State of New South Wales v Carver (No 2) [2023] NSWSC 972

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Carver (No 2) [2023] NSWSC 972 Hearing dates: 17 August 2023 Date of orders: 17 August 2023 Decision date: 17 August 2023 Jurisdiction: Equity - Real Property List Before: Hammerschlag CJ in Eq Decision: Orders for possession of land corrected under the slip rule Catchwords: PRACTICE AND PROCEDURE – where principal proceedings were an action by the Crown for possession of land occupied by the defendant – where Summons correctly described the land but the orders ultimately made, by error, did not contain a full description of the land – HELD – orders corrected under the slip rule Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Consequential orders Parties: State of New South Wales (Plaintiff / Applicant) Peter Carver (Defendant / Respondent) Representation: Counsel: I J King (Plaintiff / Applicant) P Tomasetti SC (Defendant / Respondent)

Solicitors: Department of Planning, Industry and Environment (Plaintiff / Applicant) Star Carver & Sons (Defendant / Respondent) File Number(s): 2021/00364911

EX TEMPORE JUDGMENT (REVISED) 1. This is an application under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (the slip rule) to correct the terms of the orders I made in the principal judgment in this matter on 14 July 2023 (State of New South Wales v Carver [2023] NSWSC 828) (the principal judgment). Definitions in the principal judgment are used. 2. The slip rule provides: 36.17 Correction of judgment or order ("slip rule") If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. 1. The proceedings which culminated in the principal judgment were initiated by a Summons claiming possession of the land described in the Schedule to the Summons as: 1. The land of the Crown that is located below the mean high water mark of the Georges River, being land of the Crown that adjoins the Georges River National Park comprised in Crown Plan 22617-3000 (also known as the Illawong Cottages). 2. The land comprised in Crown Plan 22617-3000 (also known as Georges River National Park). 1. In paragraph [6] of the principal judgment and consistent with the description in the Summons, I described the Cottage (occupied—unlawfully—by Mr Carver, a solicitor of this Court) as located: partially on Crown Plan 22617-3000 and on a Crown Reserve below the mean high water mark. 1. However, the terms of the order I made were: (1) Judgment for possession of the land referred to as the land of the Crown that is located below the mean high water mark of the Georges River, being land of the Crown that adjoins the Georges River National Park comprised in Crown Plan 22617-3000 (also known as Cottage H). 1. It will be observed that my order diverges from that claimed in the Summons. I omitted paragraph 2 of the description of the land in the Schedule to the Summons. 2. The error is entirely my own. 3. The Crown sought Mr Carver's consent to correct the error. He withheld it. In the circumstances, the Crown initiated this application by Notice of Motion filed with leave granted on 15 August 2023. I made orders abridging the time for service and made it returnable before me today. The application is supported by the Affidavit of Hamish John Williams affirmed 14 August 2023. 4. Mr Carver articulated his reasons for withholding his consent in an email to the solicitor for the Crown dated 9 August 2023. It is appropriate to set out the substantive paragraphs of that communication in full: 1. As you are aware, the Orders and Judgement of His Honour Justice Hammerschlag CJ are now on appeal to the Court of Appeal in accordance with the Notice of Intention to Appeal already filed. 2. The addition of the land referred to in paragraph 2 of the Schedule of the Statement of Claim is not a folio identifier. There is no evidence before the Court of such folio identifier 22617-3000. This land is not Torrens Title land and there is no associated folio or title for the land you seek to include. It would be inaccurate to now include this reference in the Judgement. 3. The land referred to in paragraph 2 of the Schedule of the Statement of Claim is known as Georges River National Park and is NOT Crown land. The land referred to in Paragraph 2 is separate and identifiable to the Land in Paragraph 1. 4. There is no evidence before the Court that the Department or Statutory Body in control of the Georges River National Park has consented to such amendments, nor is there any evidence that they are aware of the Orders sought. 5. Given the findings by His Honour at paragraph 61 and the effect of s13.1 of the CLMA as it applies to Crown Land, it would be inaccurate to now change the Orders to include land of the Georges River National Park, which is not Crown land. 6. Folio Identifier 22617-3000 is not a folio of the register. There is no evidence as to the title holder of the land referred to. 7. There is a significant difference between a "folio identifier'' and a "Crown Plan" 8. This matter is "live" in the Court of Appeal and the legal description and identification of the land in the Judgement is central to the appeal grounds and it would be improper for the Court to now interfere with such Orders given they are on appeal. 9. We would object to this matter being heard by His Honour Justice Hammerschlag CJ, on the basis that he has been informed of our grounds of appeal on the last occasion and may be ex-officio and it would be unjust and unfair for him to hear the matter. 