Boensch v Transport for NSW [2024] NSWCA 119

Boensch v Transport for NSW [2024] NSWCA 119

The 2022 Refusal was not a "determination under this Part" within s 135J of the Real Property Act 1900 (NSW), because s 135J concerns a determination of the position of a boundary and the statutory notice and appeal mechanism cannot operate where the Registrar-General refuses under s 135D(2) to make such a determination. The attempted challenge to the 1996 boundary determination was incompetent because the 28-day period in s 135J(3) had expired long before the proceedings, neither the RP Act nor the Land and Environment Court Rules 2007 (NSW) empowered the Court to extend, vary or waive that period, and s 55 of the Limitation Act 1969 (NSW) did not apply.

Jurisdiction
Australia
Judgment Date
21 May 2024
Procedural Posture
Application for Leave to Appeal and Appeal From Interlocutory Order Dismissing Land and Environment Court Class 3 Proceedings / Court of Appeal; Leave to Appeal Granted Only on Two Grounds and Appeal Dismissed
Outcome
Time to file the summons seeking leave to appeal was extended; leave to appeal was granted only on two statutory construction grounds; the appeal was dismissed; the remaining leave application and further amended notice of appeal were otherwise dismissed; Mr Boensch was ordered to pay the respondents' costs.
Legal Topics
['leave to Appeal' 'boundary Determination' 'water Boundary Dispute' 'registrar General Refusal to Make Boundary Determination' 'time Limit for Appeal' 'statutory Construction']
['appeals' 'land Law' 'real Property' 'land and Environment Court Procedure'] ['leave to Appeal' 'boundary Determination' 'water Boundary Dispute' 'registrar General Refusal to Make Boundary Determination' 'time Limit for Appeal' 'statutory Construction']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From Interlocutory Order Dismissing Land and Environment Court Class 3 Proceedings / Court of Appeal; Leave to Appeal Granted Only on Two Grounds and Appeal Dismissed

Legal Issues

  1. 1 ['Whether the Registrar-General\'s 2022 refusal under s 135D(2) of the Real Property Act 1900 (NSW) to make a boundary determination was a "determination under this Part" engaging the right of appeal under s 135J(1).' "Whether the right to appeal or refer the Registrar-General's 1996 boundary determination to the Land and Environment Court was no longer available because the 28-day period in s 135J(3) had expired and could not be extended, varied or waived." 'Whether the claim under the Encroachment of Buildings Act 1922 (NSW) should be the subject of leave to appeal where it had been dismissed as an abuse of process.']

Ratio Decidendi

The 2022 Refusal was not a "determination under this Part" within s 135J of the Real Property Act 1900 (NSW), because s 135J concerns a determination of the position of a boundary and the statutory notice and appeal mechanism cannot operate where the Registrar-General refuses under s 135D(2) to make such a determination. The attempted challenge to the 1996 boundary determination was incompetent because the 28-day period in s 135J(3) had expired long before the proceedings, neither the RP Act nor the Land and Environment Court Rules 2007 (NSW) empowered the Court to extend, vary or waive that period, and s 55 of the Limitation Act 1969 (NSW) did not apply.

Court Disposition

Time to file the summons seeking leave to appeal was extended; leave to appeal was granted only on two statutory construction grounds; the appeal was dismissed; the remaining leave application and further amended notice of appeal were otherwise dismissed; Mr Boensch was ordered to pay the respondents' costs.

Orders

  • ["Extend the time for the filing of Mr Boensch's Summons Seeking Leave to Appeal to 26 April 2024." "Grant leave to Mr Boensch to appeal from Order (1) made by the Land and Environment Court on 28 July 2023, but only on the following grounds: (a) that Mr Boensch had no right of appeal under s 135J of the Real...