Hunter Valley Railway Trust- A Tragedy waiting to happen?

 
  james.au Minister for Railways

Location: Sydney, NSW
(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.


Court orders that developer has the land and can issue a writ to enforce that.  But proceedings held over until 15 June 2022 for any of the groups with assets on the property (ie the 22 groups) to make submissions as to when the possession order is allowed to be served.  

I suspect this last part is about those organisations making their own case for occupancy, or, being allowed court protection to remove their stuff in an orderly fashion.

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  fred59 Assistant Commissioner

Location: Boonah
Sounds like a big train auction coming up, so everything has to removed from Rothbury to where?
  RustyRick Chief Commissioner

Location: South West Vic
Sounds like a big train auction coming up, so everything has to removed from Rothbury to where?
fred59
Sims metal...
  Carnot Minister for Railways

Sounds like a big train auction coming up, so everything has to removed from Rothbury to where?
fred59
Lithgow?  Broadmeadow?  Seymour?
  Yawn Station Master

Location: Brisbane, Queensland, Australia
does anyone have the list of 3rd parties MFI-1?


The judgement mentions (para 91):

1. Locomotive 4627 sold to SETS;
2. carriages FS1651, XBS2158, and MH 2701 sold to an entity described as Heritage Locomotive Company Pty. Ltd.;

but there is no indication whether these items remain on site uncollected.

even the location of the Class 10 locomotives has me beat!

At Dorrigo's Annual General Meeting on 28 Nov 2021, a member asked about "the status of the Museum's five SMR 10 Class "still remaining at Rothbury.."

and Keith Jones is recorded as saying "the situation had not changed a lot...(then mentioned this court case)... "Our Museum cannot remove our five 10 Class from the site, because they have a Heritage Order on them, that requires the Museum to meet numerous conditions, some of which are impossible to fulfil, due to the virus and the hostile attitude of Bellingen Shire Council."

Then I turn to Payne J's extensive judgment at para 206: "the relevant heritage legislation is publicly available....so too are plans, maps and government documents which would identify any item of heritage significance...none were in evidence before me"


I am as flummoxed as Payne appears to be!


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.



The stay of execution of the writ of possession is only temporary. Once the judge orders that the stay be lifted it will be open slather for the successful party to gain possession of the site (with or without the assistance of bailiffs/ sheriff's officers/ NSW Police) and start clearing the site for its intended purpose of real estate development.

So any concerned third party with stock still on site now has to make their move (including engaging lawyers and appearing on 15 June) or else,

If any third party continues to seek to utilise the excuse of heritage orders, they will have to lead evidence as to what if any heritage orders actually exist (something that Payne J seems to have been deprived of pro tem).


There should be considerable movement of stock coming up. ARTC won't allow any of it to transit on its tracks so it is all low loaders, and there are very few purpose built lowloaders available. Cranes to lift cost $790 an hour from depot to depot, specialist heavy haulage Rex J Andrews Pty. Ltd. has some but not unlimited capacity.
  Yawn Station Master

Location: Brisbane, Queensland, Australia
Newcastle Herald 19 May states  that Chris Richards will appeal the decision.

If anyone has a subscription to this newspaper, could they post the full article to see if it is in any way informative.

If anyone is interested in the legal position: an appeal does not automatically stay execution of a judgment. The appellant may apply for a stay though-

1. where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay:
2. the appellant may be called upon to show that the appeal has good prospects of success.

Chris Richards could clearly establish 1 but might struggle with 2.
  Valvegear Oliver Bullied, CME

Location: Richmond Vic
As a non-legal person, I find it difficult to work out what grounds there are for an appeal. I am afraid that Chris Richards' heart is ruling his head. In the original case, there was comment that Richards seemed firmly convinced that there is a need for his collection to be on that site, without really taking cognisance of who actually owns the place, and doesn't share his view.
  james.au Minister for Railways

Location: Sydney, NSW
Newcastle Herald 19 May states  that Chris Richards will appeal the decision.

