On 11 May 2022, I delivered judgment granting the plaintiff, Misthold Pty Ltd (Misthold), possession of land which it owned but which was occupied by the defendant, NSW Historic Sites and Railway Heritage Company Pty Ltd (Historic Sites): Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561. In what follows, familiarity with that decision is assumed. The orders I made were as follows:
"(1) Judgment for the plaintiff for possession of the whole of the land in Folio Identifier 11/1137569, being the land situate at 170 Wine Country Drive, North Rothbury.
(2) Grant leave to issue a writ of possession to enforce order 1.
(3) Order that the execution of the writ of possession be stayed until further order of Payne JA.
(4) Direct that the parties take all reasonable steps to serve upon all of the persons and entities referred to in MFI-1 a copy of these orders and reasons for judgment by 4pm on 13 May 2022.
(5) Direct that any person or entity referred to in MFI-1 seeking to be heard about the time the writ of possession should be stayed file any evidence and written submission by 8 June 2022.
(6) Stand over the matter to 2pm on 15 June 2022 for making any orders relating to any issues raised by persons or entities who have filed evidence and submissions in accordance with order 5 of these orders. I direct that any person or entity seeking to be heard as to relief appear with a legal representative at 2pm on 15 June 2022.
(7) Dismiss the claims for relief made by the Further Amended Statement of Cross-Claim dated 1 February 2022.
(8) The defendant / cross-claimant pay the plaintiff / cross-defendant's costs."
For the reasons that follow, I am satisfied that the stay of execution of the writ of possession should be lifted on and from 1 October 2022, and that the Court should accept the undertaking offered by Misthold which is reproduced in Annexure A to these reasons.
Historic Sites has remained in possession of the Misthold land since 11 May. In that time, almost three months, no steps have been 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 have concluded that unless a central authority is restored to the land, as will occur in making these orders and giving effect to the terms of Misthold's undertaking, the likelihood is that the locomotives, carriages and rail equipment on the Misthold land will not be removed, perhaps for some years. In circumstances where I have determined that Misthold is entitled to possession of the land, this is an unacceptable outcome.
I held three separate hearings in June and July 2022 to enable the owners of the locomotives, carriages and railway equipment located on the Misthold 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 the hearings was to best facilitate the orderly removal of property situated on the Misthold land in a way that is fair to both Misthold and the owners of the movable property.
I have determined that lifting the stay of execution on and from 1 October 2022 and accepting the undertaking offered by Misthold, best meets that aim. As a number of the interested parties who claim to own locomotives, carriages and rail equipment on the Misthold land were self-represented, I will try and explain, as simply as I can, the effect of the orders I have made.
Perhaps the most important matter is that I have not made any order about ownership of any property on the Misthold land. If a party claims to own property located on that land, the orders I make do not effect a change in ownership of that property. I have accepted Misthold's undertaking to permit reasonable access to the land until 31 July 2023 to permit movable property remaining on the land to be removed. If a party who claims to have an interest in property located on the land is dissatisfied with that undertaking or seeks to establish rights which are contested [1] (by Misthold or anybody else), the option of seeking to commence separate proceedings to vindicate that alleged interest remains open. In saying that, unrepresented parties should understand, as I explained at the hearing, that the likely difficulties to be faced in conducting such proceedings should not be underestimated. I express no view about the costs of such proceedings or the prospects of success of any such proceedings.
None of the interested parties claiming ownership of property on the Misthold land sought to be joined as parties to these proceedings. I was informed that this decision was principally motivated by a desire not to be exposed to any costs order. I was content in those circumstances to receive evidence and submissions from the owners of property on the land. This was to give effect to the overriding purpose in Pt 6 of the Civil Procedure Act 2005 (NSW). That is, I concluded that hearing interested parties without requiring an application for joinder was consistent with the just, quick and cheap resolution of the real issues in these proceedings. In making these orders and accepting Misthold's undertaking to provide reasonable access, I have sought to facilitate access to remove property from the land whilst protecting the interested parties from adverse costs orders.
