Martin v Buchan
[2019] NSWSC 135
•19 February 2019
Supreme Court
New South Wales
Medium Neutral Citation: Martin v Buchan [2019] NSWSC 135 Hearing dates: 19 February 2019 Date of orders: 19 February 2019 Decision date: 19 February 2019 Jurisdiction: Equity - Duty List Before: Kunc J Decision: Orders including declaration made by consent
Catchwords: PROCEDURE - Miscellaneous procedural matters – Declarations – By consent – Declaration to be confined to trial judge’s finding Legislation Cited: Water Act 1912 (NSW) Cases Cited: Martin v Martin [2010] NSWSC 700 Category: Principal judgment Parties: Arthur Ross Martin (Plaintiff)
Lois Kathlyn Buchan (Defendant)Representation: Counsel:
Solicitors:
C. Wilson (Plaintiff)
Pennicott Weir Lawyers (Plaintiff)
File Number(s): 2018/288781 Publication restriction: No
EX TEMPORE Judgment
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This is an application for orders which include the making of a declaration by consent to give effect to terms of settlement of these proceedings. There is one matter about which, as a matter of prudence, I think should deliver short reasons in case there is any doubt in the future about the proper construction of the declaration which the Court will make.
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The initial dispute between the parties was resolved by a judgment of White J (as his Honour then was) in Martin v Martin [2010] NSWSC 700. In the course of that judgment, his Honour had to determine whether the plaintiff in those proceedings (who is also the plaintiff in these proceedings) was the beneficiary of what is known as a “term transfer” of a particular water licence. As part of his reasoning in answering that question in the affirmative, his Honour was required to consider whether or not the plaintiff was an occupier of certain land for the purposes of s 5 of the Water Act 1912 (NSW) (the “WA”). His Honour held that the plaintiff was such an occupier.
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To give effect to his Honour’s reasons, on 6 August 2010 his Honour made orders which included this declaration:
“I declare that the first defendant [who, notwithstanding a change of surname, is the defendant in these proceedings] is beneficially entitled to water access licence XXXX, subject to a term transfer within the meaning of section 71N of the Water Management Act 2000 in favour of the plaintiff.”
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The proceedings before me appear to have arisen out of further disputes between the parties consequent on White J’s decision. To their credit, they have resolved these proceedings and, for the avoidance of any further doubt or dispute, invite the Court to make a declaration by consent which is generally to the same effect as the declaration made by his Honour in August 2010 in relation to the plaintiff’s rights. However, the proposed consent declaration explicitly states that the period for which the plaintiff holds the term transfer is “until the Plaintiff ceases to occupy the land in folio …”.
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Mr C Wilson of Counsel, who appears for the plaintiff, accepts that it is not appropriate for the Court to go beyond the finding made by White J in the earlier litigation. For the avoidance of doubt, I propose to amend the consent declaration sought by the parties in order to make it clear that that the declaration is confined to his Honour’s finding so that the term “occupy” is to be understood as referring to the plaintiff continuing to be an “occupier” of the land for the purposes of the WA.
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I am otherwise satisfied that the evidence read today discloses a proper basis for the Court to make a declaration and consequential orders by consent.
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The orders and notations of the Court are:
The Court declares that Arthur Ross Martin, the plaintiff, holds the term transfer of the Water Entitlements Water Access Licence (WAL XXXX) pursuant to s 71N of the Water Management Act (the WMA) until the plaintiff ceases to be an “occupier” of the land in folio XX/XXXXX X as defined in s 5 of the Water Act 1912 (NSW).
Restrains the defendant from dealing with the WAL XXXX while the plaintiff holds the term transfer in WAL XXXX for the purposes set out in s 71N(5) of the WMA.
Orders the defendant to pay the plaintiff $47,500 within 28 days of the making of these orders in full and final settlement of the claim made by the plaintiff against the defendant in these proceedings.
Notes that the Court makes no orders as to costs with the intent that each party bear his or her own costs.
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Decision last updated: 21 February 2019
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