Braye v Tarnawskyj [2019] NSWSC 277

Braye v Tarnawskyj [2019] NSWSC 277

The plaintiff, through acts of parking, storage, garden maintenance, and works to the surface and subsurface of the claimed land, has established for at least 12 years factual possession and an intention to possess, openly and without consent, over part of the claimed land (excluding a pathway area). The acts exceeded the rights under the right of way and were sufficient to extinguish the title of the documentary owner under the Limitation Act 1969 (NSW), s 65(1), but only as to the portion not comprising the pathway used as access to 5 Brien Street.

Parties
Plaintiff: Keith Stanley Braye; First Defendant: Gloria Millicent Tarnawskyj (as Administrator of the Estate of the late Mary King); Second Defendant: Simon John Ward
Jurisdiction
Australia
Judgment Date
19 March 2019
Procedural Posture
Possessory Title Claim (equity) / Principal Judgment After Final Hearing
Outcome
Possessory title established by the plaintiff over part of the claimed land (excluding the pathway area). Declarations to be made reflecting this finding. Parties to confer and bring Short Minutes of Orders within 28 days.
Legal Topics
Possessory Title, Adverse Possession, Easements, Right of Way
Land Law Equity Possessory Title Adverse Possession Easements Right of Way

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Parties

Keith Stanley Braye

Plaintiff

Gloria Millicent Tarnawskyj (as Administrator of the Estate of the late Mary King)

First Defendant

Simon John Ward

Second Defendant

Procedural Posture

Possessory Title Claim (equity) / Principal Judgment After Final Hearing

Legal Issues

  1. 1 Whether acts of use and occupation by the plaintiff and tenants over the claimed land established possessory title as against the documentary owner
  2. 2 Whether use exceeded rights granted by the right of way and demonstrated intention to exclude all others
  3. 3 Whether possessory acts applied to the whole or only part of the claimed land

Ratio Decidendi

The plaintiff, through acts of parking, storage, garden maintenance, and works to the surface and subsurface of the claimed land, has established for at least 12 years factual possession and an intention to possess, openly and without consent, over part of the claimed land (excluding a pathway area). The acts exceeded the rights under the right of way and were sufficient to extinguish the title of the documentary owner under the Limitation Act 1969 (NSW), s 65(1), but only as to the portion not comprising the pathway used as access to 5 Brien Street.

Court Disposition

Possessory title established by the plaintiff over part of the claimed land (excluding the pathway area). Declarations to be made reflecting this finding. Parties to confer and bring Short Minutes of Orders within 28 days.

Orders

  • Declarations to be made that the plaintiff’s estate has possessory title to part of the claimed land (excluding the specified pathway area).
  • Parties to bring in Short Minutes of Orders within 28 days, also addressing costs.