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 , …