Australian Retirement Holdings Pty Ltd v Tracey Anne Higgins in her capacity as administrator of the estate of the late Monica Mary Pritchard

The plaintiff, Australian Retirement Holdings Pty Ltd (ARH), has, since 4 November 2013, been the registered proprietor of a retirement village called the Mount Gilead Estate on land situated at 72 Glendower Street, Gilead, in this State. The plaintiff is the latest in succession of a number of other proprietors of that land in respect of construction that commenced in 2006.

The first defendant is Ms Tracey Anne Higgins, in her capacity as administrator of the estate of her grandmother, Monica Mary Pritchard. The second defendant is Ms Beverly Higgins, who is Ms Higgins' mother.

The third and fourth defendants were joined because mortgages were granted to them over the land the subject of the present dispute in 1965 and 1979. While it is not known whether the debts the subject of the mortgages were repaid, the passage of time appears to have made the existence of the mortgages irrelevant to the resolution of this dispute.

The fifth defendant is the Registrar-General of New South Wales, who filed a submitting appearance and has not taken part in these proceedings.

Monica Pritchard and her husband, Arthur Russell Pritchard, who predeceased her, are recorded in folio identifier 7300/1132471 as the registered proprietors of the land the subject of the folio as joint tenants. That land is contiguous with the land owned by ARH.

In these proceedings, ARH seeks to establish that it and its predecessors have exercised adverse possession over Ms Higgins’ grandparents’ land for a continuous period that is sufficient to cause Ms Higgins’ entitlement to an order for possession of the land to be statute-barred, with the result that any estate or interest in that land has now been extinguished.

In order to succeed, ARH must establish that it and its predecessors in title exercised exclusive possession over Ms Higgins' grandparents' land for a continuous period of 12 years, and that the acts that constituted possession of the land were done with the intention to enjoy that possession. It will be convenient to discuss the principles that govern the acquisition of possessory title after the evidence has been analysed to identify the relevant issues.

Arthur Pritchard died on 22 February 1990, and Monica Pritchard died on 17 April 1993. At the date of her death, Monica Pritchard was the legal owner of the land that is in dispute in these proceedings. It is not clear whether that is so by reason of a transfer made by Arthur Pritchard to his wife, or whether Monica Pritchard became entitled to the land by survivorship.

In her will, Monica Pritchard bequeathed the residue of her estate as to two thirds to her son, James Higgins, and as to one third to her granddaughter, Ms Higgins.

James Higgins was the executor of Monica Higgins' estate, but for reasons unknown, James Higgins died without fully administering his mother's estate and causing the title to the land to be transmitted to himself for the purpose of distributing it in accordance with his mother's will.

On James Higgins' death, his wife, being Beverly Higgins, inherited his estate including his interest in the land.

In mid-2019, Ms Higgins was made aware that the land remains in the name of Arthur and Monica Pritchard. She then applied for, and on 7 April 2020 was granted, letters of administration of the will of Monica Pritchard.

It follows that, subject to the validity of the claim made by ARH, Ms Higgins is entitled to the transmission of the land into her name as registered proprietor in her capacity as administrator of the estate of her grandmother.

Although Beverly Higgins has been joined as second defendant as an interested party, it is Ms Higgins in her capacity as administrator of the unadministered estate of her grandmother who would be entitled to become the registered proprietor of the land if ARH's claim is not valid. Accordingly, Ms Higgins has been the active defendant to ARH's claim.

It will be appropriate at the outset to describe the two contiguous parcels of land, as well as the surrounding areas of land that are relevant to this dispute. It will also be appropriate to define the terms that, for convenience, will be used in the balance of these reasons.

The public street that provides access to both parcels of land is Glendower Street (the Street). The Street is in a residential area called Rosemeadow, which is part of the southern suburbs of Campbelltown. A largely rural area known as Gilead lies to the south of Rosemeadow.

I will call the whole of the land that is now in folio identifier 7300/1132471 (the Folio) the Land. Physically, the Land has two components. One component is a road (the Road) running in a north-south direction that connects the Street to the other component (the Block). The Block would be roughly rectangular in shape, save for the fact that part of its eastern and its southern boundaries follow the bank of Menangle Creek, which runs in a generally east-west direction. There is an issue as to whether the Folio relates to the whole of the Land or only to the Block.

There has, for much of the relevant period, been a gate (the Gate) across the Road near where it joins the Street, although a little south of that point. A contentious issue in these proceedings is whether the Gate has been closed and padlocked, except for when the Road was needed by ARH and its predecessors for access to and from the Street to ARH’s land.

At the northern end of the Road, on its western side, is a retirement village called Estia Health Kilbride (the Kilbride Retirement Village) which seems to have been established before the commencement of construction of the retirement village now owned by ARH. The boundary between the Kilbride Retirement Village and the Road runs for about one third of the length of the Road.

The land owned by ARH (the Gilead Estate) is a much larger parcel than the land on which the Kilbride Retirement Village stands. It shares a boundary with the Kilbride Retirement Village on its eastern and northern sides and shares a boundary with the Road on its eastern side between the Kilbride Retirement Village and the Block. The boundary of the Gilead Estate then follows the northern and western boundaries of the Block to Menangle Creek. The southern boundary of the Gilead Estate runs along Menangle Creek to a canal (the Canal) owned and operated by the body now known as WaterNSW (but known at earlier times as the Water Board or Sydney Water).

On 1 August 2006, Campbelltown City Council (the Council) issued the first development approval (DA) for the construction on the Gilead Estate of what is now called the Mount Gilead Estate Retirement Village (the Development). The DA authorised the construction in Stage 1 of 840 serviced self-care dwellings, a community facility building as well as associated infrastructure works and landscaping. Stage 2 would permit the construction of 270 hostel units in two buildings.

ARH has not yet completed Stage 1. As will be explained below, there is evidence that ARH and its predecessors have constructed Stage 1 of the Development in a number of relatively distinct phases. Broadly, it appears that successive proprietors have undertaken earthworks and created roadways, before then constructing the dwellings associated with those works, in perhaps three separate phases. That is, the preparatory works are done and then the associated dwellings are constructed, before the process is repeated. There is also a different sense in which the Development has been conducted in phases. It appears that, until 2016, the primary access to the Gilead Estate from the Street, for construction purposes, was by means of a road from the Street to the Gilead Estate close to the northern boundary of the Kilbride Retirement Village. From 2016, it seems clear that the primary means of access to the southern part of the Gilead Estate for continuing construction of the Development was by means of roadways leading off from the Road to the south of the Kilbride Retirement Village.

Until recently, WaterNSW has been entitled to a right of carriageway over the Road to a point to the north of the boundary of the Road and the Block, from where the right of carriageway continued along a road (called the Water Board Road) from east to west over the Gilead Estate to the Canal. The right of carriageway over the Road and the Water Board Road has been used by WaterNSW for access to the Canal and has also been used by the local Bush Fire Brigade.

To the east of the Land along the whole of its boundary is a public reserve owned by the Council called the Noorumba Reserve (the Reserve). There appear to be many walking trails across the Reserve. In particular, for almost the whole of the relevant period, there has been a relatively distinct trail (the Trail) running east-west across the Reserve in the general line of the Water Board Road, which appears to have allowed passage both ways across the Land between the Reserve and the Gilead Estate.

There is a post and barbed wire fence (the Fence) along parts of the boundary between the Land on its eastern side and the Reserve. The Fence at different parts of its length is either dilapidated or non-existent. It is in fact a ruin, and clearly has been so for many years. A number of trails from the Reserve intersect the Road. The trails are relatively well-established. Movement between the Road and the Reserve is impeded in places by dense and relatively impenetrable vegetation and for part of the length of the Road by an earthen mound.

It is necessary to consider the formal historical treatment of the Land as a legal parcel, as ARH has made its claim in these proceedings on the basis that the Block and the Road are separate parcels for the purposes of legal title. Prayer 1 in the amended statement of claim seeks a declaration that ARH is entitled to be recorded in the Register as the proprietor of the Block, as if it was the only land in the Folio.

Prayer 3 seeks the same relief in respect of the Road as if it is a separate parcel to which ARH is entitled to be registered as proprietor.

The issue has practical significance, because, if the block and the Road are separate parcels, then it is possible that ARH could succeed in its claim in respect of the Road but fail in its claim for possessory title to the Block. If the Land is a single parcel that is the subject of the Folio, then it may be that acts of adverse possession by ARH and its predecessors over the Road are not sufficient to constitute adverse possession of the whole of the Land.

I will deal first with the evidence of how the land in the Folio was brought under the Real Property Act 1900 (NSW).

A historical title search issued by NSW Land Registry Services on 13 January 2020 shows that DP 1132471 was registered on 23 October 2008, and that the Folio was created by the Registrar-General’s conversion action on 8 June 2010.

A notation in the Second Schedule to a later title search for the Folio issued on 20 February 2020 states that the title was created using land and property information records in accordance with s 28D of the Real Property Act, which authorises the Registrar-General in certain circumstances to create a qualified folio of the Register for any land under common law title that is evidenced by a registered deed.

Another notation in the Second Schedule records that the title is subject to a limitation pursuant to s 28T(4) of the Real Property Act, as the boundaries of the land have not been investigated by the Registrar-General. Consequently, s 28U has the effect that where, by any wrong description of parcels or boundaries, any land is incorrectly included in a limited folio of the Register, s 42(1) of the Real Property Act (that would otherwise make the registered proprietor’s title indefeasible) does not operate to defeat any estate or interest in that land adverse to or in derogation of the title of the registered proprietor, and not recorded in the folio.

Finally, a notation in the Second Schedule states that the title is qualified pursuant to s 28J of the Real Property Act, which requires the Registrar-General to record a caveat on the qualified folio warning persons dealing with the registered proprietor that the land comprised therein is held subject to any subsisting interest, whether recorded or not.

It is necessary to consider the history of the plans that have delineated the Land for the purpose of identifying the land that was the subject of the registered deeds, by which Arthur and Monica Pritchard became entitled to the Land, and which were apparently relied upon by the Registrar-General to create the Folio.

A Crown plan dated 20 July 1885 prepared in connection with a resumption of land for a school site, which is the earliest survey plan in evidence, shows the Block and the Road as a single parcel of land.

The plan that was prepared for the purpose of the creation of a limited folio for the land that now comprises the Gilead Estate and the Kilbride Retirement Village, which were then one parcel, and which was registered on 6 September 1985 as DP 711395, contains a line that separates the Road from the Block at their east-west boundary. The existence of this line makes it appear that the Road and the Block are separate parcels. However, the Road and the Block were only adjacent properties to the land the subject of this plan, so it is not actually a survey plan of the Road and the Block. A review of this plan suggests that it is possible that the line between the Road and the Block was inserted on the plan to enable the illustration of a right-of-way that is depicted in the plan that then existed over the Water Board Road. Absent the line separating the Road and the Block, there would be no boundary between the right of carriageway and the Block where it existed over the Road.

The evidence included three other survey plans prepared on dates in 1993, 2001 and 2004. Each of these plans also depicts a line that appears to separate the Road and the Block into two separate parcels.

ARH called evidence from Mr Michael John Gordon, a surveyor who had conducted various surveys of the area around the Land and the Estate at times from 1980 to 1993.

