Supreme Court New South Wales Medium Neutral Citation: Elizabeth Joyce O'Connor v John Estens & Anor [2014] NSWSC 95 Hearing dates: 14 February 2014 Decision date: 14 February 2014 Before: Kunc J Decision: Notice of motion and Summons dismissed Catchwords: PRACTICE AND PROCEDURE - Settlement agreement substantially performed but no provision for disposition of proceedings - No further utility in proceedings - Proceedings dismissed with no order as to costs Legislation Cited: Aboriginal Land Rights Act 1983 (NSW) Category: Principal judgment Parties: Elizabeth Joyce O'Connor (Plaintiff) John and Annette Estens (Defendants) Representation: Ms Kim O'Donnell (Solicitor) (Plaintiff) Mr M Estens (by telephone) (Defendants) File Number(s): 2009/287961 Publication restriction: No EX TEMPORE Judgment 1HIS HONOUR: The plaintiff, Ms O'Connor, and the defendants, Mr and Mrs Estens, were neighbours in Namoi Street, Coonabarabran. In 2009 a boundary dispute erupted between them which led to the commencement of these proceedings by a Summons filed 11 March 2009. The Summons sought the following relief: 1. An order that: (a) The Defendants transfer to the Plaintiff that part of the land comprised in Lot 1 of Section 4 in Deposited Plan 758281 on which the encroachment is erected (the "Subject Land"); or (b) In the alternative, an easement for continuance of the encroachment on the Subject Land; and (c) A declaration of compensation in favour of the Defendants for the Subject Land. 2. An injunction to stop the Defendants from erecting a dividing fence in a position that would detrimentally affect the Plaintiff's ability to access her property. 3. An order that the Defendants reinstate the dividing fence removed by them pending the outcome of proceedings. 4. That the Summons be referred to the Supreme Court Equity Duty Judge and dealt with on an ex parte basis. 5. Costs. 2The proceedings ultimately were the subject of a mediation. An agreement was entered into between the parties on 16 December 2009 (the "agreement"). 1. The Parties agree that a copy of this agreement may be provided to their legal advisers otherwise these Heads/Terms of Agreement are not to be disclosed. 2. Estens are to sign all documents to apply to purchase a strip of Crown land 7m x 71.41m adjacent to 21 Namoi Street, Coonabarabran ("the Application"). 3. O'Connor to pay all costs associated with the Application including but not limited to application fee, surveyor, purchase price of Crown land, stamp duty on Crown land, registration fees, production fees on certificates of title and legal costs. 4. Ptolemy Legal to have carriage of the Application. 5. Pending determination of the Application by the Department of Lands: (a) the Colourbond fence erected between 19 and 21 Namoi Streets to be removed and O'Connor permitted to access existing driveway and garage (b) Supreme Court Proceedings No. 1880 of 2009 to be stood out of the Equity List 6. Should the Application be successful: (a) Estens to transfer strip of land 2.26m x 86.58m to O'Connor for consideration of $1.00 (b) O'Connor to pay stamp duty based on land value of land transferred (c) Estens to pay costs of fencing Crown land into 21 Namoi Street, Coonabarabran (d) O'Connor to pay costs of fencing land transferred from Estens into 19 Namoi Street, Coonabarabran 7. Should the Application be unsuccessful either party can apply to restore the proceedings to the Equity List on 14 days' notice. 3In essence, in return for Mr and Mrs Estens transferring to Ms O'Connor the strip of land which was the subject of the boundary dispute, the parties agreed that an application would be made by Mr and Mrs Estens to purchase an approximately similarlysized strip to the north of Mr and Mrs Estens' property from the Crown. The application to make that purchase was the subject of the agreement. The agreement provided that if the application was successful, then Mr and Mrs Estens would transfer the strip of land that was the subject of the boundary dispute to Ms O'Connor. 4Throughout this entire saga Ms O'Connor has been represented by Ms Kim O'Donnell, solicitor. The parties set about giving effect to the agreement. Ms O'Donnell, in accordance with clause 4 of the agreement, has at all times had the carriage of that task. 5A number of practical difficulties meant that it took many, many months for the various steps to be taken to give effect to the application for the purchase of the strip of Crown land which was the subject of the agreement. Nevertheless, on the basis of the evidence before me, the application was "successful". However, it was successful in a way that no one at the time of the agreement could possibly have contemplated. I will describe why that is so in a moment. 6The application having been "successful", Mr and Mrs Estens honoured their part of the agreement by transferring the strip of land that had been the subject of the boundary dispute to Ms O'Connor. Ms O'Connor has since sold her property. Mr and Mrs Estens remain the owners of, but no longer reside in, their property that was the subject of the dispute. 7It is unnecessary for me to describe the various practical and legal vicissitudes which Ms O'Donnell has had to navigate over some four years to give effect to the agreement. However, the most recent events were the most unexpected. 8The two properties were the subject of a plan of subdivision that was registered to give effect to the agreement. The Crown agreed to sell the strip of land from the Crown reserve. Whilst the parties were working towards completing the agreement, a native title claim was made in relation to a number of parts of Crown land in New South Wales, which included the small strip of land which the Crown had agreed to sell to Mr and Mrs Estens. 9When a new certificate of title was prepared in relation to that small strip of Crown land, it was decided that the best thing to do, having regard to the native title claim, was for the land to be registered in the name of the local Aboriginal Land Council, which all the parties agreed would receive the purchase price for the strip of land that had been agreed would otherwise have been paid by Ms O'Connor to the Crown. 10As if matters had not become sufficiently complicated, the final vicissitude was that the Department of Lands did not deal with the native title claim itself, as I have been given to understand it could have done, but issued the certificate of title subject to a notification of claim under s 42 of the Aboriginal Land Rights Act 1983 (NSW). This meant that the land could not be transferred to Mr and Mrs Estens until the native title claim had been dealt with. 11As will be apparent, events have moved far beyond those which had been contemplated by Ms O'Connor and Mr and Mrs Estens in 2009 when they sought to settle their boundary dispute. 