Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 3)

Background

1. [1]

   On 11 May 2022 I gave judgment in favour of Misthold Pty Ltd (Misthold), the plaintiff in these proceedings, and dismissed the cross-claim brought by NSW Historic Sites Pty Ltd (Historic Sites): Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561 (Misthold (No 2)). These reasons assume familiarity with that judgment. I found that Misthold is entitled to possession of certain land situated at 170 Wine Country Drive, North Rothbury. That land is owned by Misthold, but at the date of judgment was occupied by Historic Sites.

2. [2]

   Shortly before the hearing of the possession proceedings was listed to commence in late February 2022, Historic Sites raised for the first time a contention that there were numerous third parties who were also “occupiers” of the land who had not received notice as they were entitled to under r 6.8 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

3. [3]

   On 21 February 2022, the first day of trial, Historic Sites provided a list (which was marked MFI-1 by me) of 22 individuals or entities which it claimed “occupied” the land, but which had not received notice pursuant to r 6.8. Historic Sites separately identified Rothbury Riot Railway and Steam Museum Group Ltd (Rothbury Riot) as an alleged “occupier” of the land and the “owner” of a shed situated on the land. Rothbury Riot was separately identified because it had been notified of the proceedings in accordance with r 6.8 in 2020. Rothbury Riot was not listed in MFI-1.

4. [4]

   On 11 May 2022, I made orders giving judgment for Misthold for possession of the whole of the land in Folio Identifier 11/1137569, being the land situate at 170 Wine Country Drive, North Rothbury but staying the execution of any writ of possession to enforce that judgment to allow the entities identified in MFI-1 to be heard on the question of relief. In making those orders I acted on the joint invitation of Mr Walton SC, who appeared for Misthold, and Mr Deakin QC, who then appeared for Historic Sites. Those orders were:

5. [5]

   Due to competing court commitments, on 19 May 2022 I made orders varying the date for hearing in order 6 to 17 June 2022 and directing the parties to notify the persons and entities in MFI-1 of that amendment.

6. [6]

   On 17 June 2022, Mr Richards, who is not legally qualified and who appeared that day for Rothbury Riot, attempted to read an affidavit sworn by him on 8 June 2022 relating, in effect, to an entirely separate application, which application (not in fact supported by any initiating process) was inconsistent with my orders of 11 May 2022. A further affidavit of Mr Richards, who also appeared for The Spirit of the Hunter Pty Ltd (Spirit of the Hunter), sworn by him on 8 June 2022 on behalf of that organisation was also sought to be read. That affidavit too did not deal with the limited question of relief but rather sought to support some hypothetical Rothbury Riot application. I reject both affidavits for the following reasons.

7. [7]

   Mr Richards is a director of both Rothbury Riot and Spirit of the Hunter. Critically, he is also a director of Historic Sites. Neither Rothbury Riot nor Spirit of the Hunter is referred to in MFI-1. Both entities have had ample notice of the proceedings by Misthold for possession of the land.

8. [8]

   Notwithstanding the fact that order 5 does not encompass either Rothbury Riot or Spirit of the Hunter, I granted leave to each entity to make an application, and to file any evidence or submission in support of that application by 4pm on 14 June 2022. I conveyed those orders by email from my Associate on 9 June 2022:

9. [9]

   No application was made by either entity. No relevant evidence or submission concerning the sole subject of today’s hearing, being the time at which the stay of execution of the writ of possession should be lifted, was filed by either Rothbury Riot or Spirit of the Hunter. How it was that Rothbury Riot had any arguable interest in land, in circumstances where the whole of the relevant land was leased by Misthold to Historic Sites in 2007 and again in 2012 was nowhere explained in either of Mr Richards’ affidavits.

10. [10]

    Neither of Mr Richards’ affidavits addresses the subject of relief but rather asserts that Rothbury Riot has some interest in the land inconsistent with the terms of order 1 made by me on 11 May 2022. If Rothbury Riot is permitted to advance such a claim in the circumstances of this case, whether in fresh proceedings or otherwise (a topic about which I have significant doubts, see, for example, Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd (No 2) [2003] NSWSC 752), a hearing about the terms of relief of the present kind is not the occasion to consider any such claim.

11. [11]

    Rothbury Riot had actual and constructive notice of the substantive proceedings commenced by Misthold from the beginning and made a deliberate decision not to advance in those proceedings the claim it now apparently seeks to advance. Rothbury Riot had detailed actual knowledge of the proceedings from the time they were commenced in 2020. Given the common directorship with Historic Sites and the very considerable steps taken to accommodate Rothbury Riot as detailed in my May 2022 judgment, the attempt by Rothbury Riot, under the guise of advancing submissions about relief, to advance a claim inconsistent with orders made after a full hearing on the merits of Misthold’s possession claim should not be permitted.

12. [12]

    The proceedings between Misthold and Historic Sites about Misthold’s claim for possession of the land are complete, save for a determination of the time at which the stay on the execution of the writ of possession should be lifted.

13. [13]

    For these reasons I reject the affidavits of Mr Richards sworn on 8 June 2022 on behalf of Rothbury Riot and Spirit of the Hunter.