ANDERSON -v- STONE [2026] WASC 323

[2026] WASC 323 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : ANDERSON -v- STONE [2026] WASC 323 CORAM : MASTER RUSSELL HEARD : 4 AUGUST 2026 DELIVERED : 6 AUGUST 2026 FILE NO/S : CIV 2308 of 2025 BETWEEN : RACHEL MARIE ANDERSON Plaintiff AND DANIEL LINDSAY STONE TEGAN JOY STONE First Defendants THE REGISTRAR OF TITLES Second Defendant Catchwords: Property Law - Real Property - Claim of title to land by adverse possession - Turns on own facts Legislation: Limitation Act 1935 (WA) s 4, s 5, s 30 Limitation Act 2005 (WA) s 4, s 19(1), s 75 Rules of the Supreme Court 1971 (WA) O 18 r 16 Supreme Court Act 1935 (WA) s 25(6) -- 1 of 12 -- [2026] WASC 323 Page 2 Result: Application granted Declarations made in favour of plaintiff Category: B Representation: Counsel: Plaintiff : S R Sirett First Defendants : No appearance Second Defendant : No appearance Solicitors: Plaintiff : Thomsons Lawyers First Defendants : In person Second Defendant : No appearance Case(s) referred to in decision(s): Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 Ben-Pelech v Royle [2020] WASCA 168 Bowman v Tremaine [2016] WASC 294 Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 Dwyer v Jecks [2026] WASC 2 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Goodwin v Western Australian Sports Centre Trust [2014] WASC 138 Kruize v Vooys [2023] WASC 411 McWhirter v Emerson-Elliot (1960) WAR 208 Payne v Dwyer [2013] WASC 271 Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [No 7] [2022] WASC 345 -- 2 of 12 -- [2026] WASC 323 MASTER RUSSELL Page 3 MASTER RUSSELL: Introduction 1 Since 21 May 2008, the plaintiff, Rachel Marie Anderson, has been the registered proprietor of Unit 4, 42 - 44 Brighton Road, Scarborough, Western Australia, described as Lot 4 on Strata Plan 15507 (Lot 4) in Certificate of Title Volume 1784 Folio 188 (Lot 4 Title). 2 The first and second-named first defendants, Tegan Joy Stone and Daniel Lindsay Stone (together the first defendants), are the registered proprietors, as tenants in common, of the neighbouring unit, Unit 5, 42 Brighton Road, Scarborough, described as Lot 5 on Strata Plan 15507 (Lot 5) in Certificate of Title Volume 1784 Folio 189 (Lot 5 Title). 3 These proceedings concern an area of land of approximately two square metres situated between Lot 4 and Lot 5, being the land in the area shaded grey in the plan in Annexure A to these reasons (Claimed Land). 4 By originating summons filed on 18 November 2025, as amended on 22 January 2026, the plaintiff sought declarations that she has obtained, by adverse possession, absolute title to the Claimed Land and that it is amalgamated into Lot 4 free from all encumbrances, alternatively that the Claimed Land is subject to a prescriptive easement in her favour (Application). 5 The first defendants entered an appearance on 4 and 7 December 2025, respectively. In a communication with the plaintiff's solicitors, the first defendants stated, without any admission of fact or liability and having regard to the very limited area in dispute, that they would take no active role in the proceedings and would not oppose the Application, on the basis that no order would be sought against them in relation to costs.1 6 By email to the court dated 20 July 2026, the first defendants informed the court that they did not intend to file any evidence, submissions, or other materials in response to the Application and, in effect, will abide the Court's determination of the Application based on the materials filed by the plaintiff. Accordingly, they sought to be, and were, excused from attending the hearing of the Application. 1 Affidavit of Shane Robin Sirett affirmed and filed on 19 February 2026 [4], 'SRS-1'. -- 3 of 12 -- [2026] WASC 323 MASTER RUSSELL Page 4 7 The second defendant, the Registrar of Titles, is on notice of the Application. As is often the case in an application of this nature, the Registrar of Titles has not entered an appearance or sought to be heard.2 8 In support of the Application, the plaintiff relied on an outline of submissions filed on 10 April 2026 and: (a) an affidavit affirmed by her on 27 October 2025, filed on 18 November 2025 (Anderson Affidavit); and (b) an affidavit of Samantha Anna Crkovsky affirmed and filed on 3 August 2026 (Crkovsky Affidavit). 9 I heard the Application on 4 August 2026. For the following reasons, I was satisfied that the plaintiff had demonstrated that she has obtained absolute title to the Claimed Land by adverse possession and made the orders and declarations to that effect. The Claimed Land 10 The following relevant, uncontested facts relating to the plaintiff's claim in respect of the Claimed Land are derived from the Anderson Affidavit, as summarised in the plaintiff's outline of submissions. 