Martin v Gill

1. [1]

   These proceedings were commenced by statement of claim filed on 19 August 2024. In substance, the plaintiff (Mr Martin) contends that he is entitled, by way of adverse possession, to be registered as proprietor of certain land located on Copeland Road, Copeland, in the state of New South Wales, being folio identifier X/X/XXX (Lot 5).

2. [2]

   To date, Mr Martin has appeared for himself in the proceedings. The statement of claim is 26 paragraphs long, but in turn annexes a number of documents, being annexures A to P. Those documents support various contentions made in the statement of claim.

3. [3]

   The first defendant is named as William Henry Gill (Mr Gill) who is the registered proprietor of Lot 5. Mr Gill was born on 15 March 1852 and passed away on 14 June 1913, apparently intestate with no children recorded on his death certificate.

4. [4]

   The second and third defendants (the Battams) purchased, in about 2011, land which is adjacent to Lot 5. The Battams use Lot 5 to access their property. A defence was filed on behalf of the Battams on 13 February 2025.

5. [5]

   On 14 March 2025, the Battams filed a motion seeking an order pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR) that the plaintiff’s proceedings be dismissed generally.

6. [6]

   That motion was heard by me on 16 April 2025. Mr J Armfield of counsel appeared for the Battams on that application and Mr Martin represented himself.

7. [7]

   In support of the motion, the Battams relied on an affidavit of the second defendant, Craig Battams, made 18 March 2025, which in turn annexed a number of documents. Mr Martin relied on an affidavit which he made on 27 March 2025 in response to the affidavit of Craig Battams. The Martin affidavit in turn annexed a number of documents. Given the nature of the application there was, understandably, no cross examination.

A brief overview of the facts

1. [8]

   The allegations made in the statement of claim may relevantly be summarised as follows.

2. [9]

   Mr Martin contends that Mr Gill, who is the registered proprietor of Lot 5, passed away on 14 June 1913, intestate and with no children recorded on his death certificate. Mr Martin’s maternal great grandmother, Mabel Bower was first cousin to Mr Gill’s brother in law, John Carpenter. Mabel Bower’s son, Mr Ronald Bower, was Mr Martin’s grandfather and was in possession of adjoining Lots 4 and 5 of section X, deposited plan XXX, together known as X Copeland Road, Copeland, from around 1975 until his passing in 1993.

3. [10]

   Mr Martin further alleges that upon his passing, Mr Martin took possession of Lot 5 and his grandmother, Zelda Bower (Zelda), retained possession of Lot 4 (where his grandfather’s ashes were scattered).

4. [11]

   Zelda had her own adverse possession proceedings in relation to Lot 4, which were apparently successful. Zelda passed away during those proceedings, and Mr Martin together with his brother was registered as joint tenants as to a 50 percent share of Lot 4.

5. [12]

   It is Mr Martin’s contention that he has been in possession of Lot 5 at all times since 1993.

6. [13]

   He alleges that since 1993 he has used the property as an owner would, and makes various factual assertions as to what he has done in this regard.

7. [14]

   On 12 December 2019, Mr Martin alleges that he lodged possessory application dealing AP 759959, with the New South Wales Land & Registry Services (NSW Land) in Sydney, having previously paid stamp duty of $765 for the transfer of Lot 5 into his name.

8. [15]

   It appears from the statement of claim that on 21 January 2020, the Battams lodged a caveat prohibiting the granting of the possessory application.

9. [16]

   The statement of claim further contends that the use of Lot 5 as a through access by the Battams to their property has always been with Mr Martin’s permission.

10. [17]

    The statement of claim alleges that on 23 December 2020, NSW Land made the decision that as there was a dispute over possession, the matter would need to be decided at Court.

11. [18]

    The parties on the application before me appeared to agree that, as a practical matter, Lot 5 contains, in its southern section, an area which is described as the “Gill Access Way” which has been used to obtain access from Copeland Road to, relevantly, the Battams’ property. The area to the north of the Gill Access Way on Lot 5 was referred to as the “Gill Grazing Lands” on which, inter alia, sheep have been grazing.

12. [19]

    The evidence relied on by the Battams on the present motion went essentially to the use that they have made of the Gill Access Way since acquiring their property in 2011. The evidence included:

13. [20]

    The effect of Mr Martin’s affidavit was to dispute a number of the allegations made in Mr Battams’ affidavit. The affidavit gives some details of his possession of Lot 5 since 1993 and prior to 2011 when the Battams purchased their land.

14. [21]

    Relevantly, Mr Martin contended that use of Lot 5 by the Battams and previous owners has always been with permission. He annexed to his affidavit a statutory declaration signed by Mr Battams and a second statutory declaration signed by Mrs Battams in support of that contention. Mrs Battams’ statutory declaration refers to Zelda granting permission.

