At Bilbie Faraday Harrison, we understand that property disputes are rarely just about land, they often involve heritage, history, and high stakes. That was certainly the case in Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561, where we acted for the landowner in long-running, complex litigation.
Our client, Misthold Pty Ltd, successfully secured possession of its land after years of dispute with an organisation that had remained in occupation long after its right to do so had expired. The Supreme Court of New South Wales ruled decisively in Misthold’s granting an order for possession and awarding costs.
The Background
Misthold Pty Ltd is the registered proprietor of a large parcel of land in North Rothbury, New South Wales. For many years, the land was occupied by NSW Historic Sites and Railway Heritage Company Pty Ltd (NSW Historic Sites).
Initially, the organisation held formal leases over portions of the land, including a 2007 Lease and a lease over a branch railway line. These leases were later surrendered under a Deed of Surrender executed in 2012, followed by a short-term lease over a smaller portion of land. That lease expired in 2014. Despite this, NSW Historic Sites remained on the property for nearly a decade without a valid lease, without paying rent, and without the consent of the landowner.
The Dispute
The central legal issue was simple but significant: did NSW Historic Sites have any ongoing legal or equitable right to occupy the land?
NSW Historic Sites advanced a number of arguments, including:
- That it had made improvements to the land;
- That it relied on alleged promises or representations to continue operating a railway museum;
- That Misthold had been unjustly enriched by its continued presence; and
- That the Surrender Deed was invalid due to unconscionability or duress.
However, none of these claims were accepted by the Court. The evidence did not support the existence of an ongoing lease, enforceable promise, or equitable entitlement.
Our Approach
Our team, led by Robert Faraday-Bensley, argued that:
- All formal rights of occupation had expired;
- The Surrender Deed had been validly executed and ratified;
- There was no binding agreement to create a joint venture or museum in perpetuity;
- NSW Historic Sites had never transferred any heritage items to Misthold as contemplated by the Surrender Deed; and
- Misthold had taken appropriate steps to recover possession lawfully.
The Outcome
The Supreme Court of NSW found in favour of Misthold on all issues. Key findings included:
- NSW Historic Sites had no lease, licence, or equitable right to remain;
- The Surrender Deed and 2012 Lease were valid and enforceable;
- NSW Historic Sites’ occupation after the lease expiry was unauthorised;
- No estoppel, misrepresentation, or unconscionable conduct was made out; and
- Misthold was entitled to an immediate order for possession.
NSW Historic Sites’ cross-claims and defences were dismissed in full. The Court also ordered that NSW Historic Sites pay Misthold’s legal costs, recognising the burden imposed by the prolonged and unnecessary resistance to vacate the site.
Why this Case Matters
This case reinforces important principles for landowners:
- Informal use of land does not create legal rights without clear, documented agreements;
- Equitable doctrines such as estoppel and unconscionability will not assist parties who continue occupation without permission;
- Community groups, like any other entity, must formalise their occupation through valid legal instruments;
- Landowners are entitled to enforce their property rights, even against long-term or not-for-profit occupiers.
Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.
The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.
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