1. His reasons are untenable and entirely lacking in merit. They are, as a basis for opposing correction of my error, spurious. 2. Paragraph 5 of the written submissions dated 23 June 2023 signed by counsel for Mr Carver provided to the Court for the purposes of the trial states as follows: 5. The First Defendant does not challenge the claim that the Plaintiff owns land to the mean high water mark of the Georges River, and land comprised in the folio identifier 22167-3000 (Georges River National Park) … [1] 1. At the trial, Mr Carver conceded that the land was land of the Crown and did not put in issue that he bore the onus of establishing any defence. [2] So much is recorded at [10] of the principal judgment. 2. On 28 July 2023, Mr Carver moved an application for a stay of the order for possession on the basis that he intends to appeal the principal judgment. He had filed a Notice of Intention to Appeal. I was informed today from the bar table that he has not filed a Notice of Appeal but intends to do so. Counsel briefed by him on the stay application (who also appeared at the trial) did not succeed in articulating any grounds of appeal sufficient for me to conclude that an appeal has any reasonable prospects of success. On that basis, I refused a stay. 3. At no time during the course of the trial did Mr Carver, a conveyancing solicitor of 45 years' experience, raise any issue that part of the land he occupies, has a different legal status to the other part or that it is not Crown land, or is somehow to be treated differently. During the course of the stay application, no such issue was raised as being one for appeal. To put it euphemistically, this makes his statement in the paragraph numbered 8 in his email somewhat surprising. 4. On 16 August 2023 at 12:15pm, Mr Carver wrote to my Associate advising that there would be no appearance by him today on the motion. In his email, he articulated a number of arguments as to why the Court should not make the orders sought in the Notice of Motion. 5. This morning, however, when the motion was called, Mr Tomasetti of senior counsel was present on Mr Carver's behalf. He initially sought to appear as amicus curiae on the footing that he did not have instructions to appear. I declined this application, upon which Mr Tomasetti said immediately that he appeared for Mr Carver. 6. Mr Tomasetti sought an adjournment of the motion. The following exchange took place: HIS HONOUR: On what basis? TOMASETTI: In order to acquaint myself with the notice of motion and argue it. I've only been briefed last night, your Honour, I'm not across it at all. There is a substantive objection to the notice of motion. HIS HONOUR: What is that? TOMASETTI: Your Honour, the primary position as I understand it is that the land on which the - perhaps it's best explained by reference to the Crown plan which is part of the motion. The land below the Georges River is Crown land but on my instructions, the land which is within the Georges River National Park is not. It's administered by a different instrumentality altogether. HIS HONOUR: Mr Tomasetti, at the hearing there was no issue as to this. It was conceded by your client that the land was Crown land. TOMASETTI: I think the concession may be of an erroneous concession, your Honour, if it was made. HIS HONOUR: So far as that's concerned, I can tell you this. That it was my intention to make an order along the lines that the Crown sought. And there was no issue of the nature that is now being raised. If that's correct, Mr Tomasetti, what would be the answer that would be [proffered] for that? TOMASETTI: Your Honour, I wasn't here. Your Honour knows far more about the matter than I do. 1. Leaving aside that the "substantive" point was never taken, even if it had substance, it is not a bar to the correction of orders which contain a plain error by omission. 2. In paragraph numbered 9 of Mr Carver's email, he refers to the Court being "ex officio". I take it that he intended to refer to say functus officio. The Court is not, and cannot be, functus officio so as to inhibit it from dealing with this application. 3. It is appropriate to record the following exchange which took place at the end of the Crown's submissions on the application: HIS HONOUR: Mr Tomasetti, I take it you have nothing to put at the moment. TOMASETTI: The only matter that I put would appear to be contrary to the written submission, your Honour, so I have nothing to add. 1. The Court orders: Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), order (1) of the orders made on 14 July 2023 is varied nunc pro tunc so as to read: "Judgment for possession of the land referred to as Cottage H being: (a) the land of the Crown that is located below the mean high water mark of the Georges River, adjoining the Georges River National Park comprised in Crown Plan 22617-3000; and (b) the land comprised in Crown Plan 22617-3000 (also known as the Georges River National Park)." 1. In circumstances where the Crown sought the consent of Mr Carver to correct an obvious error and where, if consent was granted, the matter could have been dealt with in Chambers without the necessity for the Notice of Motion, I consider that Mr Carver should pay the Crown's costs of the Notice of Motion filed 15 August 2023. 2. The Court orders that the first defendant is to pay the plaintiff's costs of this application.