[Home] [Databases] [WorldLII] [Search] [Feedback] Supreme Court of New South Wales

You are here: 

Giuseppe Bonifacio v NSW Trustee and Guardian acting as executor of the Estate of the late Adam Frank Woitala [2015] NSWSC 124 (27 February 2015)

Last Updated: 2 March 2015

Case Name:	Giuseppe Bonifacio v NSW Trustee and Guardian acting as executor of the Estate of the late Adam Frank Woitala
Medium Neutral Citation:	[2015] NSWSC 124
Hearing Date(s):	5 February 2015
Date of Orders:	27 February 2015
Decision Date:	27 February 2015
Jurisdiction:	Equity Division
Before:	Darke J
Decision:	Plaintiffs’ action not maintainable due to operation of Limitation Act 1969 (NSW).
Catchwords:	LIMITATION OF ACTIONS – land held in co-ownership – co-owner fraudulently procures transfer to himself of co-owner’s interest – transfer registered in 1995 – by 1998 defrauded party aware of fraud – proceedings not commenced until 2013 – cause of action for recovery of land – whether cause of action does not accrue until fraudster is in adverse possession – whether fraudster in adverse possession – Limitation Act 1969 ss 27, 38, 47
Legislation Cited:	Limitation Act 1938 (UK) s 10(1) Limitation Act 1969 (NSW) ss 27(2),  38 , 47 Real Property Act 1900 (NSW) ss 118(1)(d), 138 Real Property Limitation Act 1833 (3 & 4 Will 4, c 27)
Cases Cited:	Breskvar and Another v Wall and Others [1971] HCA 70; (1971) 126 CLR 376 Chan v Cresdon [1989] HCA 63; (1989) 168 CLR 242 J A Pye (Oxford) Limited v Graham [2002] UKHL 30; [2003] 1 AC 419 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 Orr v Ford [1989] HCA 4; (1989) 167 CLR 316 Paradise Beach Transportation Co Ltd v Price-Robinson [1968] AC 1072 Webeck v Foley [1992] NSW Conv R 59, 717; (1992) 5 BPR 11, 694 Weber v Ankin [2008] NSWSC 106
Texts Cited:	Peter Butt, Land Law, (6th ed 2010, Thomson Reuters
Category:	Principal judgment
Parties:	Giuseppe Bonifacio (first plaintiff) Eva Bonifacio (second plaintiff) NSW Trustee and Guardian acting as executor of the Estate of the late Adam Frank Woitala (first defendant) Registrar-General of NSW (second defendant)
Representation:	Counsel: Mr R Lovas (plaintiffs) Mr J E Thomson (first defendant) Solicitors: Fordham Lawyers (plaintiffs) Ms P A Keith (first defendant) Land and Property Information, Legal Services (second defendant)
File Number(s):	2013/377112
Publication Restriction:	Nil.

JUDGMENT

Introduction

1. By their Amended Statement of Claim the plaintiffs, Mr Giuseppe Bonifacio and Mrs Eva Bonifacio, seek a declaration that the first defendant, New South Wales Trustee and Guardian as executor of the Estate of the late Mr Adam Woitala, holds a one half interest in a property in Greene Avenue, Ryde on a constructive trust for them. It is alleged that the constructive trust arose in 1995 when Mr Woitala fraudulently registered a transfer to himself of the plaintiffs' interest in the property. The plaintiffs also seek an order that the second defendant, the Registrar-General, amend the Real Property Act Register to restore the plaintiffs' interest in the property upon the title. The Registrar-General has filed a submitting appearance, submitting to any order save as to costs.
2. The first defendant, for whom Mr J E Thomson of Counsel appeared, ultimately did not seek to challenge the contention that the 1995 transfer was fraudulently procured by Mr Woitala. However, the first defendant opposed the relief sought, primarily on the ground that the plaintiffs' causes of action are statute barred. In that regard, it was common ground that the plaintiffs had become aware of the fraud by no later than 13 February 1998. The proceedings were not commenced until 16 December 2013, more than 15 years later, and after Adam Woitala's death.

