1
(a) Summary of facts
Perry Schmeiser is the registered proprietor of a paddock known as Lot 4 in DP654321.
On 5 March 2001, Georgia Greene asked permission to have her horses graze in the paddock. Schmeiser agreed but only for 6 months, as he wanted the land vacant by 1 September 2001.
Between 6th March and June 2001, Greene put water trough the paddock, fixed some of the gaps in the fences, cultivated the land and put up a sign saying 'Please Don't Enter - sensitive quinoa seeds growing'.
In August 2001, Schmeiser sent Greene a letter asking her to remove the horses from the paddock by 1 September. Greene didn't respond.
In June 2002 Schmeiser visited the property and told Greene he wanted it restored to the way it was.
Greene sent a letter, dated 1 July 2002, offering to buy the paddock but Schmeiser refused.
In July 2013, Greene's new partner, Eli, was working in the paddock.
Aerial view of the said location in Sydney
Wimpey logo in use in the 1970s and 1980s
Wimpey logo in use in the 1990sSchmeiser walked up to Eli, removed some stone terracing and said, 'This is my land, you don't have permission to be here'. In response, Eli raised his shotgun, pointed it at Schmeiser and told him to get out of the paddock and not to return if he knew what was good for him. Schmeiser left immediately.
Greene applied to the Registrar General for a title under s 45D of the Real Property Act 1900 but the application was rejected.
On 31 July 2014 Greene commenced the current proceedings in the Supreme Court of
New South Wales.
(b) Summary of submissions
Submission 1: between 6th March, 2001 and the 1st September, 2001 the
Plaintiff only had a licence to be on the land and therefore, was not entitled to the commencement of the 12 year period under adverse possession.
Submission 2: On the 1st July, 2002 the Plaintiff confirmed the documentary owner's superior title by an offer to purchase the property.
Submission 3: The Plaintiff did not meet the 12 year legislative requirement at the time of her application for title.
Submission 4: Possession must have the required open intention. The Plaintiff did not demonstrate her intention for possession. The act of restoring the fence does not demonstrate her intention of excluding the documentary owner.
Submission 5: The Plaintiff did not show the open intention of possession due to the fact she did not pay the rates nor taxes.
Submission 6: Where the possessor is aware that the documentary owner is holding the land for a future use, no possessory title will be given,
Submission 7: The use of the property was intended for a dairy cattle, not planting organic seeds.
Submission 8: The possession must be peaceful, meaning without violence. The defendant was threatened by the Plaintiff's partner by a gun.
(c) Statement of submissions
Submission 1: The agreement between the parties for the period 5th March 2001 to 1st September 2001, was a bare licence granted by the defendant to enter and use lot 4 by the plaintiff. A licence cannot give rise to a proprietary interest in the land as noted in Cowell v Rosehill Racecourse Co Ltd (1936)56 CLR 605, because the test of exclusive possession cannot be satisfied. Radaich v Smith (1959) 101 CLR 209. Subsequently the plaintiffs 12 year period, for claiming a possessory title, as specified by the Limitation Act 1969 (NSW)ss27(2) and 65 cannot begin.
Submission 2: The Limitation Act 1969 (NSW)s54, provides that plaintiff's 12 year period was suspended when she confirmed the defendants superior title to the land by an offer made on 1st July 2002 to purchase the property. Edginton t v Clark [1964] 1 QB 367. The offer was made in writing with a presumption it contained a signature therefore satisfying the strict requirements within Limitation Act 1969 (NSW)s54(4). Offer to purchase is an acknowledgement of the documentary owner's superior title. Refina Pty Ltd v Binnie [2009] NSWSC 914.
Submission 3: Plaintiff was not granted an application for a title under Real Property Act 1900 (NSW)s45D, because her possession became adverse only on 1st July 2002 until July 2013. The statutory period contained in the Limitation Act 1969 (NSW)s65 was not satisfied.
Submission 4: The act of restoring the fence does not demonstrate her intention of excluding the documentary owner. In George Wimpey & Co Ltd v Sohn (1967), adverse possession was not granted where the possessor merely fenced off an area for a garden.
Submission 5: The payment of rates or taxes for the land is seen as an important indicator in establishing intention. A posessor's refusal to pay rates generally negates agains a finding for adverse possession., (Marikville Municipal Council (no 2) 1990).
Submission 6. No possessory title was acquired where the documentary owner, having no present use of the land, was holding it in anticipation of prospective use in the future. Leigh v Jack [1879] 5 Ex D 264.The plaintiff was aware the Defendant was planning to sell the land and stated she was willing to take a chance with her seeds.
Submission 7: The possession must be meaningful. The use of the property was intended for a dairy cattle, Richardson v Greentree NSWSC [1st Dec 1997].
In Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270, 13,283, Bryson, J stated possession must be "actual, open, visible, notorious, continuous and hostile to the title of the true owner" to exist.
Submission 8: The possession must be peaceful, meaning without violence. The Defendant was threatened by a gun and felt intimidated.
In Mulcahy v Curramore [1974] 2 NSWLR 464, possession the inclusion of the requirements "peaceful, not by force" must exist. Furthermore, in Bartlett v Ryan [2000] NSWSC 807 (16 August 2000), as unlawful force was found an injunction was granted.
(d) Case list
1. Cowell v Rosehill Racecourse Co Ltd (1936)56 CLR 605
2. Radaich v Smith (1959) 101 CLR 209
3. Edgintont v Clark [1964] 1 QB 367
4. Refina Pty Ltd v Binnie [2009] NSWSC 914
5. Bartlett v Ryan [2000] NSWSC 807 (16 August 2000)
6. Beever v Spaceline Engineering Pty Ltd [1993] 6 BPR 13,270, 13,283
7. George Wimpey & Co Ltd v Sohn [1967],
8. Marikville Municipal Council (no 2) 1990.
9. Mulcahy v Curramore [1974]
10. Shaw v Garbutt [1996] NSWSC 400
11. Richardson v Greentree NSWSC [1st Dec 1997].
12. Leigh v Jack [1879] 5 Ex D 264.