Koompahtoo Local Aboriginal Land Council v KLALC Property Investment Pty Ltd & Ors [2008] NSWCA 6

New South Wales Court of Appeal

CITATION: Koompahtoo Local Aboriginal Land Council v KLALC Property Investment Pty Ltd & Ors [2008] NSWCA 6

HEARING DATE(S): 2 August 2007

JUDGMENT DATE: 18 February 2008

JUDGMENT OF: Giles JA at 1; Tobias JA at 47; Young CJ in Eq at 48

DECISION: In proceedings 40580/06, appeal and cross-appeal dismissed. In proceedings 40581/06, the appeal is allowed and the cross-appeal is allowed in part, proceedings remitted to the Equity Division for determination of cross-claim on the basis of unjust enrichment.

CATCHWORDS: ABORIGINALS- Disposals of land not in accordance with the Aboriginal Land Rights Act 1983 are void under s 40(2)- whether purported certificates issued by the secretary of a Local Aboriginal Land Council comply with the requirements of s 40D(2)- whether the addition of references to the "land not having cultural significance" in the certificate is explanatory or qualificatory in nature. CONVEYANCING- Indefeasibility of title- whether statute that voids a transferor's disposal of land overrides the indefeasibility of a transferee's registered title. The relevant Act in the circumstances prevailing required a certificate be given that the relevant disposal of Aboriginal land did not contravene the Act. A certificate was given that the disposal did not contravene the Act in that the land is not of cultural significance to Aboriginal people of the area. Held by Giles JA (Tobias JA agreeing, Young CJ in Eq dissenting) that the certificate was insufficient. The Act said that the consequence of the non issue of a valid certificate was that the disposal was void. However one transferee obtained a registered title and this was held by all judges to confer an indefeasible title notwithstanding the legislation.