Australia, June 16 -- New South Wales Land and Environment Court issued text of the following judgement May 16:

1. WARD P and STERN JA: This appeal involves a challenge to the determination in favour of the first respondent (Mr Kenneth Smith) of an adverse possession claim in respect of land in the Central Coast (part of Lot 41 of Deposited Plan 1003436) which was purchased by the appellants (Mr David Evans and Mrs Carolyn Evans) in June 1989 (see Smith v Central Coast Council [2024] NSWSC 981, the primary judgment).

2. The land in question (the contentious land) is the bulk of the land from what was referred to as the "Paper Road" (or "Unformed Road") to Brush Creek Road (as we explain in due course).

3. The primary judge noted (at [16] of the primary judgment) the parties' agreement that, if the requisite possession (in terms of fact and intention) was established from 1949 to 1989, then the paper owner's legal title to the contentious land was thereby extinguished in 1989 (about ten years before the appellants purchased what shortly thereafter became, and is now, Lot 41).

4. The primary judge held that the respondent (to whom we will refer as Mr Smith in distinction to his uncle, Mr Keith Smith) and his predecessors possessed, and intended to possess, the contentious land (see [25] of the primary judgment) over the requisite period so as to extinguish the paper owner's legal title to that land in 1989. The primary judge declared that Mr Smith was the rightful owner of both the contentious land and the "Paper Road" land (see Orders (1)-(3) at [66] of the primary judgment). The appellants did not contest that Mr Smith's predecessors in title obtained title to the Paper Road land (see [6] of the primary judgment) and this is not in issue on the appeal.

5. At the hearing at first instance, the appellants conceded that Mr Smith had established adverse possession of that part of the contentious land on which his family house (the Smith house) and its curtilage have been located since 1949 (29/07/2024; T 5.12-16) (see [4] of the primary judgment). On appeal, the appellants did not identify the dimensions of the curtilage around the house in respect of which they concede adverse possession has been established (nor do their proposed orders do so). However, they accepted that it could be inferred from the admitted possession of the house that there was adverse possession of a narrow (few metres) area of curtilage around it (see AT 10.44) (highlighted by the fact that from time to time, there had been fences erected around the house to keep animals such as horses and cattle away from the house). In oral submissions, the appellants accepted that the curtilage would certainly extend to the timber post and rail fence on Brush Creek Road (see AT 11.3-4; AT 19.21-24). What they resisted was the suggestion that the curtilage would extend from the house up to the boundary of the Paper Road (or Unformed Road) (see AT 74.47-49).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196c827aa60486f14eb50f95)

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