In cross-examination, Mr Gordon said that he understood that the Road was part of the land the subject of the Folio. Mr Gordon said that he was the surveyor who prepared the plans in 1993, 2001 and 2004. In relation to the line that appears to separate the Road and the Block into two separate parcels, Mr Gordon agreed that the Land was only included in the survey plans because that was a professional requirement, and the only reason Mr Gordon inserted the line was that he had copied it from the 6 September 1985 plan.

Ms Higgins gave evidence that she caused her solicitor to send an email to NSW Land Registry Services on 20 February 2020, advising that an error appeared to have occurred when the old system title to the Land was transferred to Torrens title. The email requested: "that you look into the status of the strip of land/road 75 links (15.09 meters) wide that is shown on the enclosed plans."

On 16 March 2020, NSW Land Registry Services sent an email to Ms Higgins' solicitor that attached a copy of amended DP 1132471. The amended plan is comprised of two pages. Page 1 shows the Land as being a single lot in DP 1132471, and page 2, which is the original plan showing only the Block as being in the deposited plan is marked "DRAWN IN ERROR".

I infer that this action involved the Registrar-General exercising the power in s 12(1)(d) of the Real Property Act to correct errors in the Register.

This evidence justifies a finding that, when the Registrar-General originally prepared DP 1132471 at the time that the Land was brought under the Real Property Act, some existing plan in the possession of the Registrar-General was used to prepare a departmental plan to enable the issue of the Folio for the Land. That plan was not, however, a survey plan of the Land, which was only adjacent land to the land the subject of the plan. After enquiry, NSW Land Registry Services accepted that an error had been made. Consequently, the Folio relates to the whole of the Land.

On 28 June 2004, Sunrise Nominees Services Pty Ltd (then named Viculus Trustee Services Pty Ltd) (Sunrise Nominees) became the registered proprietor of the Gilead Estate. The Gilead Estate was transferred to Viceroy Gilead Pty Ltd (Viceroy Gilead) on 13 August 2008. On 4 November 2013, ARH became the registered proprietor of the Gilead Estate.

In connection with the transfer of the Gilead Estate from Viceroy Gilead to ARH, the parties to the transfer entered into an agreement on 16 August 2013 called Assignment Agreement in Relation to Possessory Land Claim. The agreement recited:

For a consideration of $10, the agreement contained the following term:

In relation to the approvals necessary for the construction of the Development, in September 2005, a company called Monark Group Ltd obtained a bushfire protection assessment from Conacher Travers. On 1 August 2006, an entity named "Viceroy" obtained development consent for the Development from the Council. On 20 October 2009, Viceroy Group Pty Ltd obtained a modification of the consent from the Council. On 15 January 2014, a further modification of consent was obtained by Viceroy Project Management Pty Ltd. On 30 May 2019, a final modification of the consent was obtained by ARH.

A review of the Current & Historical Organisation Extracts issued by the Australian Securities and Investment Commission, in respect of the successive registered proprietors of the Gilead Estate, shows that the only consistent link between the boards of directors of the companies is Mr Tibor Paul Richard Singer, who has been a director of each company, in the case of Sunrise Nominees since 19 September 2005. For the periods when Sunrise Nominees and Viceroy Gilead were the proprietors of the Gilead Estate, Mr Singer was their only director. Mr Singer has been a director of ARH since 31 October 2013. At present, according to the relevant ASIC company extract, there are three other directors of ARH.

Mr Singer therefore appears to be the only person who has been a member of the boards of directors of the successive registered proprietors of the Gilead Estate over the whole of the period during which the Development has been under construction, and thus the only person who could give evidence of the subjective intention of all of those companies. Mr Singer did not give evidence, and his absence as a witness was not explained. I infer from the evidence of ARH’s principal witness, Mr Garlick, that Mr Singer was available to give evidence.

The Court was invited by the parties to conduct a view of the Land shortly before the commencement of the hearing, on 13 May 2021.

The view was attended by the parties and their legal representatives. The viewing party started at the point where the Street meets the Road and proceeded down the Road to near the southern boundary of the Block close to Menangle Creek. At a number of points along the Road, the party left the Road and entered the Reserve through gaps in the Fence. The party ventured a short way onto the Gilead Estate at the bottom of the Road, before returning to the Street.

In its present state, the Land appears to be in the possession of ARH for use in the continuing construction of the Development. Substantial earthworks have been undertaken on the Gilead Estate near the boundary with the Land. The Road is apparently being used by vehicles, including heavy construction vehicles, travelling between the Street and the Gilead Estate. The Block is being used for various subsidiary purposes connected with the Development.

As will be seen below, this state of affairs is consistent with Ms Higgins not contesting that ARH is at present in adverse possession of the Land.

The view allowed the Court to form an understanding of the physical condition of the Fence, the state of the vegetation at the boundary between the Road and the Reserve, the topography at the boundary, the condition of the trails on the Reserve and their relationship with the Road, and the nature of the physical effort needed to pass between the Road and the trails. Importantly, the view permitted the Court to assess, albeit subjectively, the extent to which the Fence, the vegetation and the earthen mound at the boundary between the Road and the Reserve are, in their present state, likely to create the appearance, for persons moving along the trails towards the Road, that the Land is in exclusive possession, so that entry upon the Land is prohibited and would be a trespass.

At a number of places along the Road it is possible to cross the boundary and enter the Reserve. Some of the trails on the reserve are not clearly formed and it is necessary to walk through relatively thin vegetation to pass between the Road and the trails. At least one trail appeared to be well-established and frequently used. It appeared to lead from the boundary of the Road a considerable distance into the Reserve. At the boundary, an earthen mound impeded movement from the trail to the Road. The condition of the trail at the Road suggested that its purpose was to permit movement between the Reserve and the Road and onwards over the Gilead Estate. Otherwise, there is no apparent reason why the trail would lead to the boundary with the Road and onto the Gilead Estate.

The viewing party did not venture onto the Trail, which was not evident from the Land. It may be that the Trail is no longer in use or does not extend to the boundary of the Land, because of the significant use that has been made of the Land by ARH since 2016.

The main purpose of a court undertaking a view is to enable the judge to better understand the evidence. Photographs tendered by ARH at CB 301 to 381 depicted many aspects of the Land and its relationship with the Gilead Estate and the Reserve. The present Gate and padlocks are shown at CB 301, 303 and 304. The notice that the Land is guarded by a security company is at CB 302 and 305 to 307. A prominent sign near the Gate warning that the Land is a dangerous construction site and requiring all visitors to report to the site office is at CB 308 and 313. The state of the Fence is depicted at CB 319 to 322. These photographs convey a reasonably comprehensive impression of the Land in its present state.

The affidavit of Ms Higgins’ solicitor, Ms Catherine Barry, annexed a number of photographs of the main trail on the Reserve leading to the Road that is referred to above, which show it to be relatively wide and well-worn: see CB 806, 807.

ARH tendered a number of additional photographs that depicted parts of the Reserve adjacent to the Road, which tended to show that, at least from the perspective of the Road, the existence of trails into the Reserve was not obvious: see CB 622 to 625. Ms Barry’s photographs show, however, that at least one of the trails is well-established and in apparent regular use, and leads onto the Road, albeit over the earthen mound.

During the view, some of the participants left the Road and entered the Reserve at a number of places where the Fence had been removed or provided no impediment to pedestrian traffic because it had fallen down. At the boundary between the Road and the Reserve, entering the most obvious trail referred to above (not the Trail) required a little athletic ability, because of the need to climb down from the earthen mound, but all participants were able to make the transition with no real risk. At other places along the boundary, moving from the Road to the Reserve was easier because the ground was level, although the trails through the vegetation were less obvious. It appeared to me that many trails crisscrossed through the Reserve, although the view did not involve a thorough exploration of the Reserve. The Reserve appeared to be in regular use for bushwalking and perhaps mountain bike riding.

Parts of the boundary between the Road and the Reserve were relatively impassable because of the density of the vegetation, and generally the Fence was more structurally sound along those parts of the boundary. This is probably because the density of the vegetation did not invite entry across the Fence to and from the Reserve.

Nonetheless, at the time of the view, my general impression was that persons walking along the trails on the Reserve towards the Road would not be seriously impeded, whether physically or psychologically, from continuing on to the Road from the trails, provided that they were reasonably able-bodied.

An additional result of the view is that it became clear that the size and topography of most of the Gilead Estate does not permit observation of what is happening on the Land. As will appear from the analysis of the Google Earth aerial photographs tendered by ARH that will be undertaken below, people working on the Development on a day-to-day basis up to about December 2013 would not have been able to see what was happening on the Land, unless they had a particular need to use the Road or to enter the Land for some other purpose.

The evidence included aerial photographs of the area surrounding the Land sourced from Google Earth at different dates over the period since Sunrise Nominees acquired the Gilead Estate.

I raised the possible significance of the aerial photos during the course of the hearing, so that counsel for the parties had the opportunity to make submissions about the significance of this evidence. That avoided the possibility that the Court would simply draw its own conclusions from the photos. Care must be taken with the inferences that can legitimately be drawn based upon a historical series of aerial photographs. In particular, the times at which the photographs were taken are likely to have been random. The photographs may provide unreliable evidence as to the timing of the events, as events may have started or ended at times for which photographs are not available. However, in my view, the photographs clearly support the making of some important broad findings concerning the course of the Development.

The following analysis of the Google Earth aerial photos deals with the photos selectively where there are a number of photos taken closely spaced in time. In those cases, the photo that appears to be the clearest has been selected.

Aerial photo 11 March 2007 (CB 381):

Aerial photo 30 June 2009 (CB 382):

Aerial photo 16 October 2011 (CB 383):

Aerial photo 2 November 2012 (CB 384):

Aerial photo 24 November 2012 (CB 385):

Aerial photo 19 November 2013 (CB 389):

The transfer of the Gilead Estate to ARH occurred on 31 October 2013 (although the transfer was registered on 4 November 2013). As will be seen, ARH’s construction contractor entered into possession on 6 January 2014.

Aerial photo 31 January 2014 (CB 391):

Aerial photo 2 February 2014 (CB 392):

Aerial photo 22 March 2014 (CB 394):

Aerial photo 16 May 2014 (CB 395):

Aerial photo 1 October 2014 (CB 396):

Aerial photo 27 April 2015 (CB 398):

Aerial photo 6 August 2015 (CB 403):

Aerial photo 16 October 2015 (CB 404):

Aerial photo 16 August 2016 (CB 414):

Aerial photo 5 October 2016 (CB 415):

Aerial photo 1 November 2016 (CB 416):

Aerial photo 19 December 2016 (CB 418):

Aerial photo 5 September 2017 (CB 422):

Aerial photo 4 January 2019 (CB 425):

This analysis of the Google Earth aerial photographs justifies the making of the following findings with considerable confidence.

First, the construction of roads directly joining the Road to the part of the Gilead Estate on which construction activity was occurring did not happen until some time between 6 May 2016 (CB 413) and 16 August 2016.

Secondly, up until 27 January 2017 (CB 420), the road system on the existing part of the Development leading from the Street to the north of the Kilbride Retirement Village was visibly connected to the construction roadworks on the Gilead Estate, without a requirement for the use of the gravel road. By 9 February 2017 (CB 421), the visible connection was not apparent.

