ST ALDER v WAVERLEY [2009] NSWCA 437

ST ALDER v WAVERLEY [2009] NSWCA 437

The applicants should not be removed from the relevant area except in accordance with s 159 of the Crown Lands Act 1989 (NSW), given the statutory requirement for a warrant for removal, and in light of the ongoing occupation and approaching holiday period, a stay should be continued pending the substantive hearing of the appeal.

Parties
Applicant: Kevin St Alder; First Respondent: Waverley Council; Second Respondent: State of New South Wales
Jurisdiction
Australia
Judgment Date
23 December 2009
Procedural Posture
Civil Appeal / Application for Extension of Stay Pending Appeal
Outcome
Application granted for extension of stay; interim injunction restraining removal of applicants until 18 February 2010; directions for appeal preparation and submissions; costs of motion considered as costs in the proceedings.
Legal Topics
Continuation of Stay, Removal From Crown Land, Representative Proceedings, Interlocutory Orders, Appeals Process
Property Law Administrative Law Civil Procedure Continuation of Stay Removal From Crown Land Representative Proceedings Interlocutory Orders Appeals Process

Case Brief

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Parties

Kevin St Alder

Applicant

Waverley Council

First Respondent

State of New South Wales

Second Respondent

Procedural Posture

Civil Appeal / Application for Extension of Stay Pending Appeal

Legal Issues

  1. 1 Whether a continued stay of summary dismissal should be granted to applicants occupying Crown Land
  2. 2 Whether the applicants have any arguable entitlement to remain in occupation of the Crown Land under lease, licence, estoppel, or fiduciary duty
  3. 3 Whether the statutory regime of the Crown Lands Act 1989 (NSW) precludes the applicants' asserted entitlement to remain

Ratio Decidendi

The applicants should not be removed from the relevant area except in accordance with s 159 of the Crown Lands Act 1989 (NSW), given the statutory requirement for a warrant for removal, and in light of the ongoing occupation and approaching holiday period, a stay should be continued pending the substantive hearing of the appeal.

Court Disposition

Application granted for extension of stay; interim injunction restraining removal of applicants until 18 February 2010; directions for appeal preparation and submissions; costs of motion considered as costs in the proceedings.

Orders

  • Applicants undertook to maintain cleanliness and keep fire exit clear; respondents restrained until 5pm 18 February 2010 from removing applicants or their belongings or preventing access to area under colonnade at northwest rear of Bondi Pavilion, subject to exceptions for emergency services.
  • Appeal and any application for leave to appeal fixed for hearing on 18 February 2010.