Medium Neutral Citation: Mehmet v Carter [2018] NSWCA 305
Hearing dates: 27 March 2018
Decision date: 13 December 2018
Before: Bathurst CJ at [1];
Beazley P at [13];
McColl JA at [107]
Decision:
(1)   Allow the appeal.

(2)   Set aside the orders made by the primary judge.

(3)   In lieu thereof, answer the separate questions as follows:

Question 1

It is inappropriate to answer this question.

Question 4

It is inappropriate to answer this question.

(4)   Remit the whole of the proceedings to the Equity Division of the Supreme Court.
(5)   No order as to the costs of the appeal and the costs of the hearing of the separate questions before the primary judge to be costs in the cause.
Catchwords: LAND LAW – possible existence of Aboriginal objects in or on land the subject of a contract for sale – whether primary judge erred in answering separate question regarding whether alleged Aboriginal objects were capable of constituting a defect in title – separate question hypothetical – whether primary judge erred in finding alleged Aboriginal objects were not capable of constituting a defect in title
Legislation Cited: Conveyancing Act 1919 (NSW), s 13
National Parks and Wildlife (Amendment) Act 1969 (NSW)
National Parks and Wildlife Act 1967 (NSW), ss 33D, 33E, 33K
National Parks and Wildlife Act 1974 (NSW), ss 5, 83, 84, 85, 86, 87, 90, 90K
Cases Cited: Batey v Gifford (1997) 42 NSWLR 710
Borda v Burgess (2003) 11 BPR 21, 203; [2003] NSWSC 1171
Dainford Ltd v Lam (1985) 3 NSWLR 255
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 343 ALR 58; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Flight v Booth (1834) 1 Bing NC 370; 131 ER 1160
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23
Liberty Grove (Concord) Pty Ltd v Yeo (2006) 12 BPR 23,709; [2006] NSWSC 1373
Micos v Diamond [1970] 3 NSWR 407
Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19
Torr v Harpur (1940) 40 SR (NSW) 585
Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; [1973] HCA 14
Texts Cited: Christopher Rossiter, Principles of Land Contracts and Options in Australia (LexisNexis Butterworths, 2003)
Peter Butt, The Standard Contract for Sale of Land in New South Wales (Law Book Co, 1985)
Category: Principal judgment
Parties: Ian Mehmet as trustee for the Ian G Mehmet Testamentary Trust (First Appellant)
Cameron Mehmet as trustee for the Cameron Mehmet Testamentary Trust (Second Appellant)
Errol Mehmet as trustee for the Errol J Mehmet Testamentary Trust (Third Appellant)
Cheers Aviation Pty Ltd as trustee for the KMGC Investment Trust (Fourth Appellant)
Matthew Cheers (Fifth Appellant)
Murray John Carter (First Respondent)
The Wheel Resort Pty Ltd (Second Respondent)
Cathscompany Pty Ltd (Third Respondent)
Representation:
Counsel:
D H…

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.

Continue reading Mehmet v Carter

Details

AGLC: Mehmet v Carter [2018] NSWCA 305
Case: [2018] NSWCA 305
Decision Date: 13 December 2018

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal by Mehmet concerning a dispute with Carter regarding a contract for the sale of land. The central issue revolved around the potential existence of Aboriginal objects on the land and whether this constituted a defect in title. The primary judge had previously determined that the alleged Aboriginal objects were not capable of constituting a defect in title, a finding that was challenged on appeal.

The legal issues before the Court of Appeal were whether the primary judge had erred in answering a separate question concerning the capacity of the alleged Aboriginal objects to constitute a defect in title, and whether that separate question was appropriately answered given its hypothetical nature. The court was required to determine the legal significance of the potential presence of Aboriginal objects in relation to a vendor's obligations under a contract for sale and the concept of a defect in title.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court found it inappropriate to answer the specific questions posed at the trial, indicating that the matter required further consideration. Consequently, the proceedings were remitted to the Equity Division of the Supreme Court for further determination, with no order as to the costs of the appeal or the hearing of the separate questions before the primary judge, these being costs in the cause.

Orders

Orders of the court

(1) Allow the appeal.

(2) Set aside the orders made by the primary judge.

(3) In lieu thereof, answer the separate questions as follows:

Question 1

It is inappropriate to answer this question.

Question 4

It is inappropriate to answer this question.

(4) Remit the whole of the proceedings to the Equity Division of the Supreme Court.

