Hilton v Minister [2009] NSWSC 613

New South Wales Supreme Court

CITATION : Hilton v Minister [2009] NSWSC 613

HEARING DATE(S) : 25/06/09

JUDGMENT DATE : 7 July 2009

JUDGMENT OF : Forster J at 1

DECISION : See paragraph 65 of judgment.

CATCHWORDS : LICENCES - Licence to occupy cabin in Royal National Park - multiple licensees - construction of Licence - whether one licensee can terminate his rights and obligations under the Licence without affecting other licensees' rights and obligations.

CATEGORY : Principal judgment

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 CASES CITED : Tcaoucis v Gallipoli Memorial Club Ltd (1998) 9 BPR 16,265 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165

TEXTS CITED : Glanville Williams, Joint obligations(1949) Butterworth & Co.

PARTIES : Plaintiff-Warwick James Hilton Defendant-Minister Administering the National Parks and Wildlife Act (1974)

FILE NUMBER(S) : SC 1672/09

COUNSEL : Plaintiff- A.G.Bell SC; C.N.Bova Defendant- Dr J.G.Renwick; Dr H. Bennett

SOLICITORS : Plaintiff-S.Titus, Carneys Lawyers Defendant- R.Verzosa, Legal Services Branch, Department of Environment and Climate Change

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

FORSTER J

TUESDAY 7 JULY 2009

1672/2009 WARWICK JAMES HILTON & 4 ORS v MINISTER ADMINISTERING THE NATIONAL PARKS AND WILDLIFE ACT 1974 (NSW) JUDGMENT The facts 1 HIS HONOUR: The facts in this case are not in dispute. 2 In 1937, the first plaintiff, to whom I shall refer as "Mr Hilton", built a cabin at Era Beach in the Royal National Park south of Sydney, and has been paying a licence fee since that time to the owner of the land on which the cabin is located. Since 1979, the owner of the land has been the National Parks and Wildlife Service ("the Service"), which is administered by the defendant in these proceedings. The cabin is identified as Cabin 72, and is referred to in this judgment as "the Cabin". 3 In about 2005, disputes arose between the defendant on the one hand and the licensees of a large number of such cabins, situated at various locations in the Royal National Park. The disputes related to the ownership of the various cabins and the terms of the licences which were proposed to be offered by the Service to the various licensees. 4 Mr Hilton was one of those licensees. 5 As a consequence of those disputes, a large number of such licensees together commenced proceedings against the defendant in the Land and Environment Court. The parties ultimately proceeded to mediation, which resulted in an agreement being reached between the Service and the licensees, including Mr Hilton. 6 It was a term of that agreement ("the Agreement") that the defendant would grant licences to each of the parties to the Agreement in a specified form, which licences would include a provision to the following effect: "The terms of the Agreement under which this Licence has been granted…are incorporated herein. In the case of any inconsistency between its terms and the terms of this Licence the terms of the Agreement shall prevail to the extent of the inconsistency." 7 Pursuant to the Agreement, on 24 April 2007, the defendant entered a Deed of Licence with Mr Hilton and the second, third and fourth plaintiffs ("the Licence"). 8 The inclusion of the second, third and fourth plaintiffs as parties to the Licence came about as a result of Mr Hilton nominating those plaintiffs pursuant to the provisions of clause 4.2 of the Agreement, which was in the following terms: "4.2 In the case of each cabin site, the licence will initially be issued in the name of each person listed in Schedule 1 together with such other persons who are nominated in accordance with clause 4.3. The persons so appearing on the initial licence are called the 'Initial Licensees '". 9 Clause 4.3 of the Agreement provided as follows: "4.3 During the life of the licence or any renewal thereof a licensee may nominate other individuals to become licensees provided that there may not ever be more than four licensees at any one time". 10 On 15 May 2007, Mr Hilton wrote to the relevant manager of the Service in the following terms: "In accordance with clause 4.3 of the agreement attached to the licence document I no longer wish to be a licencee and nominate my daughter Jill Bartlett of 10 Boyce Ave Austinmer NSW 2515 Phone No 02 42673169 to be a licencee. She will also be the contact person. The other three licencees support this nomination." 11 Jill Bartlett is the fifth plaintiff in these proceedings. 12 The Service declined to give effect to the correspondence and disputed Mr Hilton's right to take the course he proposed. There then followed an exchange of correspondence between Mr Hilton and the Service by their respective legal advisors, and on 13 February 2008 a document, signed by Mr Hilton and the second, third and fourth plaintiffs, was sent to the defendant in the following terms: "We the undersigned are licensees of Cabin 72 South Era, Royal National Park. In accordance with clause 4.3 of the agreement attached to the licence we wish to nominate Jill Bartlett of 10 Boyce Ave Austinmer to be a licensee of the abovementioned Cabin 72.