Salient facts

3. Mr Zygmunt Woitala and his wife Anna Woitala came to Australia in about 1949, with their daughter Eva, the second plaintiff. The family settled in Newcastle. Mr and Mrs Woitala had two more children, Sigmund and then Adam.
4. Eva Woitala married Giuseppe Bonifacio in 1968. By 1975, the couple were living in a rented two bedroom flat in Lakemba with their young son Anthony. Adam Woitala was still living in Newcastle. At about that time, as a consequence of some trouble Adam Woitala found himself in with the police, Mr and Mrs Woitala arranged for him to leave Newcastle and live with the Bonifacios in Lakemba. According to Mr Bonifacio, Mrs Woitala begged Mrs Bonfacio to take Adam under her control.
5. The Bonifacios agreed to take Adam in. However, the small flat in Lakemba proved unsuitable for four people. Mr and Mrs Woitala then decided to buy a house in which Adam and his sister's family could live together. They chose the property in Greene Avenue, Ryde.
6. The property was purchased in early 1975 for $36,000. The contract for sale was not in evidence. Nonetheless, it appears that a deposit of about $13,000 was paid by Mrs Woitala and the balance of the purchase price was contributed by Mr and Mrs Bonifacio and Adam Woitala who together borrowed $24,000 from the Commonwealth Savings Bank. Upon settlement of the purchase, the property was transferred to Mr and Mrs Bonifacio as joint tenants as to one half and Adam Woitala as to the other half. The respective one half interests were held as tenants in common. There was a registered mortgage in favour of the Commonwealth Savings Bank.
7. The Bonifacio family and Adam Woitala commenced living together at the property. At some stage, an arrangement was put in place, seemingly at the instigation of Mrs Bonifacio, whereby the Bonifacio family would pay three quarters of the outgoings of the property (such as rates and utility bills) with Adam Woitala to pay the remaining one quarter. The arrangement may have extended to the mortgage repayments, but the evidence is not clear about that.
8. For a time, Adam Woitala was unemployed and not able to pay his share of the expenses. Mr Bonifacio helped him to find a job as a waiter. After that, Adam Woitala did pay his share of expenses, but according to Mrs Bonifacio he did not pull his weight in relation to household chores and maintenance, and this led to tension. Eventually, Mr and Mrs Bonifacio decided they could no longer live with Adam Woitala, and the Bonifacios moved to South Australia. This occurred in 1979.
9. Later that year the Bonifacios borrowed money to purchase a block of land in South Australia, and they subsequently built a home on the land. After the Bonifacios moved to South Australia, they made little or no financial contribution towards the expenses of the property. The evidence is scant, but as far as it goes it suggests that, at least for a time, Mrs Woitala provided the funds for most, if not all, of those expenses.
10. Mrs Bonifacio says that Adam Woitala lost his job due to dishonesty, spent some time in gaol, and later could not find employment. She deposed that their mother gave him money to pay the mortgage and other bills. She also deposed that their mother later told her that she had advanced Adam money to pay the rest of the mortgage off. However, in cross-examination, Mrs Bonifacio maintained, and I accept, that her mother did not say that she had advanced money to Adam, or that she had paid the mortgage off for Adam or on his behalf; rather, she had merely said that she had paid off the mortgage, or had given Adam the money to pay off the mortgage.
11. In any event, the mortgage was discharged in April 1980. The certificate of title remained in the custody of the Commonwealth Bank. Adam Woitala continued to reside at the property. According to Mrs Bonifacio, when she and her family visited the property in the mid-1980s, it was apparent that her brother had not been adequately cleaning and maintaining the property.
12. In about the late 1980s, Mrs Bonifacio was informed by a representative of the Commonwealth Bank that her brother wanted to obtain custody of the title deed to the property. Mrs Bonifacio says that she told the representative that she could not trust her brother and that the deed should remain with the bank. Mrs Bonifacio further says that her mother had earlier told her that it was best to leave the deed with the bank.
13. In the years that followed the Bonifacios' move to South Australia, Mrs Bonifacio and Adam Woitala maintained occasional contact through telephone calls or letters. Mrs Bonifacio agreed that her brother "might have mentioned a few times" that he wanted the property to be transferred into his name alone. She says that her parents had told her not to do that. Mrs Bonifacio did not accept that there was quite a lengthy history of disagreement between her brother and herself concerning the title or that the matter was a bone of contention between them. In any case, Adam Woitala's suggestion was evidently not met with approval.
14. On about 13 January 1994, Mrs Bonifacio received a letter from her brother which was in the following terms:

"Dear Eva,

This is to inform you and your dog husband that I will be transferring deed transfer to myself and paying the $3000.00 costs of stamp duty etc myself, when I can.

