New South Wales Supreme Court CITATION : Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment & Anor [2006] NSWSC 863 HEARING DATE(S) : 02/08/06, 03/08/06 JUDGMENT DATE : 28 August 2006 JUDGMENT OF : Gzell J DECISION : Council's proceedings to be dismissed. Mortgagee to have orders that Council and Registrar-General withdraw their caveats. Cross claims otherwise to be dismissed. CATCHWORDS : ABORIGINALS - Land Rights - Local Aboriginal Land Council transfers land to a trustee of a unit trust in which it holds the only units with rights to income and capital - Trustee enters into joint venture agreement to develop the land - Trustee and joint venture partner enter into loan agreement - Trustee mortgages land to lender - Same issues as in Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd & Anor [2006] NSWSC 856 and in - Koompahtoo Local Aboriginal Land Council v CKT Developments Pty Ltd & Anor [2006] NSWSC 862 LEGISLATION CITED : Aboriginal Land Rights Act 1983 CASES CITED : Koompahtoo Local Aboriginal Land Council v CKT Developments Pty Ltd & Anor [2006] NSWSC 862 Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd & Anor [2006] NSWSC 856 Koompahtoo Local Aboriginal Land Council - Plaintiff, 3rd Cross Defendant to 1st Cross Claim, 2nd Cross Claimant, 1st Cross Defendant to 3rd Cross Claim PARTIES : KLALC Property & Investment - 1st Defendant, 1st Cross Defendant to 1st Cross Claim, 2nd Cross Defendant to 3rd Cross Claim LKM Capital Ltd - 2nd Defendant, 1st Cross Claimant Paramount Land Pty Ltd - 2nd Cross Defendant to 1st Cross Claim, Cross Defendant to 2nd Cross Claim, 3rd Cross Claimant FILE NUMBER(S) : SC 4680/03 COUNSEL : Mr B A Coles QC/ Mr G A Sirtes - Koompahtoo Local Aboriginal Land Council Mr R G Forster SC/ Mr R Hollo/ Mr M O'Meara - LKM Capital Ltd Bartier Perry - Koompahtoo Local Aboriginal Land Council SOLICITORS : Baldwin Oates & Tidbury, Solicitors - KLALC Property & Invetment Pty Ltd Henry Davis York, Lawyers - LKM Capital Ltd Hugh & Associates, Lawyers - Paramount Land Pty Ltd IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J MONDAY 28 AUGUST 2006 4680/03 KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL v KLALC PROPERTY & INVESTMENT PTY LTD & ANOR JUDGMENT Introduction 1 This matter was heard immediately following Koompahtoo Local Aboriginal Land Council v CKT Developments Pty Ltd & Anor [2006] NSWSC 862 and these reasons should be read in conjunction with the reasons in that matter and in the prior matter involving Sanpine, Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd & Anor [2006] NSWSC 856. 2 This matter concerned lot 11 in Fennel Bay, New South Wales. The Council acquired the land under the Aboriginal Land Rights Act 1983, s 36. 3 Like the Sanpine matter, this matter involved a transfer of the land to the Trustee. Unlike the Sanpine matter the transfer to the Trustee and its mortgage to LKM were not registered as the Registrar-General of New South Wales placed a caveat over lot 11 in respect of all dealings with the land. Like the CKT matter, this matter involved the question whether the Council authorised the transfer of lot 11 to the Trustee. 4 In April 2002, the Trustee entered into a joint venture agreement with Paramount Land Pty Ltd for the development of lot 11. In the same month, the Council transferred lot 11 to the Trustee. On 4 April 2002, the secretary of the Council issued a certificate with respect to lot 11 in identical terms to the certificate in the Sanpine matter. Thereafter, the Trustee granted a mortgage to LKM over lot 11 as security for a loan of $295,000. A loan agreement was made between LKM as lender and the Trustee and Paramount as borrowers. 5 The transfer and mortgage were lodged for registration but the Registrar-General issued a requisition in respect of the transfer. Documents were not provided to LKM to satisfy the Registrar-General's requisition and on 13 December 2002 the Registrar-General rejected the transfer and the mortgage and lodged his caveat. 6 On 30 June 2003, the Council by its administrator lodged a caveat over lot 11 and on 22 October 2003 LKM lodged a caveat. 7 The advances made under the loan agreement were repayable on 17 April 2003. No amount was repaid on that date or since. LKM obtained judgment in these proceedings in the amount of $94,720.95 against Paramount and against the Trustee. The judgments remain unsatisfied. 8 The issues are the same as those in the Sanpine matter and in the CKT matter. Conclusion 9 For the reasons set out in the Sanpine matter and, so far as authority to transfer lot 11 is concerned, in the CKT matter, the Council is not entitled to any relief in terms of its statement of claim which should be dismissed. 10 Under LKM's first cross claim it is not entitled to judgment in any sum against the Council. It is entitled to an order that the Council withdraw its caveat over lot 11. I will hear further arguments as to whether there should be judgment for possession against the Trustee and an order for judicial sale. As against the Registrar-General, LKM is entitled to an order that he withdraw his caveat over lot 11. In other respects the cross claim should be dismissed. 11 LKM's second cross claim should be dismissed as should Paramount's third cross claim. 12 I will hear the parties on the terms of appropriate orders and I will hear the parties on costs. I direct the parties to bring in short minutes orders reflecting these reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.