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Payne v Dwyer [2013] WASC 271

Supreme Court of Western Australia

In most cases adverse possession allows a party to take sole ownership of a property given that the party maintains exclusive possession for a given time frame. This case, however, shows instances where exclusive possession of the property over which an additional mineral interest was formed, was not sufficient to provide adverse possession over the mineral interest itself.


This case has quite a narrow scope for application as the facts and the resulting decision are sufficiently unfamiliar with the usual facts of adverse possession cases. In this case, the two parties were co-owners of an interest over minerals on a property – of which one party had an interest over the land. The party who had freehold interest over the land excavated the minerals and extracted them alone for a significant number of years and therefore claimed that there was adverse possession to hold exclusive interest over the minerals.

At Court

Under Western Australian legislation, a party must have been in ‘actual possession’ of the land to constitute sufficient title by adverse possession. Actual possession, as interpreted by the court, is to require both factual possession (or physical possession) and the intention to possess. Intention to possess being that the party shows an intention to exercise exclusive control on their own behalf and for their own sole benefit.

In light of the facts of the case, the court found that the party claiming adverse possession did not meet the requirements of actual possession as the removal of the minerals from the property did not fulfil the requirements needed. The judge found that the minerals, being a part of the land, were not part of the mineral interest until they were extracted and independent from the land, to which the party did not maintain an actual possession over the minerals thereafter.

The judge found that the extraction alone was not sufficient “so as to exercise some control over the minerals which was greater than that embodied in the ownership of [the Lot] itself”. Hence, the court held there to be no adverse possession.

If you would like to discuss this case further, you should contact our commercial  team at Matthews Folbigg on 9635 7966.

Anna Zdrilic

Director, Property and Commercial Groups

Phone:  02 9806 7425


DISCLAIMER: This article is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant law.