All the best. No hard feelings.

Adam"

15. There is no evidence of what response, if any, was made to that letter.
16. Mrs Bonifacio received a further letter on about 7 May 1994. This letter was in the following terms:

"Dear Eva and Joey,

As soon as I get the money together I will transfer your names out of my life. Off the deed to here. This is just to let you know so you don't worry that things are bad for me and not your fault.

All the best,

Adam"

17. Again, there is no evidence of what response, if any, was made.
18. Mrs Woitala died in May 1995. In about June 1995, a form of transfer was prepared whereby the interest of the Bonifacios in the property was to be transferred to Adam Woitala. The transfer form includes signatures purporting to be those of Mr and Mrs Bonifacios as transferees. They claim, and the first defendant accepts, that the signatures were not genuine. The first defendant further accepts that Adam Woitala used the transfer form to fraudulently procure the transfer in his favour.
19. The form of transfer includes a stamp that indicates that Adam Woitala had managed to procure the certificate of title for the purpose of the dealing. A new certificate of title, showing Adam Woitala alone as the registered proprietor, was issued on 24 July 1995. This was apparently kept by Adam Woitala at the property. It was found there by Mrs Bonifacio after his death.
20. By September 1997, Mr Woitala senior was living with the Bonifacios in South Australia. On about 30 September 1997, Adam Woitala sent a letter to his father at that address. The reverse side of the envelope contained the following handwriting:

"PS:- Dad, the deed is signed over into my name only."

21. Mrs Bonifacio accepted that she saw the envelope, including the postscript, within a few days of 30 September 1997. She says that she was not sure whether her brother had really effected a transfer into his name. It was decided to consult a solicitor in order to ascertain the position.
22. The Bonifacios engaged Mr John Fordham, solicitor, for that purpose. On 13 February 1998, Mr Fordham sent a letter to Adam Woitala in the following terms:

"I act on behalf of Mr & Mrs Giuseppe and Eva Bonifacio.

My client's have instructed me in relation to the property at 1 Greene Avenue, Ryde and I enclose a copy of the Transfer of that property from their names into your name which appears to have been prepared and lodged at the Land Titles Office.

My instructions are that my client's signatures are not there and the signature of the witness would also not appear to be bona fide.

You will appreciate that this is a most serious matter and I would appreciate hearing from you at an early date as to an explanation of the purported transfer."

23. Adam Woitala did not respond to the letter. Mr Fordham contacted the police in relation to the matter in June 1998.
24. Mr Woitala senior died in July 1998. When Mr and Mrs Bonifacio were in Sydney for the funeral, they provided information to the police, including specimen signatures. However, it appears that Adam Woitala avoided speaking to the investigating police. By July 1999, the investigation had ceased.
25. Mr Fordham suggested to Mrs Bonifacio that a civil claim be pursued, although he noted that to do so would be expensive. Mr R Lovas of Counsel, who appeared for the plaintiffs, conceded that such a suggestion had been made by 13 February 1998, but the evidence on this point was unclear. I would infer, based on the structure of the narrative contained in Mrs Bonifacio's affidavit, that it is likely that the suggestion was made in 1998 after the police had unsuccessfully attempted to speak to Adam Woitala at the property.
26. When the Bonifacios returned home to South Australia following Mr Woitala's funeral, contact between Mrs Bonifacio and Adam Woitala became less frequent. Mrs Bonifacio deposed, and I accept, that she asked her brother to "change the fraud" but he refused. She also deposed, and I also accept, that Adam Woitala would say:

"It is my house. That is it."

