will the existence of Aboriginal objects in the land cause a defect in title?

In Mehmet v Carter [2017] NSWSC 1067 the plaintiff and defendant had contracted to sell land for a purchase price of $3,000,000. After the 10% deposit was paid, the plaintiff discovered that the land included a burial site of two Aboriginal elders. These remains are Aboriginal objects under the National Parks and Wildlife Act 1974. Aboriginal objects are the property of the Crown, and could hinder the planned development of land by the plaintiff.

The plaintiff argued that the Aboriginal objects were embedded in the soil and as such ‘affixed’ to the land, making them part of the subject matter of the contract. The argument ran that since they were affixed, but were the property of the Crown and could not be moved, there was a defect in title.

In the Supreme Court Justice Darke accepted that Aboriginal objects may have become real property, but did not accept that they were therefore conveyed as part of the subject matter of the contract. The land being conveyed did not include the Aboriginal objects, which are the property of the Crown. If they were included, it would be difficult for the defendant to prove good title, because it would be nearly impossible to determine how many Aboriginal objects were in the land. Justice Darke held that the title did not carry a defect due to the Aboriginal objects, meaning the plaintiff did not have a right to terminate on this basis.

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