In my orders I have granted a liberty to apply, which may be exercised if any of the interested parties alleges that Misthold is not permitting that party access to the land in accordance with its undertaking. Unrepresented parties should understand that the liberty to apply is available to be exercised for matters of substance and that the Court expects Misthold and each of the interested parties to cooperate to seek to achieve the removal of locomotives, carriages and rail equipment from the Misthold land as soon as is practicable.
[2]
Reasons for decision
Well over 100 train carriages and railway locomotives are at present on the Misthold land, together with sundry railway equipment. The only question to be decided is the time at which and the terms, if any, upon which the stay of the writ of possession should be lifted.
On 17 June 2022, I heard applications from interested parties in relation to whether, and if so on what terms, the stay of execution of the writ of possession should be lifted. At that hearing I invited Mr Walton SC, who appeared for Misthold, to obtain instructions about whether Misthold was prepared, as a condition of my lifting the stay, to give an undertaking to the Court to permit reasonable access by the interested parties to the Misthold land for the purpose of removing their carriages and locomotives. The matter was adjourned to 15 July 2022. On 14 July 2022, Misthold provided to the Court a form of undertaking permitting each of the interested parties access to the Misthold land. On 15 July 2022, Mr Grace, who appeared for The Picnic Train Ltd (The Picnic Train) and Sydney Rail Services Pty Ltd (SRS), flagged a number of difficulties that his clients faced. I granted leave to The Picnic Train and SRS to submit further evidence and for Misthold to respond. On 20 July 2022, SRS and The Picnic Train filed their further evidence. On 26 July 2022, Misthold filed further evidence. On 29 July 2022, I held a third hearing about relief.
[3]
Misthold
Misthold's evidence establishes that the Huntlee development, a declared State Significant Development, has now progressed to a stage where road and drainage infrastructure must be constructed on the Misthold land before the next set of lots can be developed. That infrastructure will be on an area immediately next to the branch line. Construction of that infrastructure can only take place upon the permanent removal of the branch line.
As I explained in Misthold (No 2), the branch line is a railway track running through the Misthold land which connects that site to the main northern railway line running from Sydney. It is also the track by which a number of the interested parties propose to remove their railway items from the land, if the branch line is able to be repaired (as somewhere between 200 and 500 metres of the track is currently unsuitable to be traversed).
Misthold wishes to take control of the site, including the branch line, as soon as possible. Misthold also seeks to mitigate the risks associated with the removal of railway items along the branch line by the interested parties. For that reason, Misthold is reluctant to permit any interested party to assume the role of Rail Infrastructure Manager (RIM) with responsibility for controlling and managing the rail infrastructure on the land.
Misthold will engage a specialist consultant, Lycopodium, to assess the adequacy and fitness for purpose of the branch line to facilitate removal of the railway items. In turn, this requires Misthold to be in possession of the land, to ensure the safety and stability of the site for such work to be carried out. Misthold proposes to appoint Lycopodium as the RIM for the site, to the exclusion of any other party. I accept that the appointment of its own consultant as RIM is necessary to enable Misthold to coordinate any necessary railway operations with its own development works on the land.
[4]
Historic Sites
Despite being the defendant in these proceedings and the occupier of the Misthold land, Historic Sites led no evidence about relief. Mr Richards, who appeared in person for Historic Sites as one of its two directors, submitted that I should refuse to lift the stay as Misthold had not proved the urgency of their need to regain possession of the land. I reject Mr Richards' submission. After a lengthy hearing, Misthold has established that it is entitled to possession of the Misthold land. There is no additional requirement to demonstrate urgency. Mr Richards also sought leave to issue a subpoena to Misthold and entities associated with it, apparently to seek to demonstrate some irregularity in relation to a development application related to the land. As that proposed subpoena was plainly outside the scope of the hearing on relief, I refused leave to Historic Sites to issue the subpoena provided in draft to the Court.
