Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 5)

1. [1]

   PAYNE JA: On 11 May 2022, I delivered my principal judgment in these proceedings: Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561. The orders I made were as follows:

2. [2]

   As a result of order (3), the defendant, NSW Historic Sites and Railway Heritage Company Pty Ltd (Historic Sites) remained in possession of the land. In the almost three-month period following the making of the above orders, no steps were taken to vacate the land, including to remove any of the locomotives, carriages and rail equipment which had previously been brought onto the land by Historic Sites, or by other persons or entities with the permission of Historic Sites. I held three separate hearings in June and July 2022 to enable the owners of the various locomotives, carriages and railway equipment located on the land to be heard about when, and on what conditions, the stay of execution of the writ of possession should be lifted. The purpose of those hearings was to best facilitate the orderly removal of property situated on the land in a way that is fair to both the plaintiff, Misthold Pty Ltd (Misthold), and the owners of the movable property. The purpose of those hearings was not to determine the ownership of any property on the Misthold land. At these hearings none of the relevant entities sought to join the proceedings.

3. [3]

   On 9 August 2022, I made the following orders in relation to the hearings on relief: Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 4) [2022] NSWSC 1050:

4. [4]

   On 1 October 2022, pursuant to the Rail Safety National Law 2012 (NSW), the Office of the National Rail Safety Regulator issued interim approval for Misthold to take over as the Rail Infrastructure Manager (RIM) for the relevant infrastructure on the land. Misthold immediately appointed Lycopodium Infrastructure Pty Ltd (Lycopodium) as its representative to perform all of the statutory functions of the RIM and to manage all matters related to the removal of the railway items from Misthold’s land. On 4 October 2022, Misthold filed a notice of motion seeking an order for the issue of the writ of possession. This Court issued the writ of possession on 10 October 2022.

5. [5]

   On 2 December 2022, Misthold filed and served a report dated 28 November 2022 in accordance with order (4) made on 9 August 2022. That report identified significant efforts made by the Interested Parties to ready the land for the removal of the various locomotives, carriages and railway equipment located on the Misthold land. In accordance with the regime I had established, I directed that Misthold file a further report on progress in removing items from the land by 31 March 2023.

6. [6]

   On 31 March 2023, Misthold filed and served a second report dated 24 March 2023 in accordance with those directions. That report identified very significant progress in the removal of the various locomotives, carriages and railway equipment located on the Misthold land. I directed that a further, and final, report about progress in clearance of railway items be provided by Misthold by 30 June 2023.

7. [7]

   On 27 June 2023, Misthold filed a third report dated 26 June 2023 in accordance with that order. This report outlines the very substantial progress which has been made in the removal of the various locomotives, carriages and railway equipment located on the Misthold land. In total, 50 rail bound items have been removed from the land while only seven rail bound items remain. Of those seven, one is a locomotive controlled by Lachlan Valley Railway Society Co-operative Ltd, which at the time of the report was in the final stages of preparation to depart by rail. A second is a carriage owned by Lithgow State Rail Mine Railway Ltd, which was also ready to depart by rail. The remaining five items are owned by Sydney Electric Train Society Inc (SETS). Four of the five items are carriages in the final stages of preparation for departure by rail. The status of the last remaining locomotive was unknown at the time of the report.

8. [8]

   There is a great deal of related equipment and machinery on the land which is still in the process of being removed. Lycopodium summarised its current priorities as:

9. [9]

   A table contained in the report shows the very significant progress which has been made in removing items from the land:

Conclusion

1. [10]

   These reasons set out the substantial progress made by Misthold and the Interested Parties in removing locomotives, carriages and railway equipment from the land. The Court is grateful to Misthold and the Interested Parties for working together to ensure the just, quick and cheap resolution of this matter.

2. [11]

   The undertaking recorded in my orders of 9 August 2022 is expressed to expire on 31 July 2023. When directing Misthold to file the third report I have summarised above, I informed the Interested Parties that “in respect of any railway items which are not removed from the land by the time of the next report, 30 June 2023, that his Honour will fix a time to hear any application made by Misthold or other interested parties for orders to ensure that the relief granted in the proceedings is effective”. No such application has been made.

3. [12]

   Given the very high degree of co-operation in removing locomotives, carriages and railway equipment from the land to date, I would encourage all involved to complete the task as soon as possible and without recourse to additional legal proceedings.