Cummeragunja Local Aboriginal Land Council v Nicholson - [2017] NSWSC 394

Supreme Court

New South Wales

Medium Neutral Citation: Cummeragunja Local Aboriginal Land Council v Nicholson [2017] NSWSC 394
Hearing dates: 10 April 2017
Date of orders: 12 April 2017
Decision date: 12 April 2017
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Grant judgment for the plaintiff for possession of the land and premises known as X XXXXX XXX, XXXXX XXXX5, being part of the land described in Certificate of Title Auto Consol XXXXX -XXX and Lot XX in DP XXXXX X;
(2) Grant leave under UCPR 39.1 for the issue of a writ of possession;
(3) Stay execution of the writ for possession of land referred to in Order (2) until 11 July 2017;
(4) Adjourn the cross-claim for directions by the Registrar at 9 00 am on 21 April 2017;
(5) Order the defendants to pay the plaintiff’s costs of the proceedings for possession with each party to bear its or her own costs of the applications before me heard on 10 April 2017.

Catchwords:
CIVIL PROCEDURE – interlocutory relief – summary judgment for possession – defendants in adverse possession – plaintiff seeks leave to execute a writ of possession – defendants seek a stay of execution of a writ of possession pending the determination of their cross-claim – consideration of UCRP 13.2 – whether there is a sufficient connection between the claim for possession and the cross-claim – held to be insufficient practical connection to justify ordering a stay – consideration of hardship to the defendants if a writ of possession is executed – held that hardship exists warranting a stay of three months
ADMINISTRATIVE LAW – judicial review – decisions made rejecting defendants’ applications for membership of the Aboriginal Land Council and requests to be placed on a waiting list for housing provided by the plaintiff to Aboriginal persons within its area
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW)
Civil Procedure Act 2005 (NSW)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Beijing Be Green Import and Export Co Ltd v Elders International Australia Pty Ltd [2014] FCA 1375
Danish Mercantile Co. Ltd v Beaumont [1951] Ch 680
GE Personal Finance Pty Limited v Smith [2006] NSWSC 889
R v Inland Revenue Comrs, Ex parte Preston [1985] AC 835
State of Bank of Victoria v Parry [1989] WAR 240
Category: Procedural and other rulings
Parties: Cummeragunja Local Aboriginal Land Council (Plaintiff)
Shirley Nicholson (First Defendant)
Thelma Nicholson (Second Defendant)
Vikki Nicholson (Third Defendant)
Representation:
Counsel: C. Gregory (Plaintiff)
S. Lawrance with A Jordan (Defendant)
Solicitors: Joliman Lawyers (Plaintiff)
Arnold Bloch Leibler (Defendants)

File Number(s): 2016/163132
Publication restriction: Nil

Judgment

On 10 April 2017, two motions seeking interlocutory relief in these proceedings in the Possession List were listed for hearing before me. The first motion, filed on 9 March 2017 by the defendants, sought to strike out or dismiss the proceedings on the ground that their commencement was not duly authorised by the plaintiff corporation. This was effectively a challenge to…

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.

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Details

Case: [2017] NSWSC 394
Decision Date: 12 April 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the Cummeragunja Local Aboriginal Land Council (plaintiff) filed a claim for possession of land against the Nicholsons (defendants). The plaintiff sought leave to execute a writ of possession, while the defendants applied for a stay of execution pending the determination of their cross-claim. The cross-claim involved judicial review of decisions made by the plaintiff rejecting the Nicholsons' applications for membership of the Aboriginal Land Council and requests to be placed on a waiting list for housing provided by the plaintiff to Aboriginal persons within its area. The court was required to determine whether there was a sufficient connection between the claim for possession and the cross-claim, and whether hardship existed if a writ of possession was executed.

The court considered whether there was a sufficient connection between the claim for possession and the cross-claim to justify a stay. The court held that the connection was insufficient to warrant a stay, as the matters raised in the cross-claim were not directly related to the claim for possession. However, the court also considered the hardship to the defendants if a writ of possession was executed. The court found that the defendants would suffer hardship if they were forced to leave the land while their cross-claim was being determined, and that this hardship warranted a stay of three months.

The court held that the defendants' cross-claim did not have a sufficient practical connection to the claim for possession to justify a stay of execution of a writ of possession. However, the court found that the hardship to the defendants if a writ of possession was executed warranted a stay of three months. The court ordered that the stay would be effective for a period of three months from the date of the judgment.

The court ordered that the stay of execution of a writ of possession be effective for a period of three months from the date of the judgment. The court also ordered that the defendants' cross-claim be determined within the three-month period. The court did not make any further orders in relation to the case.

Orders