Murray v Sutherland Shire Council [2001] NSWLEC 206

Land and Environment Court of New South Wales

CITATION : Murray v Sutherland Shire Council [2001] NSWLEC 206 APPLICANT: Patrick Joseph Murray PARTIES : RESPONDENT: Sutherland Shire Council FILE NUMBER(S) : 40044 of 2001 CORAM: Lloyd J KEY ISSUES: Practice and Procedure :- strike out application -no reasonable cause of action - relief barred by s 42 of the Real Property Act 1900 LEGISLATION CITED: Real Property Act 1900 s 42, s 43 Breskvar v Wall (1971) 126 CLR 376; CASES CITED: General Steel Industries Incorporated v The Commissioner for Railways (1964) 112 CLR 125; Palais Station Pty Ltd v Shea (1980) 45 LGRA 214; Shoalhaven City Council v Logue (1979) 41 LGRA DATES OF HEARING: 10/08/2001 EX TEMPORE JUDGMENT DATE : 08/10/2001

APPLICANT: Mr P J Murray - in person SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr J A Ayling (Barrister) SOLICITORS: Abbott Tout

JUDGMENT:

7 IN THE LAND AND Matter No.: 40044 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 10 August 2001

Patrick Joseph Murray Applicant v Sutherland Shire Council Respondent EXTEMPORE JUDGMENT

HIS HONOUR: 1. The respondent has applied by way of notice of motion for an order that the application be struck out and the proceedings be dismissed. The application is brought pursuant to Pt 13 r 5 of the Supreme Court Rules 1970 as they apply in this Court. That rule provides that where in any proceedings it appears to the Court that, in relation to proceedings generally, or in relation to any claim for relief in the proceedings, (a) no reasonable cause of action is disclosed, (b) the proceedings are frivolous or vexatious, or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings. 2. The test to be applied on such an application has been variously expressed as "so obviously untenable that it cannot possibly succeed", or it is "manifestly groundless", or it is "so manifestly faulty that it does not admit of argument", or "discloses a case which the Court is satisfied cannot succeed", or "under no possibility can there be a good cause of action", or "it would be manifest that to allow (the matter) to stand would involve useless expense". (See General Steel Industries Incorporated v The Commissioner for Railways (1964) 112 CLR 125 at 129.) 3. The relevant facts may be briefly described. For the purpose of this motion, I am prepared to accept the fact that the land the subject of these proceedings was a public reserve up until the time of its sale and transfer to others by the council on 30 December 1966. The applicant, Mr P J Murray, says that the council acted illegally in selling the land on 30 December 1966 because it was a public reserve. It is said that the council, the respondent, never revoked the public reserve status of the land; that the land was and remains subject to a trust; and, therefore, the sale of the land by the council in 1966 was void. Upon the coming into operation of the Local Government Act 1993, it is then said that the land automatically became community land. 4. The applicant therefore seeks a declaration that on 30 December 1966 the land was a public reserve; a further declaration that a resolution of the council of 12 September 1966 or thereabouts to sell the land is void and of no effect; a further declaration that the purported sale by the council of the land by transfer of 30 December 1966 is void and of no effect; and a declaration that at the commencement of the Local Government Act 1993 the subject land was properly classified as community land. The applicant also seeks an order restraining the respondent council from dealing with the land in a manner otherwise than in accordance with ss 35 to 47 and Pt 2 of Sch 7 to the Local Government Act 1993 unless it is reclassified; and an order that the respondent pay the applicant's costs. 5. The evidence shows that by memorandum of transfer dated 30 December 1966 the council sold the land to Thiess Brothers Pty Limited. In 1968 there was a transfer of a small portion of the land from Thiess Brothers Pty Limited back to the council. By memorandum of transfer dated 28 November 1975 Thiess Brothers Pty Limited transferred the land to Thiess Toyota Pty Limited. By a further memorandum of transfer in June 2000, Thiess Toyota Pty Limited transferred the land to Guardian Trust Australia Limited. 6. The council submits that the proceedings brought by Mr Murray cannot succeed. The principal argument of the council is based on ss 42 and 43 of the Real Property Act 1900. Section 42 of that Act states: (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except… [Certain exceptions which are not presently relevant]. 7. Section 43 of the Real Property Act 1900 provides: (1) Except in the case of fraud, no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any registered estate or interest shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such registered owner or any previous registered owner of the estate or interest in question is or was registered , …

