Cant v Kirby - [2011] NSWSC 1193

Supreme Court

New South Wales

Medium Neutral Citation: Anthony R Cant v Kirby [2011] NSWSC 1193
Hearing dates: 15 August 2011
Decision date: 27 September 2011
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Liquidator entitled to order for possession.

Catchwords: ABORIGINALS - Land Rights - transfer of land to Aboriginal corporation to be held on trust for members - fee simple defeasible by conditions subsequent - failure to pay rates - call for transfer back - whether defendant members entitled to possession against liquidator - perpetuities - charitable purpose trust
Legislation Cited: Corporations Act 2001 (Cth)
Aboriginal Councils and Associations Act 1976 (Cth)
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006 (Cth)
Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)
Aboriginal and Torres Strait Islander Act 2005 (Cth)
Native Title Act 1993 (Cth)
Perpetuities Act 1984
Cases Cited: Morice v Bishop of Durham (1804) 9 Ves Jun 399 [32 ER 656]
Re Mathew (decd); Trustees Executors & Agency Co Ltd v Mathew [1951] VLR 226
Re Bryning Deceased [1976] VR 100
Category: Separate question
Parties: Anthony R Cant (Liquidator of Billa Downs Aboriginal Corporation (In Liq)) (First Plaintiff/Third Cross-Defendant)
Billa Downs Aboriginal Corporation (In Liq) (Second Plaintiff/First Cross-Defendant)
Arthur Kirby (First Defendant/Cross-Claimant)
Penny Kirby (Second Defendant/Cross-Claimant)
Indigenous Land Corporation (Second Cross-Defendant)
Representation: Counsel
M Wright (Plaintiffs/First and Third Cross-Defendants)
J T Johnson (Defendants/Cross-Claimants)
N Owen (Second Cross-Defendant)
Solicitors
Holman Webb Lawyers (Plaintiffs/First and Third Cross-Defendants)
Karp O'Neill Solicitors & Barristers (Defendants/Cross-Claimants)
Corrs Chambers Westgarth (Second Cross-Defendant)

File Number(s): 2008/288530

Judgment

Background

The second plaintiff, Billa Downs Aboriginal Corporation, is in liquidation. The first plaintiff, Anthony R Cant, is its liquidator. It seeks an order for possession of land known as Billa Downs Station against the first defendant, Arthur Kirby, and the second defendant, Penny Kirby.

By their cross-claim Arthur Kirby and Penny Kirby seek a declaration against the first cross-defendant, the Aboriginal Corporation, the second cross-defendant, the Indigenous Land Corporation, and Mr Cant as third cross-defendant that Billa Downs Station is held in trust for members of the Aboriginal community of New South Wales who consider themselves to have a traditional connection with Billa Downs Station arising upon the making of an unconditional deed of grant dated 12 November 2001 between the Land Corporation and the Aboriginal Corporation. They seek an injunction against the Aboriginal Corporation and the Land Corporation restraining them from dealing with, disposing of, or taking possession of Billa Downs Station and an order under the Corporations Act 2001 (Cth), s 536 that there be an inquiry into the conduct of Mr Cant in respect of the performance of his duties as liquidator of the Aboriginal Corporation.

As the hearing progressed it became apparent that the question of the proper interpretation of the deed of grant was a preliminary issue and all the parties agreed that I should determine that question separately from other issues in the case and before…

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.

Continue reading Cant v Kirby

Details

AGLC: Cant v Kirby [2011] NSWSC 1193
Case: [2011] NSWSC 1193
Decision Date: 27 September 2011

CaseChat Overview and Summary

The case of Cant v Kirby involved the legal dispute between a liquidator and members of an Aboriginal corporation regarding the transfer and possession of land. The matter was heard in the Supreme Court of Queensland. The corporation had been established to hold land on trust for its members, and it had been transferred to the corporation under a fee simple defeasible by conditions subsequent. The primary issue was whether the members of the corporation were entitled to possession against the liquidator in the event of a default, specifically when the land was subject to a call for transfer back due to the failure to pay rates.

The legal issues before the court encompassed the interpretation of the terms of the transfer and the nature of the trust, including the rights of the members in relation to the land and the liquidator's role in enforcing the conditions subsequent. The court had to determine whether the members of the corporation held any proprietary interest in the land that could override the liquidator's claim for transfer back. Additionally, the court examined whether the perpetuity period for the charitable purpose trust was validly established.

The court held that the members of the corporation did not have any proprietary interest in the land that could prevent the liquidator from enforcing the conditions subsequent. The court found that the transfer of the land to the corporation was intended to be a charitable purpose trust, and the members did not hold any equitable interest in the land. The court also concluded that the perpetuity period for the trust was validly established. Consequently, the liquidator was entitled to enforce the conditions subsequent, and the members had no claim to possession against the liquidator. The court's decision was grounded in the specific terms of the trust and the nature of the legal interests involved.

In light of the court's findings, it ordered that the liquidator could proceed with the transfer of the land back to the relevant authority due to the failure to pay rates. The court further confirmed that the members of the corporation had no proprietary interest in the land and could not challenge the liquidator's actions. The decision underscored the importance of the terms of the trust and the specific legal interests involved in such complex land disputes.

Orders