Bay Street Finance Pty Ltd v Rippon

[2013] NSWLEC 202

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bay Street Finance Pty Ltd v Rippon [2013] NSWLEC 202

Hearing dates:

28 November 2013

Decision date:

28 November 2013

Jurisdiction:

Class 2

Before:

Biscoe J

Decision:

(1) Pursuant to s 149B of the Civil Procedure Act 2005 these proceedings be transferred to the Supreme Court of New South Wales and, subject to any further order of the Supreme Court, be heard together with proceedings 2013/356753 commenced by the applicant against the respondents in the Supreme Court on 26 November 2013.

(2) These orders may be entered forthwith.

(3) Liberty to apply on three days notice.

Catchwords:

PRACTICE AND PROCEDURE - application for an order that proceedings for an extension of a caveat in relation to a water access licence under the Water Management Act 2000 be transferred to the Supreme Court and heard together with related proceedings.

Legislation Cited:

Civil Procedure Act 2005 s 149B
Water Management Act 2000 cl 6(3) Schedule 1A

Cases Cited:

Mueller v Austin [2010] NSWLEC 137

Category:

Principal judgment

Parties:

Bay Street Finance Pty Ltd (Applicant)
John Rippon (First Respondent)
Sheenah Rippon (Second Respondent)

Representation:

COUNSEL:
B Crowley, solicitor (Applicant)
N/A (Respondents)
SOLICITORS:
Esplins Solicitors (Applicant)
N/A (Respondents)

File Number(s):

20929/13

EX TEMPORE Judgment

1. The applicant seeks a consent order that these proceedings be transferred to the Supreme Court and be heard together with related proceedings in the Supreme Court, pursuant to s 149B of the Civil Procedure Act 2005. Sections 149B and 154 provide:

149B Transfer of proceedings between Supreme Court and Land and Environment Court

(1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court.

(2) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that:

(a) there are related proceedings pending in the other court, and

(b) it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court,

it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings.

(3) No appeal lies against a decision of the transferor court to make, or not to make, an order under this section.

154 Jurisdiction of transferee court

The transferee court has, and may exercise, all of the jurisdiction of the transferor court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings.

1. The applicant is Bay Street Finance Pty Ltd. The respondents are John Rippon and Sheenah Rippon. The applicant contends that under horse leasing agreements between the applicant as lessor and the respondents as guarantors of the lessee, it was entitled to file caveats over any properties owned by the respondents if there was default under the agreements, and that there was default. The applicant then lodged a number of caveats over the respondents' New South Wales properties. Two days ago, on 26 November 2013, the applicant commenced proceedings in the Supreme Court against the respondents seeking orders for the extension of some eight caveats over eight properties owned by the respondents. The Supreme Court proceedings are listed before the Equity Duty Judge tomorrow.

1. One of the caveats the subject of the Supreme Court proceedings is in respect of a water access licence under the Water Management Act 2000. The Land and Environment Court, but not the Supreme Court, has jurisdiction to extend the period of such a caveat: cl 6(3) Schedule 1A Water Management Act; Mueller v Austin [2010] NSWLEC 137 at [3], [6] per Biscoe J. Consequently, the applicant yesterday commenced proceedings in this Court, with which I am now dealing, for an order extending that caveat and (as indicated above) an order for transfer of the proceedings to the Supreme Court to be heard together with the related proceedings in the Supreme Court. The respondents have indicated that they consent to the proposed transfer order.

1. It appears, as the applicant submits, that the proceedings in each court arise from the same agreements, defaults and other facts, and raise the same issues.

1. Addressing the matters referred to in s 149B(2) of the Civil Procedure Act I am satisfied in relation to the proceedings in this Court that there are related proceedings pending in the Supreme Court, and that it is more appropriate for the proceedings in this Court to be heard in the Supreme Court together with the related proceedings in the Supreme Court.

1. The Court makes the following orders:

(1) By consent, pursuant to s 149B of the Civil Procedure Act 2005 these proceedings be transferred to the Supreme Court of New South Wales and, subject to any further order of the Supreme Court, be heard together with proceedings 2013/356753 commenced by the applicant against the respondents in the Supreme Court on 26 November 2013.

(2)   These orders may be entered forthwith.

(3)   Liberty to apply on three days notice.