Mehmet v Carter [2018] NSWCA 305

Mehmet v Carter [2018] NSWCA 305

It was inappropriate for the primary judge to answer question 1 (whether alleged Aboriginal objects are capable of constituting a defect in title) as framed because it was hypothetical and did not finally determine the proceedings; however, should the question arise on the facts, the existence of Aboriginal objects on land is capable of constituting a defect in title under relevant legal principles and statutory scheme, given the substantial restrictions such objects may impose.

Parties
First Appellant: Ian Mehmet as trustee for the Ian G Mehmet Testamentary Trust; Second Appellant: Cameron Mehmet as trustee for the Cameron Mehmet Testamentary Trust; Third Appellant: Errol Mehmet as trustee for the Errol J Mehmet Testamentary Trust; Fourth Appellant: Cheers Aviation Pty Ltd as trustee for the KMGC Investment Trust; Fifth Appellant: Matthew Cheers; First Respondent: Murray John Carter; Second Respondent: The Wheel Resort Pty Ltd; Third Respondent: Cathscompany Pty Ltd
Jurisdiction
Australia
Judgment Date
13 December 2018
Procedural Posture
Appeal / Judgment After Hearing of Appeal Against Primary Judge's Orders on Separate Questions
Outcome
Appeal allowed; orders of the primary judge set aside; separate questions not answered; proceedings remitted to Equity Division of the Supreme Court; no order as to costs of the appeal or the separate questions hearing before the primary judge (costs in the cause).
Legal Topics
Defect in Title, Contract for Sale of Land, Aboriginal Objects, Hypothetical Questions, Remittal of Proceedings
Land Law Defect in Title Contract for Sale of Land Aboriginal Objects Hypothetical Questions Remittal of Proceedings

Case Brief

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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

Procedural Posture

Appeal / Judgment After Hearing of Appeal Against Primary Judge's Orders on Separate Questions

Legal Issues

  1. 1 Whether the presence of alleged Aboriginal objects on land is capable of constituting a defect in title for the purposes of a contract for sale.
  2. 2 Whether it was appropriate for the primary judge to answer hypothetical or vague separate questions.

Ratio Decidendi

It was inappropriate for the primary judge to answer question 1 (whether alleged Aboriginal objects are capable of constituting a defect in title) as framed because it was hypothetical and did not finally determine the proceedings; however, should the question arise on the facts, the existence of Aboriginal objects on land is capable of constituting a defect in title under relevant legal principles and statutory scheme, given the substantial restrictions such objects may impose.

Court Disposition

Appeal allowed; orders of the primary judge set aside; separate questions not answered; proceedings remitted to Equity Division of the Supreme Court; no order as to costs of the appeal or the separate questions hearing before the primary judge (costs in the cause).

Orders

  • Allow the appeal.
  • Set aside the orders made by the primary judge.