, who has also filed a submitting appearance.

Mr and Ms Williams were served with the summons and supporting evidence prior to the hearing, and notified the plaintiff that they did not wish to intervene in the proceedings. Mr and Ms Williams attended the hearing in person to observe the proceedings, and I enquired of them directly whether they wished to seek leave to be heard, or to be joined as parties to the proceedings. They confirmed that they did not wish to take either of those courses, and merely wished to observe. Thus, they did not seek to adduce any evidence or make any submissions in support of any of their grounds of objection to NSW Land Registry Services referred to at [10] above.

This Court is not engaged in a review of the decision of NSW Land Registry Services to which I have referred above. The proceedings require the Court to determine two issues:

The first issue raises the following questions:

Mr Molloy relied on evidence given by Mr Mark Henry Groll, together with documentary evidence. Mr Groll is a specialist searcher with more than 40 years’ experience in carrying out investigations, including investigation of land titles in New South Wales for the purpose of tracing the chain of title to land that has not been brought under the provisions of the Real Property Act.

The substance of that evidence, and the legal consequences of historical dealings with the Subject Land, may be summarised as follows. I have been greatly assisted by the supplementary written submissions prepared by Mr Mack of counsel, who appeared for Mr Molloy, in relation to the matters summarised below.

Mr Groll’s searches of the General Register of Deeds on the website known as Historic Lands Records Viewer (or “HLRV”), which is maintained by NSW Land Registry Services, identified that the Subject Land was initially part of Lot 1 of Smith and Rosser’s subdivision of Block 11 Section 10 of the Balmain Estate.

Based on his review of the metes and bounds description of land contained in deeds of conveyance of parts of Lot 1 of that subdivision, Mr Groll ascertained that the last conveyance [1] of land that included the Subject Land was a conveyance to a Mr Charles Dolby on 26 May 1872 that is recorded in a deed registered in Conveyance Book 130 No 189 in the General Register of Deeds.

Mr Charles Dolby died on 3 September 1893. His last will dated 23 May 1883 provided:

Ms Annie Jane Dolby had predeceased Mr Charles Dolby on 10 July 1888.

Mr Charles Dolby’s last will did not appoint an executor of his estate. Accordingly, no grant of probate of the will was made. This Court made a grant of administration to Ms Catherine Dolby on 26 September 1893. As counsel for Mr Molloy submitted, that grant was personal, and not transmissible.

The estate in Mr Charles Dolby’s real property (including the Subject Land) that was devised to Ms Catherine Dolby under his last will was a life estate, contingent on her not remarrying, with the remainder to the surviving children of Mr Charles Dolby and Ms Catherine Dolby as at the date of her death.

As counsel for Mr Molloy submitted, the rule in Shelley’s case, which was not abolished in New South Wales until s 17 of the Conveyancing Act 1919 (NSW) came into operation on 1 July 1920, required the devise to Ms Catherine Dolby to be construed as if it were a devise to her and her heirs, under which Ms Catherine Dolby took an estate in fee simple in (relevantly) the Subject Land and her heirs received nothing. [2]

In an interesting development, Mr Robert Thomas Dolby and Mr Arthur George Dolby – the only surviving children of Mr Charles Dolby and Ms Catherine Dolby as at the date of Mr Charles Dolby’s death – purported to mortgage to a Ms Jane Alexandrina Bowman all of their any present interests, and any future interests to which they may become entitled on the death or remarriage of Ms Catherine Dolby, in the real and personal property of the late Mr Charles Dolby, as security for a loan of £500 pursuant to a mortgage deed dated 21 November 1902 registered in Book 724 No 969 of the General Register of Deeds. For the reasons explained immediately above, Mr Robert Dolby and Mr Arthur Dolby had no entitlement to any present or future interest in the Subject Land or any other real property of Mr Charles Dolby under his last will. In any event, Ms Bowman subsequently purported to exercise her power of sale as mortgagee to convey to Ms Catherine Dolby all of the interests of Mr Robert Dolby and Mr Arthur Dolby in the real and personal property of the late Mr Charles Dolby by deed dated 14 April 1904 registered in Book 757 No 206 of the General Register of Deeds.

I accept the submission made on behalf of Mr Molloy that, by operation of the rule in Shelley’s case, Ms Catherine Dolby was beneficially entitled to Mr Charles Dolby’s real estate, including the Subject Land, under his last will. On the grant of administration on 26 September 1893, the legal title to that property vested in Ms Catherine Dolby with effect from the date of Mr Charles Dolby’s death, subject to the rights and duties of administration. As was submitted on behalf of Mr Molloy, the legal and equitable estates in the Subject Land were thereby united in Ms Catherine Dolby without the need for the Subject Land to be conveyed to her by deed. [3]

As I have already mentioned, Mr Groll’s searches ascertained that the conveyance to Mr Charles Dolby on 26 May 1872 is the last deed of conveyance of the Subject Land recorded in the General Register of Deeds. It follows that Ms Catherine Dolby’s united legal and equitable estates in the Subject Land formed part of her estate at the time of her death on 3 August 1907. Legal title to the Subject Land therefore vested in her three executors when probate was granted on 23 September 1907.