The test for summary dismissal

1. [22]

   The Battams sought summary dismissal pursuant to r 13.4 of the UCPR. There was some discussion on the hearing of the application as to the applicable test to be applied.

2. [23]

   I gratefully adopt what was recently said by Faulkner J in Westwood v Gulliver [2024] NSWSC 1323 at [70]-[74] (Westwood) as follows:

3. [24]

   Counsel for the Battams placed some considerable reliance on what was said by Hammerschlag J (as the learned Chief Judge then was) in Simmons v Protective Commissioner of New South Wales [2012] NSWSC 455 (Simmons), and the statement of principles by Ward J (as the learned President then was) in McDonald v Grech [2012] NSWSC 717 at [26]-[33].

4. [25]

   As Ward J observed at [32], what was said by Hammerschlag J in Simmons was obiter.

5. [26]

   At [62] in Simmons, his Honour observed that although UCPR r 13.4 does not expressly provide (as does s 31A of the Federal Court of Australia Act 1976 (Cth)) that a proceeding need not be hopeless or bound to fail to have no reasonable prospects of success, the combination of the inclusion of the word reasonable and the operation of s 56(2) of the Civil Procedure Act, sufficiently clearly indicates that the approach to exercising the power to dismiss under the rule is the same as that elucidated by the High Court in relation to the Federal enactment. His Honour had earlier referred to what was said by French CJ and Gummow J in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 (Spencer) at [25] as to whether an applicant has more than a fanciful prospect of success.

6. [27]

   It is important to remember, in this regard, that in the passage from Spencer (at [25]) extracted by Hammerschlag J as setting out the test, French CJ and Gummow J observed:

7. [28]

   Hammerschlag J earlier observed at [52] that the effect of what was said by Hayne, Crennan, Keifel and Bell JJ in Spencer was that what is required is a practical judgment to be made “and the inquiry is whether there is a reasonable prospect of prosecuting the proceedings, not whether a certain and concluded determination could be made that the proceedings would necessarily fail.”.

8. [29]

   Whether Hammerschlag J should be regarded as positing a different and lesser test for summary dismissal to be granted need not be determined in the present case. As will be apparent below, I do not regard Mr Martin’s claim in the present case as being fanciful. Further, there is a reasonable prospect of Mr Martin prosecuting the proceedings. It also follows that I am not satisfied that Mr Martin’s claim is so obviously untenable that it cannot possibly succeed.

The law of adverse possession

1. [30]

   Having regard to some of the arguments advanced on the motion, it is appropriate to set out some basic principles with respect to adverse possession.

2. [31]

   Prior to 1979, it was not possible in New South Wales to acquire a possessory title to land under the Torrens system. In 1979, the concept of title by adverse possession was imported into the Torrens system in New South Wales by the insertion of a new Part 6A (sections 45(b)-(k)) into the Real Property Act 1900 (NSW) (RPA).

3. [32]

   As Young JA stated at [83] in Refina Pty Ltd v Binnie (2010) 15 BPR 28,633; [2010] NSWCA 192 (Refina) at [83]:

4. [33]

   Further, as Robb J observed in Australian Retirement Holdings Pty Ltd v Higgins (2021) 20 BPR 41,633; [2021] NSWSC 1158 (ARH v Higgins) at [210]:

5. [34]

   In ARH v Higgins, Robb J set out in detail the relevant principles at [231]-[260].

6. [35]

   In Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 (Mulcahy v Curramore) at 475, Bowen CJ in Eq stated (in relation to the Imperial Limitation Statute that formerly applied in NSW):

7. [36]

   At 476, Bowen CJ in Eq stated:

8. [37]

   Reference is also often made to the judgment of Slade J in Powell v McFarlane (1979) 38 P&CR 452, especially at 470-472 as follows:

9. [38]

   In Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 at 167, Murray J stated:

10. [39]

    Counsel for the Battams also relied on Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; [2009] VSCA 188 at [4]-[6] (extracting what was said by Ashley J in Bayport Industries Pty Ltd v Watson (2006) V ConvR 54-709; [2002] VSC 206 (Bayport) at [39]-[40]) as approved by Tamberlin AJ in Bridges v Bridges [2010] NSWSC 1287 at [14]-[16]. There is nothing peculiar in the statements of principle in these cases. Of some relevance in the present context is the last of Ashley J’s propositions in Bayport at [40]:

11. [40]

    In relation to the nature of the interest of a person claiming adverse possession, the learned author of Butt’s Land Law, (Brendan Edgeworth, Butt’s Land Law (7th ed, Lawbook Co, 2017)) at [16.350] states:

12. [41]

    In support of this last statement, the learned author refers to the observations of Young JA in Refina that I have extracted above.

