Illawarra Local Aboriginal Land Council v Stewart [2016] NSWSC 125

Illawarra Local Aboriginal Land Council v Stewart [2016] NSWSC 125

The lease was invalid because Ms Stewart did not establish, and the evidence disproved, compliance with s 40(2) of the Aboriginal Land Rights Act 1983. The contemporaneous records did not show any meeting specifically called to approve her lease or any resolution granting approval, the minutes after execution showed lease terms were still under discussion, there was no documentary proof of Regional Land Council approval, and the presumption of regularity was not available in the circumstances. Under s 40(11), a lease in contravention of s 40 was void, so the Land Council was entitled to possession and the cross-claim failed.

Jurisdiction
Australia
Judgment Date
25 February 2016
Procedural Posture
Proceedings for Possession of Land With Cross Claim for Declaratory Relief / Principal Judgment After Hearing
Outcome
Order for possession made. Cross claim dismissed.
Legal Topics
['possession of Land' 'validity of 99 Year Lease' 'local Aboriginal Land Council Approval Requirements' 'regional Aboriginal Land Council Approval Requirements' 'presumption of Regularity' 'burden of Proof' 'unregistered Lease' 'cross Claim for Estoppel']
['property Law' 'aboriginal Land Rights' 'civil Procedure' 'evidence'] ['possession of Land' 'validity of 99 Year Lease' 'local Aboriginal Land Council Approval Requirements' 'regional Aboriginal Land Council Approval Requirements' 'presumption of Regularity' 'burden of Proof' 'unregistered Lease' 'cross Claim for Estoppel']

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Procedural Posture

Proceedings for Possession of Land With Cross Claim for Declaratory Relief / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the 99 year lease of the cottage executed on 19 September 1989 was valid.' 'Whether the requirements of s 40(2) of the Aboriginal Land Rights Act 1983 were met, including approval at a meeting specifically called for that purpose and approval by the Regional Aboriginal Land Council.' 'Whether the presumption of regularity or ss 40(5) and 64 of the Aboriginal Land Rights Act 1983 assisted Ms Stewart in establishing validity of the lease.' 'Which party bore the burden of proving compliance or non-compliance with s 40(2).' "Whether the Land Council was entitled to possession and whether Ms Stewart's cross-claim should be dismissed."]

Ratio Decidendi

The lease was invalid because Ms Stewart did not establish, and the evidence disproved, compliance with s 40(2) of the Aboriginal Land Rights Act 1983. The contemporaneous records did not show any meeting specifically called to approve her lease or any resolution granting approval, the minutes after execution showed lease terms were still under discussion, there was no documentary proof of Regional Land Council approval, and the presumption of regularity was not available in the circumstances. Under s 40(11), a lease in contravention of s 40 was void, so the Land Council was entitled to possession and the cross-claim failed.

Court Disposition

Order for possession made. Cross claim dismissed.

Orders

  • ['The plaintiff have possession of that part of Lot 132 in Deposited Plan 720896 known as No 12 Tombrown Road, Kemblawarra, including the dwelling house built thereon.' "The defendant's cross claim is dismissed."]