11 The Strata Plan on which Lot 4 and Lot 5 were created was registered on 30 November 1987.3 12 On 21 May 2008, the plaintiff became the registered proprietor of Lot 4, as recorded in the Lot 4 Title.4 13 In March 2012, the first-named first defendant, Ms Stone, became the registered proprietor of Lot 5.5 On 1 May 2025, the second-named first defendant, Mr Stone, became a registered proprietor of Lot 5, as tenant in common with Ms Stone, as recorded in the Lot 5 Title.6 14 Lot 4 and Lot 5 are divided by a continuous strip of land between the residential buildings of the two lots, which runs from the common property, which abuts the front of each of the residential buildings in 2 Affidavit of Shane Robin Sirett affirmed and filed on 19 February 2026 [5], 'SRS-2'; Crkovsky Affidavit [4], 'SAC-1'. 3 Anderson Affidavit [3], 'RMA-2'. 4 Anderson Affidavit [2], 'RMA-1'. 5 Anderson Affidavit [26]. 6 Anderson Affidavit [4], [36], 'RMA-3'. -- 4 of 12 -- [2026] WASC 323 MASTER RUSSELL Page 5 the strata plan, to the beginning of a fence that runs between the rear courtyards of the two lots (the Passage).7 15 The plaintiff deposes to her understanding that the Passage formed an integral part of the residential premises of Lot 4, providing the only means of access to the rear of the residence and to her exclusive use of the Passage since she became the owner of, and moved into, Lot 4 in May 2008.8 16 The Passage is made up of the Claimed Land and a section of land that was previously included in the Lot 5 Title, which has been defined by the plaintiff, and I also refer to as, the Former Lot 5 Section.9 17 On 2 September 2025, the Registrar of Titles approved an adverse possession claim made by the plaintiff pursuant to s 222 of the Transfer of Land Act 1893 (WA) (Landgate Application), and Strata Plan 15507 was amended and updated to include the Former Lot 5 Section as part of Lot 4.10 The Landgate Application initially included an additional portion of Lot 5, being the Claimed Land the subject of this Application,11 but was amended to include only the Former Lot 5 Section following requisitions made by Landgate.12 18 Located in the Passage, in the Claimed Land, attached to the northern wall of the Lot 4 residential building is:13 (a) a gas metre box and an electricity metre box, which were in situ when the plaintiff purchased Lot 4;14 and (b) a solar powered control box, which was installed by the plaintiff in 2011. 19 The Former Lot 5 Section and the Claimed Land are separated by a gate, which was already in place when the plaintiff became the registered proprietor of Lot 4 on 21 May 2008.15 7 Anderson Affidavit [11] - [12]. 8 Anderson Affidavit [16] - [24], [37]. 9 Anderson Affidavit [5], [11]. 10 Anderson Affidavit [6] - [9], 'RMA-4' - 'RMA-6'. 11 Anderson Affidavit [10], [33], 'RMA-7'. See also Annexure A to these reasons. 12 Anderson Affidavit [34], 'RMA-13' - 'RMA-15'. 13 Anderson Affidavit [13], 'RMA-8'. 14 Anderson Affidavit [17]. 15 Anderson Affidavit [14] - [15]. -- 5 of 12 -- [2026] WASC 323 MASTER RUSSELL Page 6 20 Part of the Passage, including the Claimed Land, the metre boxes, solar powered control box and the gate (which is open in the photograph) are depicted in the photograph attached as 'RMA-8' to the Anderson Affidavit.16 21 The Former Lot 5 Section, which now forms part of Lot 4, is depicted in the survey plan attached to the Anderson Affidavit as 'RMA-6'.17 The Claimed Land is identified as the area shaded grey in the survey plan attached to the Anderson Affidavit as 'RMA-7',18 a copy of which is in Annexure A to these reasons. The area that makes up the Claimed Land is subject to an upper limit, being the underside of the eaves of the dwelling on Lot 5, as noted on the survey plan of the Claimed Land and depicted in the cross section contained in the survey plan. 22 The plaintiff seeks declarations to the effect that she has obtained, by adverse possession, absolute title to the Claimed Land and that the Claimed Land is amalgamated into Lot 4 free from all encumbrances save for subsisting interests, on the basis that she has possessed and exercised control over that land for over 17 years, and it has been used exclusively as an integral part of the plaintiff's residential property during that time. Declaratory relief 23 The court has a discretionary power to grant declaratory relief under s 25(6) of the Supreme Court Act 1935 (WA) and O 18 r 16 of the Rules of the Supreme Court 1971 (WA). The principles that apply to the exercise of the court's discretion to grant declaratory relief are well settled. 24 Before exercising its discretion in favour of making a declaration, the court must be satisfied that the question is a real and not a theoretical question; the person raising it must have a real interest to raise it; they must be able to secure a proper contradictor, that is someone presently existing who has a true interest to oppose the declaration sought.19 16 Anderson Affidavit, 'RMA-8', page 47. 17 Anderson Affidavit, 'RMA-6', page 45. 18 Anderson Affidavit, 'RMA-7', page 46. 