Bride v Shire of Katanning

[2013] WASCA 154

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Local Government
2. › Rates and charges
3. › Recovery of rates
4. › Meaning of 'owner'
5. › Person 'in possession' as holder of estate of freehold
6. › Whether 'in possession' requires actual physical possession or includes exercise of rights to enjoy freehold title
7. › Local Government Act 1995 (WA), ss 1.4, 6.55
1. Local Government
2. › Rates and charges
3. › Recovery of rates
4. › Mortgagee in possession
5. › Meaning of 'in possession as a mortgagee of the land'
6. › Whether mortgagee exercising rights under mortgage to use and enjoy estate in land
7. › Whether physical entry on land required
8. › Local Government Act 1995 (WA), s 1.4(a)(iii)
1. Real Property
2. › Possession
3. › Meaning of 'possession' in statutory context
4. › Distinction between actual possession and exercise of rights of estate
5. › Whether freeholder who has leased land is 'in possession'
6. › Historical development of concept of seisin and possession
1. Real Property
2. › Mortgages
3. › Mortgagee in possession
4. › Acts sufficient to constitute taking possession
5. › Whether acts of control falling short of physical entry sufficient
6. › Whether mortgagee ceased to be in possession by abandoning exercise of rights

Quick Take

For the purposes of the definition of 'owner' in s 1.4 of the Local Government Act 1995 (WA), 'in possession' means the person exercising the present right to enjoy the freehold title to the land, including by receipt of rents and profits where the land is leased. It does not require actual physical possession. A mortgagee is 'in possession' when exercising present rights under the mortgage to use and enjoy the estate, but ceases to be in possession when it no longer exercises those rights as a matter of fact, regardless of any continuing equitable duties. A freeholder who has leased land to a tenant remains 'in possession' for rating purposes.