Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 5)

[2023] NSWSC 781

Supreme Court

New South Wales

Medium Neutral Citation:

Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 5) [2023] NSWSC 781

Hearing dates:

On the papers

Date of orders:

06 July 2023

Decision date:

06 July 2023

Jurisdiction:

Common Law

Before:

Payne JA

Decision:

See paragraphs [10]-[12]

Catchwords:

JUDGMENTS AND ORDERS — Enforcement —— where plaintiff successful in claim for possession of land —stay of execution lifted subject to undertaking by plaintiff to allow period of reasonable access to land to enable removal of property — reports on progress in removal of property

Legislation Cited:

Rail Safety National Law 2012 (NSW)

Cases Cited:

Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561

Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 4) [2022] NSWSC 1050

Category:

Consequential orders

Parties:

Misthold Pty Ltd (Plaintiff/Cross-defendant)
NSW Historic Sites and Railway Heritage Company Pty Ltd (Defendant/Cross-claimant)
Dorrigo Steam Railway and Museum Ltd (Interested Party)
Lachlan Valley Railway Society Co-operative Ltd (Interested Party)
Sydney Rail Services Pty Ltd (Interested Party)
The Picnic Train Ltd (Interested Party)
Andrew Gordon (Interested Party)
Ben Parker (Interested Party)
Robert Wilson (Interested Party)
Sydney Electric Train Society Inc (Interested Party)
Andrew Reynolds (Interested Party)
Richmond Vale Preservation Co-operative Society Ltd (Interested Party)
Lithgow State Mine Railway Ltd (Interested Party)
Aurizon Ltd (Interested Party)
Spirit of the Hunter Pty Ltd (Interested Party)

Representation:

Counsel:
M Walton SC with N Furlan (Plaintiff/Cross-defendant)
Mr C Richards as a director of Historic Sites and Railway Heritage Company Pty Ltd (Defendant/Cross-claimant)
R Tregenza (Dorrigo Steam Railway and Museum Ltd, Interested Party)
A Joseph (Lachlan Valley Railway Society Co-operative Ltd, Interested Party)
H Grace (Sydney Rail Services Pty Ltd and The Picnic Train Ltd, Interested Parties)
G Morahan (Robert Wilson and Andrew Gordon, Interested Parties)
H Burns as President of Sydney Electric Train Society Inc and on behalf of Lithgow State Mine Railway Ltd (Interested Parties)
B Parker (Interested Party)
A Reynolds (Interested Party)
S MacNeill (Aurizon Ltd) (Interested Party)
Mr C Richards as a director of Spirit of the Hunter Pty Ltd (Interested Party)

Solicitors:
Bilbie Faraday Harrison (Plaintiff/Cross-defendant)
McKay Lawyers Lithgow (Dorrigo Steam Railway and Museum Ltd, Interested Party)
John Joseph Solicitors (Lachlan Valley Railway Society Co-operative Ltd, Interested Party)
Carter Ferguson Solicitors (Sydney Rail Services Pty Ltd and The Picnic Train Ltd, Interested Parties)
Greg Morahan & Co (Robert Wilson and Andrew Gordon, Interested Parties)

File Number(s):

2020/81302

Publication restriction:

Nil

JUDGMENT

1. PAYNE JA: On 11 May 2022, I delivered my principal judgment in these proceedings: Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561. The orders I made were as follows:

“(1)   Judgment for the plaintiff for possession of the whole of the land in Folio Identifier 11/1137569, being the land situate at 170 Wine Country Drive, North Rothbury.

(2)   Grant leave to issue a writ of possession to enforce order 1.

(3)   Order that the execution of the writ of possession be stayed until further order of Payne JA.

(4)   Direct that the parties take all reasonable steps to serve upon all of the persons and entities referred to in MFI-1 a copy of these orders and reasons for judgment by 4pm on 13 May 2022.

(5)   Direct that any person or entity referred to in MFI-1 seeking to be heard about the time the writ of possession should be stayed file any evidence and written submission by 8 June 2022.

(6)   Stand over the matter to 2pm on 15 June 2022 for making any orders relating to any issues raised by persons or entities who have filed evidence and submissions in accordance with order 5 of these orders. I direct that any person or entity seeking to be heard as to relief appear with a legal representative at 2pm on 15 June 2022.

(7)   Dismiss the claims for relief made by the Further Amended Statement of Cross-Claim dated 1 February 2022.

(8)   The defendant / cross-claimant pay the plaintiff / cross-defendant’s costs.”

2. As a result of order (3), the defendant, NSW Historic Sites and Railway Heritage Company Pty Ltd (Historic Sites) remained in possession of the land. In the almost three-month period following the making of the above orders, no steps were taken to vacate the land, including to remove any of the locomotives, carriages and rail equipment which had previously been brought onto the land by Historic Sites, or by other persons or entities with the permission of Historic Sites. I held three separate hearings in June and July 2022 to enable the owners of the various locomotives, carriages and railway equipment located on the land to be heard about when, and on what conditions, the stay of execution of the writ of possession should be lifted. The purpose of those hearings was to best facilitate the orderly removal of property situated on the land in a way that is fair to both the plaintiff, Misthold Pty Ltd (Misthold), and the owners of the movable property. The purpose of those hearings was not to determine the ownership of any property on the Misthold land. At these hearings none of the relevant entities sought to join the proceedings.

