Mehmet v Carter [2018] NSWCA 305

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mehmet v Carter [2018] NSWCA 305 Hearing dates: 27 March 2018 Decision date: 13 December 2018 Before: Bathurst CJ at [1]; Beazley P at [13]; McColl JA at [107] Decision: (1) Allow the appeal.

(2) Set aside the orders made by the primary judge.

(3) In lieu thereof, answer the separate questions as follows:

Question 1

It is inappropriate to answer this question.

Question 4

It is inappropriate to answer this question.

(4) Remit the whole of the proceedings to the Equity Division of the Supreme Court.

(5) No order as to the costs of the appeal and the costs of the hearing of the separate questions before the primary judge to be costs in the cause. Catchwords: LAND LAW – possible existence of Aboriginal objects in or on land the subject of a contract for sale – whether primary judge erred in answering separate question regarding whether alleged Aboriginal objects were capable of constituting a defect in title – separate question hypothetical – whether primary judge erred in finding alleged Aboriginal objects were not capable of constituting a defect in title Legislation Cited: Conveyancing Act 1919 (NSW), s 13 National Parks and Wildlife (Amendment) Act 1969 (NSW) National Parks and Wildlife Act 1967 (NSW), ss 33D, 33E, 33K National Parks and Wildlife Act 1974 (NSW), ss 5, 83, 84, 85, 86, 87, 90, 90K Cases Cited: Batey v Gifford (1997) 42 NSWLR 710 Borda v Burgess (2003) 11 BPR 21, 203; [2003] NSWSC 1171 Dainford Ltd v Lam (1985) 3 NSWLR 255 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 343 ALR 58; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Flight v Booth (1834) 1 Bing NC 370; 131 ER 1160 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23 Liberty Grove (Concord) Pty Ltd v Yeo (2006) 12 BPR 23,709; [2006] NSWSC 1373 Micos v Diamond [1970] 3 NSWR 407 Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 Torr v Harpur (1940) 40 SR (NSW) 585 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1; [1973] HCA 14 Texts Cited: Christopher Rossiter, Principles of Land Contracts and Options in Australia (LexisNexis Butterworths, 2003) Peter Butt, The Standard Contract for Sale of Land in New South Wales (Law Book Co, 1985) Category: Principal judgment Parties: Ian Mehmet as trustee for the Ian G Mehmet Testamentary Trust (First Appellant) Cameron Mehmet as trustee for the Cameron Mehmet Testamentary Trust (Second Appellant) Errol Mehmet as trustee for the Errol J Mehmet Testamentary Trust (Third Appellant) Cheers Aviation Pty Ltd as trustee for the KMGC Investment Trust (Fourth Appellant) Matthew Cheers (Fifth Appellant) Murray John Carter (First Respondent) The Wheel Resort Pty Ltd (Second Respondent) Cathscompany Pty Ltd (Third Respondent) Representation: Counsel: D H Murr SC; D A Smallbone (Appellants) T Alexis SC; M Southwick (Respondents)