New South Wales v Simpson - [2025] NSWSC 429

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: New South Wales v Simpson [2025] NSWSC 429
Hearing dates: 22 April 2025
Date of orders: 22 April 2025
Decision date: 22 April 2025
Jurisdiction: Common Law
Before: Faulkner J
Decision:
See [178]

Catchwords:
CIVIL PROCEDURE – Application for leave to amend defence – proposed amendments futile – summary judgment for possession of land in favour of registered proprietor

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 5, 8, 17, 56, 57, 58, 64, 90, 92, 98
Commonwealth Constitution, ss 51(xix), 51(xxxi), 73, 75, 122
Crown Lands Act 1989 (NSW), s 6
Crown Lands Management Act 2016 (NSW), ss 1.10, 1.15, 4.4
Interpretation Act 1987 (NSW), s 12
Judiciary Act 1903 (Cth), s 55ZF
Native Title Act1993 (Cth)
New South Wales Constitution Act 1902 (NSW), s 5
Real Property Act 1900 (NSW), ss 3, 13J, 31B, 32, 42, 96B, 96D
Real Property Act Regulations 1970 (NSW), reg 4
Supreme Court Act 1970 (NSW), ss 22, 23
Uniform Civil Procedure Rules 2005 (NSW), rr 4.2A, 6.1, 6.2, 6.9, 7.19, 12.1, 14.3, 14.14, 14.28

Cases Cited:
Agius v The State of New South Wales [2001] NSWCA 371
Alamdo Holdings Pty Ltd v Australian Window Furnishings New South Wales Pty Ltd [2006] NSWSC 1073
Application by Adrian Ashley of the House of Cooper [2017] NSWSC 533
Ausbao (286 Sussex Street) Limited v The Registrar-General of New South Wales [2023] NSWCA 18
Bahr v Nicolay (1988) 164 CLR 604; [1988] HCA 16
Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70
Fejo v The Northern Territory (1998) 195 CLR 96; [1998] HCA 58
General Steel Industries Inc v the Commissioner of Railways (1964) 112 CLR 125
Gumana v The Northern Territory (2007) 158 FCR 349; [2007] FCAFC 23
Horton v Jones (No 2) (1939) 39 SR(NSW) 305
Love v The Commonwealth (2020) 270 CLR 152; [2020] HCA 3
Mabo v Queensland (No 2) (1995) 175 CLR 1; [1992] HCA 23
McGuirk v The University of New South Wales [2009] NSWSC 1424
Mortimer v Auswide Services Limited [2016] ACTSC 282
The Commonwealth v Yunupingu [2025] HCA 6

Category: Principal judgment
Parties: State of New South Wales (Plaintiff/Cross-Defendant)
Luke Daniel William Simpson (Defendant/Cross-Claimant)
Representation:
Counsel:
A Douglas-Baker (Plaintiff)
Defendant appeared in person
M Ryan (Cross-Defendant)
Solicitors:
NSW Department of Planning, Housing and Infrastructure (Plaintiff)

File Number(s): 2024/00051618

JUDGMENT EX TEMPORE (REVISED)

Introduction

These proceedings are brought in the Possession List of the Supreme Court of New South Wales. The Plaintiff is the State of New South Wales which, as registered proprietor of two parcels of land located near Lennox Head, seeks orders for possession and ancillary relief. The first parcel of land is Lot 7003/106584. The second parcel is Lot 7004/96435 (together the “Land”). The Land is adjacent to part of a long stretch of Seven Mile Beach.
The orders are sought in circumstances where the Defendant has taken up a degree of occupation of part…

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.

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Details

Case: [2025] NSWSC 429
Decision Date: 22 April 2025

CaseChat Overview and Summary

The matter before the court was an application by New South Wales seeking leave to amend its defence in a proceeding for possession of land. The applicant, the State of New South Wales, was seeking to amend its defence in response to an application for summary judgment brought by the respondent, the registered proprietor of the land, who sought possession of the land. The court was required to decide whether the proposed amendments to the defence were futile and whether the applicant was likely to succeed on the merits of the case. The court was also required to determine whether the applicant was entitled to leave to amend its defence.

The court found that the proposed amendments to the defence were futile as they did not address the fundamental issue of the applicant's lack of title to the land. The court held that the applicant had failed to establish a prima facie case and that it was unlikely to succeed on the merits of the case. The court further held that the applicant was not entitled to leave to amend its defence as the proposed amendments would not have assisted in establishing a case in favour of the applicant. The court granted the respondent's application for summary judgment and possession of the land.

The court's decision was based on a careful analysis of the evidence and legal arguments presented by both parties. The court found that the applicant had failed to establish a valid claim to the land and that the proposed amendments to the defence would not have assisted in establishing a case in favour of the applicant. The court held that the respondent was entitled to summary judgment and possession of the land. The court further held that the applicant was not entitled to leave to amend its defence as the proposed amendments were futile. The final orders of the court were that the application for summary judgment be granted, the respondent be awarded possession of the land, and the applicant's application for leave to amend its defence be dismissed.

Orders