3. On 9 August 2022, I made the following orders in relation to the hearings on relief: Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 4) [2022] NSWSC 1050:

“(1)   On and from 1 October 2022, set aside order 3 made on 11 May 2022, staying execution of the writ of possession the subject of order 2 made on 11 May 2022.

(2)   Order 1 is made upon the plaintiff undertaking to the Court, subject to the qualifications set out in Schedule A, to:

(a)   permit reasonable access to the Land to the Interested Parties, except by prior agreement, between the hours of 9am and 5pm on Monday to Friday (excluding public holidays) during the period commencing 1 October 2022 and ending 31 July 2023 (subject to further order of the Court) for the sole purpose of each of the Interested Parties removing the Property from the Land using their own equipment in accordance with the reasonable and lawful directions of the plaintiff, the plaintiff’s agent or employee and solely at the cost and risk of the Interested Party in each instance; and

(b)   take reasonable steps to facilitate, and cooperate with the Interested Parties in the orderly, safe and lawful removal of the Property from the Land at each Interested Party’s sole cost and risk.

(3)   Refuse leave to Historic Sites to issue the subpoena provided to the Court in draft dated 26 July 2022.

(4)   Direct the plaintiff to file and serve by 4pm on 2 December 2022 a report outlining the progress of the removal of the Property from the Land.

(5)   List the matter for further directions on 9 December 2022 at 2:00pm, with the intent that the plaintiff and the Interested Parties will report on the progress and status of the removal operations on that occasion.

(6)   Grant liberty to apply on 3 days’ notice.”

4. On 1 October 2022, pursuant to the Rail Safety National Law 2012 (NSW), the Office of the National Rail Safety Regulator issued interim approval for Misthold to take over as the Rail Infrastructure Manager (RIM) for the relevant infrastructure on the land. Misthold immediately appointed Lycopodium Infrastructure Pty Ltd (Lycopodium) as its representative to perform all of the statutory functions of the RIM and to manage all matters related to the removal of the railway items from Misthold’s land. On 4 October 2022, Misthold filed a notice of motion seeking an order for the issue of the writ of possession. This Court issued the writ of possession on 10 October 2022.

5. On 2 December 2022, Misthold filed and served a report dated 28 November 2022 in accordance with order (4) made on 9 August 2022. That report identified significant efforts made by the Interested Parties to ready the land for the removal of the various locomotives, carriages and railway equipment located on the Misthold land. In accordance with the regime I had established, I directed that Misthold file a further report on progress in removing items from the land by 31 March 2023.

6. On 31 March 2023, Misthold filed and served a second report dated 24 March 2023 in accordance with those directions. That report identified very significant progress in the removal of the various locomotives, carriages and railway equipment located on the Misthold land. I directed that a further, and final, report about progress in clearance of railway items be provided by Misthold by 30 June 2023.

7. On 27 June 2023, Misthold filed a third report dated 26 June 2023 in accordance with that order. This report outlines the very substantial progress which has been made in the removal of the various locomotives, carriages and railway equipment located on the Misthold land. In total, 50 rail bound items have been removed from the land while only seven rail bound items remain. Of those seven, one is a locomotive controlled by Lachlan Valley Railway Society Co-operative Ltd, which at the time of the report was in the final stages of preparation to depart by rail. A second is a carriage owned by Lithgow State Rail Mine Railway Ltd, which was also ready to depart by rail. The remaining five items are owned by Sydney Electric Train Society Inc (SETS). Four of the five items are carriages in the final stages of preparation for departure by rail. The status of the last remaining locomotive was unknown at the time of the report.

8. There is a great deal of related equipment and machinery on the land which is still in the process of being removed. Lycopodium summarised its current priorities as:

“1.   Facilitating the removal of remaining SETS/Ben Parker assets;

2.   Facilitating the removal of the last LVR asset and the single Lithgow State Mine Railway asset; and

3.   Work with Sydney Rail Services and The Picnic Train to continue to remove their non track bound equipment;

4.   Finalise the removal of non track bound assets claimed by Andrew Reynolds but subject to the following update to a previously reported incident; and

5.   Remove any other non-track bound assets.”

9. A table contained in the report shows the very significant progress which has been made in removing items from the land:

