City of Canada Bay Council v F & D Bonaccorso Pty Ltd

The Court of Appeal of New South Wales considered an appeal by the City of Canada Bay Council against F & D Bonaccorso Pty Ltd concerning the classification of certain land as community land. The dispute arose from the Council's decision to classify the land, which had been transferred to F & D Bonaccorso Pty Ltd, as community land under the *Local Government Act 1993* (NSW). This classification had implications for the validity of the transfer and the indefeasibility of title provisions under the *Real Property Act 1900* (NSW).

The central legal issues before the Court were whether the *Local Government Act 1993* operated to render the transfer of the land to F & D Bonaccorso Pty Ltd void, notwithstanding the indefeasibility of title conferred by the *Real Property Act 1900*, and whether the Land and Environment Court had the power to rectify the Torrens Register in these circumstances. The Court also had to consider the potential for implied repeal or inconsistency between the two statutes.

The Court reasoned that the *Local Government Act 1993*, specifically section 45(1) and Schedule 7 clause 6(2), imposed a statutory prohibition on the disposal of land classified as community land. This prohibition was held to override the indefeasibility of title provisions in the *Real Property Act 1900* where a transfer occurred in contravention of the *Local Government Act*. The Court found that the later, specific statutory prohibition in the *Local Government Act* prevailed over the general provisions of the *Real Property Act* in this context, meaning the transfer was void ab initio.

Consequently, the Court allowed the appeal, setting aside the declarations and orders made by the primary judge. Liberty was reserved for the parties to apply regarding the costs of the proceedings in the Land and Environment Court. The first respondent was ordered to pay the costs of the appeal.