The Court held that where Crown land was appropriated under the Public Works Act 1912 (NSW) but subsequently brought under the Real Property Act with the State of New South Wales recorded as registered proprietor, the indefeasibility provisions of s 42 of the Real Property Act (reinforced by s 42(3) enacted in 2009) are determinative, and the land is 'vested in Her Majesty' for the purposes of s 36(1) ALRA. The Court followed the Moonbi/Matraville/Birrigan Gargle line of authority and distinguished Tomaree Head on the basis that the conversion action post-dated s 42(3). The Court further held that use of the claimed land as a carpark by police, corrective services staff, court staff and the public did not constitute lawful use or occupation within s 36(1)(b) ALRA, with the result that the land was claimable Crown lands and the appeal was upheld.
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