27. The evidence is again unclear as to when such discussions took place. However, Mrs Bonifacio's narrative suggests that they are likely to have occurred not long after the return to South Australia.
28. Despite the evidence of Adam Woitala's firmly expressed attitude, Mrs Bonifacio deposed in a further affidavit that Adam Woitala "never indicated to me that he was excluding me from using or possessing the House (together with him) if I had ever wanted to." In the absence of any evidence of some discussion about Mrs Bonifacio coming back to live at the property, I am not prepared to place any weight on upon that evidence.
29. However, I do accept the evidence of Mrs Bonifacio that Adam Woitala did not change the locks or ask her or her husband to return their keys. Those keys were nonetheless thrown away by the Bonifacios as part of a general house clean-up.
30. For various reasons, the plaintiffs did not institute proceedings against Adam Woitala. Mrs Bonifacio says that she thought that he might change his mind. She also hoped that, in some way, she and her husband would get the property back after Adam Woitala died. Mr Bonifacio had a similar hope.
31. On occasions, Mr and Mrs Bonifacio visited Adam Woitala at the property and were invited in. One such occasion was in 2011 after Adam Woitala was diagnosed with cancer.
32. Adam Woitala died on 21 August 2012. He had been in Concord Hospital, suffering from the cancer.
33. On 2 August 2012, he made a will appointing the first defendant as executor, and giving all of his estate to his friend Sonia Khatri (provided she survived him). It appears from an earlier will made by Adam Woitala in May 2012 that Sonia Khatri was a nurse at the hospital.
34. After Adam Woitala's death, Mrs Bonifacio obtained a key to the property from her brother Sigmund. Mrs Bonifacio believes that Sigmund obtained the key from Adam. Mrs Bonifacio went inside the house and thereupon found the Certificate of Title to the property. She gave it to Mr Fordham. Mr and Mrs Bonifacio lodged a caveat claiming an interest as joint tenant of a one half share by virtue of the fraud committed by Adam Woitala. Adam Woitala is still shown as the registered proprietor of the property.

Submissions

35. Mr Lovas submitted that a case had clearly been made out that Adam Woitala had fraudulently registered the forged transfer in 1995 and that he henceforth held a one half interest in the property as a constructive trustee for the plaintiffs. It was submitted that in these circumstances the plaintiffs obtained personal equitable rights against Adam Woitala which were not defeated by the indefeasibility provisions of the Real Property Act, and as such they could seek orders to have the Register amended to recognise their title.
36. So much was essentially conceded by Mr Thomson. Mr Thomson submitted, however, that the plaintiffs' claims were defeated by the operation of the provisions of the Limitation Act 1969 (NSW) ("the Act"), or else by laches. The submissions of the parties were focused upon these issues.
37. In relation to the Act, Mr Thomson submitted that following the registration of the fraudulent transfer, the plaintiffs were entitled to take action against Adam Woitala to recover their land (see s 118(1)(d) Real Property Act 1900 (NSW)), and have the Register amended accordingly (see s 138 of the Real Property Act). Such a claim is regarded as having an equitable character (see Breskvar and Another v Wall and Others [1971] HCA 70; (1971) 126 CLR 376 at 387 per Barwick CJ, 400 per Windeyer J and 408 per Walsh J). It was then submitted that s 27(2) of the Act (which, by reason of s 36 of the Act, covers causes of action to enforce equitable estates or interests in land) imposes a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff. In this case, that would be when the forged transfer was registered in 1995. Mr Thomson accepted that where, as here, fraud is involved, the period before which the plaintiff first discovers (or may with reasonable diligence discover) the fraud, does not count in the reckoning of the limitation period. However, as the plaintiffs were aware of Adam Woitala's fraud by no later than 13 February 1998, it was submitted that the twelve year limitation period ran from at least that date and had expired by 13 February 2010.
38. Mr Thomson further submitted that if the plaintiffs' action is characterised as one on a cause of action to recover trust property, the same result would follow because s 47 of the Act would operate to impose a limitation period of twelve years running from the date on which the plaintiff first discovers (or may with reasonable diligence discover) the facts giving rise to the cause of action and that the cause of action has accrued.
39. Mr Lovas, in response, referred to  s 38  of the Act.  Section 38  relevantly provides:

"(1) Where, on the date on which, under this Act, a cause of action would, but for this section, accrue, the land is not in adverse possession, the accrual is postponed so that the cause of action does not accrue until the date on which the land is first in adverse possession.

[...]

(4) For the purposes of this section:

(a) adverse possession is possession by a person in whose favour the limitation period can run,

(b) possession of land subject to a rentcharge by a person who does not pay the rent is possession by the person of the rentcharge, and

(c) in a case to which section 33 applies, receipt of the rent by a person wrongfully claiming to be entitled to the land subject to the lease is, as against the landlord, adverse possession of the land.

(5) Where land is held by joint tenants or tenants in common, possession by a tenant of more than his or her share, not for the benefit of the other tenant, is, as against the other tenant, adverse possession."

