Boensch v Transport for NSW - [2024] NSWCA 119

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Boensch v Transport for NSW [2024] NSWCA 119
Hearing dates: 26 April 2024
Date of orders: 21 May 2024
Decision date: 21 May 2024
Before: Meagher JA at [1];
Payne JA at [62];
Basten AJA at [63]
Decision:
(1)   Extend the time for the filing of Mr Boensch’s Summons Seeking Leave to Appeal to 26 April 2024.
(2)   Grant leave to Mr Boensch to appeal from Order (1) made by the Land and Environment Court on 28 July 2023, but only on the following grounds:
(a) that Mr Boensch had no right of appeal under s 135J of the Real Property Act 1900 (NSW) against the Registrar-General’s refusal under s 135D(2) to make a boundary determination; and
(b)   that the time for commencing an appeal against the Registrar-General’s earlier 1996 boundary determination had expired, the Court having no power to extend, vary or waive that time period.
(3)   Otherwise dismiss the Summons Seeking Leave to Appeal filed on 26 April 2024.
(4)   Dismiss Mr Boensch’s appeal with respect to the grounds in Order (2)(a) and (b) above.
(5)   Otherwise dismiss the Further Amended Notice of Appeal dated 23 April 2024 and filed on 26 April 2024.
(6)   Order Mr Boensch pay the costs of the respondents of the application for leave to appeal and of the appeal.

Catchwords:
APPEALS – leave to appeal – interlocutory order dismissing Land and Environment Court Class 3 proceedings – leave to appeal required under s 57(4) of the Land and Environment Court Act 1979 (NSW) – where two of many proposed grounds raise questions of statutory construction, one of general application – leave granted in relation to those grounds
LAND LAW – water boundary dispute – application for boundary determination made to Registrar-General under Pt 14A of Real Property Act 1900 (NSW) – application refused under s 135D(2) – whether right of appeal under s 135J(1) from a “determination” made under Pt 14A extends to a refusal to make a determination
LAND LAW – water boundary dispute – where appeal filed in October 2022 from a boundary determination made under Pt 14A of Real Property Act in 1996– where s 135J(3) required “appeal” to be made within 28 days of notice of determination – where Land and Environment Court Rules 2007 (NSW), rr 7.1 and 7.3 do not provide for extension, variation or waiving of that requirement – where by Uniform Civil Procedure Rules 2005 (NSW), r 1.7 and Sch 2 those “local rules” prevail – appeal out of time and incompetent

Legislation Cited:
Coastal Management Act 2016 (NSW), s 28
Coastal Protection Act 1979 (NSW), s 55N
Encroachment of Buildings Act 1922 (NSW), s 9
Land and Environment Court Act 1979 (NSW), ss 19, 39, 57
Land and Environment Court Rules 2007 (NSW), rr 7.1, 7.3
Land and Property Information NSW (Authorised Transaction) Act 2016 (NSW)
Limitation Act 1969 (NSW), s 55
Real Property Act 1900 (NSW), ss 121, 122, Pt 14A

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.

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Details

Case: [2024] NSWCA 119
Decision Date: 21 May 2024

CaseChat Overview and Summary

This case concerned an appeal to the Court of Appeal of New South Wales from an interlocutory order of the Land and Environment Court. The dispute originated from a water boundary determination made by the Registrar-General in 1996 under Part 14A of the *Real Property Act 1900* (NSW). Mr Boensch subsequently sought a boundary determination from the Registrar-General, which was refused under s 135D(2) of the Act. Mr Boensch then filed an appeal in the Land and Environment Court in October 2022, challenging this refusal and the earlier 1996 determination. The Land and Environment Court dismissed Mr Boensch's proceedings.

The primary legal issues before the Court of Appeal were whether Mr Boensch had a right of appeal under s 135J(1) of the *Real Property Act 1900* against the Registrar-General's refusal to make a boundary determination, and whether the Land and Environment Court had the power to extend the time for appealing a determination made under Part 14A, given that s 135J(3) stipulated a 28-day appeal period. Leave to appeal was required under s 57(4) of the *Land and Environment Court Act 1979* (NSW).

The Court of Appeal reasoned that the right of appeal under s 135J(1) of the *Real Property Act 1900* extended only to a "determination" made under Part 14A, and not to a refusal to make a determination. Furthermore, the Court held that the 28-day time limit for appealing a determination under s 135J(3) was a jurisdictional limit. It found that the Land and Environment Court Rules 2007 (NSW), specifically rules 7.1 and 7.3, did not provide for the extension, variation, or waiver of this time limit, and that these local rules prevailed over the Uniform Civil Procedure Rules 2005 (NSW) in this regard. Consequently, the appeal against the 1996 determination was out of time and incompetent.