Historic Sites also proposed short minutes. The suggested "relief" in those draft short minutes of order was inappropriate as it referred to non-parties and sought relief far beyond that sought in the unsuccessful proceedings conducted before me by Historic Sites. The relief sought, which included a court-mandated mediation involving the State of New South Wales, was legally incoherent. If Mr Richards, or any of his various corporate vehicles who are not parties to this litigation, wish to vindicate rights they claim they have, they will need to do so by separate proceedings, the opportunity to make an application to be joined to these proceedings having passed. I am not, of course, encouraging Mr Richards to commence unmeritorious proceedings on behalf of any corporate vehicle with which he is associated whilst unrepresented. Rather, I am emphasising that if any proceedings are to be commenced, they should be commenced with the assistance of a lawyer.
[5]
The Picnic Train and SRS
SRS is the accredited operator of The Picnic Train, a charitable organisation whose primary purpose is to restore and maintain heritage railway. That work is primarily funded by ticketed train tours which The Picnic Train runs across NSW and interstate. The operations of The Picnic Train are conducted by its accredited operator SRS, which has responsibility for the maintenance and use of The Picnic Train's rolling stock. Both entities currently occupy the Misthold land, where The Picnic Train conducts some of its operations and also stores a substantial amount of locomotive equipment, tools, spare parts and machinery.
Tickets for The Picnic Train's tours are open for sale 6 weeks prior. The Picnic Train had sold tickets to 21 August 2022. The orders I now make permit The Picnic Train to continue to operate those tours and so retain the revenue it has generated on those ticket sales.
Initially, SRS and The Picnic Train sought a continuation of the stay for three years. This was due to the quantity of stock and other materials required to be removed, the time required to repair some of the rolling stock for removal, and the need to source an alternative site to which to remove the property. The Picnic Train's intention was that it would also continue to conduct its commercial operations on the Misthold land for the whole of that three-year period, apparently to finance those aims. SRS also referred in its evidence to an alleged tenancy based on a "Lease Agreement" with Rothbury Riot Railway and Steam Museum Group Ltd (Rothbury Riot), but this assertion was not pressed by Mr Grace, who appeared for SRS and The Picnic Train.
I regard the period of 3 years initially sought by The Picnic Train and SRS to remove all the railway items from the land as plainly excessive. I find that the reason for such an extended period was that SRS and The Picnic Train sought to repair a large number of carriages that were not movable by rail and to conduct its business from Misthold's land for 3 years to earn funds to purchase an alternative property. I doubt that prolonging the stay for three years for these purposes is a permissible use of the stay power: McPhail v Persons Unknown [1973] 1 Ch 447; Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155. Even assuming that it is, however, I am not persuaded that a stay for such a period should be granted. The reasons identified by SRS and The Picnic Train for such a lengthy stay are too remote from the central purpose for which I granted a stay of the writ of execution, namely, to permit the orderly removal of property from Misthold's land. It is not an appropriate use of the stay power to exclude Misthold from the land for a period of three years to enable another entity to conduct a commercial enterprise on the land.
At the hearing on 29 July 2022, Mr Grace sought a continuation of the stay for a further 6 months. However, I am also not persuaded that a stay for this period is warranted. I am not satisfied that The Picnic Train has any greater prospects of removing its locomotives, carriages and other railway items from the Misthold land, or of securing alternative premises for relocation, by the end of a stay period of 6 months than it has by 1 October 2022. In any case, Misthold's undertaking to permit The Picnic Train and SRS reasonable access to the land until 31 July 2023 allows those entities a greater period of time to vacate the land than on their own proposal of a 6 month stay. I do not accept, as was suggested, that there is any evidence that Lycopodium, once appointed as the RIM for the site by Misthold, will act other than in accordance with relevant legal and professional obligations.
[6]
Sydney Electric Train Society Inc (SETS)
SETS sought a stay of up to 2 years, being the time required to remove its property from the Misthold land. SETS has 7 items of railway rolling stock situated on the land, which it intends to remove by rail. A period of up to 2 years was sought as the railway tracks by which the rolling stock must be removed is in a state of disrepair. SETS requires time to fundraise the costs of repairing the railway tracks, to wait for other parties whose property is blocking in SETS's rolling stock [2] to remove their obstructing property, and to secure an alternate site on which to store its property once removed from Misthold's land.
