NSW Caselaw
New South Wales Supreme Court
CITATION : Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd & Anor [2006] NSWSC 856
HEARING DATE(S) : 31/07/06, 02/08/06
JUDGMENT DATE : 28 August 2006
JUDGMENT OF : Gzell J
DECISION : Council's proceedings including claim to indemnity to be dismissed. Mortgagee's cross claims to be dismissed save for orders for withdrawal of the caveats.
CATCHWORDS : ABORIGINALS - Land Rights - Local Aboriginal Land Council in joint venture to develop its 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 and joint venture partner enter into loan agreement - Trustee mortgages land to lender - Trustee and joint venture partner in default - Lender obtains judgment against both - Council seeks recovery of land - Disposals of land not in accordance with the Aboriginal Land Rights Act 1983 are void under s 40(2) - Transfer did not comply - A certificate issued by the secretary of a Local Aboriginal Land Council that disposal of land did not contravene s 40D is conclusive evidence in favour of any person except a person who had notice of the contravention under s 40D(2) - Certificate issued - Principles of construction of such a certificate - Whether a proper certificate under s 40D(2) - Whether notice of contravention is actual or constructive - Whether mortgagee had notice - Whether Council had a beneficial interest in the land as unit holder - Whether that interest mortgaged in contravention of the Act - Whether the certificate covered such a mortgage - Whether transfer and mortgage a composite transaction - Whether mortgage element a dealing otherwise with the land in contravention of the Act - Whether the certificate covered such dealing - Whether trustee borrowed from mortgagee as agent for the Council as disclosed principal - Whether caveats by the Council and the Registrar-General should be withdrawn - Whether Council entitled to indemnity from joint venture partner on grounds of unjust enrichment
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