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

[2007] NSWLEC 222

Land and Environment Court

of New South Wales

CITATION:

F & D Bonaccorso Pty Ltd v City of Canada Bay Council [2007] NSWLEC 222

PARTIES:

APPLICANT:
F & D Bonaccorso Pty Ltd

FIRST RESPONDENT:
City of Canada Bay Council

SECOND RESPONDENT:
Arinson Pty Ltd

THIRD RESPONDENT:
Omaya Holding Pty Ltd

FOURTH RESPONDENT:
Omaya Investments Pty Ltd

FIFTH RESPONDENT:
The Registrar General

FILE NUMBER(S):

40134 of 2003

CORAM:

Biscoe J

KEY ISSUES:

Practice and Procedure :- stay of order that register under Real Property Act 1900 be rectified until parties exhaust appeal rights to Court of Appeal

DATES OF HEARING:

05/04/2007

EX TEMPORE JUDGMENT DATE:

5 April 2007

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J Doyle, barrister
SOLICITORS
Thomson Playford

1ST RESPONDENT:
Mr S Kondilios, solicitor
SOLICITORS
Maddocks

3rd and 4th RESPONDENTS:
Mr J A Ayling, SC
SOLICITORS
Phillips Fox

5th RESPONDENT
Mr P Walsh, barrister
SOLICITORS
Department of Lands

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

5 April 2007

40134 of 2003

F & D BONACCORSO PTY LTD v CITY OF CANADA BAY COUNCIL & ORS

JUDGMENT

1 HIS HONOUR: Consequential upon the reasons for judgment I delivered on 30 March 2007, I have today made final orders including an order that the Registrar-General amend the register under the Real Property Act 1900, to show the council as the registered proprietor of the lots comprising Chapman Reserve. The respondent council proposes to appeal and seeks a stay of that order until such time as the parties’ appeal rights have been exhausted. The stay application is opposed by the successful applicant in the proceedings but is supported by the third and fourth respondents. The second respondent is not represented today. The Registrar-General’s position on the stay application is neutral.

2 The council submits that there are two reasons why a stay should be granted:

(a) if the appeal which the council proposes to pursue is successful, then the register, having been amended once, would then need to be amended again. That, as the council acknowledges, is a mechanical matter of no real weight;

(b) amendment to the register carries with it the risk of financial consequences for the council towards the registered proprietor, the third respondent, to whom the council transferred the land. The council says that it is reasonable to avoid that potentially large financial risk until the matter is determined on appeal. The force of this point is increased, in my view, by the fact that the appeal may test the power of this Court, which has not previously been exercised, to amend the register under the Real Property Act .

3 The following additional considerations weigh in favour of granting the stay:

(a) the Registrar-General has indicated that it will place the Registrar-General’s caveat on the title and will append the orders that I have made. Thus, those inspecting the register will be notified of the position;
(b) if a stay is granted, the third respondent undertakes to the Court not to dispose of or deal with, or attempt to dispose of or deal with the subject land pending further order;
(c) if a stay is granted, the first respondent, the council, undertakes to the Court to seek expedition of the hearing of the appeal.

4 The applicant in the proceedings submits that the stay should not be granted for the following reasons:

(a) the applicant expressed concern about further dealings in the land by the registered proprietor or by any other entity with a registered interest. It may be noted that the applicant has not sought an order restraining anyone from dealing with the land;
(b) the most secure place for the registered title to be, pending determination of the appeal, is in the name of the council;
(c) the applicant expressed some concern with the registered mortgagee’s interest. This may be considered an aspect of the first reason stated by the applicant.

5 Weighing up the competing considerations, I am persuaded that a stay should be granted until appeal rights to the Court of Appeal are exhausted, noting the said undertakings and statement by the Registrar-General. That is a more modified form of stay than that sought by the council. The order will be as follows:

Upon
(a) the first respondent undertaking to the Court to seek expedition of the hearing of its appeal to the Court of Appeal,
(b) the third respondent undertaking to the Court not to dispose of or deal with, or attempt to dispose of or deal with the lots comprising Chapman Reserve pending further order,
(c) the Registrar-General stating that it will place the Registrar-General’s caveat on the title to the said land and will append the Court’s orders to it,

order that order 2, made on April 5 2007, be stayed until such time as the parties’ appeal rights to the Court of Appeal have been exhausted.