I accept Mr Groll’s evidence that the Subject Land was not included in Lot 1 or Lot 2 of DP3XXX5 when that plan was registered in 1947. As I have already mentioned, Lot 1 of DP3XXX5 is known as 64 Smith Street, and Lot 2 of DP3XXX5 is a small area that forms part of the land known as 66 Smith Street. The remainder of the land now known as 66 Smith Street was brought under the Real Property Act in 1988 by the registration of DP9XXXX8 and the creation of a folio for Lot A within that plan. The Subject Land was not included in Lot A or any other Lot in DP9XXXX8.

I accept the submissions made on behalf of Mr Molloy that, following the grant of probate to the executors of Ms Catherine Dolby’s estate on 23 September 1907, Mr Groll’s evidence establishes that the documentary title to the Subject Land followed the chain of executors described below pursuant to s 13 of the Imperial Acts Application Act 1969 (NSW) (up to 27 September 2020) and s 44A of the Probate and Administration Act 1898 (NSW) (from 28 September 2020):

For the avoidance of doubt, the registered proprietors of the Torrens title land known as 66 Smith Street (Lot 2 in DP3XXX5 and in Lot A in DP9XXXX8) are not the documentary owners of the Subject Land, contrary to the submissions made by Mr Williams and Ms Williams to NSW Land Registry Services in opposing Mr Molloy’s primary application.

I note that Mr Groll’s evidence was based on his own searches, but is consistent with a Heritage Report that Mr Molloy submitted to the local council in support of his development application for the substantial rebuilding of the dwelling at 64 Smith Street, and with the boundary lines drawn by the surveyor who prepared the plan of the Subject Land that was submitted in NSW Land Registry Services in support of Mr Molloy’s primary application and designated DPXXXXX95.

Ms Deborah McCarty, who sold 64 Smith Street to Mr Molloy as executor of the estate of her late father Mr Ronald McCarty, has given evidence in support of Mr Molloy’s claims for relief in these proceedings.

The salient aspects of Ms McCarty’s evidence may be summarised as follows.

Ms McCarty’s parents purchased 64 Smith Street and she moved into the dwelling on the property together with her parents and grandmother in 1965 when she was about nine years old. Her father lived in the dwelling continuously from 1965 until June 2020, when he was taken into palliative care in a hospice before passing away on 23 August 2020. Ms McCarty had moved out of home to live independently many years earlier, and her mother and grandmother predeceased Mr McCarty.

After Mr McCarty’s death, the property was unoccupied for a period of about three years until Ms McCarty obtained a grant of probate in respect of her father’s estate, following which she entered into the contract for the sale of 64 Smith Street to Mr Molloy on 6 May 2023. As I have already mentioned, that contract was for the sale of the land and the house.

When Ms McCarty first moved into the house in 1965, it consisted of three bedrooms, a living room, a dining room, a bathroom, a kitchen and a back verandah. Her parents made minor renovations and improvements to the house in the 1970s, and Mr McCarty replaced the fence at some time in the 2000s. No changes were made to the footprint of the house. Ms McCarty’s evidence, together with documentary evidence tendered by Mr Molloy, establishes that the part of the house containing the kitchen was constructed partly on Lot 1 in DP3XXX5 and partly on the Subject Land. Ms McCarty gave evidence that her family occupied and used the whole of the dwelling, including the kitchen, and treated the entirety of the house as their own, at all times after purchasing and moving into 64 Smith Street in 1965.

It was only after completion of the sale to Mr Molloy that Ms McCarty became aware that part of the land on which the dwelling had been constructed fell outside the boundaries of the land in Lot 1 of DP3XXX5. Mr Molloy informed Ms McCarty about this shortly after he first became aware of it as a result of advice received from a surveyor who was preparing plans to be submitted to the local council in support of Mr Molloy’s application for development consent for the redevelopment of the dwelling.

It is plain from the inclusion of the house in the contract for the sale and purchase of 64 Smith Street, and from the evidence of Ms McCarty and Mr Molloy referred to above, that they intended the land transferred under the 6 May 2023 contract to include Mr McCarty’s interest in the Subject Land, albeit that they did not know at the time of entering into and completing the contract that this interest was not included in the title to Lot 1 in DP3XXX5. It is plain from Ms McCarty’s evidence that she accepts that Mr Molloy is entitled to be registered as the proprietor of an estate in fee simple in the Subject Land, assuming that the Court orders the Registrar General to create a folio of the Register in respect of the Subject Land.