40. Mr Lovas submitted that the accrual of the cause of action to recover land was postponed until the land was first in adverse possession; that is, possession which is open, not secret; peaceful, not by force; and adverse, not by consent of the true owner (as described by Bowen CJ in Eq. sitting in the Court of Appeal in Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475). Mr Lovas submitted that this was not shown to have occurred while Adam Woitala was alive. He accepted that Adam Woitala's possession following the fraud was open and peaceful. However, it was contended that the possession was not adverse because it was consented to by the plaintiffs.
41. Mr Lovas also submitted that Adam Woitala's possession could be regarded as being for the benefit of the plaintiffs, and thus not adverse possession within  nsw/consol_act/la1969133/s38 .html" class="autolink_findacts">s 38(5) of the Act, primarily because it relieved them of having to pay outgoings in respect of the property. It was suggested that, in effect, the plaintiffs thereby "received an occupation fee in kind".
42. Mr Lovas further submitted that the plaintiffs' action could be characterised as one for breach of trust, and there was no breach of the trust while Adam Woitala was alive. It was suggested that there was no breach until the claimed constructive trust was denied by the first defendant.
43. Mr Thomson countered that  s 38  of the Act did not apply in this case because:
    • (1) the section only applies to a cause of action for recovery of land that depends upon proof of adverse possession, and that was not the case here; or
    • (2) the section only applies to causes of action that accrue under the "accrual sections" of the Act, those being ss 28 to 35.
44. Mr Thomson further submitted that even if  s 38  applied, Adam Woitala's possession was adverse to the plaintiffs, and fell within  s 38(5)  of the Act.
45. Finally, Mr Thomson submitted in the alternative that the plaintiffs' claim to relief should be denied due to laches. It was put that the delay in the commencement of proceedings until after Adam Woitala's death meant that his evidence about the circumstances in which he claimed the right to become the sole owner of the property was not available. It was put that the first defendant was prejudiced by not being able to properly investigate the arrangements within the family concerning the ownership of the property. Mr Lovas, referring to Orr v Ford [1989] HCA 4; (1989) 167 CLR 316 at 330-331, submitted that in all the circumstances the suggested loss of evidence concerning a family arrangement was "entirely suppositional" and thus no forensic prejudice was established.

Determination

46. In my opinion, the plaintiffs' action may be characterised as either an action on a cause of action to recover land within the meaning of s 27(1) of the Act, or an action on a cause of action to recover trust property within the meaning of s 47(1)(c) of the Act. I do not think that the action ought be regarded as an action in respect of a breach of trust. The plaintiffs' Amended Statement of Claim contains no allegation of a breach of trust. Rather, it is contended that the fraudulent conduct of Adam Woitala in 1995 has the consequence that a one half interest in the property became held by him (and is now held by the first defendant) as a constructive trustee for the plaintiffs.
47. The plaintiffs' cause of action to recover land is one that is based on fraud. Accordingly, the relevant limitation period fixed by or under the Act for the cause of action does not commence to run until the plaintiff first discovers, or may with reasonable diligence discover, the fraud (see s 55(1) of the Act). In this case, the plaintiffs had discovered the fraud by no later than 13 February 1998. It follows that if any limitation period would have otherwise commenced to run in respect of the cause of action, the commencement is postponed to no later than 13 February 1998.
48. Section 27(2) of the Act, which applies generally to causes of action to recover land other than when brought by the Crown, provides for the limitation period in respect of the cause of action to commence from the date on which the cause of action first accrues to the plaintiffs. Subsequent sections (ss 28 to 35 of the Act) provide that, in particular circumstances, a cause of action to recover land accrues on a certain date. These provisions, which in my view are not exhaustive (cf. Paradise Beach Transportation Co Ltd v Price-Robinson [1968] AC 1072 at 1085D), do not seem to have application to the cause of action in this case. Mr Lovas did not suggest that any of those sections applied. The cause of action is based upon Adam Woitala's conduct in procuring registration of the fraudulent transfer in 1995. It seems to me that the cause of action to recover the land lost as a result of the fraud must be taken to have first accrued to the plaintiffs when registration of the transfer took place. Leaving aside the possible operation of  s 38  of the Act, the twelve year limitation period set by s 27(2) of the Act, as affected by s 55(1), would have commenced running by 13 February 1998 and would have expired before the commencement of these proceedings.
49. However, if  s 38  of the Act applies, there would be a postponement of the accrual of the cause of action until the date on which the land is first in adverse possession. For the purposes of  s 38 , which is based upon s 10(1) of the Limitation Act 1938 (UK) (see Report of the Law Reform Commission on Limitation of Actions, October 1967, Appendix C at paragraph 188), adverse possession is "possession by a person in whose favour the limitation period can run" (see s 38(4)(a) of the Act).
50. In J A Pye (Oxford) Limited v Graham [2002] UKHL 30; [2003] 1 AC 419, Lord Browne-Wilkinson noted that although upon the passing of the Real Property Limitation Act 1833 (3 & 4 Will 4, c 27) the traditional notion of adverse possession was done away with, the phrase "adverse possession" was reintroduced by the Limitation Act 1939 (UK). His Lordship stated (at [35]-[36]):