Thirdly, from 31 January 2014 (CB 391) onwards, shortly after ARH’s construction contractor took possession of the Gilead Estate, there is a clear point of connection from the western end of the Water Board Road that is consistent with that road and the Road being used for traffic between the Gilead Estate and the Street.

Fourthly, prior to 31 January 2014, there is a visible connection between the western end of the Water Board Road and the Gilead Estate, but each of the connection, the Water Board Road and the Road do not appear to have been heavily used. As at 19 November 2013 (CB 389), significant parts of the Water Board Road and the Road appear to be indistinguishable from the adjacent ground, as if those roads were entirely unused.

Fifthly, for the whole of the period up to 4 January 2019, the Trail remained generally visible to various degrees as an apparent continuation of the Water Board Road, and even remained in apparent use at the end of the period when construction of the Development had completely obliterated that road.

Finally, for most of the period from 11 March 2007, the Block appears visually indistinguishable from the adjacent part of the Gilead Estate upon which construction activity was not being undertaken.

Substantially the whole of the evidence relied upon by ARH in support of its claim was presented through six affidavits sworn by Mr Allan Ross Garlick and the documents exhibited to those affidavits.

It has not been an easy task to encapsulate the evidence given by Mr Garlick in a coherent way. In his later affidavits he has often revisited evidence given in earlier affidavits, sometimes to augment his evidence, but at other times to make corrections, moderate overstatements and to add nuance to earlier generalisations. Consequently, it has been difficult to set out the effect of Mr Garlick’s evidence in a comprehensive but appropriately succinct way.

Mr Garlick described his occupation as construction manager, but he added that he was a Senior Project Manager in the employ of HT Building Pty Ltd (HT), an entity related to ARH.

Mr Garlick said that he has been employed to work on the Development since 2005, and that though his employer has changed over time, it has always been an entity associated with Mr Singer.

Between February 2005 and September 2018, Mr Garlick’s job title was “Project and Development Manager”. Mr Garlick said: “HT is contracted by ARH to carry out various construction works on the Estate”.

In his first affidavit, on the subject of access to the Land, Mr Garlick gave the following evidence in support of ARH’s claim that it and its predecessors have exercised adverse possession over the Land since 2005:

In pars 44 to 46, Mr Garlick gave evidence that, when he was locking the Gate at the end of the workday on 2 May 2014, he noticed that the hinge on the Gate was broken. He arranged for the hinge to be fixed. In about September 2016, the original gate was replaced by double steel swing gates, and copies of the key of the new padlock were given to the Rural Fire Service and Sydney Water.

Mr Garlick gave evidence that, between 2005 and 2014, the Gate had always been padlocked by Sydney Water and the Rural Fire Service. In around March 2005, Mr Garlick said that Sunrise Nominees added a padlock to the Gate. In his sixth affidavit, Mr Garlick said that he was instructed by Mr Singer to buy a padlock, although that was at a time before Mr Singer became a director of Sunrise Nominees. He said that copies of the key were given to each of the Rural Fire Service and Sydney Water. Each of the three padlocks is interlinked, so that it is possible to lock and unlock the Gate by using the key to any of the padlocks. As such, the opening of any one of the padlocks will allow the removal of the chain by which the Gate is locked.

Mr Garlick confirmed in cross-examination, at T 95.34, his evidence that the Gate had always been padlocked by Sydney Water and the Rural Fire Service. If that was so, Sunrise Nominees could not have used the Road without arranging for the existing padlocks to be opened, so that it could insert its padlock. In this way, Sunrise Nominees needed its padlock to enable it to use the Road, as much as it may have needed the padlock to stop other persons from doing so.

In par 41 of his first affidavit, Mr Garlick gave evidence that he observed that the Gate was locked at all times between 2005 and November 2013, other than when access was required by the proprietor for the time being, their contractors, or the other key holders. That evidence required that Mr Garlick be present at all times when the Gate was locked or unlocked.

In so far as Mr Garlick distinguished the periods before and after November 2013, it is noted that ARH became the registered proprietor of the Gilead Estate on 4 November 2013.

In pars 16 to 20 of his 18 February 2020 affidavit, Mr Garlick sought to bolster his evidence in par 43 of his first affidavit, in which he said that, to his observation, since November 2013, the Gate has been locked each night and opened each morning by the construction manager. He identified the construction managers by name but said in par 17: “In the ordinary day-to-day practice, the gate is locked in the evening by one of two construction site managers employed by HT”. The reference by Mr Garlick to “the ordinary day-to-day practice” suggests that Mr Garlick has not given evidence of what he saw every day, but rather of what he understood the standard operating procedure to be.

Mr Garlick gave evidence in pars 47 to 50 of the development of the Road. Between 2005 and about May 2016, the roadway on the Road commenced at the Street and continued south to a point that was approximately 330 m from the Street. It did not extend to the northern boundary of the Block. The roadway continued in a westerly direction across the Gilead Estate on what I have called the Water Board Road.

Between May 2016 and August 2016, ARH formed additional junctions off the Road at points approximately 100 and 200 m from the Street. These dirt roads gave direct access to the Gilead Estate from the Road.

Mr Garlick said that the roadway was extended along the Road in a southerly direction down to the eastern boundary of the Block in December 2016.

This evidence may be significant, as it supports a conclusion that there was a materially different level of use, as between much of the Road and the Block, until the end of 2016.

Mr Garlick then gave the following evidence concerning the level of traffic on the Road and the traffic management system in use for the Development:

Mr Garlick claimed in par 51 that he actually observed contractors using the Road approximately three to four times a week. It is not clear whether Mr Garlick meant to convey an average, or whether his evidence is that the usage stated was consistent. Three to four times a week is not a high level of usage.

Mr Garlick’s evidence in par 53, in saying that he observed the Road being accessed on a daily basis, appears to convey that Mr Garlick personally observed vehicles using the Road about seven times a week. This evidence deals with the period between the acquisition of the Gilead Estate by ARH and the increased level of usage of the Road that began in November 2016.

As noted above, in relation to Mr Garlick’s evidence concerning the frequency of traffic on the Road, he referred in par 52 of his first affidavit to condition 47 of the DA for the Development dated 1 August 2006. The condition stated:

Mr Garlick asserted in par 52: “To my observation, and pursuant to condition 47 of the DA, the Road was used as the ‘single vehicle/plant access to the site’ from 2006 onwards”.

Mr Garlick then added in par 52 that a “copy of the plan approved under the DA by Council showing that the Road labelled ‘SEALED ACCESS ROAD’” was exhibited to his affidavit. This evidence implies that the Council, in condition 47, intended to refer to the Road as the required single vehicle/plant access to the Gilead Estate.

The plan to which Mr Garlick referred was prepared by Candalepas Associates and approved by the Council as plan number DA 1001, Issue C, in general condition 1 of the DA. The plan is described as “SITE ANALYSIS PLAN”. The plan shows a right of carriageway across the fringe of the Kilbride Retirement Village from the point where the Kilbride Retirement Village and the Road meet the Street. The right of carriageway would allow access from the Street to the Gilead Estate across the fringe of the Kilbride Retirement Village. The plan also shows a continuation of the Road near the boundary with the Block across the Gilead Estate in an east-west direction described as “RIGHT OF WAY UNSEALED SYDNEY WATER ACCESS TRACK”. This is the Water Board Road. It is true that the Road is marked “SEALED ACCESS ROAD” at its southern end. However, the Road is also marked “UNSEALED ACCESS ROAD” at its northern end where it runs parallel to the Kilbride Retirement Village. The plan also depicts an area of land, surrounding the area on the Gilead Estate upon which the Development was to be constructed, described as “50m ASSET PROTECTION ZONE”. This area is hatched in grey. It starts at the southern boundary of the Kilbride Retirement Village and continues along the boundary with the Road, and then the Block, before turning in a westerly direction to encircle the Development. The plan shows no break in the margin between the Road and the Gilead Estate, other than the Water Board Road. Although the features depicted on this plan are consistent with the Road being one means of entry from the Street onto the Gilead Estate, they are not consistent with the Road being the only or necessarily the primary means of entry. The plan is consistent with the right of carriageway across the fringe of the Kilbride Retirement Village being the primary means of entry. That was in fact the case for much of the history of the Development.

It is improbable that Sunrise Nominees embarked upon an undertaking as huge as the Development on the basis that the primary access road required by condition 47 of the DA was on land over which it had no proprietary interest, other than an inchoate possessory claim that could not extinguish the title of the documentary owner for a period of some 12 years. This is particularly so where the right of Sunrise Nominees to use the Road could be terminated at any time by the documentary owner obtaining an order for possession of the Land. It is much more likely that the right of carriageway across the fringe of the Kilbride Retirement Village was intended to be the primary means of access to the Gilead Estate. That conclusion is borne out by the analysis of the Google Earth aerial photos that is set out above.

It does not appear, on the basis of this evidence, that the “single vehicle/plant access” to the Gilead Estate referred to in condition 47 of the DA was the Road.

Mr Garlick gave evidence that, from time to time since 2005, the proprietors of the Gilead Estate had, at their own expense and using their own machinery and labour, maintained and graded the Road to ensure that the Road was serviceable for heavy vehicles, plant and equipment. That work was required after each period of heavy rain. Mr Garlick referred to a specific example on 5 March 2014 when, after a period of heavy rain, he instructed a contractor to repair the Road. He said in par 61: “Similar maintenance is carried out on the Road after each period of heavy rain”.

This evidence is entirely general and gives no indication of the frequency with which Mr Garlick claimed that the proprietor for the time being of the Gilead Estate caused the Road to be graded. Although the Google Earth aerial photographs are not adequate evidence to determine when the Road was graded, for the period before the Gilead Estate was acquired by ARH, the Road does not appear to have been graded in comparison with the roadworks on the Gilead Estate.

Mr Garlick accepted in cross-examination at T 124.20 that he had not provided any evidence to show that the proprietors of the Gilead Estate from time to time had their own machinery or labour force, or that the proprietors incurred expenses in relation to grading the Road.

Mr Garlick also said, in par 19 of his 12 May 2020 affidavit, that the Road is currently used approximately 50 to 70 times a day, six days a week, by vehicles, trucks and heavy plant and machinery to deliver materials, to remove materials, and access the construction works on the Gilead Estate. I accept that evidence as being consistent with what was seen on the view, and the appearance from the analysis of the Google Earth aerial photographs that, from 2016, the focus of the Development changed to the southern part of the Gilead Estate, for which access from the Road is the most convenient means for heavy vehicles to enter the Gilead Estate.

I also accept the evidence given by Mr Garlick, in pars 26 to 32, that, at the time the affidavit was sworn, there were approximately 440 occupied residences on the Gilead Estate and approximately 660 residents. The residential roads on the Gilead Estate are not designed or constructed for heavy vehicles. Use of the residential roads on the Gilead Estate would necessitate the expense of a traffic control operation to safely direct and manage the traffic flow for the duration of each day of constructing works. The use of the residential roads would create difficulties and safety hazards for the existing residents. Mr Garlick said that the residential roads that may be capable of giving access to the part of the Gilead Estate on which construction of the Development is continuing are not wide enough to accommodate large machinery.