… 8. In Breskvar v Wall (1971) 126 CLR 376 Barwick CJ said at pp 385 and 386: The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. … It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void. 9. In Palais Station Pty Limited v Shea (1980) 45 LGRA 214, the Full Court of the Supreme Court of South Australia held that an ultra vires taking does not constitute fraud within the meaning of the equivalent of s 42 of the Real Property Act. In that case, the Director-General of Medical Services for South Australia purported to resume land for the purpose of the Hospitals Department of the government of that State. The Director General did not have the power to do so. King CJ said (at 219): Upon registration, then, the Director-General became the registered proprietor of the land, notwithstanding that the notice of acquisition was void, and, in my opinion, acquired an immunity against adverse claims (other than claims in personam) except so far as they may be specifically admitted by the Act. There is no question of fraud. 10. In Shoalhaven City Council v Logue (1979) 41 LGRA 116 the Court of Appeal of New South Wales had to consider an analogous question. Section 602 of the Local Government Act 1919 empowered a council to sell land for overdue rates. A condition precedent was the giving of a notice in the prescribed form. Shoalhaven Shire Council purported to exercise the power but the notice that it gave was not a valid notice. The Court, by majority, held that the invalidity of the notice did not affect the status of the council as registered proprietor since the council as registered proprietor was protected by the indefeasibility provisions of s 42 of the Real Property Act. 11. In the present case, the subject land has been the subject of three successive sales to subsequent registered proprietors, each of which has in turn become registered as the proprietor of the land. Each of those transactions were protected by ss 42 and 43 of the Real Property Act. Notwithstanding the fact that the council may have acted illegally in selling the land in 1966, and I express no opinion on that, the consequence is that the relief now sought by the applicant, Mr Murray, cannot be granted. In other words, the application now brought by Mr Murray discloses a case which I am satisfied cannot succeed. To allow the case to proceed would involve useless expense. That is sufficient for me to dispose of the notice of motion. Other arguments were put in support of the respondent's notice of motion, but I do not deal with them: it is not necessary for me to do so. 12. The formal orders of the Court are as follows: (1) The application is amended by removing the name Taren Point Parks Restoration Group as an applicant. (2) The application is struck out and the proceeding is dismissed. 13. Is there anything else? 14. AYLING: Yes, your Honour, but before I ask your Honour to deal with that, there is another outstanding motion. That is in relation to the subpoena, or an outstanding reference in relation to the subpoena which will I think automatically – 15. HIS HONOUR: The proceedings are dismissed. 16. AYLING: I appreciate that, your Honour, but certain costs have been incurred in respect of preparation to deal with that reference and I'm seeking to ensure that any costs which have been incurred in relation to that reference are incorporated into the submission I now make which is that your Honour ought to make an order for costs of the proceedings, including that reference which will not be now determined in favour of the council. 17. HIS HONOUR: I would have thought Mr Ayling that they are the respondent's costs in the proceedings. 18. AYLING: I think your Honour is right, the proceedings are dismissed but they remain on foot for the purposes of questions of costs until all outstanding issues are disposed of and on that basis your Honour would be correct, I'm just dotting my i's and crossing my t's I suppose, just to make sure that— 19. HIS HONOUR: You're being ultra-cautious. 20. AYLING: Ultra-cautious your Honour, yes, but I do make that application for costs in the proceedings. The matter has been one which has been now on foot for some months. There's been substantial public expense associated with the matter in relation to the filing of documentation, correspondence and the like. It seems appropriate in the circumstances that that cost not be shouldered by the public where the applicant has brought proceedings which as your Honour has now found manifestly incapable of succeeding. 21. HIS HONOUR: I will hear Mr Murray on costs. Do you wish to say anything about costs, Mr Murray? 22. APPLICANT: This has a long history, this business. The public really have lost out on it. I have tried to act for the people of Taren Point, to seek some retribution from selling the local parks. I have done this in a community thing and I don't think any costs should be awarded if you're striking it out. I don't think costs should be awarded to the council. They're spending public money anyway. You already I believe said the land could have been a public reserve. Some of the information I've been trying to get for ten years as a result of the FOI applications. I've been dealing with council's publicity officer. I have made applications recently for some further information and they just totally ignore these things. They ignore their policy as regard dealing with community actions against them. I don't think there should be any costs. I'd ask you not to award costs. It would be awarding costs against the community which has suffered immensely as a result of the action of the council and against people. They've already lost their property values as a result of all of this. I would ask you not to award costs. 23. HIS HONOUR: The respondent council seeks an order for costs. That application is opposed by Mr Murray, who says that he is bringing the claim in the public interest. On 6 July 2001 the council's solicitor wrote to Mr Murray. That letter states, inter alia, the following: Having considered your points of claim, we are of the opinion that the proceedings commenced by you are futile. 24. Then, later on in the letter, the following is stated: It follows in our view that your claim cannot succeed and we are instructed that unless you discontinue the proceedings within 14 days of this date, we will file a motion with the Land and Environment Court for summary dismissal or to strike out your claim as an abuse of process because it is foredoomed to failure. In the event that the respondent is successful on the motion, we are instructed to seek indemnity costs of the proceedings. 25. The Court, of course, has a discretion as to costs. The usual exercise of the discretion is that the unsuccessful party should pay the successful party's costs. In the present case, an invitation was extended to Mr Murray by the letter of 6 July to discontinue the proceedings and he was told that if he were not to do so, the council would bring this motion and seek its costs. In the light of that circumstance, it is appropriate that costs should be ordered. I order that the applicant, Mr Murray, pay the respondent council's costs of the notice of motion and of the proceedings generally. 26. APPLICANT: The proceedings generally haven't been heard. 27. HIS HONOUR: No, they haven't been heard but I have held that you have no cause of action. Is there anything else? 28. AYLING: Does your Honour need to make any order at all in relation to the reference? Probably not. 29. HIS HONOUR: No. I hereby certify that the preceding 29 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate

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