Mueller v Austin

[2010] NSWLEC 137

Land and Environment Court

of New South Wales

CITATION:

Mueller v Austin [2010] NSWLEC 137

PARTIES:

FIRST APPLICANT:
Heide Mueller

SECOND APPLICANT:
Grete Maria Hauss Van Aken

FIRST RESPONDENT:
John Austin

SECOND RESPONDENT:
Elizabeth Jean Austin

FILE NUMBER(S):

20505 of 2010

CORAM:

Biscoe J

KEY ISSUES:

WATER :- caveats - extension of operation of a caveat registered in the Access Register under the Water Management Act 2000.

LEGISLATION CITED:

Water Management Act 2000

DATES OF HEARING:

2 July 2010

EX TEMPORE JUDGMENT DATE:

2 July 2010

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr B O'Donnell (barrister)
SOLICITORS:
Kell Moore Lawyers

RESPONDENTS:
Mr A Rowe
SOLICITORS:
Mackenzie & Vardanega

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

2 July 2010

20505 of 2010

HEIDE MUELLER & ANOR v JOHN AUSTIN & ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: This appears to be the first case in which the Court has been asked to exercise its jurisdiction to extend the operation of a caveat registered in the Water Access Licence Register under the Water Management Act 2000.

2 Before me is a notice of motion by the applicants for an interlocutory order that their caveat under the Act be extended until the Court determines their principal application. The respondents consent to that order.

3 The Minister for Water may grant an application for a water access licence: s 63. The Minister is to keep a Water Access Licence Register (Access Register): s 71. The matters relating to an access licence or a holding in an access licence which must be recorded in the Access Register include any caveat lodged in relation to the licence or holding: s 71A. Schedule 1A relevantly provides:

“…

6 Duration of caveat
…
(2) A caveat ceases to have effect if:
(a) the Land and Environment Court makes an order for its removal on an appeal under section 368, or
(b) the caveat is withdrawn, or
(c) the caveator is given notice under clause 7 and 21 days have passed since the notice was given.
(3) Subclause (2) (c) does not apply if, before the end of the 21 days the caveator:
(a) obtains an order from the Land and Environment Court extending the caveat for such further period as is specified in the order or until the further order of the Court, and
(b) lodges a copy of the order certified by a proper officer of the Court with the Minister.


7 Notice to caveator

(1) If a general dealing, dealing on default, security interest or change in co-holder’s tenancy arrangements in relation to an access licence or holding in an access licence that is the subject of a caveat is lodged with the Minister, or the holder of an access licence or holding in an access licence so requests, the Minister must notify the caveator that it has been lodged.
…

8 Powers of Land and Environment Court in relation to caveats

The Land and Environment Court may:

…
(c) extend the period provided for by clause 6,”

4 The Minister for Water granted an access licence to the respondents. The applicants complain that the access licence should have been granted to them and that the grant to the respondents was an error, omission or defect.

5 The applicants lodged a caveat which was recorded in the Access Register. The caveat identified the applicants’ interest as the landowners and the rightful owners of specified water access licences that had been wrongly issued to the respondents contrary to provisions of the Water Management Act.

6 The respondents lodged a dealing of some sort which had the unintended effect of triggering a notification on 17 June 2010 by the Registrar General to the caveators of the proposed lapsing of the caveat. The notification said that a recording would be made in the register of the lapsing of the caveat upon expiration of twenty one days after the date of service of that notice unless an order extending the operation of the caveat was obtained from the Supreme Court of New South Wales and such order, or an office copy thereof, was lodged with the Registrar General within that period. The reference to the Supreme Court of New South Wales was an error because jurisdiction to extend a caveat under the Water Management Act is vested in the Land and Environment Court.

7 The applicants have also made an application to the Minister to correct the recording of the access licence in the Access Register under s 71I of the Water Management Act which provides:

“ 71I Correction and amendment of Access Register

The Minister may, on such evidence as the Minister considers sufficient, correct an error, omission or defect, or amend for any other reason, any recording in the Access Register.”

8 The Minister has indicated that a decision on the application should be made soon. An appeal lies to this Court against a decision of the Minister in relation to the recording of any matter in the Access Register: s 368(1)(fa)(i). Whichever way the Minister’s decision goes, it appears likely, if not inevitable, that there will be an appeal to this Court against the decision.

9 The dispute between the parties is being played out in the context of the application to the Minister. The anticipated appeal against the Minister’s decision is likely to overtake the present proceedings in disposing of the dispute between the parties.

10 The respondents, without admissions, consent to the order sought in the notice of motion extending the caveat until the Court determines the principal application. I accept that this is appropriate.

11 The parties propose, and I agree, that the proceedings should be stood over for an appropriate period to allow receipt of the Minister's decision on the application and the likely appeal from the decision, whichever way it goes.

12 The orders of the Court are as follows:

(1) Pursuant to cll 6(3) and 8(c) of Schedule 1A to the Water Management Act 2000 the operation of caveat number AE217720C be extended until the Court determines the principal application in this matter;
(2) The proceedings are stood over to Friday 27 August 2010 before the List Judge for directions;
(3) If the decision of the Minister for Water on the applicants' pending application to the Minister under the Water Management Act 2000 is received prior to the last mentioned date, the parties are to promptly re-list the proceedings before the List Judge on a Friday;
(4) The costs of the applicants' notice of motion filed on 28 June 2010 are reserved.