Mr Garlick also said that the gravel road which appears from the aerial photographs to give access to the construction works from the Road to the north of the Kilbride Retirement Village is not suitable because it is laid over a high voltage power easement, and the angle of the corners along the gravel road are too sharp to allow large machinery and vehicles to navigate the turns.

All of this evidence is generally consistent with the apparent use of the Road and the construction of the Development since 2016.

In relation to the use of the Block, Mr Garlick said in his first affidavit that, in his role as Project and Development Manager, he caused work to be done that included clearing the land of unnecessary vegetation including African olive and blackberry bushes, which are fast growing and difficult to control, as well as other areas of overgrown weeds and shrubs, to allow access to the Block. In around 2006, Mr Garlick arranged for a contractor to clear the Gilead Estate and the Block. At the time, Mr Garlick observed that rubbish was scattered over the Block, including building waste and old washing machines. He said that he believed that the former proprietor of the Gilead Estate had used the Road to access the Block to dump unwanted waste there. He said that, from time to time after 2005, he has observed the proprietors maintaining the Block by regularly mowing and slashing the vegetation and clearing environmental weeds.

In his third affidavit of 16 October 2020, Mr Garlick said that, in 2007, he arranged for a civil contractor engaged in the construction of the Development to remove a tree branch that was hanging over the Road and impeding equipment getting to the Gilead Estate along the Road. Mr Garlick also gave evidence of ‘shooing’ cattle off the Block that had entered the Block through a broken fence on the other side of Menangle Creek. In around 2008, a promotional video for the Development involving Maggie Tabbera was made on the Block after it was cleared of debris and mown. Mr Garlick said, in par 33, that he had agreed with a representative of the Council that the Road could be used for construction access to the Gilead Estate provided it was maintained. Finally, between 2010 and 2013, a number of skip bins were maintained on the Block to dispose of household waste generated by the occupants of the Estate.

Mr Garlick gave evidence in his first affidavit about the use of the Block by ARH since November 2016. This included clearing trees and vegetation, using the Block to deposit and store materials, using the Block for the parking of personal vehicles, maintaining the riparian corridor along the southern border of the Block, creating dirt roads through the Block, and using those roads to access the Development, the sedimentation control pond and the golf course.

The evidence given by Mr Garlick concerning the use of the Block since November 2016 is generally consistent with what I observed during the view.

Mr Garlick gave evidence of negotiating with WaterNSW the termination of its right of carriageway over the Water Board Road to a different easement through the Gilead Estate, for purposes including the use of the Block for storage of construction materials. As a temporary arrangement, WaterNSW was given access to the Canal through the Block.

Mr Garlick agreed in cross-examination that, to his knowledge, no proprietor of the Gilead Estate had ever attempted to repair the Fence: see T 135.44.

Mr Garlick said, in par 71 of his first affidavit, that a security company was engaged to patrol the Road, the Block and the Gilead Estate in November 2019. The security company attached a sign at the Gate that said: “C.P.S. SECURITY PROTECT THESE PREMISES”.

In pars 9 and 10 of his 18 February 2020 affidavit, Mr Garlick referred to his evidence in par 33 of his first affidavit, to the effect that at all times the Land has only been accessible by persons with access to the Gate (including the padlock) or by persons with access to the construction site on the Gilead Estate. Mr Garlick said that he did not intend to suggest that, when the Gate was open, it would be impossible for someone to access the Land. He also said that he did not intend to suggest that it was physically impossible for someone to access the Land, including from the Reserve. He said in par 11: “on various occasions, primarily over 5 years ago, I have observed walkers and people on motorbikes walking and riding up and down the Road and through [the Block], often in the early morning and the late afternoon”. Mr Garlick said that, whenever he observed a trespasser on the Land, he told them that it was private property and required them to leave. Mr Garlick’s explanation for these circumstances was given in par 13:

That observation is probably true. However, in conjunction with Mr Garlick’s explanation that the Gate had been locked at all times between 2005 and November 2013 other than when access was required by the proprietors and that since November 2013 the closing and opening of the Gate was an ordinary day-to-day practice carried out by the construction managers, it tends to undermine the reliability of Mr Garlick’s own evidence of what happened on the Land on a daily basis, to his observation.

A construction report prepared by Mr Garlick, dated 29 September 2006, recorded that the settlement date was 31 October 2013 and: “Commencement on Site 06-Jan-14”. In cross-examination at T 126.39-127.19, Mr Garlick denied that the settlement date was a reference to the transfer date of the Gilead Estate from Viceroy Gilead to ARH, but said instead that it is “probably most likely referencing a construction contract”. Mr Garlick confirmed in cross-examination at T 128.14 that the previous proprietor, Viceroy Gilead, left the site on 31 October 2013. At T 127.29, Mr Garlick denied that the reference in the construction report to the commencement on site occurring on 6 January 2014 meant that was the day when ARH itself commenced on site (that is, when it took possession of the Gilead Estate). Mr Garlick said that the commencement was with reference to that of ARH’s construction contractor.

ARH did not tender any direct evidence concerning its taking of possession of the Gilead Estate on 31 October 2013, or what it did in relation to the exercise of possession over that property and the Land between 31 October 2013 and 6 January 2014.

Although it is probable that ARH formally took possession of the Gilead Estate on 31 October 2013, it does not follow that ARH in fact continued to exercise the same level of possession as Viceroy Gilead may have done in the period up to 31 October 2013, or even that ARH, in its capacity as the proprietor of the Gilead Estate, would have any reason to make use of the Land. It will be necessary to consider the evidence concerning Viceroy Gilead’s activities on the Land in the period leading up to 31 October 2013, as well as ARH’s own activities in the period before 6 January 2014.

In Mr Garlick’s final affidavit, sworn on 4 June 2021, he gave additional evidence concerning the construction of the Development by Sunrise Nominees and Viceroy Gilead.

Importantly, Mr Garlick said in par 8:

While this evidence provides some explanation of Mr Garlick’s personal involvement in the Development before the Gilead Estate was acquired by ARH, the use of the expression “from time to time” does not suggest that he was present on a daily basis.

Mr Garlick gave evidence in par 9 of circumstances that caused the destruction of hardcopy and digitally stored records of Sunrise Nominees and Viceroy Gilead concerning the Development. He said that he had been unable to obtain any documentation recording the development and operation of the Gilead Estate by those companies.

On 2 March 2020, ARH procured a report of the historical title to the Land that was undertaken by a professional search company.

Mr Garlick said in cross-examination at T 78.48 that, to his knowledge, no earlier attempts had been made to try to find out who the registered proprietor of the Land was.

I am generally prepared to accept Mr Garlick as a witness of credit. Save for one important issue that I will consider below, Mr Garlick was a satisfactory witness and gave his evidence candidly.

However, it is reasonable to regard Mr Garlick as a partisan witness, given that he described Mr Singer as his “boss” (T 81.40), and that entities associated with Mr Singer have always been Mr Garlick’s employer since 2005. Although I accept Mr Garlick as an honest witness, I am concerned that his recollection may have been affected by his understanding of the interests of his employer as to a number of issues that are not now verifiable because of the passage of time.

This concern is exacerbated by the form in which Mr Garlick gave much of his crucial evidence in his first affidavit.

In that affidavit, a remarkable proportion of Mr Garlick’s evidence is given in the form of a statement: “To my observation…” (See pars 39 to 56 as set out above). Evidence in this form is problematic, given that the Court must judge the nature, frequency and extent of the acts relied upon by ARH as establishing the fact of possession of the Land.

Taking two examples, Mr Garlick said in par 41 that, to his observation, between 2005 and November 2013, the Gate was locked at all times other than when access was required. He said in par 51 that to his observation the Road was used by contractors approximately 3 to 4 times a week in order to access the Development. The Court was provided with no evidence about the circumstances in which Mr Garlick was continually at the Gilead Estate over the whole of the period, at places that enabled him to observe whether or not the Gate was locked, and in a position to count the number of vehicles of contractors that used the Road. The doubt about the real capacity of Mr Garlick to give reliable observational evidence on these and other issues is compounded by the fact that, for the whole of the period of the construction of the Development until after the transfer of the Gilead Estate to ARH on 31 October 2013, the Land was not readily visible from the part of the Gilead Estate upon which the Development was being constructed. Furthermore, access for construction purposes was by means of a road to the north of the Kilbride Retirement Village, and not the Road. ARH did not tender any evidence to corroborate the evidence given by Mr Garlick, or to explain how his duties constantly put him in a position to observe the events about which he has given evidence.

Mr Garlick detailed his responsibilities as Project and Development Manager in par 11 of his first affidavit and his responsibilities as Senior Project Manager in par 12. It is not necessary to set out those duties and responsibilities in detail, but it is fair to observe that they appear to concern planning and management issues, and not the supervision of construction. I have referred above to the evidence given by Mr Garlick concerning the duties of the two construction managers employed by ARH. ARH appears to rely upon the Court accepting or making an inference that Mr Garlick spent almost all of his time on site at the Gilead Estate from 2005 to date. It must be inferred from the evidence that Mr Garlick gave on specific topics that he was often on site, and I am prepared to infer that he spent a substantial proportion of his time on site. However, the fact is that there is no evidence concerning the amount of time that Mr Garlick actually spent on site that would provide a proper foundation for many of the generalisations that he gave, particularly for the period before ARH acquired the Gilead Estate.

ARH conceded that the Court was not obliged to accept evidence of a witness that was not challenged, but it also submitted that the Court ought to accept all of the evidence given by Mr Garlick where it was not put to him in cross-examination that his evidence was false.

I do not accept this submission. It is clear that Ms Higgins had no means of knowing what had happened since 2005 in respect of the Land, and she was unable to give instructions to her counsel that would allow him to put to Mr Garlick that he was giving false evidence. Ms Higgins was not even in a position to give instructions that would make it viable for her counsel to engage in detailed cross-examination of Mr Garlick directed at getting him to make concessions concerning the accuracy of his evidence. It is clear from Ms Higgins’ defence that she did not admit ARH’s claim and that she put ARH to strict proof of its validity. Ms Higgins is not restrained by any procedural principle from submitting that the Court should not accept Mr Garlick’s evidence on issues, or that the Court should give his evidence little weight, where a finding to that effect is justified on the whole of the evidence.

There is one important aspect of the evidence given by Mr Garlick that has caused me to conclude that his loyalty to ARH has led him to put an unsustainable complexion on the facts that has significantly undermined his credibility. The most important issue in support of ARH’s claim that it and its predecessors have exercised adverse possession over the Land since 2005 is the evidence directed at establishing the intensity and the regularity of the use of the Road for the purpose of the construction of the Development. A significant part of Mr Garlick’s evidence was directed at establishing the importance of the Road for the Development, and the constancy of its use, even if the level of that use varied over time. Mr Garlick did not mention that, until mid-2016, the primary means of access from the Street to the Gilead Estate for construction purposes was by a road directly from the Street on the northern side of the Kilbride Retirement Village. I consider that the absence of balance in Mr Garlick’s evidence, concerning the existence and use of the two means of access from the Street to the Gilead Estate, created a misleading impression. Furthermore, the evidence given by Mr Garlick concerning the importance of the Road for planning and emergency purposes overstated its significance, by reason of the omission to provide equivalent evidence about the alternative road from the Street into the Gilead Estate.

