McFarland v Gertos [2018] NSWSC 1629

McFarland v Gertos [2018] NSWSC 1629

Mr Gertos had been in open, peaceful and adverse possession of the property from about late 1998, with factual possession and the intention to possess to the exclusion of all others, by securing and repairing the house, letting it as landlord, receiving rent, paying outgoings, taxes and insurance, and maintaining the property. The relevant cause of action to recover the land accrued, under ss 31 and 38 of the Limitation Act 1969 (NSW), when Mr Downie's reversion became a present interest after Mrs Grimes' death and the land first came into Mr Gertos' adverse possession. The absence of a grant of administration did not prevent that statutory accrual, and death did not make Mr Downie a...

Jurisdiction
Australia
Judgment Date
30 October 2018
Procedural Posture
Equity Proceedings Concerning Possessory Title to Land Under the Real Property Act 1900 (nsw) / Principal Judgment After Hearing of Plaintiffs' Amended Summons Seeking a Declaration That the First Defendant Is Not Entitled to Be Registered on Title
Outcome
Amended Summons dismissed with costs.
Legal Topics
['possessory Title' 'adverse Possession' 'torrens Title Land' 'application Under S 45 D of the Real Property Act 1900 (nsw)' 'recovery of Land From Adverse Possessor' 'deceased Registered Proprietor and Intestate Estate' 'accrual of Limitation Period' 'extinguishment of Title Under Limitation Act 1969 (nsw)']
['land Law' 'real Property' 'limitation of Actions' 'equity'] ['possessory Title' 'adverse Possession' 'torrens Title Land' 'application Under S 45 D of the Real Property Act 1900 (nsw)' 'recovery of Land From Adverse Possessor' 'deceased Registered Proprietor and Intestate Estate' 'accrual of Limitation Period' 'extinguishment of Title Under Limitation Act 1969 (nsw)']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Possessory Title to Land Under the Real Property Act 1900 (nsw) / Principal Judgment After Hearing of Plaintiffs' Amended Summons Seeking a Declaration That the First Defendant Is Not Entitled to Be Registered on Title

Legal Issues

  1. 1 ['Whether Mr Gertos had been in factual possession of 6 Malleny Street, Ashbury with the intention to possess it to the exclusion of all others from about late 1998.' 'Whether the title of the registered proprietor would have been extinguished under the Limitation Act 1969 (NSW) had that Act applied to the land, for the purposes of s 45D(1)(b) of the Real Property Act 1900 (NSW).' "Whether the absence of a grant of administration for Mr Downie's estate prevented time from running against an action to recover the land." 'Whether Mr Downie, by reason of death, was a person under a disability for the purposes of ss 11(3) and 52 of the Limitation Act 1969 (NSW).' 'Whether the plaintiffs were entitled to a declaration that Mr Gertos was not entitled to be registered on the title to the property.']

Ratio Decidendi

Mr Gertos had been in open, peaceful and adverse possession of the property from about late 1998, with factual possession and the intention to possess to the exclusion of all others, by securing and repairing the house, letting it as landlord, receiving rent, paying outgoings, taxes and insurance, and maintaining the property. The relevant cause of action to recover the land accrued, under ss 31 and 38 of the Limitation Act 1969 (NSW), when Mr Downie's reversion became a present interest after Mrs Grimes' death and the land first came into Mr Gertos' adverse possession. The absence of a grant of administration did not prevent that statutory accrual, and death did not make Mr Downie a...

Court Disposition

Amended Summons dismissed with costs.

Orders

  • ["The plaintiffs' application for a declaration that Mr Gertos is not entitled to be registered on the title to the property is refused." 'The injunction restraining the Registrar-General from registering Mr Gertos as proprietor of the land is discharged.' 'The Amended Summons is dismissed.' "The plaintiffs are to...