Brenchley v Minister Administering the Water Management Act 2000

[2011] NSWLEC 192

Land and Environment Court

New South Wales

Medium Neutral Citation:	Brenchley v Minister Administering the Water Management Act 2000 [2011] NSWLEC 192
Hearing dates:	8 November 2011
Decision date:	08 November 2011
Jurisdiction:	Class 2
Before:	Biscoe J
Decision:	Caveat registered in the Water Access Licence Register under the Water Management Act 2000 extended until 11 November 2011; Second Respondents restrained until 11 November 2011 from selling or disposing of a water access licence.
Catchwords:	CAVEATS:- caveat registered in the Water Access Licence Register under the Water Management Act 2000 - interlocutory extension of caveat and injunction restraining sale or disposal of water access licence.
Legislation Cited:	Water Management Act 2000 Uniform Civil Procedure Rules 2005 r 25.8
Cases Cited:	Mueller v Austin [2010] NSWLEC 137
Category:	Interlocutory applications
Parties:	Anthony Reginald Brenchley (Applicant) Minister Administering the Water Management Act 2000 (First Respondent) Daniel Peter Juratowitch and Andrew James Barnden as Trustee for Steven Pettaras (Second Respondents)
Representation:	COUNSEL: Mr M Seymour (Applicant) Ms K Van Munster, solicitor (Second Respondent) SOLICITORS: Marsdens (Applicant) Leonard Legal (Second Respondent)
File Number(s):	21009 of 2011

EX TEMPORE Judgment

1. These proceedings were commenced about twenty minutes ago by Anthony Reginald Brenchley against the Minister Administering the Water Management Act 2000 and the trustees in bankruptcy of Steven Pettaras.

1. I am dealing with Mr Brenchley's urgent notice of motion for an interlocutory order to extend the operation of his caveat registered in the Water Access Licence Register under the Water Management Act 2000 and to restrain the trustees from selling or disposing of Water Access Licence 6595, which is the subject of his caveat.

1. I considered the jurisdiction of this Court to extend the operation of a caveat registered in the Water Access License Register under the Water Management Act in Mueller v Austin [2010] NSWLEC 137.

1. The applicant claims that the subject water access licence was sold to him by Mr Pettaras under a handwritten contract dated 10 January 2010, a copy of which is in evidence. Mr Pettaras later became bankrupt. On 13 April 2011 he and his trustees in bankruptcy contracted to sell the same water access licence to Abata Pty Ltd. It is unclear on the evidence whether that contract has been completed. The applicant claims priority as the earlier purchaser for value in time.

1. It is apparent that it is necessary for Abata Pty Ltd to be joined as a respondent.

1. The trustees, but not the Minister, are legally represented before me, on very short notice. In view of the urgency with which the proceedings have been brought on, the trustees have not had a reasonable opportunity to put on evidence apart from tendering the front page of the Abata Pty Ltd contract, nor to formulate submissions.

1. On the evidence, I am satisfied that there is a serious question to be tried and that the balance of convenience favours preservation of the status quo for a period of three days until Friday 11 November 2011. By that time, the applicant should have amended his proceedings to join Abata Pty Ltd and to have served the respondents with the evidence on which he intends to rely. The respondents may be in a position before that date to serve their evidence.

1. Upon the applicant, by his counsel, having provided the Court with the usual undertaking as to damages under r 25.8 of the Uniform Civil Procedure Rules 2005, the Court orders:

1.   The notice of motion filed in Court today be returnable instanter and heard ex parte.

2.   Until 11 November 2011, order that the second respondents be restrained from the sale or disposal of Water Access Licence 6595.

3.   Order that Caveat No AG255542K be extended until 11 November 2011.

4.   Direct the applicant to serve a copy of the class two application, any amended application, the notice of motion dated 8 November 2011 and these orders on the respondents and Abata Pty Ltd by 4pm on 8 November 2011.

5.   Stand over the proceedings and the notice of motion to Friday 11 November 2011 before the list judge.

6.   Liberty to apply on short notice.