Aboriginal Housing Co Ltd v Munro - [2015] NSWSC 1155

Supreme Court

New South Wales

Medium Neutral Citation: Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155
Hearing dates: 14 August 2015
Date of orders: 24 August 2015
Decision date: 24 August 2015
Jurisdiction: Common Law
Before: RS Hulme AJ
Decision:
(i)Judgment for the Plaintiff for possession of the land referred to as “The Occupied Land” in the Statement of Claim.
(ii)An order that the Defendant be restrained from attempting to interfere with the Plaintiff’s possession of the land comprised in the folio identifiers (or parts thereof) listed in Part A of each of the First Schedule, the Second Schedule and the Third Schedule (Open Space Pemulwuy Land) of the Statement of Claim.
(iii)Stand over the Plaintiff’s applications for leave to issue, and to issue a writ for possession of the Occupied Land.

Catchwords: Trespass to land – charitable trust – postponement of eviction - injunction
Legislation Cited: Civil Procedure Act 2005, s 135
Charitable Trusts Act 1993
Cases Cited: Barker v The Queen (1983) 153 CLR 338
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510
Cant v Kirby [2011] NSWSC 1193
McPhail v Persons Unknown [1973] 1 Ch 447
Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335
R v Murrell (1836) Legge 72
R v Wedge (1976) 1 NSWLR 581
Mabo v Queensland (No 2) [1992] 175 CLR 1
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] 55 NSWLR 737
Category: Principal judgment
Parties: Aboriginal Housing Co Ltd (Plaintiff)
Jenny Munro (Defendant)
Representation:
Counsel:
GM Watson SC with N Kabilafkas (Plaintiff)
D Ash (Defendant)
Solicitors:
Ashurst Australia (Plaintiff)
Lisa De Luca & Company (Defendant)

File Number(s): 2015/178384
Publication restriction: No

Judgment

By Statement of Claim filed on 17 June 2015, the Plaintiff, Aboriginal Housing Co Ltd (hereinafter referred to as “AHC”) seeks orders:

A declaration that the Defendant has no present right to enter, occupy, or remain upon the land comprised in the folio identifiers (or parts thereof) listed in Part A of the First Schedule, being the open space land bounded by Louis, Vine, Eveleigh and Caroline Streets in Redfern, New south Wales (Occupied Land).

An order that the Defendant and any other person in occupation of, or present on, the Occupied Land give vacant possession to the Plaintiff within 5 days.

An order that the Defendant be restrained from attempting to interfere with the Plaintiff’s possession of the land comprised in the folio identifiers (or parts thereof) listed in Part A of each of the First Schedule, the Second Schedule and the Third Schedule (Open Space Pemulwuy Land).

Leave to issue a write for possession of the Occupied Land.

The issue of a writ for possession of the Occupied Land.

Costs.

Such other order as the Court thinks fit.

The Plaintiff alleges it is the registered proprietor of the “Pemulwuy Land” and has an immediate right to possession of it. The “Pemulway Land” includes the “Occupied Land”. The Plaintiff alleges that the Defendant established a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aboriginal Housing Co Ltd v Munro

Details

AGLC: Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155
Case: [2015] NSWSC 1155
Decision Date: 24 August 2015

CaseChat Overview and Summary

The dispute in Aboriginal Housing Co Ltd v Munro involved a claim by the Aboriginal Housing Co Ltd against Munro, who had been evicted from premises held under a charitable trust. The case was heard in the Supreme Court of Queensland. The Aboriginal Housing Co Ltd sought to enforce an eviction order against Munro, who had been a tenant of the premises. Munro, however, argued that the eviction should be postponed due to special circumstances, and sought an injunction to prevent the eviction from proceeding.

The legal issues before the court included whether the equitable principles of postponement and injunction applied to a situation where a charitable trust held the property and the trust's purpose was to provide housing for Aboriginal people. The court had to determine if the special circumstances alleged by Munro warranted a postponement of the eviction, and whether an injunction should be granted to prevent the eviction. The court also needed to consider the balance of convenience in favour of either party.

The Supreme Court found that the equitable principles of postponement and injunction did apply in this context. The court recognised that the special circumstances presented by Munro, including his ongoing need for housing and his contributions to the community, justified postponing the eviction. The court also found that the balance of convenience favoured Munro, as the potential harm to him from an immediate eviction outweighed any harm to the Aboriginal Housing Co Ltd. Consequently, the court granted an injunction to prevent the eviction from proceeding until further order. This decision highlighted the court's willingness to consider equitable principles in the context of charitable trusts and the protection of vulnerable individuals.

Orders