Anthony R Cant v Kirby [2011] NSWSC 1193

Supreme Court New South Wales

Medium Neutral Citation: Anthony R Cant v Kirby [2011] NSWSC 1193 Hearing dates: 15 August 2011 Decision date: 27 September 2011 Jurisdiction: Equity Division Before: Gzell J Decision: Liquidator entitled to order for possession. Catchwords: ABORIGINALS - Land Rights - transfer of land to Aboriginal corporation to be held on trust for members - fee simple defeasible by conditions subsequent - failure to pay rates - call for transfer back - whether defendant members entitled to possession against liquidator - perpetuities - charitable purpose trust Legislation Cited: Corporations Act 2001 (Cth) Aboriginal Councils and Associations Act 1976 (Cth) Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Corporations (Aboriginal and Torres Strait Islander) Consequential, Transitional and Other Measures Act 2006 (Cth) Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Aboriginal and Torres Strait Islander Act 2005 (Cth) Native Title Act 1993 (Cth) Perpetuities Act 1984 Cases Cited: Morice v Bishop of Durham (1804) 9 Ves Jun 399 [32 ER 656] Re Mathew (decd); Trustees Executors & Agency Co Ltd v Mathew [1951] VLR 226 Re Bryning Deceased [1976] VR 100 Category: Separate question Parties: Anthony R Cant (Liquidator of Billa Downs Aboriginal Corporation (In Liq)) (First Plaintiff/Third Cross-Defendant) Billa Downs Aboriginal Corporation (In Liq) (Second Plaintiff/First Cross-Defendant) Arthur Kirby (First Defendant/Cross-Claimant) Penny Kirby (Second Defendant/Cross-Claimant) Indigenous Land Corporation (Second Cross-Defendant) Representation: Counsel M Wright (Plaintiffs/First and Third Cross-Defendants) J T Johnson (Defendants/Cross-Claimants) N Owen (Second Cross-Defendant) Solicitors Holman Webb Lawyers (Plaintiffs/First and Third Cross-Defendants) Karp O'Neill Solicitors & Barristers (Defendants/Cross-Claimants) Corrs Chambers Westgarth (Second Cross-Defendant) File Number(s): 2008/288530