12I have been informed by Ms O'Donnell from the bar table that it will now be necessary for an application to be made to the Native Titles Tribunal for the claim in respect to this strip of land to be dealt with so that the restriction can be removed and the Aboriginal Land Council can transfer the small strip of land to Mr and Mrs Estens. 13That in itself will involve a filing fee of $3,000 which, as it happens, is exactly the same amount as the purchase price for the small strip of land that was nominated by the Crown and which Ms O'Connor has paid into Ms O'Donnell's trust account. In this situation the Aboriginal Land Council was understandably reluctant to pay the filing fee. Ms O'Connor has now agreed to provide the filing fee so that the application can be made. 14In all of this, Ms O'Donnell has continued to press ahead to give effect to the agreement, but in the best tradition of the solicitors' branch has done so without charging a fee. She indicates she will continue to act on that basis to enable the parties to achieve the result to which they agreed in 2009. 15Understandably, Mr and Mrs Estens, who are elderly and in ill-health, have found the process frustrating. It is fair to say that no one could have contemplated how long the process would take and the difficulties which would be encountered. It is that frustration which has led Mr and Mrs Estens, who today were represented before me by their son, appearing by telephone from Coonabarabran, to file the notice of motion which brought the matter into the Applications List today seeking orders: 1. That an expiry date be set at 1 February 2014 in the fifth running year of the Plaintiffs failed claim or one of the actions to take place by the Plaintiff. a) The Plaintiff withdraws their application and the boundary be set at what it legally was under Title before the Plaintiffs claim. b) If the Plaintiff continues on that a monthly fee of $1000 per month be paid to the defendants for the continuing pain and suffering this long and stagnant claim is causing until full settlement of both boundaries. c) The strip of land between 19 and 21 Namoi Street be purchased by the Plaintiff for $25 000.00 and the application between the NSW Aboriginal Land Council and the Plaintiff be discontinued. d) The Plaintiff buys the defendants house for $190,000.00 and does with their lands what she may, in the Plaintiff's own time and leisure. e) The Plaintiff do an application for a shared driveway along the boundary of 19/21 Namoi Street as put to the Plaintiff several years ago; and 2. The Plaintiff's Legal Representative give regular fortnightly updates to the Defendants no matter what the progress. 16It is clear that as a matter of law Mr and Mrs Estens are not entitled to the orders sought in the notice of motion. As far as I can see there is no legal basis upon which, at least on the evidence presented today or at all, such orders could be made. It will be apparent from an examination of those orders that they really reflect the frustration that Mr and Mrs Estens feel, some four years later, at the delays that have been encountered. There is nothing before me to suggest that those delays have been the fault of Ms O'Connor or her solicitor Ms O'Donnell, nor have those delays been the fault of Mr and Mrs Estens. 17In those circumstances the notice of motion should be dismissed, but that cannot be the end of the matter. The motion itself was brought within proceedings the purpose of which has now been plainly spent. 18Because of what has occurred in performance of the agreement, none of the orders sought in the Summons is of any utility. Because the proceedings have never formally been concluded and the agreement itself made no provision as to what was to occur to the proceedings if the "application" was "successful", the parties have from time to time been required to attend telephone directions hearings before a Registrar of the Court to report on what has been happening. There is absolutely no purpose in that continuing. There is no point in the Summons remaining on foot. 19Therefore, of its own motion, the Court proposes to dismiss the Summons with no order as to costs. Ms O'Donnell, for Ms O'Connor, accepts that is a sensible outcome. Consistently with the good sense and goodwill that both parties continue to display, Ms O'Connor has not sought her costs of today's motion. Those costs would ordinarily include Ms O'Donnell's costs of having taken a day of her time to travel to Sydney from Coonabarabran to appear before me today. 20I have asked Mr Michael Estens, who appears by telephone today for his parents, whether he understands the course that I propose to take and whether he wishes to be heard in opposition to it. He has informed me that he understands what it is that I propose to do and does not oppose the orders which I have foreshadowed. 21The law is an imperfect instrument and cannot always provide people with every remedy that they would wish for. The parties to this dispute sensibly sought to resolve it. They could not foresee the practical difficulties that would arise in giving effect to that resolution. They continue, with goodwill and good sense and Ms O'Donnell's assistance, to try to achieve the result contemplated by the agreement in circumstances which they could not have foreseen at the time it was made. 22There is, no doubt, a correct legal analysis to describe everything that has happened over the last four years but nothing will be achieved by trying to work out what that is. If Mr and Mrs Estens have any remaining rights under the agreement and it has not been discharged by performance, then if Ms O'Donnell's efforts are ultimately unsuccessful in trying to resolve matters with the Aboriginal Land Council and to complete the native title claim, that is a matter which they will need to address at the time. 23This Court hopes that is not an eventuality that will ever arise. Rather, all I can do at the moment is to counsel patience on the part of both Ms O'Connor and Mr and Mrs Estens while Ms O'Donnell does what she can to resolve matters, albeit by a route that no one could have foreseen would be necessary at the time the agreement was made. 24For these reasons the Court orders: (1)The defendants' notice of motion filed 17 September 2013 is dismissed. (2)The Summons is dismissed. 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: 19 February 2014