If anyone has a subscription to this newspaper, could they post the full article to see if it is in any way informative.
Yawn

A CHARITY set up to maintain and restore historic trains and railway items at North Rothbury have lost their David and Goliath battle in the Supreme Court against Huntlee Pty Ltd.
Those behind the not-for-profit Hunter Valley Railway Trust (HVRT), and responsible for many of the heritage-listed and other railway items stored there, will be evicted from the site and, they fear, likely lost to the Hunter.
Trains enthusiast Chris Richards, who heads up HVRT, was devastated by the decision which he said would likely send him bankrupt, and "everything" would be lost. "All of our infrastructure, our track, the sheds, everything," he said. "It's shocking".
They have also been ordered to pay the other side's legal costs, thought to be in the vicinity of at least $1 million.
Shocking loss 'will cost everything'
However, it is not the last chapter in what has already been a long and complicated stoush involving millions of dollars worth of railway heritage items.
"Our barristers have said we have good grounds for appeal and at this stage we will be appealing," Mr Richards said.
The land in question forms part of the $1.5 billion Huntlee development site which is set to become the first new town in the Hunter for more than half a century. It was once the hub of a $10 million heritage railway collection first homed there in 1990.
Huntlee Pty Ltd welcomed the decision yesterday, saying: "The decision in favour of Huntlee's subsidiary, Misthold Pty Ltd, on all counts recognises that Misthold is entitled to possession of all land situated at 170 Wine Country Drive, North Rothbury including all land on which locomotives and carriage are stored.
"It is also recognised that Misthold acted in good faith and in accordance with its rights and obligations during the protracted negotiations with the Historic Sites and Railway Heritage Company."
Representatives of the 24 other charities and organisations based on the site will have their day in court on June 15. Huntlee said it would honour a stay order which would allow them the opportunity to "identify any locomotives and carriages over which they claim ownership, to relocate them to alternative sites."
HVRT had argued that, despite a complicated paper trail and various agreements and discussions, they retained the right to stay put or, in the alternative, that Misthold would set up a museum to display heritage-listed items.
But Justice Payne found against them.
"On no view of the evidence was there a promise by Misthold to create a joint venture museum in perpetuity for the display of any railway items,'' he said.
  Yawn Station Master

Location: Brisbane, Queensland, Australia
Newcastle Herald 19 May states  that Chris Richards will appeal the decision.

If anyone has a subscription to this newspaper, could they post the full article to see if it is in any way informative.

The 2 interesting parts:
"Our barristers have said we have good grounds for appeal and at this stage we will be appealing," Mr Richards said.

Representatives of the 24 other charities and organisations based on the site will have their day in court on June 15. Huntlee said it would honour a stay order which would allow them the opportunity to "identify any locomotives and carriages over which they claim ownership, to relocate them to alternative sites."
james.au
Thanks for posting that and all your previous posts on this topic. You have been most helpful.

Any Notice of Appeal has to be filed on or before 8 June 2022 (ie 28 days) and any application for a stay of execution pending hearing of the appeal must be brought expeditiously.

So there should be another decision coming up on that topic. It looks as if Misthold (Huntlee) will test the issue of merits of success on a stay application- so that should make interesting reading as well.

Then there is the re-listing before Payne J on 15 June. That too should be quite interesting.

The Newcastle Herald has counted 24 other 3rd parties.  so it is going to be a rather large crowd as pretty much the whole of the NSW rail preservation fraternity line up for their "day in court" as the herald so well phrases it!

Could I send a message to any of those others who might be reading this- even tho Payne J talks of you appearing with legal representatives, the good judge has to appreciate that a lot of groups exist on the smell of an oil rag-and may not be able to afford lawyers. Turn up anyway. The judge is constrained by the rules of natural justice and must give an audience to ordinary people (and cannot restrict the right of audience only to those who can afford lawyers) Just turn up and have your say!


let's hope Keith Jones and his board are paying attention  and not letting their interests fall away by default (there has been no recent newsletter calling for money, money, money- and also getting his low loader in order to start removing Dorrigo's last 3 Class 10s as Payne may not be too generous when he sets time constraints. No-one else that I know of have their own low loaders so if any of the other 24 3rd parties intend removing their stock they better be running chook raffles and ringing Rex Andrews up and checking availability of his low loaders

More drama to come!
  Graham4405 The Ghost of George Stephenson

Location: In exile
Misthold is entitled to possession of all land situated at 170 Wine Country Drive, North Rothbury including all land on which locomotives and carriage are stored.
james.au
Looking at this spot on Google Maps Satellite View I can't see any railway items stored there?
  apw5910 Chief Commissioner