19 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 (ACCC v MSY) [12] - [13], citing Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 437 - 438. See also Dwyer v Jecks [2026] WASC 2 (Dwyer v Jecks) [10] - [13] (Musikanth J). -- 6 of 12 -- [2026] WASC 323 MASTER RUSSELL Page 7 25 In this case, I am satisfied that each of those matters have been established. The question raised and in respect of which the declaratory relief is sought is one that will have real consequences for both parties and will provide certainty as to their respective rights. As the registered proprietor of Lot 4, the plaintiff has a real interest in raising it. The first defendants, as the registered proprietors of Lot 5 on which the Claimed Land is situated, have been appropriately joined and are proper contradictors. The fact that they have not sought to be heard and do not actively oppose the Application does not mean they cease to be proper contradictors.20 26 Although there is no opposition to the relief sought by the first defendants or the second defendant, the court must be satisfied that it is appropriate to grant the declaratory relief sought. 27 For the following reasons, I am satisfied that the plaintiff has established the necessary elements for adverse possession and that a declaration should be made to the effect sought. That is, that the plaintiff has obtained, by adverse possession, absolute title to the Claimed Land, being that part of Lot 5 which is shaded in grey in the survey plan dated 20 October 2024, a copy which is annexed as Annexure A to these reasons. Adverse possession 28 Justice Musikanth recently set out the principles to be applied in determining whether a right of adverse possession arises in Dwyer v Jecks.21 I gratefully adopt his Honour's outline of the principles, which unless otherwise indicated, I repeat below. 29 In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land being the person with a prima facie right to possession.22 30 However, under s 68(1A) of the Transfer of Land Act, 'any rights subsisting under adverse possession' are an exception to indefeasibility.23 20 Dwyer v Jecks [14], citing Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [No 7] [2022] WASC 345 [11], referring to Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 [16] and ACCC v MSY. 21 Dwyer v Jecks [16] - [18], [21] - [23]. 22 Dwyer v Jecks [16], citing Petkov v Lucerne Nominees Pty Ltd (1992) 7 WAR 163 (Petkov v Lucerne Nominees), 167 (Murray J); Bowman v Tremaine [2016] WASC 294 (Bowman v Tremaine) [30]. 23 Dwyer v Jecks [17], citing Bowman v Tremaine [31]. -- 7 of 12 -- [2026] WASC 323 MASTER RUSSELL Page 8 31 A right of adverse possession arises because (and when) the owner's right to bring an action to eject the party in possession has been barred by the expiry of the applicable limitation period.24 32 The applicable limitation period is 12 years. Whether pursuant to the Limitation Act 1935 (WA) or the Limitation Act 2005 (WA), after the expiration of 12 years of exclusive possession inconsistent with the rights of the title holder, an action to recover land is statute barred and the right and title of the original owner shall be extinguished.25 33 As Pritchard J explained in Payne v Dwyer:26 In order to attribute possession of land to a person who has no paper title to it, s 5 requires that that person be in 'actual possession'. That requires that the person have both factual possession and the requisite intention to possess (the animus possidendi). Factual possession requires physical custody and control. As for the intention to possess, it is the intention of the person in possession which is in issue, not that of the actual owner of the paper title. There need not be a conscious intention to exclude the true owner. Instead, what is required is an intention to exercise exclusive control on one's own behalf and for one's own benefit. The question is whether a person has dispossessed the owner by going into ordinary possession of the land without the consent of the owner. (citations omitted) 34 It must be established that the adverse possessor had possession of the land continuously for the requisite period (either alone or with a series of predecessors who obtained inchoate rights in adverse possession).27 These rights, whether accruing or complete, will subsist for the benefit of any subsequent acquirers of the relevant land.28 35 During the requisite period, the claimant's possession of the relevant land must be 'open, not secret; peaceful, not by force; and adverse, not by consent of the true owner'.29 24 Dwyer v Jecks [18], citing Ben-Pelech v Royle [2020] WASCA 168 (Ben-Pelech v Royle) [53] (Murphy, Beech & Vaughan JJA). 25 Limitation Act 1935 (WA) s 4, s 5 and s 30; Limitation Act 2005 (WA) s 4, s 19(1) and s 75. See Kruize v Vooys [2023] WASC 411 [62] (Forrester J). See also Ben-Pelech v Royle [53] in relation to the Limitation Act 1935 (WA), citing Petkov v Lucerne Nominees (166). 26 Dwyer v Jecks [21], citing Payne v Dwyer [2013] WASC 271 [64]. 