David Lewis Clout as Trustee of the Property of Salvatore Mario Littore and Aurora Littore v Vincent John Littore and David Alan Littore
[2015] NSWLEC 148
•15 September 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: David Lewis Clout as Trustee of the Property of Salvatore Mario Littore and Aurora Littore v Vincent John Littore and David Alan Littore [2015] NSWLEC 148 Hearing dates: 15 September 2015 Date of orders: 15 September 2015 Decision date: 15 September 2015 Jurisdiction: Class 2 Before: Craig J Decision: (1) Pursuant to cll 6(3) and 8(c) of Sch 1A to the Water Management Act 2000 and subject to the applicant by his counsel giving the usual undertaking as to damages, the operation of caveat No AJ492759 lodged on behalf of David Lewis Clout as trustee of the property of Salvatore Mario Littore and Aurora Littore, bankrupts, over the holdings of Salvatore Mario Littore and Aurora Littore in water access licence 37145 be extended until further order of this Court.
(2) Costs of the application are reserved.
(3) Reserve liberty to either party to apply on three working days’ written notice to the other.
(4) Direct that these orders may be entered forthwith.Catchwords: CAVEAT – application for extension of operation of a caveat – Schedule 1A of the Water Management Act 2000 (NSW) – trustee of bankrupt estate seeking to restrain registration of dealings in respect of water access licence – equitable interest in water access licence – operation of caveat extended pending the determination of Supreme Court proceedings Legislation Cited: Bankruptcy Act 1966 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Water Management Act 2000 (NSW)Category: Principal judgment Parties: David Lewis Clout as Trustee of the Property of Salvatore Mario Littore and Aurora Littore, bankrupts (Applicant)
Vincent John Littore (First respondent)
David Alan Littore (Second respondent)Representation: Counsel:
Solicitors:
B Le Plastrier (Applicant)
No appearance (First and second respondents)
Gadens (Applicant)
No appearance (First and second respondents)
File Number(s): 20802 of 2015
Ex tempore Judgment
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David Lewis Clout is the trustee in bankruptcy of the property of Salvatore Mario Littore and Aurora Littore. A sequestration order against their estates was made by the Federal Circuit Court of Australia on 7 May 2015.
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Mr Clout now makes application under Sch 1A of the Water Management Act 2000 (NSW) for an order extending the operation of a caveat lodged by him with the Registrar-General, restraining the registration of any dealings by Salvatore and Aurora Littore with Water Access Licence 37145 (WAL 37145). That application first came before me as Duty Judge on 11 September 2015 when I made an order pursuant to r 10.14(1) of the Uniform Civil Procedure Rules 2005 (NSW) for substituted service of the application upon the respondents.
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I have today read the affidavit of Craig Russell Melrose sworn 14 September 2015 which satisfies me that service was effected upon the respondents in accordance with the order for substituted service that I made. Although there was included among the documents served a letter advising the respondents that the matter would be listed before the Court today at 2 pm, they have not appeared and there has been no appearance on their behalf.
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The caveat lodged by Mr Clout was assigned registration No AJ492759 when registered by the Registrar-General on 18 May 2015. By notice given by the Registrar-General, Mr Clout has been notified that a transfer of WAL 37145 had been lodged for registration, with the consequence that, unless an application is made and granted to extend the operation of the caveat, it will lapse at the expiration of 21 days’ from the date of that notice and the transfer lodged will be registered The notice has the consequence that the caveat will lapse on Wednesday, 16 September 2015 unless this Court orders to the contrary.
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The application was supported by the affidavit of Guy Meredith Edgecombe sworn 9 September 2015. Mr Edgecombe is the solicitor acting for Mr Clout. The documents annexed to his affidavit not only established the facts and events to which I have already referred, but also demonstrate by correspondence exchanged between the solicitors for the parties the issue between them. Stated succinctly, the respondents claim an entitlement to have WAL 37145 transferred to them because the interest of Salvatore and Aurora Littore in that water access licence was held by them as trustees for the respondents. As a consequence, the respondents were entitled to have that interest transferred to them, as the interest of Salvatore and Aurora Littore did not form part of the bankrupt estate to which Mr Clout was entitled as a trustee in bankruptcy.
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Mr Clout disputes that claim. He asserts that pursuant to s 58 of the Bankruptcy Act 1966 (Cth), the interest of Salvatore and Aurora Littore in WAL 37145 is property to which he is entitled for the purpose of administering their bankrupt estates.
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In order to resolve the dispute between the parties, proceedings have been commenced in the Supreme Court by which Mr Clout seeks a declaration that the interest of Salvatore and Aurora Littore in WAL 37145 is vested in him as trustee, a declaration that he is entitled to be and remain recorded as the holder of the interest of Salvatore and Aurora Littore in that Licence and an order restraining any recording of a transfer of that interest in the WAL register. I am told that the proceedings in the Supreme Court have been commenced but that no date for a hearing has yet been fixed.
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Clause 6 of Sch 1A to the Water Management Act enables this Court to extend the operation of a caveat that has been lodged with the Minister “for such further period as is specified in the order or until further order of the Court”. As would be apparent, the time by which the dispute between Mr Clout and the respondents to these proceedings will be resolved is not known.
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I am satisfied that there is a dispute between the parties that must be resolved in order to determine whether Mr Clout’s caveat can be sustained. It is a dispute capable of being resolved in the Supreme Court proceedings. Pending determination of that dispute, it is appropriate that the period for which the caveat is to operate be extended. Adopting the language of cl 6(3)(a) to Sch 1A of the Water Management Act, it seems to me appropriate that the order be expressed to be one that extends the caveat until further order of this Court.
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I record that Mr Clout, through his counsel, has offered the “usual undertaking as to damages” as a discretionary consideration in order to obtain this order.
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The orders that I make are as follows:
Pursuant to clauses 6(3) and 8(c) of Sch 1A to the Water Management Act 2000 and subject to the applicant by his counsel giving the usual undertaking as to damages, the operation of caveat No AJ492759 lodged on behalf of David Lewis Clout as trustee of the property of Salvatore Mario Littore and Aurora Littore, bankrupts, over the holdings of Salvatore Mario Littore and Aurora Littore in water access licence 37145 be extended until further order of this Court.
Costs of the application are reserved.
Reserve liberty to either party to apply on three working days’ written notice to the other.
Direct that these orders may be entered forthwith.
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Decision last updated: 16 September 2015
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