Location: Location: Location.
Misthold is entitled to possession of all land situated at 170 Wine Country Drive, North Rothbury including all land on which locomotives and carriage are stored.
Looking at this spot on Google Maps Satellite View I can't see any railway items stored there?
Graham4405
Try near 1700 Wine Country Drive, look to the northwest.
  Graham4405 The Ghost of George Stephenson

Location: In exile
Misthold is entitled to possession of all land situated at 170 Wine Country Drive, North Rothbury including all land on which locomotives and carriage are stored.
Looking at this spot on Google Maps Satellite View I can't see any railway items stored there?
Try near 1700 Wine Country Drive, look to the northwest.
apw5910
Thanks, but how does this relate to Misthold's entitlement to "possession of all land situated at 170 Wine Country Drive, North Rothbury"? It's on the opposite side of Wine Country Drive and further south west.
  NSWRcars Assistant Commissioner

Try near 1700 Wine Country Drive, look to the northwest.
Thanks, but how does this relate to Misthold's entitlement to "possession of all land situated at 170 Wine Country Drive, North Rothbury"? It's on the opposite side of Wine Country Drive and further south west.
Graham4405
The address No 170 is not specific, and may cover several land parcels. The judgement applies to possession of Lot 11 DP 1137569, the parcel that the museum occupies. NSW Land Registry lists two addresses for that parcel, one of which is No 1707 Wine Country Drive North Rothbury.
  Graham4405 The Ghost of George Stephenson

Location: In exile
Try near 1700 Wine Country Drive, look to the northwest.
Thanks, but how does this relate to Misthold's entitlement to "possession of all land situated at 170 Wine Country Drive, North Rothbury"? It's on the opposite side of Wine Country Drive and further south west.
The address No 170 is not specific, and may cover several land parcels. The judgement applies to possession of Lot 11 DP 1137569, the parcel that the museum occupies. NSW Land Registry lists two addresses for that parcel, one of which is No 1707 Wine Country Drive North Rothbury.
NSWRcars
It appears to be a rural area, so addresses should be as per the rural addressing standard, that is 1 = 10m, so the distance from 170 to 1707 would be 15.37km (170 being 1.70km from the start of the road and 1707 being 17.07km from the start of the road). It must be a very large area of land that is in contention here!
  Graham4405 The Ghost of George Stephenson

Location: In exile
It appears to be a rural area, so addresses should be as per the rural addressing standard, that is 1 = 10m, so the distance from 170 to 1707 would be 15.37km (170 being 1.70km from the start of the road and 1707 being 17.07km from the start of the road). It must be a very large area of land that is in contention here!
If that "standard" were used, then No 170 would not even be in North Rothbury. No 170 might include No 1707, and perhaps other addresses. Land title in NSW is not generally identified by street addresses. The land in contention is Lot 11 DP 1137569.
NSWRcars
The rural addressing standard is Australia and NZ wide (AS/NZS 4819-2011), the standard is for odd numbers on the left hand side of the road, but 170 is on the left. No, land title wouldn't be identified by street addresses, however every property entrance is supposed to be numbered according to the standard to ensure that emergency services can find any emergency situation they have to attend as quickly as possible.
  NSWRcars Assistant Commissioner

The rural addressing standard is Australia and NZ wide (AS/NZS 4819-2011), the standard is for odd numbers on the left hand side of the road, but 170 is on the left. No, land title wouldn't be identified by street addresses, however every property entrance is supposed to be numbered according to the standard to ensure that emergency services can find any emergency situation they have to attend as quickly as possible.
So what? Maybe No 170 is a mistake. The land in question is Lot 11 DP 1137569, which NSW LRS SIX shows has an address of 1707 Wine Country Drive, North Rothbury.
  Graham4405 The Ghost of George Stephenson

Location: In exile
The rural addressing standard is Australia and NZ wide (AS/NZS 4819-2011), the standard is for odd numbers on the left hand side of the road, but 170 is on the left. No, land title wouldn't be identified by street addresses, however every property entrance is supposed to be numbered according to the standard to ensure that emergency services can find any emergency situation they have to attend as quickly as possible.
So what? Maybe No 170 is a mistake. The land in question is Lot 11 DP 1137569, which NSW LRS SIX shows has an address of 1707 Wine Country Drive, North Rothbury.
NSWRcars
So it is a cause for confusion that made it not possible for me to locate it on Google Maps, that is all.
  sam6778 Junior Train Controller

Location: Rockingham, WA
Out of interest, doesn't Aurizon still have some locomotives stored at that site, or have they all since been sold?  Cheers.
  ssaunders Chief Train Controller

Perhaps the best way to save some of the remaining items is for a sale, to new owners of the who have the wherewithal to preserve or restore. Clearing of the deck and start again giving some things a second life.

