Ben-Pelech v Royle

[2020] WASCA 168

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Real Property
2. › Adverse possession
3. › Boundary disputes
4. › Misaligned boundary fence
5. › Whether possession consensual
6. › Whether owner's mistaken belief that fence on boundary constitutes consent
7. › Limitation Act 1935 (WA), s 4, s 30
1. Real Property
2. › Adverse possession
3. › Consent as defence
4. › Knowledge as element of consent
5. › Whether consent requires knowledge that other party occupying owner's land
1. Contract
2. › Implied terms
3. › Terms implied in fact
4. › Whether oral agreement to build fence on boundary contained implied term consenting to occupation of land on each side of fence if fence misaligned
5. › Byrne v Australian Airlines Ltd (1995) 185 CLR 410
1. Statutes
2. › Construction
3. › Transfer of Land Act 1893 (WA), s 160-s 166
4. › Whether ss 160-165 form interlocking scheme
5. › Whether s 163 applies only to Commissioner-initiated subdivisions under s 160
6. › Whether s 163 applies to proprietor-initiated subdivisions under s 166

Quick Take

In adverse possession claims arising from misaligned boundary fences, an owner's mistaken belief that the fence is on the cadastral boundary does not constitute consent to the neighbour's possession of the strip on the wrong side of the fence; knowledge that the other party is occupying the owner's land is a necessary element of consent. Section 163 of the Transfer of Land Act 1893 (WA) applies only to Commissioner-initiated schemes of subdivision under s 160 and has no application to proprietor-initiated subdivisions under s 166 and s 146 of the Planning and Development Act 2005 (WA). An oral agreement to build a fence on the true boundary does not contain an implied term consenting to occupation of land on each side if the fence is misaligned.