27 Dwyer v Jecks [22], citing Goodwin v Western Australian Sports Centre Trust [2014] WASC 138 [48] - [49] (EM Heenan J). 28 Dwyer v Jecks [22], citing McWhirter v Emerson-Elliot (1960) WAR 208, 214 (Wolff CJ). 29 Dwyer v Jecks [23], citing Ben-Pelech v Royle [54]. -- 8 of 12 -- [2026] WASC 323 MASTER RUSSELL Page 9 36 I am satisfied that the plaintiff's uncontested evidence establishes that she has openly and peacefully possessed the Claimed Land without the consent of the first defendants or their predecessors in title of Lot 5, since she became the registered proprietor of Lot 4 on 21 May 2008. 37 From the time the plaintiff inspected the land and from when she moved into Lot 4 in May 2008: (a) the Claimed Land formed part of the Passage, which was separated from Lot 5 by the fence, and presented as a natural extension of the Lot 4 courtyard up to the end of each of the residential buildings enclosing and creating the Passage;30 and (b) the Passage formed an integral part of the residential premises of Lot 4, providing the only means of access to and from the rear of the Lot 4 residence.31 38 The Claimed Land is not enclosed on both sides. As noted, it is separated from the Former Lot 5 Section by a gate. The other end which abuts the strata boundary is open to allow access to the metre boxes attached to the wall of Lot 4. There are no services for Lot 5 located in the Claimed Land.32 39 Since May 2008, the Claimed Land has only been used and accessed by the plaintiff or by others that she has invited to access the Claimed Land.33 The plaintiff's use of the Claimed Land, in that time, is inconsistent with the possession of the first defendants and their predecessors in title, including the plaintiff: (a) continuously using the Claimed Land to carry rubbish and green waste to the community strata bin site;34 (b) using the Claimed Land to store and access a barbeque, cleaning and gardening tools and other equipment;35 (c) regularly using the Claimed Land to exit and enter Lot 4 via the Passage and to move between her courtyard on Lot 4 and the common area of the strata;36 and 30 Anderson Affidavit [16] - [17]. 31 Anderson Affidavit [18]. 32 Anderson Affidavit [37(b)]. 33 Anderson Affidavit [24], [37(a)], [37(d)]. 34 Anderson Affidavit [21]. 35 Anderson Affidavit [22]. 36 Anderson Affidavit [23]. -- 9 of 12 -- [2026] WASC 323 MASTER RUSSELL Page 10 (d) under her direction and control, having tradesman:37 (i) install a solar powered control box in the Claimed Land; (ii) use the Claimed Land as an access way to make repairs in the courtyard; and (iii) make improvements to the flooring of the Passage, including the Claimed Land. 40 Since the plaintiff became the owner of Lot 4 in May 2008, she has had exclusive use of the Claimed Land. Her evidence establishes that she has been the only person to traverse and use that part of the Passage, other than people she has invited to do so, including gas or electricity service personnel and tradespeople, who have accessed the rear courtyard at Lot 4, or her residence by using the Passage.38 There is no evidence to indicate that the plaintiff’s exclusive use of the Claimed Land since May 2008 was consented to by the first defendants or their predecessors in title. 41 The plaintiff has continued to use the Claimed Land in the same manner since the Landgate Application was granted without any resistance from the first defendants, who have raised no objection to the plaintiff's claim that she has possessed the Claimed Land, since May 2008, in a manner adverse to their title to it and that of their predecessors in title. 42 In the circumstances, I accept that the plaintiff's use and possession of the Claimed Land has been continuous and unbroken for more than 12 years and the first defendant's title to the Claimed Land has been extinguished. As such, I am satisfied that it is appropriate to make declarations to the effect sought. 43 Having reached that conclusion, it is not necessary for me to consider the alternative relief sought of a declaration to the effect that the Claimed Land is subject to a prescriptive easement in favour of the plaintiff. 37 Anderson Affidavit [13], [19] - [20], [28] - [30], 'RMA-8' - 'RMA-12'. 38 Anderson Affidavit [37(a)], [37(d)]. -- 10 of 12 -- [2026] WASC 323 MASTER RUSSELL Page 11 Conclusion and orders 44 For these reasons, I made declarations to the effect that the plaintiff has obtained, by adverse possession, absolute title to the Claimed Land and that it is amalgamated into Lot 4 free from all encumbrances save for subsisting interests notified on Lot 4 and any amendments to lots or common property notified on Strata Plan 15507. 45 I also made orders that there be liberty to apply in relation to the form of the declarations and in relation to any further orders required to give effect to them, and that there be no order as to costs against any party to the proceedings. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SC Associate to Master Russell 6 AUGUST 2026 -- 11 of 12 -- -- 12 of 12 --