Obviously this was never going to happen under the current arrangements as the site slowly declined into the rubbish dump is has become worthy of only a bulldozer.

ss
  james.au Minister for Railways

Location: Sydney, NSW
Out of interest, doesn't Aurizon still have some locomotives stored at that site, or have they all since been sold?  Cheers.
sam6778
3x 422 class (or rebuilt class numbers) i think.  Shouldn't be too hard to find space for them in the Aurizon network.  They've just purchased South Maitland Railways so there would be space there.
  sam6778 Junior Train Controller

Location: Rockingham, WA
Out of interest, doesn't Aurizon still have some locomotives stored at that site, or have they all since been sold?  Cheers.
3x 422 class (or rebuilt class numbers) i think.  Shouldn't be too hard to find space for them in the Aurizon network.  They've just purchased South Maitland Railways so there would be space there.
james.au
Thanks for the info, I'm a little surprised Aurizon hasn't either sold or scrapped them by now.  Cheers.
  Yawn Station Master

Location: Brisbane, Queensland, Australia
the latest court listing for the court case was yesterday 17 June 2022 at 2pm before Payne J. for "hearing" - one assumes that it concerned all the 3rd parties. should hear in due course the result. anyone living near the site can report on movement "There was movement at the station; The Word had got around; The colt from North Rothbury had got away..."
  apw5910 Chief Commissioner

Location: Location: Location.
the latest court listing for the court case was yesterday 17 June 2022 at 2pm before Payne J. for "hearing" - one assumes that it concerned all the 3rd parties. should hear in due course the result. anyone living near the site can report on movement "There was movement at the station; The Word had got around; The colt from North Rothbury had got away..."
Yawn
"... to join the wild bush herds."

Where is there enough space to store all this stuff nowadays? Even assuming it can be moved by rail.
  a6et Minister for Railways

the latest court listing for the court case was yesterday 17 June 2022 at 2pm before Payne J. for "hearing" - one assumes that it concerned all the 3rd parties. should hear in due course the result. anyone living near the site can report on movement "There was movement at the station; The Word had got around; The colt from North Rothbury had got away..."
"... to join the wild bush herds."

Where is there enough space to store all this stuff nowadays? Even assuming it can be moved by rail.
apw5910
Depends on who owns what as to how much of the stored stuff will be moved and how long will they be allowed to stay on site.

I understand that the rust mountain stuff will be road hauled out, will cost a pretty penny indeed.  The diesels that have been repainted (maybe wrong here) are owned by those who own the 59/S and 73 class and the 421.  A little bird whispered to me a few weeks back that a site has been found for storing them and to clear out what they own.  Said to be in a somewhat convenient location that will be pleasing if the negotiations work out.
  Yawn Station Master

Location: Brisbane, Queensland, Australia
I wonder if I could call upon James.au who seems to have a subscription to the Newcastle Herald to again update us all on the current state of play.

Today 22 June 2022 Gabriel Fowler has again written in the Newcastle Herald another article headed:

"Logistics Nightmare" Hunter Valley based train enthusiasts argue for more time to vacate Huntlee housing estate at North Rothbury. Without enough time and more than $1 million to relocate by road, the Hunter Valley's beloved Picnic Train may come to a screaming halt and hundreds of historic railway items abandoned"

On their Facebook page the heading is "Hunter Valley's beloved Picnic Train needs more time..."


Any logistics nightmare (which was always on the cards anyway) would probably concern more than the Picnic Train.


Apart from ARTC disallowing access to any escape route via rail. there are issues with low loader availability (let alone the huge costs of same)


Newcastle Herald seems to be on the ball (Austlii have not featured any current directions/ hearing result- (as no principle of law is involved)- it is now all down to the nuts and bolts of moving heavy haulage stuff off and away

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