Koompahtoo Local Aboriginal Land Council v K.L.A.L.C. Property & Investment Pty Ltd [2009] NSWSC 502

New South Wales Supreme Court

CITATION : Koompahtoo Local Aboriginal Land Council v K.L.A.L.C. Property & Investment Pty Ltd [2009] NSWSC 502

HEARING DATE(S) : 22 May 2009, 3 and 5 June 2009

JUDGMENT DATE : 22 June 2009

JURISDICTION : Equity

JUDGMENT OF : Debelle AJ

LEGISLATION CITED : Aboriginal Land Rights Act 1983 (NSW)

CATEGORY : Principal judgment

Aust-Wide Management Ltd v Chief Commissioner of Stamp Duties (1992) 24 ATR 148 CASES CITED : CTP Custodian Pty Ltd v Commissioner of State Revenue for the State of Victoria (2005) 224 CLR 98 Re AEG Unit Trust (Managers) Ltd's Deed [1957] Saunders v Vautier (1841) 4 Beav 115; 49 ER 282

TEXTS CITED : Thomas on Powers (1998)

Koomopahtoo Local Aboriginal Land Council ( Plaintiff PARTIES : K.L.A.L.C. Property & Investment Pty Ltd (First Defendant) Shane Newlin (Second Defendant)

FILE NUMBER(S) : SC 3548/2008

P Brereton (Plaintiff) COUNSEL : D Durston (Defendant) M J Stevens (for Class A unitholders)

SOLICITORS : Watson Mangioni Lawyers (Plaintiff) H A Miedzinski Lawyers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ACTING JUSTICE DEBELLE

MONDAY, 22 JUNE 2009

3548/2008 - KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL v K.L.A.L.C. PROPERTY & INVESTMENT PTY LTD & ANOR JUDGMENT 1 HIS HONOUR: The plaintiff is a body corporate established pursuant Part 5 of the Aboriginal Land Rights Act 1983 (NSW) ("the Act"). Pursuant to s 222 of the Act, the Minister for Aboriginal Affairs appointed Mr Terence Lawler administrator of the plaintiff on 25 February 2003. I will refer to him as "the Administrator". His appointment has been renewed on a number of occasions. It is common ground that it was last renewed on 14 September 2008 and will expire on 13 June 2009, unless it is again renewed. For convenience, I will refer to the plaintiff as "the Land Council". 2 At all material times since 30 March 2001 the defendant has been the Trustee of a unit trust known as the Koompahtoo Property and Investment Trust. For convenience I will refer to the defendant as "the Trustee" and the unit trust as "the Trust". The Trust was established by a trust deed dated 30 March 2001. 3 On 30 March 2001, the Land Council transferred to the Trustee a parcel of land at Morisset being the land described as Lot 556 in Deposited Plan 729949 (the "Morisset land"). The Trustee holds the Morisset land as Trustee for the Trust. 4 By letter to the first defendant dated 8 April 2008, the Land Council purported to terminate the Trust. The letter is in these terms: "I am the administrator of the Koompahtoo Local Aboriginal Land Council (KLALC), pursuant to the provisions of the Aboriginal Land Rights Act 1983 (NSW). I enclose a copy of the documents relating to my appointment as administrator. I note: 1. K.L.A.L.C. Property & Investment Pty Limited (Trustee) is Trustee of the Koompahtoo Property & Investment Trust (Trust), pursuant to the trust deed stamped by the Office of State Revenue on 30 March 2001 (Trust Deed). 2. The property at Lot 556 of Deposited Plan 729949 (Land) is registered in the name of the Trustee and is subject to the Trust. 3. KLALC is the sole beneficiary of the property subject to the Trust, pursuant to its Class B and Class C Unitholdings, and is therefore entitled to terminate the trust and require transfer of the property subject to the Trust to it: Saunders v Vautier (1841) 4 Beav 115, 49 ER 282. You are instructed to: (a) take all steps necessary to wind up the Trust and transfer any other property to KLALC; and, in particular, (b) transfer the Land to KLALC by executing and returning the enclosed transfer to me within 14 days from the date of this letter. Please identify any claims outstanding against the property of the Trust as at the date of this letter. The New South Wales Aboriginal Land Council (NSWALC) will not pursue any claim against the Trust prior to the distribution of the Trust property or against the Trustee after the distribution of the Trust property, and that it will consent to the transfer of the Land to KLALC (subject to its mortgage remaining registered). A copy of a letter from NSWALC confirming this is enclosed. If you do not return the executed transfers within 14 days, I will assume that you do not intend to comply with this instruction and KLALC will apply to the Supreme Court of New South Wales requiring you to do so. My solicitors, Watson Magioni, have previously written to you requesting undertakings in relation to the Land. No response has been received to that request. I repeat that request. I urge you to comply with this instruction so that the costs of litigation can be avoided. KLALC will seek the costs of the litigation from the directors of the Trustee personally. KLALC will oppose any attempt by the trustee to use any Trust property or funds in order to defend any such litigation."