Kogarah Municipal Council v Golden Paradise Corporation

Kogarah Municipal Council appealed to the Court of Appeal of New South Wales against orders made by Cowdroy J in the Land and Environment Court. The dispute concerned land that had been transferred to the Council as a condition of a development consent, and subsequently reconveyed by the Council to a private owner, Golden Paradise Corporation. The Council contended that this reconveyance was in breach of the provisions of the *Local Government Act 1993* (NSW). Golden Paradise Corporation, as the registered proprietor, argued that it had acquired an indefeasible title to the land.

The primary legal issues before the Court of Appeal were whether the Land and Environment Court had the power to remedy a breach of the *Local Government Act 1993* by ordering the private owner, who was not itself in breach of the Act, to retransfer the land to the Council. Additionally, the Court had to determine whether Golden Paradise Corporation acquired an indefeasible title under section 42 of the *Real Property Act 1900* (NSW) upon registration, notwithstanding that the transfer to it was made in breach of the *Local Government Act 1993*.

The Court of Appeal found that the Land and Environment Court's power to remedy breaches of the *Local Government Act 1993* did not extend to ordering a registered proprietor, who had not personally committed a breach of the Act, to retransfer land. The Court held that Golden Paradise Corporation, as a registered proprietor, had acquired an indefeasible title under section 42 of the *Real Property Act 1900*, which could not be defeated by the fact that the transfer to it was made in breach of the *Local Government Act 1993*.

Consequently, the Court of Appeal allowed the appeal, set aside the declarations and orders made by Cowdroy J, and dismissed the Amended Application. The Court ordered that Golden Paradise Corporation pay the costs of the appellant and the second respondent at first instance, and the costs of the appeal, with a certificate under the *Suitor's Fund Act 1951* for the appeal costs if otherwise qualified.