After I raised the possible significance of the Google Earth aerial photographs, counsel for ARH was given leave to re-examine Mr Garlick on the significance of those photographs. Mr Garlick said at T 143.45 that, as at March 2007, access to the Gilead Estate could be gained either by driving through the Kilbride Retirement Village or by going down the Road. Mr Garlick then gave the following evidence at T 144.36:

This response caused me to intervene, having regard to the impression that I gained from the Google Earth aerial photographs. I put two propositions to Mr Garlick. One was that it looked obvious that, for the purpose of constructing the first phase of the Development, the access had been through the Kilbride Retirement Village. The other was that, given that the proprietor of the Gilead Estate did not have any exclusive right to use the Road, the proprietor of the Gilead Estate would have had to negotiate some right-of-way over the Kilbride Retirement Village. In fact, it is improbable that the original proprietor of the land that comprised both retirement villages would have subdivided them without creating a right of access to the Street for the proprietor of the Gilead Estate. If that were not done, then the Gilead Estate would be stranded.

Mr Garlick’s response to my specific question asking whether he knew anything about there being some right of access was, at T 145.23:

Mr Garlick added, at T 145.36, that at some stage the Gilead Estate had “a peninsular of land” that stretched to the Street.

Even allowing for the fact that Mr Garlick may not have had any technical knowledge of the legal rights of the proprietor of the Gilead Estate to access the Street by a road to the north of the Kilbride Retirement Village, I detected in his responses an attempt to understate the legal entitlement of the proprietor of the Gilead Estate to gain access to the Street by means other than the use of the Road. As the proprietor of the Gilead Estate had no title to the Road, other than an inchoate possessory title that could be terminated at any time by the true owner, the proprietor must always have had a ‘Plan B’ for use in the event that the true owner of the Land ejected the proprietor from possession of the Road before the true owner’s title was extinguished.

Ms Higgins submitted that much of the key evidence given by Mr Garlick linking the alleged adverse possessors to the principal act of possession – the lock on the Gate – was based on an erroneous assumption. Mr Garlick conceded in cross-examination (T 102.22-31) that his evidence that Sunrise Nominees had affixed the lock on the Gate in February 2005 was based upon an assumption that Mr Singer, who Mr Garlick said gave him the order to place the lock on the Gate, was a director of that company. When confronted with evidence to show that Mr Singer was not appointed a director of Sunrise Nominees until 19 September 2005, Mr Garlick conceded that Sunrise Nominees could not have put the lock on the Gate.

I do not consider that this attack on Mr Garlick’s evidence is of great significance. The time when the lock was first placed on the Gate was before the commencement of the 12-year period necessary to support ARH’s claim for possessory title. If there was in fact a lock on the Gate, its continued use is likely to have been adopted by Sunrise Nominees, even if technically Mr Singer was not a director at the time the instruction was given to Mr Garlick to place a padlock on the Gate.

Ms Higgins also submitted that the Court should treat Mr Garlick’s evidence with caution, because he conceded in cross-examination that, in 2011 and 2012, he had executed documents on behalf of applicants for occupation certificates for the Development, when he did not have the applicants’ authority to sign the documents. If Mr Garlick was in fact the project manager of the Development at the time, it is an open question as to whether he had actual or implied authority to sign the applications. In any event, I do not consider that the conduct warrants the Court in not accepting Mr Garlick as a witness of credit.

Mr Hams is a civil engineer who was called to give evidence in relation to the preparation of a dilapidation report that was prepared in connection with the application for the approval for the Development. Mr Hams annexed a photograph that showed a gate across the Road near the junction with the Street on 25 October 2006. Mr Hams agreed in cross-examination that it was impossible to tell from the evidence whether or not the Gate was locked at the time (T 63.10-17).

ARH lead evidence from a landscape ecologist, Mr John Justin Travers, who prepared a bushfire protection report in July 2002 and a bushfire protection assessment in August 2005 to June 2006, in connection with the planning process for the Development. The object of the evidence was to demonstrate the importance of the ability to use the Road to protect the Gilead Estate from the potential effect of bushfires.

Mr Travers’ 2002 plan showed that the proposed internal road network to be constructed on the Gilead Estate was accessible from two points; the Street and the Road. The access point on the Road was at a point approximately 200 m south of the Street.

The bushfire protection assessment prepared between August 2005 and June 2006 also showed access to the internal road network on the Gilead Estate from the Street and the Road, in this case from a point approximately 300 m south of the Street. The assessment included a statement: “A second entry/exit point is to be provided through the southern portion of the eastern boundary. It will link back to the primary access point, via a Right of Carriageway, dedicated to emergency services and access for Sydney Water to their supply channel. The proposed internal road network therefore provides a thoroughfare for emergency services, linking back to Glendower Street…”

As I understand Mr Travers’s evidence in par 16(c) of his affidavit, he made a recommendation that “access should be constructed to carry a fully laden Rural Fire Service Tanker with a G.V.M. of 15 tonnes”. While it is not entirely clear, this could be taken to have meant that both proposed access roads from the Street to the internal road network on the Gilead Estate should be constructed to have this capacity.

I consider that Mr Travers’ evidence has the following significance for these proceedings.

First, Mr Travers did not say that he believed that the proprietor of the Gilead Estate had, or would obtain, ownership or a right to possession of the Road. He accepted that the Road was a “second entry/exit point” on the basis of the existence of a right of carriageway dedicated to emergency services and access for Sydney Water. The use of the Road assumed by Mr Travers did not depend upon the proprietor of the Gilead Estate having any proprietary interest in the Road.

Secondly, Mr Garlick stressed in his evidence that possession of the Road was essential to the proprietor of the Gilead Estate, in order to provide a means of access for heavy construction vehicles, as the internal road network was not wide enough or sound enough to support that traffic. Mr Travers’ report and assessment proceeded on the basis that the primary means of access of fully laden Rural Fire Service tankers was directly from the Street onto the Gilead Estate by means of the right of carriageway over the Kilbride Retirement Village, which means that he understood that heavy vehicles could gain access to the internal road network directly from the Street.

Sandra Louise Wilson has been a resident of the Gilead Estate Retirement Village since July 2008. Ms Wilson gave evidence that on most mornings since she moved into the Gilead Estate, between around 6 AM and 7:30 AM, she has taken a morning walk around the Gilead Estate and the surrounding neighbourhood. She said that the Gate is usually locked at 6 AM and opened by the time she returns. On days when no construction works are being carried out on the Gilead Estate, the Gate remains locked.

Ms Wilson said in cross-examination that she had never tried to walk down the Road. She confirmed her evidence about the Gate being opened each morning when she returned from her walk, and closed on Saturday mornings, unless work was being carried out on the Gilead Estate. She said that she had never tried to open the Gate because it was locked. When asked how she knew the Gate was locked if she had never tried to open it, Ms Wilson responded that she had seen the chain though had never actually tested to see whether the chain was locked.

Ms Wilson’s evidence is consistent with the evidence given by Mr Garlick that, after the acquisition of the Gilead Estate by ARH, the Gate was opened every morning and closed at night by the construction manager. Her evidence is not consistent with Mr Garlick’s evidence that, during the earlier period of construction of the Development, the Gate was opened and closed to allow vehicles through.

It is probable that Ms Wilson’s recollection is more reliable for the period since 2016, when the Road has been the primary means of access from the Street to the Gilead Estate.

As noted, Mr Singer did not give evidence. He is the only person who has been a director of successive proprietors of the Gilead Estate for almost the entire period of the construction of the Development. Although the evidence does not explain Mr Singer's day-to-day role clearly, Mr Garlick gave evidence that justifies an inference that Mr Singer was a hands-on director, and not a distant or remote one.

Ms Higgins submitted that the Court should apply the rule in Jones v Dunkel (1959) 101 CLR 298, as explained in the judgment of Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Pty Ltd (2011) 243 CLR 361 at [63]-[64], where their Honours said (footnotes omitted):

Although ARH and its predecessors in title are corporations, Mr Singer is as close to a personal plaintiff as could happen in this case. As noted above, at relevant times, Mr Singer was the only director of Sunrise Nominees and Viceroy Gilead. Mr Singer is the only witness who could give evidence of the actual intention of Sunrise Nominees and Viceroy Gilead, as the only person who was those companies’ directing mind and will, and he is one of the witnesses who could give that evidence for ARH: see Tesco Supermarkets Ltd v Nattrass [1972] AC 153; Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475 and Hamilton v Whitehead (1988) 166 CLR 121; [1988] HCA 65. I therefore accept Ms Higgins’ submission concerning the application of the rule in Jones v Dunkel to the failure of ARH to call Mr Singer.

As I have noted above, when considering the evidence given by Mr Garlick, the list of his duties as project manager does not compel the inference that he was present on the Gilead Estate during the whole of the course of the Development, with a frequency that provides a basis for much of the generalised evidence given by Mr Garlick. Mr Garlick did not give evidence that provided that basis. The absence of corroboration of Mr Garlick's evidence increases the difficulty the Court has in accepting his evidence. Mr Singer may have been able to provide that corroboration, but he did not do so.

There is some justification in the Court concluding that Mr Garlick was a carefully selected witness, whose role enabled him to give a certain level of eyewitness evidence of events that occurred over the duration of the Development, without Mr Garlick being susceptible to cross-examination about the knowledge and intentions of the proprietors of the Gilead Estate. As Mr Garlick called Mr Singer his "boss", and as Mr Singer was a director of the proprietors, Mr Singer may have been able to give evidence on those matters. In my view, the Court is entitled, consistently with the rule in Jones v Dunkel, to be sceptical about drawing inferences favourable to ARH in circumstances where Mr Singer has not corroborated Mr Garlick's evidence and has not made himself available for cross-examination by Ms Higgins. That is particularly so, as Ms Higgins has no means of contradicting ARH's claims based upon her own knowledge of events.

The absence of Mr Singer from the witness box will be even more significant if the evidence is equivocal about whether the proprietors of the Gilead Estate had the intention to possess at all relevant times, and the subjective intention of the proprietors is relevant to that issue.

It is notable that, there being no alternative witness to cross-examine, counsel for Ms Higgins sought to ask questions in the cross-examination of Mr Garlick that went to the state of knowledge of the proprietors of the Gilead Estate. Counsel for ARH took objection to this course at T 78.34, T 111.18, T 111.45 and T 112.10, on the basis that Mr Garlick was not able to give evidence of the state of mind of the proprietors.

Ms Higgins called evidence from a number of local residents. The residents gave evidence of their knowledge of the manner in which the Road had been used at various times since the redevelopment of the Gilead Estate. Their evidence was relatively brief, as it concerned the witnesses’ recollection of relatively insignificant events that had occurred years before they were asked to recount what they could remember. The cross-examination of these witnesses demonstrated that they were entirely disinterested members of the public, who recounted their recollections to the best of their ability. Accepting that it is inevitable that the witnesses’ recollections of the relatively innocuous events the subject of their evidence could not be precise, I have no hesitation in accepting the general tenor of their evidence.

Ms Dianne Evelyn McKenna has lived in Kilbride since 1992 and in the Street near the Estate since 2006. Her home is less than 85 m from the point where the Street meets the Road. Until mid-2008, Ms McKenna’s house enjoyed uninterrupted views of the junction between the Street and the Road. Between 2005 and 2015, Ms McKenna and her husband would walk their dogs down the Road and across the Block to the creek at least 3 to 4 times a week. They accessed the Road whenever they wanted. Sometimes there was a gate across the Road, but it was not locked, and Ms McKenna pushed it open. At other times, the gate was open.

