Boland v Boland

[2012] NSWLEC 260

Land and Environment Court

New South Wales

Medium Neutral Citation:

Boland v Boland [2012] NSWLEC 260

Hearing dates:

26 November 2012

Decision date:

26 November 2012

Jurisdiction:

Class 4

Before:

Sheahan J

Decision:

(1) Pursuant to Schedule 1A Part 2 Clause 8 of the Water Management Act 2000 (NSW), but without any admissions by the First defendant, the operation of Caveat No AG962920 lodged by David Leslie Boland and Gimbah Pty Ltd over the title of WAL10207, in the registered name of Leslie Francis Boland, be extended, by consent, until 3 December 2012. (2) By consent, and pursuant to s 149B(2) of the Civil Procedure Act 2005 (NSW) these proceedings be transferred to the Supreme Court of New South Wales, Equity Division, to be associated with proceedings 2010/256395. (3) These orders be entered forthwith. (4) The costs of these proceedings to date be reserved. (5) The Plaintiff's exhibits be returned.

The Court notes the agreement of the parties to seek to have these proceedings listed before the Duty Judge of the Supreme Court of New South Wales on 30 November 2012 for further orders.

Catchwords:

PRACTICE AND PROCEDURE - temporary extension of a caveat - transfer of proceedings to the Supreme Court - statutory provisions - principles to apply

Legislation Cited:

Civil Procedure Act 2005
Water Management Act 2000

Cases Cited:

Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2012] NSWLEC 237
Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249, 163 LGERA 83

Category:

Procedural and other rulings

Parties:

David Leslie Boland (First plaintiff)
Gimbah Pty Limited (Second plaintiff)
Leslie Francis Boland (First defendant)
National Australia Bank Limited (Second defendant)

Representation:

COUNSEL:
Mr E T Finnane (Plaintiffs)
Mr S M Freidman, solicitor (First defendant)
N/A (Second defendant)
SOLICITORS:
McCabe Terrill Lawyers (Plaintiffs)
Harris Freidman (First defendant)
N/A (Second defendant)

File Number(s):

41177 of 2012

Judgment

1. This matter came before me this morning pursuant to an order for short service made on Friday by Pepper J. All four parties were represented this morning and, subject to the appropriate consideration of the issues, there is an agreed position.

1. The summons filed on Friday in Class 4 of this Court's jurisdiction seeks orders on a temporary basis, and the transfer of the proceedings to the Equity Division of the Supreme Court, where other proceedings involving these parties are pending. Once transferred to the Supreme Court the plaintiffs seek consolidation of these proceedings with the Supreme Court matter, and the making of basically the same substantive orders.

1. The property at the heart of the proceedings is Water Access Licence (WAL) 10207.

1. The substantive relief, briefly stated, is, in the alternative, an order in favour of David Boland and Gimbah Pty Ltd extending a caveat over the Water title registered in the name of his father, Leslie Boland, or an asset freezing order against Leslie Boland.

1. The alternative relief was not pressed before me, and may be beyond the jurisdiction of this Court - see Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249, 163 LGERA 83.

1. The inter-court transfer is sought, in terms, pursuant to the provisions of "s 149B(2)(b)" of the Civil Procedure Act 2005. Sections 149A and 149B require that either Court be satisfied that it is "more appropriate" for the proceedings before it to be heard in the other Court with the "related proceedings pending" in that Court. Subsection (2)(b) does not stand independently of subsection (2)(a), but when the transfer is sought by a party the Court acts under the provisions of ss 149A and 149B(2) (as a whole).

1. The issues before me are, therefore, whether the caveat should be extended for an agreed short period, and whether the agreed transfer to the Supreme Court ought be ordered.

1. Schedule 1A of the Water Management Act 2000 makes clear, in cll 6 and 8, that this Court has the jurisdiction to remove or extend caveats under that Act. It is for that reason, given notice of a mortgage dealing affecting WAL10207, that this urgent application is made to this Court.

1. By their counsel, the two plaintiffs give the usual undertaking as to damages, in respect of the extension of the caveat until 3 December 2012, and, by his solicitor, the First defendant consents to that course, on the basis of the extension being granted on a "without admissions" basis. If I order the transfer, any further extension will be a matter for the Supreme Court.

1. Those appearing for the parties have explained the Supreme Court proceedings. Put briefly, David alleges that informal dealings with his father establish a contractual relationship (involving intended transfer of WAL 10207 to David), an equitable lien and/or an estoppel.

1. The pleadings and the nature of the relief sought in the Supreme Court take those matters beyond this Court's jurisdiction, and its special expertise is not needed: see Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2012] NSWLEC 237.

1. However, the claimed interests in this "controversy" (to use the term in s 149A(2)) involve the caveat, and there is, therefore, the necessary "close association" between these caveat extension proceedings and the equity proceedings to establish the "related" nature of both proceedings.

1. I therefore, make the following orders and notation:

That:

(1) Pursuant to Schedule 1A Part 2 Clause 8 of the Water Management Act 2000 (NSW), but without any admissions by the First defendant, the operation of Caveat No AG962920 lodged by David Leslie Boland and Gimbah Pty Ltd over the title of WAL10207, in the registered name of Leslie Francis Boland, be extended, by consent, until 3 December 2012.

(2) By consent, and pursuant to s 149B(2) of the Civil Procedure Act 2005 (NSW) these proceedings be transferred to the Supreme Court of New South Wales, Equity Division, to be associated with proceedings 2010/256395.

(3)   These orders be entered forthwith.

(4)   The costs of these proceedings to date be reserved.

(5)   The Plaintiff's exhibits be returned.

The Court notes the agreement of the parties to seek to have these proceedings listed before the Duty Judge of the Supreme Court of New South Wales on 30 November 2012 for further orders.

Decision last updated: 27 November 2012