The argument advanced by the Battams for summary dismissal

1. [42]

   The essence of the argument propounded by counsel for Mr Battams in favour of summary dismissal went as follows:

2. [43]

   It was also contended that whilst Mr Martin has made two affidavits in these proceedings – one of which appears to be an affidavit verifying the statement of claim – neither of those affidavits provides any material to support the contention that Mr Martin attended Lot 5 in the period from Battams’ acquisition in June 2011 until September 2019.

3. [44]

   As the above summary makes clear, an aspect of the argument in favour of summary judgment was that UCPR r 13.4(2) makes clear that it is permissible for the Court to receive evidence on the hearing of a summary judgment application and the Court should consider whether any evidence is relied on by a plaintiff in opposition to the evidence relied on by the defendant seeking summary dismissal. Reference in this regard was made to a number of authorities including Dow Hager Lawrance v Lord Norreys (1890) 15 App Cas 210 (Dow Hager Lawrance v Lord Norreys) and Willis v Earl Howe [1893] 2 Ch 545.

4. [45]

   Mr Martin contended that he took possession in 1993 and thus the 12 year limitation period expired in 2005. Further, that any use of the access way on Lot 5 by the Battams was with his permission, and he has attended Lot 5 on a number of occasions during the period since the Battams have owned their property.

Determination

1. [46]

   I do not regard this as an appropriate case for the Court to order summary dismissal.

2. [47]

   Whether the test is stated as Mr Martin’s claim being so obviously untenable that it cannot possibly succeed, or that he has no more than a fanciful prospect of success, the Battams have failed to establish the high bar for Mr Martin’s case to be summarily terminated.

3. [48]

   No authority was cited in support of the proposition that Mr Martin was required to establish that at the date of filing the statement of claim, he was in possession of Lot 5. Reference was made to the text of s 45D and what was said by the learned authors of Baalman & Wells, Land Titles Office Practice at paragraph 397.15. The extract, however, does not squarely address the present point.

4. [49]

   Having regard to ordinary principles, set out in the authorities that I have extracted above, it is at least arguable that Mr Martin acquired title by adverse possession in 2005, on expiry of the twelve year limitation period and well before the Battams purchased their land and commenced using the Gill Access Way. As Bowen CJ in Eq stated in Mulcahy v Curramore at 476 (extracted above) the effect of the statute is to extinguish the title of the true owner after the expiry of the relevant limitation period. Once the limitation period has expired, the interest of the adverse possessor cannot be abandoned: see Bayport (extracted above). Having regard to the observations in Butt’s Land Law (extracted above) it is at least arguable that an adverse possessor, like Mr Martin, has an interest in the land after the expiry of the limitation period and prior to registration.

5. [50]

   Whether Mr Martin makes good his claim to the requisite possession between 1993 and 2005 is a matter for final hearing.

6. [51]

   Even if the focus is on the period after the Battams purchased their land, there seems to me to be a triable factual issue as to whether the Battams’ use was with Mr Martin’s permission. An aspect of this issue will likely be whether any permission granted by Zelda was on Mr Martin’s behalf. A summary dismissal application is not the occasion for resolving that dispute. The fact that the Court can receive evidence on a summary dismissal application does not alter this basic proposition. The cases relied on by counsel for the Battams do not gainsay this basic proposition.

7. [52]

   The present case is quite different to, for example, Dow Hager Lawrance v Lord Norreys where the evidence showed that the factual allegations in the statement of claim are a myth.

8. [53]

   As Faulkner J observed in Westwood at [74] (extracted above), if the Court receives evidence on an application like this, it must not make findings of fact based on that evidence unless there is no other evidence which might emerge during the further conduct of the proceedings which could add to or qualify those facts.

9. [54]

   The evidence before the Court on the present application does not suggest that the allegations made by Mr Martin are a myth. As has been observed in this area of the law, the question of possession is a “heavily fact-dependent inquiry” (see GE Dal Pont, Law of Limitation (2nd ed, 2021, LexisNexis) at [8.25]), and “must be considered in every case with reference to the peculiar circumstances of the case”: see Mulcahy v Curramore at 475 (extracted above). The peculiar circumstances of this case cannot be determined on an application for summary dismissal.

Conclusion

1. [55]

   For the reasons set out above, the Court orders that:

   1. (1)

      The notice of motion filed 14 March 2025 is dismissed with costs.

   2. (2)

      The proceedings are listed for directions in the Real Property List on 9 May 2025.