Between around 2008 and 2010, about every second weekend, Ms McKenna observed cars driving up to the cul-de-sac at the end of the Street and parking there. The cars had mountain bikes mounted on racks on the rear of the vehicles. The “drivers of the vehicles and their passengers would mount up and ride off” down the Road, returning late in the day.

Ms McKenna said that, on at least one of her walks down the Road, she observed that someone had constructed jumps for bikes. Between 2005 and about 2012, she said that the Road was generally in good condition and was easy to walk down, and that at least part of it appeared to be asphalt.

More recently, on Ms McKenna’s walks, she has observed that the Road was in a very poor condition and that heavy construction trucks have ripped up the surface.

It appeared to Ms McKenna that, for some years after 2008, there was no construction work being done on the Gilead Estate, because there were no or very few construction vehicles on the Street. Ms McKenna, on occasion, walked down the Road behind the Kilbride Retirement Village and it did not seem to her that there had been any progress with the construction of the development of the Gilead Estate.

In cross-examination, Ms McKenna accepted that when construction of an “extension to the home” began, which was quite substantial, “they fixed up the gate and they started locking it and they also had security that would come up at night and patrol or sit at the gate anyway in the dark with his dog” (T 212.30). Ms McKenna was unsure when this happened, but she said that she thought it was later than 2007. Ms McKenna then said that the extension to the home that she was talking about was an extension to the Kilbride Retirement Village. Ms McKenna agreed, by comparison between the Google Earth aerial photograph dated 30 June 2009 (CB 382) and the aerial photograph dated 16 October 2011 (CB 383), that the extension of the Kilbride Retirement Village to which she referred had happened between those dates. However, Ms McKenna reiterated her evidence that she and her husband would go for walks with their dogs between 2007 and about 2014 or 2015. Ms McKenna said that she could recall seeing a sign near the gate on the Road that said, “danger construction site”, but she could not remember if the sign had been placed there since November 2013. Ms McKenna accepted that bike jumps were not built on the Road. Some were built on the Reserve and some were built on the Estate.

Mr George Edward McKenna gave similar evidence to his wife. He confirmed that, between 2005 and 2015, he and Ms McKenna walked their dogs down the Road and across the Block to the creek at least 3 to 4 times a week. He said that the Road and the Block were ideal for dog walking because they were away from cars and had plenty for the dogs to do and explore.

Mr McKenna said that, until recently, the gate at the entrance of the Road was not usually closed and locked. Before then, the gate was almost always open. On the infrequent occasions it was closed, it was not locked, and Mr McKenna just pushed it open to access the Road and the Block. During those years, Mr McKenna was always able to enter the Road and the Block when he liked.

During the years that Mr McKenna walked his dogs down the Road, he would often see people on motorbikes and mountain bikes riding down the Road. Often, they would only return to their vehicles in the cul-de-sac much later in the day.

Mr McKenna would also often see a neighbour with his dogs either on the Road or meet him as he was leaving or entering the Road in and around the cul-de-sac.

Mr McKenna said that the Road used to be in pretty good condition but more recently it had been degraded and is now in a poor condition.

Mr McKenna said in cross-examination that he would usually take his dogs for a walk in the late afternoon or evening. Mr McKenna remembered that, in about 2005, there was a gate at the entrance to the Road. There was a short period when the gate was off its hinges. Mr McKenna confirmed that the gate was not usually closed and locked. He accepted that there were possibly occasions when he arrived at the gate and it was locked, but most days when he took his dogs for a walk, he was able to go onto the Road. Mr McKenna said that he could not remember seeing the sign near the gate that says, “danger construction site”. He also confirmed that he did not stop walking the dog until 2015. Mr McKenna said it would only take five minutes to get to the bottom of the Road, and then he would head off into the bush. He would go whichever way the dog wanted to go. Most days he would go along Water Board Road to the Canal, across the Canal, and then go into one of the many trials. Mr McKenna agreed that his sighting of mountain bikes or motorbikes has decreased over the years, as the Council had put up a big hawser wire rope fence around the Reserve. That happened possibly five or six years ago. Mr McKenna identified the fence as being depicted on the photo at CB 695. Mr McKenna accepted that it was possible that the fence had been erected in 2007 but adhered to his evidence that he had seen people on motorbikes using the Road after that date, including earlier this year.

Mr David Johnston moved into his property in the Street in approximately June 2005. His home is close to the point where the Street joins the Road, which Mr Johnston thinks of as the “Water Board Road”. For the first 3 to 4 years after Mr Johnston moved into his home, he and his children, who enjoy bushwalking, would walk down and spend time on the Road, the Block and on the Reserve, which was adjacent to the Road and the Block.

Two or three times a year, Mr Johnston and his wife would walk down the Road and across the Block with friends when they came to visit. To the best of Mr Johnston’s recollection, there was not always a gate at the top of the Road where it joins the Street.

Mr Johnston annexed to his affidavit a photo that he said was taken in 2014 of his daughter and two of her friends walking down the Road for the purposes of a school assignment.

Mr Johnston confirmed in cross-examination his evidence that there was not always a gate at the top of the Road where it joins the Street, but there was a gate probably after 2016. Mr Johnston said that the gate was sometimes knocked down and not in use.

Ms Karen Adele Price has lived in a property in the Street since 2004. Her home is approximately 85 m from where the Street meets the Road. Ms Price became friendly with Mr and Mrs Johnston in around 2006. Ms Price recalled an outing with the Johnstons where they walked together with their respective children all the way down the Road and across the Block to the creek. The Road was in good condition and they were unhindered in their walk. There was no gate across the Road, and she did not see anyone or notice any construction workers or construction trucks.

Between 2008 and 2010, Ms Price could recall seeing cars with trail bikes mounted on their rear driving up to the cul-de-sac. The cars would park, and the trail bikes would be dismounted. The people in the cars would then get on the trail bikes and ride them down the Road towards the Block. To the best of Ms Price’s recollection, there was never a gate blocking the entrance to the Road, and the trail bike riders could ride down the Road straight from the cul-de-sac.

Ms Price said in cross-examination that she accompanied the Johnstons walking down the Road probably between 2006 and 2008. Ms Price said that she honestly could not recall there being a gate. Now there is a double swing gate. Ms Price has not been through the gate for a long time. Ms Price said: “I would have, I would swear on the Bible that there was no gate, I would have thought there was no gate” (T 206.5). Ms Price then accepted that, if there was a gate in 2005, it was open and not closed. In the first few years after she moved into her home, she could see fire trucks using the Road and they would enter the Road without stopping. Ms Price accepted that she had seen a gate closed for the last several years, but that is as much as she would accept. Ms Price then identified the period that there had been a permanent closed gate as being “up to 10 years” (T 207.34).

It should be observed about Ms Price’s evidence that she only said that she had actually used the Road with the Johnstons for a couple of years between 2006 and 2008. Ms Price’s evidence concerning the existence of the gate at times after 2008 must have been based on observations from a distance, and not from any attempt to walk down the Road.

Mr Lionel Clarke built his home a short distance away from the point where the Street meets the Road in 2002. The distance is about 116 m. Mr Clarke said that his three grandchildren came to live with him about 9 ½ years ago. Mr Clarke said that his oldest grandson and his friends rode their bikes on the Road from when the grandson was about 10 years old, being about 2011. To the best of his recollection, Mr Clarke did not observe a gate securing the entrance to the Road. He said that if there was a gate, it must have been left open.

Mr Clarke said, in oral examination in chief, that he had never ventured down the Road himself, and he recalled that there was a gate next to the Kilbride Retirement Village, but his grandson and his friends could go around and through the gate and ride their bikes down the Road.

It appeared from Mr Clarke’s cross-examination that he may have been somewhat disoriented in marking on the plan that became Exhibit P1 the Road in its correct place (he marked a road that could not be the Road). He also referred to the gate as being a boom gate and said that the Road that he talked about was “just a grass paddock” (T 171.3). Mr Clark was unable to identify the Road on an aerial photograph. Mr Clarke said that he had not been up to the cul-de-sac at the end of the Street for a long time.

Ms Cheryl Anne Dykstra gave evidence that, in about 2008 and 2009, while visiting her mother, who was a resident of the Kilbride Retirement Village, she saw and heard motorbikes on the land behind her mother’s villa “both down by the creek and off in the distance near the area that is known as the Naroomba Reserve”.

Ms Higgins said that she discovered that the Land remained in the name of her deceased grandmother and that there were a number of years of outstanding rates, when she spoke to an officer of the Council on 16 August 2019. On 22 August 2019, she was advised by the Council that ARH was using the Land.

On around 16 October 2019, Ms Higgins’s solicitors, on her instructions, wrote a letter to ARH to ask it to cease and desist from using the Land as its own and trespassing. ARH did not respond to the letter.

On around 7 May 2020, after Ms Higgins had been granted letters of administration of Monica Pritchard’s will, Ms Higgins travelled from her home on the north coast of New South Wales to the Land and erected a sign that said: “Private. Keep Out”, and which contained the contact details of her solicitor.

Ms Higgins has been subsequently paying off the rates due to the Council in respect of the Land.

The manner in which occupiers may gain a possessory title to land that prevails over the title of the legal, sometimes called the documentary, owner depends upon the principles governing the limitation of actions, so that the legal owner’s title becomes extinguished when the limitation period applying to an action by the legal owner to recover possession from the occupier has elapsed, with the consequence that the legal owner’s claim is statute-barred. As shall be seen, however, the application of the principles depends fundamentally on established common law notions of the nature and significance of adverse possession.

Section 65(1) and Schedule 4 of the Limitation Act 1969 (NSW) have the effect that the title of a person to land that entitles that person to maintain a cause of action for the recovery of the land is extinguished on the expiration of the limitation period fixed by the Act for that cause of action. By s 65(1), neither the title nor the action on the cause of action is extinguished, if the action is brought before the expiration of the limitation period. “Action” is defined in s 11(1) as including any proceeding in a court.

By s 27(2) of the Limitation Act, “an action on a cause of action to recover land is not maintainable by a person other than the Crown if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims”.

Section 38 of the Limitation Act relevantly provides:

The effect of s 38(1) is that, even if the legal owner has ceased to be in possession of the land, by reason of a discontinuance of possession by the legal owner some time before the commencement of the adverse possession by the occupier, the cause of action for recovering possession does not accrue to the legal owner until the commencement of the adverse possession. Discontinuance occurs where the legal owner effectively abandons possession. That may occur without an occupier commencing adverse possession. The limitation period only begins at the inception of the adverse possession. Consequently, the possibility that the present deceased registered proprietors of the Land may have discontinued possession long before (on ARH’s case) Sunrise Nominees commenced to exercise adverse possession may be ignored.

Section 38(2) demonstrates the tolerance of the law of claims for title to land based upon adverse possession. The accrual of the cause of action to the legal owner does not occur when the current occupier commences adverse possession (that occupier being the only party that the legal owner can actually sue to recover possession), but rather it accrues at the time when the adverse possession of the first occupier in a continuous chain of adverse possession commences. That is so whether or not later occupiers in adverse possession actually claim through occupiers in earlier adverse possession. That is, it is not necessary for each occupier to assign its inchoate possessory title to the next one, provided that the chain of adverse possession is unbroken.