Lyco_ID	Lycopodium Description	Visible Serial	Owner	Status
LYC_001	Very Old Loco	4627	SETS	On Site
LYC_002	Very Rusted Red Passenger Carriage	-	Reynolds (Richards)	Removed
LYC_003	Very Rusted Red Passenger Carriage	-	Reynolds (Richards)	Removed
LYC_004	Red Wagon - No Windows	-	Reynolds (Richards)	Removed
LYC_005	Red - (Part Painted White) Brake Van	-	Reynolds (Richards)	Removed
LYC_006	Steam Crane	-	Dorrigo	Removed
LYC_007	Red - Centre Powered	903	LVR	Removed
LYC_008	Red- End Powered	803	LVR	Removed
LYC_009	Red- End Powered	751N	LVR	Removed
LYC_010	Red- End Powered	855	LVR	Removed
LYC_011	Red - Centre Powered	HPF957	LVR	Removed
LYC_012	Red - Centre Powered	958	LVR	Removed
LYC_013	Silver Carriage - Graffitied	CF5001	SETS	On Site
LYC_014	Red Passenger - Colourbond Hoarding	-	Reynolds (Richards)	Removed
LYC_015	Very Rusted Red Power Van	PHS2298	Lithgow State Mine	On Site
LYC_016	Very Old "CityRail Stripes" / Colourbond Doors	-	Reynolds (Richards)	Removed
LYC_017	Red Passenger Timber Window Boards Colourbond Doors	-	Reynolds (Richards)	Removed
LYC_018	Aurizon 42202	42202	Aurizon	Removed
LYC_019	ARG 2202 Katherine	ARG2202	Aurizon	Removed
LYC_020	Aurizon 42206	42206	Aurizon	Removed
LYC_021	Stainless Steel Passenger	2378	LVR	Removed
LYC_022	620 Set - Rail Motor	NTC729	LVR	Removed
LYC_023	620 Set - Rail Motor	NPF629	LVR	Removed
LYC_024	Locomotive	4703	LVR	On Site
LYC_025	FS Compartment Carriage	FS213O	LVR	Removed
LYC_026	South Maitland Locomotive	SMR17	Dorrigo	Removed
LYC_027	South Maitland Locomotive	SMR28	Dorrigo	Removed
LYC_028	South Maitland Locomotive	SMR26	Dorrigo	Removed
LYC_029	South Maitland Locomotive	SMR20	Dorrigo	Removed
LYC_030	South Maitland Locomotive	SMR PL 31	Dorrigo	Removed
LYC_031	Red Passenger - Glass Windows	SD2214	Reynolds (Richards)	Removed
LYC_032	Red Guards Wagon	HC1351	Ben Parker	Removed
LYC_033	Red Passenger - Mostly Covered Windows	FR1037	Ben Parker	Removed
LYC_034	Part Covered Part Glass Windows	FR749	Ben Parker	Removed
LYC_035	Glass Windows	FR742	Ben Parker	Removed
LYC_036	Covered Windows	BL327	Ben Parker	Removed
LYC_037	Steel Windows	HCR1413	Ben Parker	Removed
LYC_038	Steel Windows	HBR402	Ben Parker	Removed
LYC_039	Very Old Rusted - Part Timber Window Hoardings	HC3500	-	Removed
LYC_040	Yellow Wagon	C3362	Ben Parker	Removed
LYC_041	Red Timber 3 Door (Hoarded)	-	-	Removed
LYC_042	Pale Yellow / Silver - (Part Hoarded)	-	-	Removed
LYC_043	Instruction Car	CT5910	-	Removed
LYC_044	Green Brake Test	C3661	Ben Parker	Removed
LYC_045	Red Timber (Windows Hoarded)	-	-	Removed
LYC_046	Stainless Steel with Blinds	ETB6037	SETS	On Site
LYC_047	Stainless Steel with Blinds	C5022	-	On Site
LYC_048	Stainless Steel with Blinds	-	-	On Site
LYC_049	Craig Connolly Residence	??007or??02	Reynolds (Richards)	Removed
LYC_050	Locomotive	4472	Picnic Train	Removed
LYC_051	Carriage	2278	Picnic Train	Removed
LYC_052	Carriage - Red	-	Picnic Train	Removed
LYC_053	Carriage - Blue	-	Picnic Train	Removed
LYC_054	Carriage - Stainless Steel	-	Gordon/Wilson	Removed
LYC_055	Carriage - Stainless Steel	-	Gordon/Wilson	Removed
LYC_056	Carriage - Timber (Brown)	-	Picnic Train	Removed
LYC_057	Carriage - Metal (Brown)	-	Picnic Train	Removed

Conclusion

10. These reasons set out the substantial progress made by Misthold and the Interested Parties in removing locomotives, carriages and railway equipment from the land. The Court is grateful to Misthold and the Interested Parties for working together to ensure the just, quick and cheap resolution of this matter.

11. The undertaking recorded in my orders of 9 August 2022 is expressed to expire on 31 July 2023. When directing Misthold to file the third report I have summarised above, I informed the Interested Parties that “in respect of any railway items which are not removed from the land by the time of the next report, 30 June 2023, that his Honour will fix a time to hear any application made by Misthold or other interested parties for orders to ensure that the relief granted in the proceedings is effective”. No such application has been made.

12. Given the very high degree of co-operation in removing locomotives, carriages and railway equipment from the land to date, I would encourage all involved to complete the task as soon as possible and without recourse to additional legal proceedings.

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Decision last updated: 06 July 2023