"From 1833 onwards, therefore, old notions of adverse possession, disseisin or ouster from possession should not have formed part of judicial decisions. From 1833 onwards the only question was whether the squatter had been in possession in the ordinary sense of the word. That is still the law, as Slade J rightly said. After 1833 the phrase "adverse possession" did not appear in the statutes until, to my mind unfortunately, it was reintroduced by the Limitation Act 1939, section 10 of which is in virtually the same words as paragraph 8(1) of Schedule 1 to the 1980 Act. In my judgment the references to "adverse possession" in the 1939 and 1980 Acts did not reintroduce by a side wind after over 100 years the old notions of adverse possession in force before 1833. Paragraph 8(1) of Schedule 1 to the 1980 Act defines what is meant by adverse possession in that paragraph as being the case where land is in the possession of a person in whose favour time "can run". It is directed not to the nature of the possession but to the capacity of the squatter. [...]

[...] In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner. [...]"

(see also Lord Hope of Craighead at [69]-[71]).

51. Lord Browne-Wilkinson continued (at [40]):

"In Powell's case 38 P & CR 470 Slade J said, at p 470:

"(1) 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 as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')."

Counsel for both parties criticised this definition as being unhelpful since it used the word being defined- possession- in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess"). What is crucial is to understand that, without the requisite intention, in law there can be no possession. [...]"

