Registrar-General (NSW) v Jea Holdings (Aust) Pty Ltd

[2015] NSWCA 179

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Registrar-General (NSW) v Jea Holdings (Aust) Pty Ltd [2015] NSWCA 179

Hearing dates:

22 June 2015

Date of orders:

22 June 2015

Decision date:

22 June 2015

Before:

Emmett JA

Decision:

1   Order that the judgment of the Court of Appeal dated 27 March 2015 be stayed until the final disposition of the process of appeal to the High Court of Australia commenced by the filing on 23 April 2015 by the Applicant / First Respondent (“Jea Holdings”) of an application for special leave to appeal in proceedings numbered S76 of 2015.

 

2   Note the undertaking of Jea Holdings that it will:

 

   (a) within two days of the date of these orders cause to be forwarded to Liverpool City Council a letter to the effect of a draft letter annexed to the short minutes of order and marked “A”, and

 

   (b) within seven days of receipt of any response from Liverpool City Council to the above letter, cause the Second Respondent to be informed (by letter addressed to its solicitors) of the terms of such response.

 3   Grant liberty to all parties to apply on two days’ notice.

Catchwords:

PROCEDURE – application for stay of orders

Cases Cited:

Registrar-General of NSW v Jea Holdings (Aust) Pty Ltd [2015] NSWCA 74

Category:

Procedural and other rulings

Parties:

Registrar-General of New South Wales (Appellant) 
Jea Holdings (Aust) Pty Ltd (First Respondent) 
Awar Pty Ltd (Second Respondent)

Representation:

Counsel:
No appearance (Appellant)
Mr M Einfeld QC with Mr G Moore (First Respondent)
No appearance (Second Respondent)

  Solicitors:
Land & Property Information (Appellant)
DA Patterson Partners (First Respondent)
Harris & Harris Solicitors (Second Respondent)

File Number(s):

2013/184871

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity Division

Date of Decision:

21 May 2013

Before:

Windeyer AJ

File Number(s):

2012/37706

Judgment

1. EMMETT JA: Jea Holdings (Aust) Pty Ltd (Jea) is the registered proprietor of Lot 4 in Deposited Plan No 219028, and Awar Pty Ltd (Awar) is the registered proprietor of Lot 5 in Deposited Plan 219028.  Lot 5, which is currently the site of a hotel, adjoins Lot 4, which is vacant land apart from 198 car spaces and a telecommunications tower. There is recorded on the Register in respect of Lot 5 the benefit of a covenant and easement created by memorandum of transfer J493622 dated 20 October 1963 (the Transfer) whereby the owner for the time being of Lot 4 was not to use that land for any use other than the purposes of parking. Lot 5 therefore has the benefit of the covenant not to use Lot 4 otherwise than for parking, and the owner of Lot 5, its servants and patrons has an easement for a right of way to pass and repass over Lot 4 with or without motor vehicles. The covenant and easement are not recorded on the Register in respect of Lot 4.

2. Section 42(1)(a1) of the Real Property Act 1900 (NSW) relevantly provides that the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall hold the same, subject to such other estates and interests and such entries, if any, as are, but absolutely free from all other estates and interests that are not recorded in that folio except in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of that Act or validly created at or after that time under that or any other Act or a Commonwealth Act. The Registrar-General gave notice to Jea that, in reliance on s 42(1)(a1), he proposed to record in the Register in respect of Lot 4 the existence of the covenant and easement, unless restrained from doing so.

3. Jea commenced proceedings for an injunction to restrain the Registrar-General from making the relevant entry in the Register. Windeyer AJ declined to grant that relief.  However, on 27 March 2015, this Court allowed an appeal and declared that the land in Lot 4 is burdened by an easement in the terms set out in the Transfer and ordered the Registrar-General to register the easement in Sch 2 of the relevant folio. [1]

   1. Registrar-General of NSW v Jea Holdings (Aust) Pty Ltd [2015] NSWCA 74.

4. Jea has now applied to the High Court for special leave to appeal from the orders made by this Court on 27 March 2015.  However, pending the hearing of that application and any appeal, if leave is granted, there would be a prospect that Jea would suffer irreparable damage if the orders made by this Court were given effect. Therefore, by notice of motion dated 20 June 2015, Jea has applied for a stay of those orders.

5. Neither Awar nor the Registrar-General appeared on the hearing of the application. However, Awar has indicated that it consents to the stay proposed by Jea and the Registrar-General has indicated that he neither consents to nor opposes the grant of the stay.

6. In circumstances where there is no opposition from the Registrar-General and Awar consents to the granting of a stay, I consider that it is appropriate to make orders as proposed on behalf of Jea as follows:

1. Order that the judgment of the Court of Appeal dated 27 March 2015 be stayed until the final disposition of the process of appeal to the High Court of Australia commenced by the filing on 23 April 2015 by the Applicant / First Respondent (“Jea Holdings”) of an application for special leave to appeal in proceedings numbered S76 of 2015.

2. Note the undertaking of Jea Holdings that it will:

1. within two days of the date of these orders cause to be forwarded to Liverpool City Council a letter to the effect of a draft letter annexed to the short minutes of order and marked “A”, and

2. within seven days of receipt of any response from Liverpool City Council to the above letter, cause the Second Respondent to be informed (by letter addressed to its solicitors) of the terms of such response.

3. Grant liberty to all parties to apply on two days’ notice.

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Endnote

Decision last updated: 26 June 2015