Mark Maconachie successfully appeared for the plaintiff before the Supreme Court of New South Wales in the recently decided Smith v Central Coast Council [2024] NSWSC 981.

The plaintiff, his uncle before him, and the plaintiff’s grandfather before the uncle, had occupied the land the subject of the proceedings continuously since 1949. The plaintiff purchased the land from his uncle in 1987. The boundaries of the land occupied by the plaintiff differed from those recorded by the Registrar General, which led to a portion of the land occupied by the plaintiff (including his home) being included in the lot owned by his neighbours when the neighbouring land was converted to Torrens Title in 1999.

The plaintiff was granted declarations that he is the rightful owner of that part of his neighbours’ lot which he and his family had occupied since 1949, and of a ‘paper road’ which otherwise may have belonged to the first defendant, Central Coast Council. Justice Peden found that there was sufficient evidence of both factual possession and intention to possess the subject land by the plaintiff and his predecessors for adverse possession to be established. Her Honour found that because the neighbours’ lot was limited title under the Real Property Act 1900 there is an exception to the neighbours’ indefeasibility of title. Her Honour also found that the ‘paper road’ had vested in the plaintiff’s distant predecessors in title by operation of the Roads and Streets Act 1833 (NSW) and, accordingly, is now vested in the plaintiff.

A copy of the decision may be found here.