If at any time during the limitation period, after the cause of action to recover the land accrues, but before the cause of action is barred by the Limitation Act, the land ceases to be in adverse possession, s 38(3)(a) has the result that the former adverse possession has no effect. That means that the limitation period will cease to run, and a new limitation period will begin only if the land comes to be in adverse possession again.

The effect of “adverse possession” being defined in s 38(4)(a) as “possession by a person in whose favour the limitation period can run” is that it is necessary to look to the common law principles governing adverse possession to determine how the Limitation Act operates. That is because the definition of “adverse possession” does not specify the criteria governing the circumstances in which the limitation can run for the person in possession.

In Newington v Windeyer (1985) 3 NSWLR 555, McHugh JA said, with the agreement of Kirby P and Hope JA at 563-4:

The learned editor of Butt’s Land Law (7th ed, 2017, Thomson Reuters) explained the effect of the Limitation Act in the context of adverse possession succinctly as follows at [16.50] (footnotes omitted):

Section 39 of the Limitation Act provides:

It is necessary to address the consequences of the Land having been brought under the provisions of the Real Property Act by a conversion action instituted by the Registrar-General. That raises the issue of whether the possessory title of a trespasser can, by application of the Limitation Act, cause the extinction of the title of a registered proprietor, notwithstanding that the hallmark of the Torrens system is the general indefeasibility of the title of a registered proprietor.

As noted above, the Land was brought under the provisions of the Real Property Act on 8 June 2010, when qualified and limited folio 7300/1132471 was created.

Prior to the insertion of Part 6A into the Real Property Act by the Real Property (Possessory Titles) Amendment Act 1979 (NSW) (the Possessory Titles Act), the former s 45 of the Real Property Act had the effect that title to land under the Act could not be acquired by adverse possession.

The justification for this legal position being changed was explained by the relevant Minister in the second reading speech that led to the enactment of the Possessory Titles Act in the Legislative Assembly on 28 February 1979 in the following terms:

It may be observed that, even if some solicitude should be accorded to occupants of land in the circumstances described by the Minister, the amendments to the Real Property Act that have ensued are of entirely general application, so that the extinguishment of the title of the legal owner depends solely on the undisturbed subsistence of the adverse possession of the occupier until the limitation period expires. It is nothing to the point that the legal owner may have lost sight of their entitlement by innocent misadventure, or that the occupier may have schemed to expropriate the title of the legal owner.

Since the enactment of the Real Property (Conversion of Title) Amendment Act 1984 (NSW), s 45C of the Real Property Act has provided:

As ARH claims that the adverse possession of the Land held by its predecessors in title commenced before 8 June 2010, subsection (2) may permit ARH to establish possessory title to the Land. A comprehensive explanation of how s 45C(2) operates in the context of the Real Property Act as a whole may be found in the judgment of Brereton JA in Sidoti v Hardy [2021] NSWCA 105. In particular, his Honour’s judgment suggests that complicated questions will arise if ARH only establishes that it and its predecessors have been in adverse possession of only part of the Land, given that the Folio applies to the whole.

Section 45C(1) of the Real Property Act has the effect that a possessory claim that is not governed by the exception in s 45C(2), because the adverse possession commenced after the land was brought under the Act, cannot be made except upon satisfaction of the requirements in s 45D. It is not necessary in these reasons to consider the restrictions on the acquisition of a possessory title to land under the Real Property Act in this situation.

It is convenient to note, at this point, that in prayers 2 and 4 of its amended statement of claim, ARH makes alternative claims for possessory title of the Road and the Block based upon s 45D of the Real Property Act. These claims are misconceived because ARH and its predecessors in title cannot have been in adverse possession of the Land for more than 12 years since 8 June 2010.

It is now necessary to address the common law principles that govern the existence of adverse possession of land capable of satisfying s 38(4)(a) of the Limitation Act.

Darke J has considered these principles in Braye v Tarnawskyj [2019] NSWSC 277; (2019) 19 BPR 39213. I respectfully agree with his Honour. Much of what follows draws from his Honour’s reasons, with different emphases to address the issues that are of particular significance in this case. Darke J started with the proposition that the judgment of Slade J in Powell v McFarlane (1979) 38 P & CR 452 at 470-472 is commonly accepted as correctly stating the essential principles that govern the adverse possession of land. Substantially the same view was taken by Ashley J (as he then was) in Bayport Industries Pty Ltd v Watson [2002] VSC 206 at [39] and by the Victorian Court of Appeal in Whittlesea City Council v Abbatangelo [2009] VSCA 188; (2009) 259 ALR 56 at [5]. In Powell v McFarlane, his Lordship said:

Thus, in determining whether the occupier has had factual possession of the land, the determination of the degree to which exclusive physical control must be shown will depend upon the nature of the land and the manner in which land of that nature is commonly used or enjoyed. The occupier must be shown to have dealt with the land as an occupying owner would have done. Adverse possession is a synthesis of fact and intention. The necessary intention, which I will call the intention to possess, must be to exclude the world at large including the documentary owner. There must be affirmative evidence of the intention to possess, which the occupier must have made clear to the world.

Acts of an occupier of land may involve use of the land that falls short of adverse possession.

In Clement v Jones (1909) 8 CLR 133 at 140, Griffith CJ, with whom O’Connor and Isaacs JJ agreed, distinguished between possession and use, saying: “… It being, then, at best doubtful, to begin with, whether the plaintiffs had obtained exclusive possession as distinct from exclusive use in fact, what is the evidence?”

As Bowen CJ in Eq (as his Honour then was) said in Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475:

In McDonell v Giblin (1904) 23 NZLR 660 at 662, Cooper J described what was necessary for adverse possession to be open in the following terms:

In Re Riley and the Real Property Act [1965] NSWR 994 at 1000; (1965) 82 WN (Pt 1) (NSW) 373, McLelland CJ in Eq said, by reference to Lord Advocate v Lord Blantyre (1879) 4 App Cas 770 at 791, in respect of the evidence necessary to show that an occupier was in possession of land: "… No one such act is conclusive, and the weight of each act as evidence depends on the circumstances; one very important circumstance as to the weight being, whether the act was such and so done that those who were interested in disputing the ownership would be aware of it". In that case, there was evidence that picnickers were in the habit of entering upon the land for the purpose of having picnics. McLelland CJ in Eq said, at 1001:

The issue of the openness of the alleged adverse possession of the Land by the proprietors of the Gilead Estate is a significant question in the present case.

In Mulcahy v Curramore, at 476, Bowen CJ in Eq said (Hope JA agreeing), as is relevant to ARH’s claim in the present case that it is entitled to be registered as the proprietor of the Land based upon the continuous exercise of adverse possession by itself and its predecessors as proprietors of the Gilead Estate (omitting footnotes, and allowing for the references to a different limitations statute and limitation period):

In the present case, as will be seen, the crucial change in the identity of the occupier claiming to have exercised adverse possession over the Land is the change from Viceroy Gilead to ARH. As Viceroy Gilead purported to assign its inchoate possessory title to ARH, it is not necessary to set out the part of his Honour’s judgment that dealt with the situation where there is a series of occupants and each one does not purport to claim through its predecessor.

There is a question as to what was meant by Bowen CJ in Eq when he spoke of the possibility of the chain of adverse possession being broken by reason of the abandonment of the land by an occupier. In Nicholas v Andrew (1920) 20 SR (NSW) 178 at 184, Gordon J, delivering the judgment of the Full Court:

At 187, Gordon J dealt with the circumstances that were claimed to have broken the chain of adverse possession. The claimant for the possessory title relied upon the adverse possession of the land in question by previous occupiers who had leased the land to tenants. There were times, the longest being two or three months, when the cottage and the paddock that included the subject land were not actually occupied by any person between the time when one tenant went out and the next tenant went in. As Gordon J said: “during the whole period the land in dispute remained fenced in with the land” of the occupiers. The Full Court held that no inference was to be drawn that there was any abandonment of possession.

Other cases have also held that relatively brief gaps in the actual use of land did not have the result that adverse possession had been abandoned. In Kierford Ridge Pty Ltd v Ward [2005] VSC 215, Hansen J held at [129] that there was no appreciable gap in occupancy of the relevant land and said: “… Of course, if and to the extent that there might have been a time when the building was not occupied, the enclosure of the disputed land in favour of the plaintiff’s building meant that the disputed land was enclosed from the owner of the hotel land”.

The Victorian Court of Appeal in Whittlesea City Council v Abbatangelo accepted the reasoning of the trial judge as to why there had not been abandonment of adverse possession in circumstances where the party claiming possessory title had ceased to reside in the subject land, but members of the family returned to it frequently (footnote omitted):

It is to be noted that the trial judge recorded that “throughout the period nothing had changed fundamentally in relation to their possession, use and manifest intention in relation to the disputed land”.

This issue was considered by Lansdowne AsJ in KY Enterprises Pty Ltd v Darby [2013] VSC 484. At [122], his Honour found that the defendant did not abandon possession of the land that was in adverse possession during his year long trip around Australia, saying: “He was absent, but did not abandon possession of the land which remained effectively enclosed by the gates from the whole world, including the plaintiff’s predecessor in title. The land continued in adverse possession, both as to factual possession and the intention to possess”.

His Honour also held at [117], correctly in my respectful opinion, that “the onus is also on the [claimant for the possessory title] to show that an interruption to physical possession was not such as to cause the adverse possession to cease, and the clock to be reset on resumption of physical possession.”

These authorities support the conclusion that brief gaps in physical possession or the use of the subject land will not constitute abandonment of adverse possession. However, it is notable that the occupier maintained the physical indicia of possession to the exclusion of all others including the documentary owner from entry to the land. The basis upon which adverse possession was exercised was robust – such as the maintenance of the enclosure of the land or the continuation of the entry being locked – and was maintained during periods of physical absence or non-use. It is arguable that the approach to abandonment should be different where the changes associated with the cessation in use include the termination of the factors that created the adverse possession in the first place, being the steps taken by the occupier to use the land in the exclusive manner as would a documentary owner in the circumstances of the case. Such changes might include ceasing to lock the gate where locking the gate was the primary basis of the claim for the institution of adverse possession, or the cessation of use where it was the use that was the only factor that made the adverse possession sufficiently open to be effective.

In Clement v Jones at 139-140, the Chief Justice said, in relation to the requirement for proof that the occupier had the necessary intention to possess (footnotes omitted):

In Powell v McFarlane, Slade J said at 476-7 (footnotes omitted):

Although statements by a claimant for possessory title to land as to his or her intention many years earlier to possess the land may be of little evidential value, evidence given by the claimant that explains the actions relied upon as constituting possession of the land may in fact, in my view, be relevant and admissible.

In J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, Lord Hutton said at [76]-[77]:

The onus of proving continuous adverse possession with the necessary intent to possess lies upon the claimant for the possessory title, even if the plaintiff is the documentary owner seeking an order for possession or a declaration that the possessory title claimed does not exist: Wogama Pty Ltd v Harris [1969] 1 NSWR 250 at 253-4; Cooke v Dunn (1998) 9 BPR 16,489 and Solling v Broughton [1893] AC 556.

