Allen v Roughley

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Citation: Allen v Roughley [1955] 94 CLR

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 154-65 [2.75]


Background facts

  • In 1823, the Crown granted some land to James Turner. There are some missing documents, but eventually ended up in the hands of someone name Plunkett.
  • Plunkett mortgaged the land to a mortgagee, Hyland, and eventually, both of them sold the land to someone named Cusbert.
    • The chain of title between Plunkett and Hyland is unclear, but Cusbert came into possession.
  • In 1895, Cusbert died, leaving property to his eldest son William as a life-tenant, and after that, to the rest of his (Cusbert’s) children (ie, William's brothers and sisters). He appointed two trustees who died soon thereafter.
  • As a result, the executors appointed Roughley (another one of Cusbert's children, and therefore an heir) and Allen (who married Cusbert's daughter, and thus another heir) as trustees.
  • When William died in 1942, the trustees were to sell the land (as per the will) and divide the proceeds amongst the other children, ie, themselves.
  • Allen claimed the land for himself. Roughley is representing the other children.


  • Allen cited that:
    1. He had been in possession and use of the land since 1898, and therefore had adverse possession.
    2. Because of the missing documents, Cusbert had no proof of title and the ‘Plunkets’ land was not subject of his will.

Legal issues


Dixon CJ:

  • Cusbert gained rights based on mere possession. The fact that there are missing documents, or that he didn't occupy it for 20 years, don't mean that he doesn't have rights, only that his rights are a bit weaker.
  • Thus, despite its defects, Cusbert (and then Roughley's) title is still the best title until it is challenged by a superior title (for example, by documents showing that it is not so).
  • These rights can be passed in a will.
  • Allen is trying to make Roughley prove that he has proper title through documentation, but this is only required when a person is dispossessed by a trespasser. Rather, Roughley has rights based on possession, and even prior possession to Allen. Prior possession defeats later possession, and therefore Roughley's title (which came from Cusbert) beats Allen's.
  • All of the above is actually obiter, and was not used to decide the case (however, it is the main lesson from the case).
  • The case was decided on the basis of the trust relationship: as a trustee, Allen is estopped from denying title of the beneficiary Roughley.
  • Allen loses.

Fullagar J:

  • Unless someone becomes barred by statute or documentation, any form of prior possession allows him to bring an action in ejectment.


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