Koompahtoo Local Aboriginal Land Council v Klalc Property and Investment and Anor [2006] NSWSC 863 (28 August 2006)

Last Updated: 29 August 2006

NEW SOUTH WALES SUPREME COURT

CITATION: Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment & Anor [2006] NSWSC 863



CURRENT JURISDICTION:

FILE NUMBER(S): 4680/03

HEARING DATE{S): 02/08/06, 03/08/06

DECISION DATE: 28/08/2006

PARTIES:
Koompahtoo Local Aboriginal Land Council - Plaintiff, 3rd Cross Defendant to 1st Cross Claim, 2nd Cross Claimant, 1st Cross Defendant to 3rd Cross Claim
KLALC Property & Investment - 1st Defendant, 1st Cross Defendant to 1st Cross Claim, 2nd Cross Defendant to 3rd Cross Claim
LKM Capital Ltd - 2nd Defendant, 1st Cross Claimant
Paramount Land Pty Ltd - 2nd Cross Defendant to 1st Cross Claim, Cross Defendant to 2nd Cross Claim, 3rd Cross Claimant


JUDGMENT OF: Gzell J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr B A Coles QC/ Mr G A Sirtes - Koompahtoo Local Aboriginal Land Council
Mr R G Forster SC/ Mr R Hollo/ Mr M O'Meara - LKM Capital Ltd


SOLICITORS:
Bartier Perry - Koompahtoo Local Aboriginal Land Council
Baldwin Oates & Tidbury, Solicitors - KLALC Property & Invetment Pty Ltd
Henry Davis York, Lawyers - LKM Capital Ltd
Hugh & Associates, Lawyers - Paramount Land Pty Ltd



CATCHWORDS:
ABORIGINALS - Land Rights - Local Aboriginal Land Council transfers land to a trustee of a unit trust in which it holds the only units with rights to income and capital - Trustee enters into joint venture agreement to develop the land - Trustee and joint venture partner enter into loan agreement - Trustee mortgages land to lender - Same issues as in Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd & Anor [2006] NSWSC 856 and in - Koompahtoo Local Aboriginal Land Council v CKT Developments Pty Ltd & Anor [2006] NSWSC 862

ACTS CITED:
Aboriginal Land Rights Act 1983

DECISION:
Council's proceedings to be dismissed. Mortgagee to have orders that Council and Registrar-General withdraw their caveats. Cross claims otherwise to be dismissed.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION


GZELL J

MONDAY 28 AUGUST 2006


4680/03 KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL v KLALC PROPERTY & INVESTMENT PTY LTD & ANOR

JUDGMENT

Introduction

1 This matter was heard immediately following Koompahtoo Local Aboriginal Land Council v CKT Developments Pty Ltd & Anor [2006] NSWSC 862 and these reasons should be read in conjunction with the reasons in that matter and in the prior matter involving Sanpine, Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd & Anor [2006] NSWSC 856.

2 This matter concerned lot 11 in Fennel Bay, New South Wales. The Council acquired the land under the Aboriginal Land Rights Act 1983, s 36.

3 Like the Sanpine matter, this matter involved a transfer of the land to the Trustee. Unlike the Sanpine matter the transfer to the Trustee and its mortgage to LKM were not registered as the Registrar-General of New South Wales placed a caveat over lot 11 in respect of all dealings with the land. Like the CKT matter, this matter involved the question whether the Council authorised the transfer of lot 11 to the Trustee.

4 In April 2002, the Trustee entered into a joint venture agreement with Paramount Land Pty Ltd for the development of lot 11. In the same month, the Council transferred lot 11 to the Trustee. On 4 April 2002, the secretary of the Council issued a certificate with respect to lot 11 in identical terms to the certificate in the Sanpine matter. Thereafter, the Trustee granted a mortgage to LKM over lot 11 as security for a loan of $295,000. A loan agreement was made between LKM as lender and the Trustee and Paramount as borrowers.

5 The transfer and mortgage were lodged for registration but the Registrar-General issued a requisition in respect of the transfer. Documents were not provided to LKM to satisfy the Registrar-General’s requisition and on 13 December 2002 the Registrar-General rejected the transfer and the mortgage and lodged his caveat.

6 On 30 June 2003, the Council by its administrator lodged a caveat over lot 11 and on 22 October 2003 LKM lodged a caveat.

7 The advances made under the loan agreement were repayable on 17 April 2003. No amount was repaid on that date or since. LKM obtained judgment in these proceedings in the amount of $94,720.95 against Paramount and against the Trustee. The judgments remain unsatisfied.

8 The issues are the same as those in the Sanpine matter and in the CKT matter.

Conclusion

9 For the reasons set out in the Sanpine matter and, so far as authority to transfer lot 11 is concerned, in the CKT matter, the Council is not entitled to any relief in terms of its statement of claim which should be dismissed.

10 Under LKM’s first cross claim it is not entitled to judgment in any sum against the Council. It is entitled to an order that the Council withdraw its caveat over lot 11. I will hear further arguments as to whether there should be judgment for possession against the Trustee and an order for judicial sale. As against the Registrar-General, LKM is entitled to an order that he withdraw his caveat over lot 11. In other respects the cross claim should be dismissed.

11 LKM’s second cross claim should be dismissed as should Paramount’s third cross claim.

12 I will hear the parties on the terms of appropriate orders and I will hear the parties on costs. I direct the parties to bring in short minutes orders reflecting these reasons.


**********









LAST UPDATED: 28/08/2006