The Court of Appeal granted leave to appeal on the specific grounds relating to the interpretation of s 135J(1) and the time limits for appeal. However, it dismissed the appeal on those grounds. The Court also extended the time for filing Mr Boensch's summons seeking leave to appeal and ordered Mr Boensch to pay the respondents' costs.

Orders

Orders of the court

(1) Extend the time for the filing of Mr Boensch’s Summons Seeking Leave to Appeal to 26 April 2024.

(2) Grant leave to Mr Boensch to appeal from Order (1) made by the Land and Environment Court on 28 July 2023, but only on the following grounds:

(a) that Mr Boensch had no right of appeal under s 135J of the Real Property Act 1900 (NSW) against the Registrar-General’s refusal under s 135D(2) to make a boundary determination; and

(b) that the time for commencing an appeal against the Registrar-General’s earlier 1996 boundary determination had expired, the Court having no power to extend, vary or waive that time period.

(3) Otherwise dismiss the Summons Seeking Leave to Appeal filed on 26 April 2024.

(4) Dismiss Mr Boensch’s appeal with respect to the grounds in Order (2)(a) and (b) above.

(5) Otherwise dismiss the Further Amended Notice of Appeal dated 23 April 2024 and filed on 26 April 2024.

(6) Order Mr Boensch pay the costs of the respondents of the application for leave to appeal and of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Boensch v Transport for NSW [2024] NSWCA 119
Hearing dates:	26 April 2024
Date of orders:	21 May 2024
Decision date:	21 May 2024
Before:	Meagher JA at [1]; Payne JA at [62]; Basten AJA at [63]
Decision:	(1) Extend the time for the filing of Mr Boensch’s Summons Seeking Leave to Appeal to 26 April 2024. (2) Grant leave to Mr Boensch to appeal from Order (1) made by the Land and Environment Court on 28 July 2023, but only on the following grounds: (a) that Mr Boensch had no right of appeal under s 135J of the Real Property Act 1900 (NSW) against the Registrar-General’s refusal under s 135D(2) to make a boundary determination; and (b) that the time for commencing an appeal against the Registrar-General’s earlier 1996 boundary determination had expired, the Court having no power to extend, vary or waive that time period. (3) Otherwise dismiss the Summons Seeking Leave to Appeal filed on 26 April 2024. (4) Dismiss Mr Boensch’s appeal with respect to the grounds in Order (2)(a) and (b) above. (5) Otherwise dismiss the Further Amended Notice of Appeal dated 23 April 2024 and filed on 26 April 2024. (6) Order Mr Boensch pay the costs of the respondents of the application for leave to appeal and of the appeal.
Catchwords:	APPEALS – leave to appeal – interlocutory order dismissing Land and Environment Court Class 3 proceedings – leave to appeal required under s 57(4) of the Land and Environment Court Act 1979 (NSW) – where two of many proposed grounds raise questions of statutory construction, one of general application – leave granted in relation to those grounds LAND LAW – water boundary dispute – application for boundary determination made to Registrar-General under Pt 14A of Real Property Act 1900 (NSW) – application refused under s 135D(2) – whether right of appeal under s 135J(1) from a “determination” made under Pt 14A extends to a refusal to make a determination LAND LAW – water boundary dispute – where appeal filed in October 2022 from a boundary determination made under Pt 14A of Real Property Act in 1996– where s 135J(3) required “appeal” to be made within 28 days of notice of determination – where Land and Environment Court Rules 2007 (NSW), rr 7.1 and 7.3 do not provide for extension, variation or waiving of that requirement – where by Uniform Civil Procedure Rules 2005 (NSW), r 1.7 and Sch 2 those “local rules” prevail – appeal out of time and incompetent
Legislation Cited:	Coastal Management Act 2016 (NSW), s 28 Coastal Protection Act 1979 (NSW), s 55N Encroachment of Buildings Act 1922 (NSW), s 9 Land and Environment Court Act 1979 (NSW), ss 19, 39, 57 Land and Environment Court Rules 2007 (NSW), rr 7.1, 7.3 Land and Property Information NSW (Authorised Transaction) Act 2016 (NSW) Limitation Act 1969 (NSW), s 55 Real Property Act 1900 (NSW), ss 121, 122, Pt 14A