I accept the submission made on behalf of Mr Molloy that Mr McCarty’s occupation of the house on 64 Smith Street, including that part of the house constructed on the Subject Land, during the period from 1965 to 2020 satisfies the two elements of adverse possession: (1) the exercise of physical control over the Subject Land, constating physical possession; and (2) an intention to exclude the world at large from the Subject Land. I infer that Mr McCarty intended that the world at large should be excluded from accessing the home in which he resided. I find that his possession of the Subject Land by occupying his home was open (as opposed to stealthy), peaceful (as opposed to being taken by force), and that it was not by consent of the documentary owner of the Subject Land. On the basis of Ms McCarty’s evidence, I infer that Mr McCarty was not aware that he was not the owner of the Subject Land, and that he therefore had no occasion to seek or obtain the consent of the legal representative of Ms Catherine Dolby’s estate at any time during the period from 1965. [4]

I accept the submission made on behalf of Mr Molloy that, by reason of the transitional provision in s 6(c) of the Limitation Act 1969 (NSW) which commenced after Mr McCarty first entered into adverse possession of the Subject Land in 1965, the applicable limitation period is the period of 20 years prescribed by s 2 of the Real Property Limitation Act 1833 (Imp), the provisions of which were adopted and applied to New South Wales by the Real Estate (Limitation of Actions) Act 1837 (NSW). I accept the plaintiff’s further submission that s 34 of the Real Property Limitation Act 1833 (Imp), as adopted and applied by the Real Estate (Limitation of Actions) Act 1837 (NSW), extinguished the documentary owner’s title to the Subject Land on the expiry of that 20-year period in 1985. Thereafter, Mr McCarty acquired title in fee simple to the Subject Land good against all the world, including the documentary owner. [5] Mr McCarty’s title was not affected by the Subject Land being unoccupied at any time after 2020 before his executrix entered into the contract for sale of land with Mr Molloy on 6 May 2023.

The question whether the Subject Land was unoccupied for any period or periods of time after completion of the 6 May 2023 contract is irrelevant to the determination of these proceedings. As I have already explained, Mr McCarty’s title to the Subject Land was intended by both Ms McCarty and Mr Molloy to be transferred to Mr Molloy on completion of the 6 May 2023 contract. Ms McCarty has given evidence in support of Mr Molloy’s claim to be registered as the owner of the Subject Land in the folio of the Register that will be created for the Subject Land if it is brought under the provisions of the Real Property Act. As I understand it, Ms McCarty thereby accepts that the 6 May 2023 contract for sale and purchase of land, properly construed, includes the Subject Land, and that Mr Molloy has an equitable fee simple interest in that land on the basis that he would be entitled to have it transferred to him, and to have that transfer registered if the Subject Land is brought under the provisions of the Real Property Act, in any suit for specific performance of the contract.

For the reasons explained at [35]-[44] above, a declaration in the terms sought by Mr Molloy to the effect that he is in adverse possession of the Subject Land by reason of continuous acts of possession for a period of at least 12 years (or 20 years) prior to the commencement of the proceedings would be inaccurate. Mr McCarty’s possession of the Subject Land was not adverse to any person after 1985 when Mr McCarty acquired title to the Subject Land. Mr Molloy has taken his title from Mr McCarty. The appropriate declaration is that Mr McCarty obtained title to the Subject Land in 1985 by reason of adverse possession for a period of 20 years from 1965.

For the reasons explained at [35]-[44] above, it is also appropriate to make a declaration substantially in the terms sought by Mr Molloy that any action available to the documentary owner to recover the Subject Land was extinguished in 1985 pursuant s 34 of the Real Property Limitation Act 1833 (Imp), the provisions of which were adopted and applied to New South Wales by the Real Estate (Limitation of Actions) Act 1837 (NSW).

Having regard to my findings set out above concerning the title of Mr McCarty to the Subject Land which was conveyed to Mr Molloy, and in the absence of any opposition from any defendant in these proceedings, there is no reason why the Court should not make orders sought by Mr Molloy to the effect that the Registrar-General is to create a folio of the Register for the Subject Land pursuant to s 17(2) of the Real Property Act recording Mr Molloy as the proprietor in fee simple within 7 days of Mr Molloy providing a plan of survey of the Subject Land in registrable form.

Mr Molloy requested that no order be made as to costs, with the intention that he should pay his own costs.

Accordingly, the declaration and orders of the Court are as follows: