Cummeragunja Local Aboriginal Land Council v Nicholson [2017] NSWSC 394

Supreme Court New South Wales

Medium Neutral Citation: Cummeragunja Local Aboriginal Land Council v Nicholson [2017] NSWSC 394 Hearing dates: 10 April 2017 Date of orders: 12 April 2017 Decision date: 12 April 2017 Jurisdiction: Common Law Before: Campbell J Decision: (1) Grant judgment for the plaintiff for possession of the land and premises known as X XXXXXXXX, XXXXXXXXX5, being part of the land described in Certificate of Title Auto Consol XXXXX-XXX and Lot XX in DP XXXXXX; (2) Grant leave under UCPR 39.1 for the issue of a writ of possession; (3) Stay execution of the writ for possession of land referred to in Order (2) until 11 July 2017; (4) Adjourn the cross-claim for directions by the Registrar at 9 00 am on 21 April 2017; (5) Order the defendants to pay the plaintiff's costs of the proceedings for possession with each party to bear its or her own costs of the applications before me heard on 10 April 2017. Catchwords: CIVIL PROCEDURE – interlocutory relief – summary judgment for possession – defendants in adverse possession – plaintiff seeks leave to execute a writ of possession – defendants seek a stay of execution of a writ of possession pending the determination of their cross-claim – consideration of UCRP 13.2 – whether there is a sufficient connection between the claim for possession and the cross-claim – held to be insufficient practical connection to justify ordering a stay – consideration of hardship to the defendants if a writ of possession is executed – held that hardship exists warranting a stay of three months

ADMINISTRATIVE LAW – judicial review – decisions made rejecting defendants' applications for membership of the Aboriginal Land Council and requests to be placed on a waiting list for housing provided by the plaintiff to Aboriginal persons within its area Legislation Cited: Aboriginal Land Rights Act 1983 (NSW) Civil Procedure Act 2005 (NSW) Residential Tenancies Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Beijing Be Green Import and Export Co Ltd v Elders International Australia Pty Ltd [2014] FCA 1375 Danish Mercantile Co. Ltd v Beaumont [1951] Ch 680 GE Personal Finance Pty Limited v Smith [2006] NSWSC 889 R v Inland Revenue Comrs, Ex parte Preston [1985] AC 835 State of Bank of Victoria v Parry [1989] WAR 240 Category: Procedural and other rulings Parties: Cummeragunja Local Aboriginal Land Council (Plaintiff) Shirley Nicholson (First Defendant) Thelma Nicholson (Second Defendant) Vikki Nicholson (Third Defendant) Representation: Counsel: C. Gregory (Plaintiff) S. Lawrance with A Jordan (Defendant)