(5) No order as to the costs of the appeal and the costs of the hearing of the separate questions before the primary judge to be costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Mehmet v Carter [2018] NSWCA 305

Most Recent Citation

Mehmet v Carter [2020] NSWSC 413

Cases citing this decision · 6 of 6 shown

Carter v Mehmet (No 3)
[2022] NSWCA 64 Para 8

…Mehmet v Carter [2017] NSWSC 1067. The respondents successfully appealed against his Honour’s answers to those separate questions: Mehmet v Carter [2018] NSWCA 305 ( the first Court of Appeal ). As to costs of the separate questions, the first Court of Appeal made no order as to the costs of the appeal but ordered…
Carter v Mehmet
[2021] NSWCA 286 Para 82

…This Court in Mehmet v Carter (2018) 98 NSWLR 977; [2018] NSWCA 305 at [100] (Beazley P, McColl JA agreeing), set aside certain answers to separate questions which had been given by Darke J ( Mehmet v Carter [2017] NSWSC 1067) and concluded, obiter, that the presence of “Aboriginal objects” as defined by the Nation…
Burwood Council v Visy Paper Pty Ltd atf Southern Paper Converters Trust
[2021] NSWSC 565 Para 50

…arate determination of a question is to be approached with caution: Tepko [168]–[170] (Kirby and Callinan JJ); Mehmet v Carter (2018) 98 NSWLR 977; [2018] NSWCA 305 at [8]. Determination of the proposed separate question would not finally determine the proceedings. Nor will it obviate the need for a further hearing…
Murray John Carter v Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust
[2021] NSWCA 32 Para 13

…hearing of the separate questions be costs in the cause and making no order as to the costs of the appeal: Mehmet v Carter (2018) 98 NSWLR 977; [2018] NSWCA 305 at [12]. The primary judge’s reasons for judgment do not suggest that any different or separate costs order was sought by the appellants in consequence of…
Mehmet v Carter
[2020] NSWSC 413 Para 5

…(see as set out at [16] per Beazley P, as Her Excellency then was, in the subsequent Court of Appeal decision in Mehmet v Carter (2018) 98 NSWLR 977; [2018] NSWCA 305, to which I will refer as the Appeal Decision).…
State of New South Wales v Dargin
[2019] NSWCA 47 Para 7

…udron J, in Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168]-[171], to which attention was most recently drawn in Mehmet v Carter [2018] NSWCA 305 at [8], [102] and [107], concerning the separate determination of issues in litigation. The passage includes the following aptly cautionary words:…

View all 6 citing cases →

Cases cited in this decision · 15 of 15 shown

Mehmet v Carter
[2017] NSWSC 1067 Para 17

…The primary judge held that questions 1 and 4 should be answered “ No ”. His Honour held that questions 2 and 3 did not arise: Mehmet v Carter [2017] NSWSC 1067.…
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd
[2017] HCA 12 Para 60

…ended to produce a commercial result which makes commercial sense: see Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 343 ALR 58; [2017] HCA 12 at [16]-[17]; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35].…
Electricity Generation Corporation v Woodside Energy Ltd
[2014] HCA 7 Para 60

…Gee Dee Nominees Pty Ltd (2017) 343 ALR 58; [2017] HCA 12 at [16]-[17]; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35].…
Campbell v Backoffice Investments Pty Ltd
[2009] HCA 25 Para 66

…ght to rescind: Flight v Booth (1834) 131 ER 1160; Torr v Harpur (1940) 40 SR (NSW) 585; Micos v Diamond [1970] 3 NSWR 407; Liberty Grove (Concord) Pty Ltd v Yeo (2006) 12 BPR 23,709; [2006] NSWSC 1373 (Tr 9, 21).…
Liberty Grove (Concord) Pty Ltd v Yeo
[2006] NSWSC 1373 Para 66

…) 131 ER 1160; Torr v Harpur (1940) 40 SR (NSW) 585; Micos v Diamond [1970] 3 NSWR 407; Liberty Grove (Concord) Pty Ltd v Yeo (2006) 12 BPR 23,709; [2006] NSWSC 1373 (Tr 9, 21).…
Country Energy v Williams
[2005] NSWCA 318

…tence throughout the State is large, particularly in areas where intensive construction work has not been undertaken (see Country Energy v Williams (2005) 63 NSWLR 699; [2005] NSWCA 318 at [7], [56]-[57] and [67]). Moreover, Aboriginal objects are by their very nature most likely to be beneath the surface of the soil.…
Borda v Burgess
[2003] NSWSC 1171 Para 11

…In my opinion, Borda v Burgess [2003] NSWSC 1171; (2003) 11 BPR 21,203 does not decide to the contrary. The issue in that case was whether an undisclosed mining lease for coal gave a right to the purchaser to terminate the contract. Provisions in the contract expressly excluded a right to rescind on this ground. It…
Tepko Pty Ltd v Water Board
[2001] HCA 19 Para 8

…, the considerations referred to by Kirby and Callinan JJ, with whom Gaudron J agreed on this point, in Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 at [168]-[171] tell powerfully against the determination of this issue by way of a separate question.…
Batey v Gifford
[1995] NSWCA 41 Para 6

…therwise, could “annul the sale”, as did cl 7 of the “General Form of Conditions of Sale of Land, 1988 edition” considered in Batey v Gifford (1997) 42 NSWLR 710, it may well be arguable that cl 6 has the same effect: see Christopher Rossiter, Principles of Land Contracts and Options in Australia (LexisNexis Butterwor…
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd
[1989] HCA 23 Para 4

…in a manner inconsistent with their obligations: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 634, 647, 657-658; [1989] HCA 23.…
Travinto Nominees Pty Ltd v Vlattas
[1973] HCA 14 Para 5