I find that the period of up to 2 years to permit the removal of 7 items of railway rolling stock is excessive. I am not satisfied that it is fair to Misthold that it should be kept from possession of its land for such a lengthy period. The period of access until 31 July 2023 proposed by Misthold achieves an appropriate balance between the interests of Misthold in resuming possession of land which it owns, and the interests of SETS and the other interested parties whose chattels are on the land but who do not otherwise have a right to occupy the land to remove items of railway stock from the land.
SETS also proposed short minutes. As I explained at the hearing, however, the relief suggested in those short minutes was either not legally available or did not arise in the context of the pleaded issues in this case.
[7]
Lithgow State Mine Railway Ltd
Lithgow State Mine Railway Ltd appeared at the hearings on 15 and 29 July via Mr Burns, the President of SETS, and indicated they have one item on the land which they will seek to remove within any time which is granted.
[8]
Dorrigo Steam Railway and Museum Ltd (Dorrigo Museum)
Dorrigo Museum owns 6 heritage-listed locomotives on the Misthold land which, together with an additional locomotive and other railway items, it had purchased from The Spirit of the Hunter Pty Ltd (Spirit of the Hunter) as trustee of the Hunter Valley Railway Museum in 2013. Dorrigo Museum initially sought a stay of 12 months to remove those 6 locomotives from the land. That period of time was due to the fact that, although Dorrigo Museum has the resources and approvals necessary to immediately remove its property by road, there is a deal of congestion on site which will need to be cleared to enable Dorrigo Museum's locomotives to be accessed by mobile cranes and haulage vehicles and ultimately removed. Previous attempts by Dorrigo Museum from as early as 2013 to remove its locomotives have been frustrated, due to conditions imposed by the Heritage Council which were then beyond the financial means of Dorrigo Museum to meet. It appears that any such conditions are no longer an obstacle due to a bequest received recently by Dorrigo Museum.
I find that the period of time in the undertaking, until 31 July 2023, will likely be sufficient to permit Dorrigo Museum access to the land for the purposes of removing its property.
[9]
Lachlan Valley Railway Society Co-operative Ltd (LVR)
LVR sought a stay of execution of the writ of possession for a period of 12 months. LVR owns a locomotive and a carriage currently situated on the land, and leases another 3 items of rolling stock and has custody of a further 6 carriages pursuant to an agreement with their owner to repair and restore those carriages. LVR has the means to remove that property from the land. LVR sought a stay of up to 12 months on account of the need to repair and restore some of the items to a condition where they can be safely removed, and to complete construction of storage sidings at its depot in Orange, NSW, where it will relocate the items. I regard that period as excessive.
LVR sought, however, to play a constructive role in the hearings concerning relief before me. LVR has the regulatory approvals required to move and operate railway stock along the NSW rail network, including the branch line located on the Misthold land. Doing the best I can to balance the interests of the owner of the land and the interested parties, I will delay lifting the stay of the writ of execution until 1 October 2022 to give LVR an opportunity to repair the branch line before that date and commence removing locomotives and carriages. If not for the possibility that LVR could perform that work, I would have lifted the stay of execution of the writ of possession forthwith.
As I explained on 29 July 2022, LVR and entities reliant on LVR to move their rolling stock should take the opportunity afforded in these 2 months before the stay is lifted to repair the branch line track as much as possible.
[10]
Richmond Vale Preservation Co-operative Society Ltd (Richmond Vale)
Richmond Vale is a volunteer-managed community museum which owns a small locomotive presently stored on the Misthold land. Richmond Vale intends to remove that locomotive by road to its museum site in Richmond Vale. However, its locomotive is currently hemmed in by other pieces of rollingstock which impede access to and inhibit removal of its locomotive.
I find that the period until 31 July 2023 is sufficient for the purposes of removing any railway item owned by Richmond Vale.
[11]
Messrs Gordon and Wilson
Messrs Andrew Gordon and Robert Wilson are the owners of two railway carriages currently located on the land. They proposed a timetable of 12 months to remove their carriages, being the time required to prepare the carriages for removal, to repair the railway track by which the carriages will be removed to their new location, and to obtain permits and other regulatory approvals to use those tracks.
