Boensch v Transport for NSW

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.