Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230

New South Wales Court of Appeal

CITATION: Kogarah Municipal Council v Golden Paradise Corporation & Anor [2005] NSWCA 230

HEARING DATE(S): 3 June 2005

JUDGMENT DATE: 12 July 2005

JUDGMENT OF: Tobias JA at 1; McColl JA at 79; Basten JA at 81

DECISION: (1) Appeal allowed; (2) Order that the declarations and orders made by Cowdroy J on 29 August 2003 as amended by orders made on 27 November 2003 be set aside; (3) Order that the Amended Application dated 30 August 2002 in proceedings No. 40536/02 in the Land and Environment Court be dismissed; (4) Order that the first respondent pay the costs of the appellant and the second respondent at first instance and of the appeal, but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS: LAND AND ENVIRONMENT - Land and Environment Court's power to remedy breach of Local Government Act - Land transferred to Council pursuant to condition of development consent - Land subsequently reconveyed by Council to private owner - Reconveyance in breach of provisions of Local Government Act - Private owner became registered proprietor of land - Whether Court could, pursuant to power to remedy breach of Act, order private owner to retransfer land to Council where private owner not itself in breach of Act - PROPERTY - Conveyancing - Indefeasibility of title - Whether private owner acquired indefeasible title upon registration despite fact that transfer made in breach of Local Government Act - Real Property Act 1900 s 42 - Local Government Act 1993 s 45(1)

Local Government Act 1993 Real Property Act 1900 Conveyancing Act 1919 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Crown Lands Consolidation Act 1913 Supreme Court Act 1970 Supreme Court Rules 1970