Mulcahy v. Curramore Pty. Ltd.

2 NSWLR 464

(Judgment by: Hope J.A.)

Mulcahy
v Curramore Pty. Ltd.

Court:
Court of Appeal (New South Wales)

Judges: Hardie, Hope and Bowen JJ.A.
Moffitt P.

Hope J.A.Bowen C.J. in Eq.

Subject References:
Real Property
Limitation of action
Old system land
Possessory title
Continuous actual adverse possession for statutory period by two parties in succession, second not claiming title through first
Documentary title of true owner extinguished
Contract between second adverse possessor and third party to sell former's rights under possessory title
Rights of third party against successor in title to former true owner.

Case References:
Allen v. Roughley - (1955) 94 C.L.R. 98
Asher v. Whitlock - (1865) L.R. 1 Q.B. 1
Birchal v. Birch, Crisp & Co. - [1913] 2 Ch. 375
Fairweather v. St. Marylebone Property Co. Ltd. - [1963] A.C. 510
Harmer v. Armstrong - [1934] 1 Ch. 65
Kirby v. Cowderoy - [1912] A.C. 599
Lord Advocate v. Lord Lovat - (1880) 5 App. Cas. 273
Mulcahy v. Curramore Pty. Ltd. - [1973] 1 N.S.W.L.R. 737
Neeta (Epping) Pty. Ltd. v. Phillips - (1974) 48 A.L.J.R. 204
Nicholas v. Andrew - (1920) 20 S.R. (N.S.W.) 178; 37 W.N. 36
Perry v. Clissold - [1907] A.C. 73; (1907) 4 C.L.R. 374
Riley and the Real Property Act, Re - (1964) 82 W.N. (Pt. 1) (N.S.W.) 373
Salter v. Clarke - (1904) 4 S.R. (N.S.W.) 280; 21 W.N. 71
Solling v. Broughton - (1891) 12 L.R. (N.S.W.) 189; 10 W.N. 99; affirmed; [1893] A.C.556; (1893) 14 L.R. (N.S.W.) 412
Trustees, Executors, and Agency Co. Ltd. v. Short - (1888) 13 App. Cas. 793.
Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mex & B.P. Ltd. - [1974] 3 W.L.R. 387
Willis v. Earl Howe - [1893] 2 Ch. 545

Hearing date: June 19, 20, 1974; Nov. 12, 25 1974;
Judgment date: 9 December 1974

New South Wales


This was an appeal by the defendant against a declaration of Helsham J. that the plaintiff had an equitable title to certain land, and an injunction restraining the defendant from proceeding with its application to bring the land under the provisions of the Real Property Act, 1900.
Hardie J.A. died after the appeal had been heard, but before the Court had delivered judgment. The appeal was then reheard by a freshly constituted court in the manner set out in the judgment of Moffitt P.
The facts are set out in the draft judgment of Hardie J.A., adopted as his own and published by Moffitt P.

Judgment by:
Hope J.A.

I have had the advantage of reading the judgments of both Moffitt P. and Bowen C.J. in Eq. I agree with the conclusions of Bowen C.J. in Eq. as to the rights of the parties in respect of the land in dispute and with his reasons for those conclusions. I agree with the conclusions of Moffitt P. as to the joinder of the legal owner of the possessory title as a defendant in the suit and as to the making of the declaration that this defendant held his right title and interest in the land in trust for the plaintiff, and with the reasons of the learned President in respect of these matters. I further agree with the orders and declarations proposed by the learned President.

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