Proof is only required on the ordinary civil standard which requires that the elements of possessory title be proved on the balance of probabilities: Cawthorne v Thomas (1993) 6 BPR 13,840. However, as in all civil proceedings, s 140(2)(b) and (c) of the Evidence Act 1995 (NSW) require that the Court is to consider the nature of the subject-matter of the proceeding and the gravity of the matters alleged. In my view, it must be borne in mind that it is a relatively grave matter for a documentary owner’s title to be extinguished in favour of a trespasser for no consideration in circumstances where the failure of the documentary owner to assert a primary right to possession or to eject the trespasser may, as in the present case, be a result of misadventure.

A forensic difficulty that may be encountered in proving essential facts that happened many years ago is often considered in the context of proving the making and meaning of verbal statements. Though, there may be no less difficulty in proving the occurrence of mundane or indistinct events. Some events are so clear and inherently unforgettable that testimonial evidence that they have occurred may be readily accepted. However, just as there may be difficulty in persuading a court of subtle meanings in verbal statements made many years previously, the same difficulty may arise where the attempt is made to prove relatively small numbers of fleeting or innocuous events that would not ordinarily be retained in memory. In this respect, the observations made by Hammerschlag J in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 may apply to proof of fleeting or innocuous events no less than statements:

To be clear, these considerations do not involve a departure from the civil standard of proof, but merely that there be an appropriate degree of genuine judicial satisfaction having regard to the true weight of the evidence that is presented.

There is authority that the threshold for proving adverse possession is not low. In Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex & BP Ltd [1975] QB 94 at 114, Ormrod LJ said:

As Santow J (as his Honour then was) said in Cooke v Dunn at 16,493: “The defendant, on whom rests the onus of proof, must clear both sets of hurdles on the balance of probabilities. And courts require clear evidence before depriving the actual owner of title and are careful in assessing a claim to title by adverse possession: Buckinghamshire County Council v Moran [1990] Ch 623 at 644; [1989] 2 All ER 225 at 238–9 per Nourse LJ.”

In Cooke v Dunn, Santow J said at 16,499, of the circumstances that cause the limitation period to cease to run:

These observations are consistent with the requirements of s 39 of the Limitation Act.

It will be convenient to begin with a consideration of the limitation period. The limitation period did not cease to run when Ms Higgins' solicitors wrote their letter to ARH on 16 October 2019 or when Ms Higgins placed her sign at the Gate on 7 May 2020 asserting that the Land was private property and requiring other persons to keep out. These steps did not constitute “actions” capable of causing the limitation period to cease to run.

Ms Higgins has not filed a cross claim seeking a declaration that she is entitled to be registered as the proprietor of the Land and an order for possession against ARH.

It is not clear whether merely defending a claim for a declaration that an occupier like ARH is entitled to possessory ownership of the documentary owner's land stops the limitation period from running. If she succeeds in defeating ARH's claim, s 63 of the Supreme Court Act 1970 (NSW) will require the Court to grant to Ms Higgins all such remedies as she may be entitled to, which would include a declaration as to her entitlement to be registered as proprietor of the Land, and an order for possession against ARH. However, technically, Ms Higgins has not by any process commenced an action as contemplated by s 65(1) of the Limitation Act.

Assuming that an order for possession could be made in favour of Ms Higgins against ARH in September 2021, then ARH would have to be able to establish that it and its predecessors have been in adverse possession of the Land since September 2009.

The time since Sunrise Nominees acquired the Gilead Estate on 28 June 2004 may, on the evidence, be divided into the following periods which may have significant implications relevant to the issue of whether adverse possession was exercised:

There is no evidence about Period (1), and it can be ignored as it does not matter whether or not Sunrise Nominees exercised adverse possession over the Land in that period.

The evidence does not suggest that Sunrise Nominees or Viceroy Gilead changed the nature of the use of or possession over the Land over Period (2). The crucial issue is whether ARH has established that Viceroy Gilead exercised adverse possession over the Land between about September 2009, in Period (2) and the whole of Period (3). If either is not established, ARH will fail in establishing that it and its predecessors have exercised adverse possession over the Land for the required 12-year period.

It will be convenient, however, to start with a consideration of Period (6). Ms Higgins did not seriously contest that ARH has exercised adverse possession over the whole of the Land during that period. That is borne out by: (a) the nature and frequency of the use of the Road and the Block; (b) the construction of roadways off the Road to permit access by construction vehicles to the Gilead Estate; (c) the clearing of the Block and the use of the Block for subsidiary purposes; (d) the obvious signs at the Gate warning that the Land is a construction zone and requiring persons to report to the site office; (e) the obvious occasional grading of the Road; (f) the appearance that the Land and the Gilead Estate are in common ownership; (g) the nature and frequency of operations on the Road that would tend to inhibit movement across the Land between the Reserve and the Gilead Estate; and (h) the gradual obliteration of the Water Board Road.

Not only do these circumstances collectively support a finding that ARH is in adverse possession of the Land, but many of them would be obvious and open to any documentary owner who passed by the Land.

Proof that ARH had the intention to possess is provided by the Assignment Agreement in Relation to Possessory Land Claim dated 16 August 2013 between Viceroy Gilead and ARH.

The existence of those factors that make it easy for the Court to find that ARH exercised adverse possession with the intent to possess during Period (6) has a significance for all prior periods, as almost all of those factors were absent during those prior periods.

I will now consider Period (2), when Sunrise Nominees and Viceroy Gilead were constructing the first phase of the Development. The following factors are relevant:

I find that the evidence of actual possession of the Land relied upon by ARH during Period (2) is not sufficient to establish adverse possession, as opposed to mere use.

Accordingly, I am not satisfied that Sunrise Nominees and Viceroy Gilead were in successive adverse possession of the Land during Period (2).

Even if, contrary to that view, the proprietors were in adverse possession of the Road, I am not satisfied that they were in adverse possession of the Block. The roadway on the Road was not extended to the Block until late 2016. This created an internal division of the Land for usage purposes. Such usage of the Road, as has been proved, was much more extensive than the usage of the Block.

In any event, the manner in which Sunrise Nominees and Viceroy Gilead in succession used the Land, even if that usage was capable of constituting adverse possession of the Land in fact, was equivocal as to whether the proprietor for the time being had the necessary intention to possess. The usage of the Land that has been proved for that period was so slight or ephemeral that it is not reasonable to infer an intention to possess solely from that use. That is particularly so as there is no evidence of any consistent attempt by the proprietors to exclude other trespassers.

As noted, Mr Singer was not called to give evidence of the objective activities of the proprietors of the Gilead Estate that may have supported the Court inferring from the nature of those activities that any of the proprietors of the Gilead Estate had an intention to possess the Land.

Overall, I consider that there is insufficient proof that, during Period (2), the proprietors of the Gilead Estate had either actual adverse possession of the Land or had the intention to possess the Land.

Consequently, ARH's claim fails, and it does not matter whether Viceroy Gilead and ARH exercised adverse possession over the Land in Periods (3) and (4).

On balance, I would not find that adverse possession of the Land was exercised by either proprietor in those periods.

It is likely that the use of the Land by Viceroy Gilead actually reduced in Period (3), after completion of the first phase of the Development. As such, it is less likely that adverse possession over the Land was exercised in that period. There was no specific evidence that would support a finding that there was any need for Viceroy Gilead to use the Land in any way during Period (3).

There was no evidence at all of what ARH was specifically doing in respect of the use of or possession over the Land in Period (4), before its contractor took possession of the Gilead Estate on 6 January 2014. While, during the period that ARH was the proprietor of the Gilead Estate before construction commenced, there may have been reason for ARH to enter the Gilead Estate for many pre-construction purposes; there is no reason to infer that there would have been any significant need to use the Land. Mr Garlick's evidence was that the contractor put its sign at the Gate to warn against trespassers, so it is unlikely that there was even a sign at the Gate during this period to tell the documentary owner that there was a claim of right to exclude entry to the Land.

It is not necessary to decide the question, but there is an arguable case that, even if Sunrise Nominees and Viceroy Gilead had exercised adverse possession over the Land in Period (2), that adverse possession was abandoned in Period (3), and hence Viceroy Gilead was not in a position to hand adverse possession on to ARH on 16 August 2013. Even though a finding of abandonment of possession will not readily be made as a result of brief interruptions in the use of the land, in the present case, Viceroy Gilead's possession of the Land in fact was vestigial, and easily abandoned, as separate from its intention to possess. As, at the end of what I have called phase one of the Development, the Development remained incomplete, it is likely that Viceroy Gilead retained whatever intention it had to continue to use the Land. It may be inferred that Viceroy Gilead was looking for a party to whom it could sell the Gilead Estate. It found that party in ARH. It entered into the Assignment Agreement in Relation to Possessory Land Claim on 16 August 2013. It would be natural for Viceroy Gilead to want to retain all rights that it had in relation to the use of the Land, so that those rights could be transferred to the purchaser. However, Viceroy Gilead’s claim to be exercising adverse possession over the Land in fact during Period (3) depended almost entirely on the proposition that the Gate was kept continuously locked by the use of Viceroy Gilead’s padlock, and by the fact of use of the Road to gain access between the Street and the Gilead Estate. There is good reason to believe, on the evidence, that, during the hiatus in construction, Viceroy Gilead did not consistently cause the Gate to be locked, and its use of the Road was probably vestigial. As I have noted above, the authorities that held that brief interruptions of use did not constitute abandonment were decided in circumstances where the occupier had maintained the physical circumstances that made its possession effectively exclusive. In the present case, it is probable that the factors, such as they were, that existed during Period (2) to constitute possession of the Land in fact, disappeared during Period (3) in fact. There may be a basis in principle for deciding that adverse possession ceases if insufficient of the factors necessary to constitute possession in fact continued to exist. That is a question to be decided at another time.

There was no specific evidence concerning ARH's use of the Land in period (5), before mid-2016, when the Road clearly became the primary means of access to the Gilead Estate from the Street. The only apparent difference from earlier periods was that the contractor's sign had been placed at the Gate. That may have been enough to make the difference, but even if ARH exercised adverse possession over the Land from 6 January 2014, it will have failed to prove continuous adverse possession for 12 years.

Ms Higgins is therefore entitled to an order that ARH’s statement of claim be dismissed with costs. I will hear Ms Higgins, if she wishes, as to the basis upon which the costs should be ordered to be paid.

Ms Higgins should provide short minutes of order to my Associate of any orders that she seeks to be made by the Court in her favour consequently upon her having established that ARH is not entitled to any interest in the Land that prevents Ms Higgins from becoming the registered proprietor of the Land as administrator of the estate of her grandmother, and hence being entitled to possession of the Land.

The Court was informed of an agreement between the parties that no orders would be sought to be made that required ARH to give up possession of the Land to Ms Higgins until ARH had had an opportunity to bring an application before the Court for the making of an order under s 88K of the Conveyancing Act 1919 (NSW) for the grant of easements over the Land to enable ARH to complete the construction of the Development, and perhaps for other purposes relevant to the safety of residents of the Mount Gilead Retirement Village.

ARH should advise my Associate of what it proposes concerning the making of an application for the grant of easements.