Rogers v Registrar General of NSW [2024] NSWSC 590

Rogers v Registrar General of NSW [2024] NSWSC 590

The Court found that Mr Saric died intestate, that no legal personal representative or person entitled on intestacy could be found despite comprehensive searches, and that any cause of action by his estate or heirs to recover possession arose by 1 January 1969 when Mr Paul took possession. Because the applicable pre-1971 limitation legislation was the 1837 Act and its 40 year long-stop period extinguished any right and title by 1 January 2009, it was appropriate to proceed without a representative of Mr Saric's estate. Mr Paul had factual possession and animus possidendi from at least 1 January 1969: he treated the cottage as his own, rented it, paid outgoings, insured and maintained it,...

Jurisdiction
Australia
Judgment Date
16 May 2024
Procedural Posture
Equity Applications List; Summons for Declaratory Relief Concerning Possessory Title to Torrens Title Land / Unopposed Hearing of Summons and Notice of Motion
Outcome
Declaration of possessory title made; proceedings ordered to continue and be determined in the absence of any legal personal representative or person entitled on intestacy in respect of Joseph Louis Saric's estate.
Legal Topics
['adverse Possession' 'possessory Application Over Torrens Title Land' 'intestacy' 'proceeding in Absence of Deceased Estate Representative' 'limitation of Actions']
['land Law' 'equity' 'succession'] ['adverse Possession' 'possessory Application Over Torrens Title Land' 'intestacy' 'proceeding in Absence of Deceased Estate Representative' 'limitation of Actions']

Case Brief

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Procedural Posture

Equity Applications List; Summons for Declaratory Relief Concerning Possessory Title to Torrens Title Land / Unopposed Hearing of Summons and Notice of Motion

Legal Issues

  1. 1 ['Whether the proceedings should continue and be determined in the absence of any legal personal representative or person entitled on intestacy in respect of the estate of Joseph Louis Saric.' 'Whether Joseph Louis Saric died intestate and whether any legal personal representative or heir needed to be joined or served.' "Whether any cause of action by Joseph Louis Saric's estate or heirs to recover possession of the land had been extinguished by limitation legislation." 'Whether Ross Paul had factual possession and the requisite intention to possess the land openly, peacefully and adversely for the required period.' "Whether Michael Scott Rogers, as executor of Ross Paul's estate, was entitled to be recorded as registered proprietor under the Real Property Act 1900."]

Ratio Decidendi

The Court found that Mr Saric died intestate, that no legal personal representative or person entitled on intestacy could be found despite comprehensive searches, and that any cause of action by his estate or heirs to recover possession arose by 1 January 1969 when Mr Paul took possession. Because the applicable pre-1971 limitation legislation was the 1837 Act and its 40 year long-stop period extinguished any right and title by 1 January 2009, it was appropriate to proceed without a representative of Mr Saric's estate. Mr Paul had factual possession and animus possidendi from at least 1 January 1969: he treated the cottage as his own, rented it, paid outgoings, insured and maintained it,...

Court Disposition

Declaration of possessory title made; proceedings ordered to continue and be determined in the absence of any legal personal representative or person entitled on intestacy in respect of Joseph Louis Saric's estate.

Orders

  • ['DECLARES that the Michael Scott Rogers, in his capacity as the executor of the estate of the late Ross Paul, late of Belmont, is entitled to become the registered proprietor under the Real Property Act 1900 of all that piece of land situate at XXX, Gymea Bay in the State of New South Wales and being the whole of...