As I understand it, Messrs Gordon and Wilson will attempt to remove property by rail in the way indicated by LVR. Consistently with Misthold's proposal, they will be able to access the land over a period until 31 July 2023 to enable them to make a good faith effort to remove their railway carriages.
[12]
Mr Parker
Mr Ben Parker was dialled into the virtual courtroom at the hearing on 17 June 2022 but did not enter an appearance. In subsequent correspondence with the Court, Mr Parker sought leave which I granted to read an affidavit at the hearing on 15 July. In that affidavit, which I have taken into account, Mr Parker sought a stay of up to 2 years to remove 16 rail vehicles from the land.
I regard the period of 24 months as excessive. A more appropriate period is the period until 31 July 2023 which should be sufficient to permit Mr Parker to remove the 16 rail vehicles from the land.
[13]
Mr Reynolds
Mr Andrew Reynolds appeared at the hearing on 17 June 2022 and read two affidavits and a set of "Points for consideration" which I have taken into account. Mr Reynolds owns a number (not specified) of railway items, rolling stock and locomotives on the Misthold land and sought a stay of at least 18 months in which to remove them.
I am satisfied that the period ending 31 July 2023 (over 14 months after my initial judgment was delivered) is sufficient for Mr Reynolds to remove the railway property he has on the land.
[14]
Aurizon Ltd
Aurizon Ltd appeared before me on 29 July. They did not lead any evidence. I do not perceive any difficulty in Aurizon removing any property it has on the land before 31 July 2023.
[15]
Conclusion and terms of the undertaking
I have concluded that the orderly removal of locomotives, carriages and other railway items from the Misthold land will be best achieved, in a way fairest to all persons and entities involved, by lifting the stay on the execution of the writ of possession from 1 October 2022. Misthold will be restored to occupancy of its land on and from that date. This will be subject to an undertaking to the Court by Misthold to permit reasonable access to the land until 31 July 2023 by the owners of locomotives, carriages and other railway items currently located on the land for the purpose of removing those items at the owners' expense and risk.
The terms proposed by Misthold, set out at Annexure A to these reasons, appear to me to be reasonable.
Two items in particular were raised by the interested parties: the costs of removal, and the terms of a temporary site access deed which Misthold required each interested party to execute as a condition of entry. As to costs, I have concluded that it is not fair that Misthold contribute to the costs of removing railway property from its land. Misthold does not own any of that property, nor did it play any role in bringing that property onto its land in the first place. Those costs of removal must be borne by the owners of the relevant property. As to the terms of the deed Misthold requires be executed as a condition of entry, I regard those terms as reasonable. Misthold is entitled to require release and indemnification in relation to any claims against it arising from permitting access to its land.
Once Misthold takes possession of the land upon dissolution of the stay on 1 October 2022, questions may arise between Misthold and the interested parties about the carriages, locomotives and other railway items situated on the land, for example whether Misthold is a bailee of those chattels on the land; whether reasonable time has elapsed sufficient to permit the owners of those carriages and locomotives to remove their property from the land; and whether, as Misthold asserts, any carriages, locomotives or other chattels left on the land once the period of the undertaking has elapsed are deemed abandoned and may therefore be disposed of by Misthold. As a number of the interested parties are not legally represented, I wish to reiterate and make clear a point that I have already made repeatedly in the course of the hearings: I have not made, and have not been asked to make, any orders determining any of those questions including any question of ownership of or interest in any locomotive, carriage or other item of railway property.
Once Misthold is in possession of the land, the rights as between Misthold and the owners of any chattels remaining on the land in relation to that property need to be determined by agreement between Misthold and those interested parties, or by separate proceedings commenced by the owners of the chattels.
As I said at the outset of these reasons, every interested party is free to seek to commence separate proceedings in relation to any item of property. I have taken into account that the institution of any separate proceedings by an interested party will likely involve considerable expense and delay compared to the undertaking by Misthold which I have accepted. The orders I am making, subject to Misthold's undertaking, seem to me to best conform with the dictates of Pt 6 of the Civil Procedure Act.