52. Similarly in New South Wales, the concept of adverse possession has been treated, in the context of the extinguishment of title, as requiring both actual possession and an intention to possess (see, for example, Weber v Ankin [2008] NSWSC 106 at [103] per White J; Bridges v Bridges [2010] NSWSC 1287 at [14]- [16] per Tamberlin AJ; Peter Butt, Land Law, (6th ed 2010, Thomson Reuters) at [22 13]-[22 18].) Further, as noted earlier, the possession must be open, peaceful and not by the consent of the true owner (see Mulcahy v Curramore Pty Ltd (supra); Webeck v Foley [1992] NSW Conv R 59, 717; (1992) 5 BPR 11, 694).
53. I have some doubt that s 38 is applicable in the present case. It operates only in respect of "the date on which, under this Act, a cause of action would, but for this section, accrue". Read literally, it operates only in circumstances where the date of accrual is provided for or determined under the Act itself, as is the case with causes of action falling within ss 28 to 35 (cf. Chan v Cresdon [1989] HCA 63; (1989) 168 CLR 242 at 249). I am inclined to think that where the date of accrual is not provided for or determined under the Act itself, but is determined outside the Act, s 38 does not apply.
54. Certainly, where the cause of action is one brought by a person deprived of land by a fraud, as envisaged by s 118(1)(d) of the Real Property Act, there is little reason to conclude that factual possession of the land by the wrongdoer should be required before the cause of action is taken to accrue and time commences to run for limitation purposes. In such cases, the person wrongfully deprived of land obtains the benefit of the provisions of the Act that operate to prevent the running of time until the deprived party discovers, or ought reasonably discover, the relevant facts (see s 55(1) of the Act). Once the deprived party is in possession of the relevant facts, there is no good reason why time should not commence to run for limitation purposes, regardless of whether the fraudster is actually in possession of the land. The victim would be entitled to take proceedings against the fraudster, even if the fraudster was not actually in possession of the land.
55. Nevertheless, it is not necessary to express a concluded view concerning the applicability of s 38. Even if the section applies, it is my opinion that Adam Woitala was from at least the end of 1998 in adverse possession of the whole of the property.
56. By 1994, Adam Woitala had been living alone at the unencumbered property for many years. He began agitating for the plaintiffs to transfer their interest in the property to him. In the face of either resistance, or a lack of agreement, to that course, Adam Woitala openly informed the plaintiffs that he intended to somehow effect such a transfer himself. In his letter of 7 May 1994, he stated plainly that he intended to "transfer your names out of my life". In July 1995 Adam Woitala made good on his threat, and became recorded on the Register as the sole registered proprietor. By October 1997, he had effectively made the plaintiffs aware of what he had done.
57. In 1998, Adam Woitala did not reply to Mr Fordham's letter concerning the matter, and avoided speaking to the police. He also refused Mrs Bonifacio's request that he "change the fraud", and emphatically stated that the house was his.
58. In summary, Adam Woitala took action to become the sole registered proprietor of the property. He thereby assumed the status of the person apparently entitled to possession. When challenged in 1998 about what he had done, he maintained his position and positively asserted to Mrs Bonifacio that he owned the house. He thereafter remained in possession. His later actions in inviting Mr and Mrs Bonifacio inside the house when they visited are in no way inconsistent with his assertion of ownership. Neither do I think that his failure to change the locks or request the return of keys leads to the conclusion that his possession should not be viewed as adverse.
59. I am unable to accept the submission that Adam Woitala's possession was not adverse because it was consented to by the plaintiffs. Mrs Bonifacio deposed that she had never told her brother that he had her permission to live in the house. The plaintiffs, by taking the matter up with Adam Woitala, and involving the police, showed that they did not give their consent to what had occurred. It is true that after 1998 the plaintiffs took no further action in opposition to the stance taken by Adam Woitala. However, this cannot in my view be equated to the giving of consent such as would render his possession other than adverse.
60. Neither do I accept the submission that Adam Woitala's possession of the property was in some way for the benefit of the plaintiffs. In particular, I do not think it can be said that the plaintiffs benefited because they were relieved of obligations in relation to outgoings, and thus "received an occupation fee in kind". There was no arrangement between Mr and Mrs Bonifacio and Adam Woitala in relation to Adam Woitala's occupation. In circumstances where Adam Woitala was asserting that he alone was the owner of the property, his possession after he became the registered proprietor cannot sensibly be regarded as for the benefit of the Bonifacios (see Paradise Beach Transportation Co Ltd v Price-Robinson (supra) at 1085A-B).
61. For these reasons, even if s 38 applied in this case, it would not operate to postpone the accrual of the cause of action to recover land to any date after the end of 1998.
62. In circumstances where the cause of action to recover land had accrued by the end of 1998, and the plaintiffs had by then discovered the fraud, the twelve year limitation period provided for by s 27(2) of the Act had commenced running by the end of 1998 and would have expired by the end of 2010. An action on the cause of action is thus not maintainable in these proceedings, which were not brought until December 2013.
63. The plaintiffs are in no better position in relation to the cause of action to recover trust property. By s 47(1) of the Act, an action on such a cause of action is not maintainable if brought after the later to expire of:
    • (1) a limitation period of twelve years running from the date on which the plaintiff first discovers or may with reasonable diligence discover the facts giving rise to the cause of action and that the cause of action has accrued; and
    • (2) the limitation period for the cause of action fixed by or under any other provision of the Act.
64. In this case, the plaintiffs discovered the facts giving rise to the cause of action by no later than 13 February 1998, and Mrs Bonifacio was told in 1998 by the solicitor retained by her and her husband that a civil claim against Adam Woitala could be pursued. In my view, unless there was a later expiring limitation period for the cause of action fixed by or under the Act (and there does not appear to be one), a limitation period of twelve years would have commenced running by the end of 1998 and expired by the end of 2010. Again, an action on the cause of action is not maintainable in these proceedings.
65. I therefore conclude that the plaintiffs' claims for relief must be refused. It is not necessary, in these circumstances, to consider the laches defence.

The Amended Statement of Claim should be dismissed. Orders should also be made for the removal of the plaintiffs' caveat, and delivery of the Certificate of Title to the first defendant. Costs should follow the event. I direct that, within fourteen days, the parties bring in Short Minutes to give effect to these reasons.

**********