…ubstantial, subject to the payment of compensation: see the discussion by Menzies J in Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 27-28; [1973] HCA 14. In the present case, however, no question of specific performance arises.…
(1834) 131 ER 1160
(1834) 131 ER 1160 Para 66

…d, or over which somebody other than the vendor has control, is a defect in title which gives rise to a common law right to rescind: Flight v Booth (1834) 131 ER 1160; Torr v Harpur (1940) 40 SR (NSW) 585; Micos v Diamond [1970] 3 NSWR 407; Liberty Grove (Concord) Pty Ltd v Yeo (2006) 12 BPR 23,709; [2006] NSWSC 1373…
Flight v Booth
131 ER 1160 Para 5

…ntitled to rescind irrespective of the magnitude of the defect, or because the case fell within the principle in Flight v Booth (1834) 1 Bing NC 370; 131 ER 1160 and the other cases to which Beazley P refers in her judgment. In that context, it must be remembered that, at common law, a purchaser was entitled t…
33 ER 222
33 ER 222

…iciently substantial to justify termination by the purchasers (on the equitable rule of Halsey v Grant [1806] EngR 290; (1806) 13 Ves Jun 73; 33 ER 222 or under the rule in Flight v Booth). It is agreed that this issue would be determined at a later trial.…
Dainford Ltd v Lam
148 ER 1557

…86, 87, 90, 90K Cases Cited: Batey v Gifford (1997) 42 NSWLR 710 Borda v Burgess (2003) 11 BPR 21, 203; [2003] NSWSC 1171 Dainford Ltd v Lam (1985) 3 NSWLR 255 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 343 ALR 58; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014)…

Legislation cited in this decision · 8

National Parks and Wildlife Act 1974 (NSW)
5, 83, 84, 85, 86, 87, 90, 90K 9 mentions (from Para 13)
National Parks and Wildlife Act 1967 (NSW)
33D, 33E, 33K 4 mentions (from Para 54)
Conveyancing Act 1919 (ACT)
13 2 mentions
Environmental Planning and Assessment Act 1979 (NSW)
1 mention
Mining Act 1992 (NSW)
1 mention (from Para 11)
National Parks and Wildlife (Amendment) Act 1969 (NSW)
1 mention
Real Property Act 1900 (NSW)
1 mention (from Para 56)
Supreme Court Act 1970 (NSW)
103 1 mention (from Para 18)

Medium Neutral Citation:	Mehmet v Carter [2018] NSWCA 305
Hearing dates:	27 March 2018
Decision date:	13 December 2018
Before:	Bathurst CJ at [1]; Beazley P at [13]; McColl JA at [107]
Decision:	(1) Allow the appeal. (2) Set aside the orders made by the primary judge. (3) In lieu thereof, answer the separate questions as follows: Question 1 It is inappropriate to answer this question. Question 4 It is inappropriate to answer this question. (4) Remit the whole of the proceedings to the Equity Division of the Supreme Court. (5) No order as to the costs of the appeal and the costs of the hearing of the separate questions before the primary judge to be costs in the cause.
Catchwords:	LAND LAW – possible existence of Aboriginal objects in or on land the subject of a contract for sale – whether primary judge erred in answering separate question regarding whether alleged Aboriginal objects were capable of constituting a defect in title – separate question hypothetical – whether primary judge erred in finding alleged Aboriginal objects were not capable of constituting a defect in title
Legislation Cited:	Conveyancing Act 1919 (NSW), s 13 National Parks and Wildlife (Amendment) Act 1969 (NSW) National Parks and Wildlife Act 1967 (NSW), ss 33D, 33E, 33K National Parks and Wildlife Act 1974 (NSW), ss 5, 83, 84, 85, 86, 87, 90, 90K
Cases Cited:	Batey v Gifford (1997) 42 NSWLR 710 Borda v Burgess (2003) 11 BPR 21, 203; [2003] NSWSC 1171 Dainford Ltd v Lam (1985) 3 NSWLR 255 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 343 ALR 58; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Flight v Booth (1834) 1 Bing NC 370; 131 ER 1160 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23 Liberty Grove (Concord) Pty Ltd v Yeo (2006) 12 BPR 23,709; [2006] NSWSC 1373 Micos v Diamond [1970] 3 NSWR 407 Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 Torr v Harpur (1940) 40 SR (NSW) 585 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; [1973] HCA 14
Texts Cited:	Christopher Rossiter, Principles of Land Contracts and Options in Australia (LexisNexis Butterworths, 2003) Peter Butt, The Standard Contract for Sale of Land in New South Wales (Law Book Co, 1985)
Category:	Principal judgment
Parties:	Ian Mehmet as trustee for the Ian G Mehmet Testamentary Trust (First Appellant) Cameron Mehmet as trustee for the Cameron Mehmet Testamentary Trust (Second Appellant) Errol Mehmet as trustee for the Errol J Mehmet Testamentary Trust (Third Appellant) Cheers Aviation Pty Ltd as trustee for the KMGC Investment Trust (Fourth Appellant) Matthew Cheers (Fifth Appellant) Murray John Carter (First Respondent) The Wheel Resort Pty Ltd (Second Respondent) Cathscompany Pty Ltd (Third Respondent)
Representation:	Counsel: D H…