Misthold has succeeded in its claim for possession. I have sought to balance its interests in immediately enforcing its right to possession of its land with the interests of the owners of locomotives, carriages and other railway items located on the land. There is evidence, albeit much of it speculative, to the effect that acting properly and efficiently, clearance of the land of carriages, locomotives and other chattels will take a considerable time. I have sought to fashion relief in a manner which strikes an appropriate balance between the competing interests of all parties involved, which will enable the removal of the locomotives, carriages and railway items remaining on the land in an orderly and timely fashion, and which avoids as much as possible the creation of further delay, expense or legal contest.
In relation to the submissions made by Mr Richards on behalf of Historic Sites, to the extent that Historic Sites does not accept my judgment in Misthold (No 2), it can appeal against that judgment or, if necessary, seek leave to appeal. In relation to the complaints made by Mr Richards on behalf of Rothbury Riot and Spirit of the Hunter, neither entity made any application to be joined to these proceedings, nor has either entity commenced any separate proceedings. On 17 June 2022, I rejected evidence from Rothbury Riot and Spirit of the Hunter, which evidence asserted rights inconsistent with my judgment of 11 May. My reasons are set out in Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 3) [2022] NSWSC 840. I had previously urged Rothbury Riot and Spirit of the Hunter, both when those entities were represented by Mr Richards' co-director and later by Mr Richards, to obtain independent legal advice. I repeated that exhortation many times during the hearings about relief and I repeat it again in these reasons.
I propose to bring the matter back before me before the end of the year for an update on the progress which has been made in removing items from Misthold's land.
[16]
Order
I make the following orders:
1. On and from 1 October 2022, set aside order 3 made on 11 May 2022, staying execution of the writ of possession the subject of order 2 made on 11 May 2022.
2. Order 1 is made upon the plaintiff undertaking to the Court, subject to the qualifications set out in Schedule A, to:
1. permit reasonable access to the Land to the Interested Parties, except by prior agreement, between the hours of 9am and 5pm on Monday to Friday (excluding public holidays) during the period commencing 1 October 2022 and ending 31 July 2023 (subject to further order of the Court) for the sole purpose of each of the Interested Parties removing the Property from the Land using their own equipment in accordance with the reasonable and lawful directions of the plaintiff, the plaintiff's agent or employee and solely at the cost and risk of the Interested Party in each instance; and
2. take reasonable steps to facilitate, and cooperate with the Interested Parties in the orderly, safe and lawful removal of the Property from the Land at each Interested Party's sole cost and risk.
1. Refuse leave to Historic Sites to issue the subpoena provided to the Court in draft dated 26 July 2022.
2. Direct the plaintiff to file and serve by 4pm on 2 December 2022 a report outlining the progress of the removal of the Property from the Land.
3. List the matter for further directions on 9 December 2022 at 2:00pm, with the intent that the plaintiff and the Interested Parties will report on the progress and status of the removal operations on that occasion.
4. Grant liberty to apply on 3 days' notice.
[17]
Endnotes
For example, Mr Richards, on behalf of Rothbury Riot and Spirit of the Hunter apparently disputes the ownership of a shed on the Misthold land and a branch line railway track on the property. Despite that assertion, no application for joinder was ever made by or on behalf of Rothbury Riot or Spirit of the Hunter and the rights, if any, of those entities have not been determined in these proceedings. Mistold's undertaking does not extend to the shed or the branch line railway track on the property. If Rothbury Riot or Spirit of the Hunter wish to remove locomotives, carriages and rail equipment (not including the shed or the branch line railway tracks) from the Misthold land they are entitled to take advantage of Misthold's undertaking to permit them access for that sole purpose.
Mr Burns, who appeared for SETS, told me that SRS and The Picnic Train were the organisations whose locomotives and carriages were principally blocking SETS's exit by rail.
[18]
Amendments
09 August 2022 - Correction to date referred to at para [49(2)(a)]
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Decision last updated: 09 August 2022
Parties
Applicant/Plaintiff:
Misthold Pty Ltd
Respondent/Defendant:
NSW Historic Sites and Railway Heritage Company Pty Ltd