Bay Street Finance Pty Ltd v Rippon [2013] NSWLEC 202

Land and Environment Court New South Wales

Medium Neutral Citation: Bay Street Finance Pty Ltd v Rippon [2013] NSWLEC 202 Hearing dates: 28 November 2013 Decision date: 28 November 2013 Jurisdiction: Class 2 Before: Biscoe J Decision: (1) Pursuant to s 149B of the Civil Procedure Act 2005 these proceedings be transferred to the Supreme Court of New South Wales and, subject to any further order of the Supreme Court, be heard together with proceedings 2013/356753 commenced by the applicant against the respondents in the Supreme Court on 26 November 2013. (2) These orders may be entered forthwith. (3) Liberty to apply on three days notice. Catchwords: PRACTICE AND PROCEDURE - application for an order that proceedings for an extension of a caveat in relation to a water access licence under the Water Management Act 2000 be transferred to the Supreme Court and heard together with related proceedings. Legislation Cited: Civil Procedure Act 2005 s 149B Water Management Act 2000 cl 6(3) Schedule 1A Cases Cited: Mueller v Austin [2010] NSWLEC 137 Category: Principal judgment Parties: Bay Street Finance Pty Ltd (Applicant) John Rippon (First Respondent) Sheenah Rippon (Second Respondent) Representation: COUNSEL: B Crowley, solicitor (Applicant) N/A (Respondents) SOLICITORS: Esplins Solicitors (Applicant) N/A (Respondents) File Number(s): 20929/13

EX TEMPORE Judgment 1The applicant seeks a consent order that these proceedings be transferred to the Supreme Court and be heard together with related proceedings in the Supreme Court, pursuant to s 149B of the Civil Procedure Act 2005. Sections 149B and 154 provide: 149B Transfer of proceedings between Supreme Court and Land and Environment Court (1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court. (2) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that: (a) there are related proceedings pending in the other court, and (b) it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings. (3) No appeal lies against a decision of the transferor court to make, or not to make, an order under this section. 154 Jurisdiction of transferee court The transferee court has, and may exercise, all of the jurisdiction of the transferor court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings. 2The applicant is Bay Street Finance Pty Ltd. The respondents are John Rippon and Sheenah Rippon. The applicant contends that under horse leasing agreements between the applicant as lessor and the respondents as guarantors of the lessee, it was entitled to file caveats over any properties owned by the respondents if there was default under the agreements, and that there was default. The applicant then lodged a number of caveats over the respondents' New South Wales properties. Two days ago, on 26 November 2013, the applicant commenced proceedings in the Supreme Court against the respondents seeking orders for the extension of some eight caveats over eight properties owned by the respondents. The Supreme Court proceedings are listed before the Equity Duty Judge tomorrow. 3One of the caveats the subject of the Supreme Court proceedings is in respect of a water access licence under the Water Management Act 2000. The Land and Environment Court, but not the Supreme Court, has jurisdiction to extend the period of such a caveat: cl 6(3) Schedule 1A Water Management Act; Mueller v Austin [2010] NSWLEC 137 at [3], [6] per Biscoe J. Consequently, the applicant yesterday commenced proceedings in this Court, with which I am now dealing, for an order extending that caveat and (as indicated above) an order for transfer of the proceedings to the Supreme Court to be heard together with the related proceedings in the Supreme Court. The respondents have indicated that they consent to the proposed transfer order. 4It appears, as the applicant submits, that the proceedings in each court arise from the same agreements, defaults and other facts, and raise the same issues. 5Addressing the matters referred to in s 149B(2) of the Civil Procedure Act I am satisfied in relation to the proceedings in this Court that there are related proceedings pending in the Supreme Court, and that it is more appropriate for the proceedings in this Court to be heard in the Supreme Court together with the related proceedings in the Supreme Court. 6The Court makes the following orders: (1)By consent, pursuant to s 149B of the Civil Procedure Act 2005 these proceedings be transferred to the Supreme Court of New South Wales and, subject to any further order of the Supreme Court, be heard together with proceedings 2013/356753 commenced by the applicant against the respondents in the Supreme Court on 26 November 2013. (2)These orders may be entered forthwith. (3)Liberty to apply on three days notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2013