Armstrong v Savage Togara Coal Pty Ltd

[1998] QLC 147

[1998] QLC 147

 

LAND COURT

BRISBANE

27 NOVEMBER 1998

In the matter of an appeal against the determination of the Mining Wardens Court, Emerald, of compensation payable in terms of Section 282 of the Mineral Resources Act 1989 in respect of Mining Lease No. 70149 in the Emerald Mining District. (A97-75)

NF, J, RE and DL Armstrong

Appellant

v.
Savage Togara Coal Pty Ltd

Respondent

This appeal comprises one of four appeals heard together before me.  One of these appeals, Wills v. Minerva Coal Pty Ltd involved a wider range of issues of fact and law than the others and, given that, I elected to include in my judgment on that matter a discussion of the law relevant to each of the four appeals.  I do not repeat in these present reasons the detail of the discussion presented in Wills v. Minerva Coal Pty Ltd which was also handed down today, but draw attention to the need for reference to be made to that judgment, together with the present for a fuller understanding of my consideration of the relevant law.

In September 1996 the respondent mining company lodged an application for the grant of a mining lease pursuant to the provisions of Part 7 of the Mineral Resources Act 1989 (MRA).  Four objections were lodged against the grant of the application resulting in a hearing before the Wardens Court which involved, amongst other things, an inspection of the proposed lease area by the presiding Warden.  Subsequently the Warden recommended to the honourable Minister that the lease application be granted.

Section 279 MRA provides that a mining lease may not be granted until either compensation is settled between the owner of the land and the intending miner or, in the absence of settlement, the compensation is determined by the Wardens Court or by this Court on appeal. The question of compensation came before the Wardens Court and it is from the determination of that Court that the land owners appealed to the Land Court pursuant to the provisions of s.282 MRA.  It may be useful if, before I make reference to the determination of the Warden, some reference is made to the properties which it is intended become subject to the mining lease. 
           What I will refer to as the "Comet Downs Aggregation" is situated about 30 km south of Comet, comprises five adjoining properties with a total area of 28,629 ha and is owned by three families who are the appellants in this matter.  The aggregation comprises "Comet Downs" with an area of 8,828.13 ha, "Southfork" with an area of 8,996 ha, "Miambaa" with an area of 4,297 ha, "Coolibah Plains" whose area is 4,662 ha and "Oasis" which has an area of 1,845.9 ha.  "Oasis" is not touched by the intended mining lease. 
           The "Comet Downs Aggregation"  is suited to broad-acre cultivation, together with the breeding and fattening of beef cattle.  The headquarters of the aggregation's management and centralised facilities are located at "Comet Downs" and the individual properties are worked in conjunction.  The creation of the individually named properties out of the original "Comet Downs Aggregation" took place in January 1990 with the result that "Comet Downs"  and "Southfork" remained in the ownership of Neil Francis and Janice Aileen Armstrong, the parents of Dean Lindsay  and Ross Edward Armstrong, who each came to own "Miambaa" and "Coolibah Plains", respectively.  Valuation evidence was given before the Warden by Alan George Todd for the Armstrongs and in the hearing at first instance, as in the appeal before me, all of the evidence was taken to apply to each of the properties in question.  Mr Todd said that there were particular advantages in the individual properties continuing to be worked as an aggregation, even though held in separate ownership, and these advantages included:

·   a single mortgage;

·   a capacity to share a workforce;

·   agistment of cattle;

·   shared use of machinery;

·   joint insurance;

·   shared order of supplies;

·   use of central facilities on "Comet Downs" such as cattle yards, horse yards and workshop, amongst other things.

The parties were able to settle a substantial part of the compensation in dispute and deeds of settlement were tendered in evidence at first instance recording agreements on compensation with respect to each matter excepting for the claim with respect to an anticipated Capital Gains Tax (CGT) assessment and the determination of the additional amount under s.281(4)(e) MRA.  These agreements were treated as determinations by consent before me.  In the case of "Comet Downs" and "Southfork", owned by Neil and Janice Armstrong, compensation was agreed in the amount of $2,650,000 together with disturbance fees of $45,000.  In respect of "Coolibah Plains", owned by Ross Armstrong, the compensation figure is $660,000 together with disturbance of $22,500.  In the case of "Miambaa", owned by Dean Armstrong, the agreement amounts to $770,000, together with disturbance of $22,500.
           In the learned Warden's determination he found with respect to the matters remaining in dispute that the owners' exposure to CGT is not a compensable item under the provisions of s.281 MRA; and that there should be no increase under s.281(4)(e) beyond the statutory 10% provided for there. It is these two conclusions of the Warden which are the subject matter of the appeals before me. The grounds of appeal are as follows:

1. The Warden erred in not accepting the evidence of Mr Todd that the compulsory nature of the acquisition had a greater impact on "Comet Downs"  than on the other two properties;

2. The Warden erred in holding that he was not satisfied that Mr Todd had demonstrated sufficiently why the Warden should accept that the mining sales are relevant; and/or in holding that the mining sales are not relevant;

3. The Warden erred in holding that the mining sales reflect commercial settlements, and that they take into account the value of the land to the miner as opposed to the value to the land owner;

4. The Warden erred in holding that the mining sales should not be used as a guide to the 'additional amount' to be paid under Section 281(4)(e) as this section relates to the compulsory nature of the action taken;

5. The Warden erred in holding that the mining sales cannot be relied upon as the parties may be an anxious purchaser (the miner) on the one hand and on the other hand an unwilling vendor (the landowner), and in having regard to the principle that the value to be paid for, is the value to the owne4r as it existed at the date of the taking, not the value to the taker;

6. The Warden erred in holding that, upon consideration of the evidence, submissions and the authorities referred to, there had not been any matter sufficiently demonstrated in this matter which would lead to an award of any amount in excess of 10% under Section 281(4)(e) of the Act, in respect of these matters;

7. The Warden erred in holding that if Capital Gains Tax was imposed it would be the first of its kind, and also if Capital Gains Tax is "grossed up" it will also be the first time it has happened;

8. The warden erred in holding that any amount awarded under Section 281(4)(e) is wholly referrable to the underlying asset and as such would not be assessable to Capital Gains Tax until the disposal of the underlying asset;

9. The Warden erred in holding that any award of compensation will not attract a Capital Gains Tax assessment as the underlying asset is not being sold or disposed of by the owner;

10. The Warden erred in holding that liability to CGT cannot be included in an award of compensation under the Mineral Resources Act when looking at the matters which must be considered under Section 281 in assessing compensation, and the Warden further erred in holding that any liability the owner may incur either now or in the figure is not a "loss of expenses that arises" from the grant or renewal of a lease;

11. The Warden erred in holding that he did not consider that a liability to CGT can be included in an award of compensation under the Mineral Resources Act having regard to the provisions of Section 281 when assessing the compensation, acknowledging that he had received no evidence to the contrary of Mr Newby's evidence;

12. The Warden erred in holding that  he could not rely on the evidence of Mr Houen and Mr Todd in relation to the effects that the compulsory nature of the action had on land owners and the manner in which the "additional amount" to reflect the compulsory nature of the acquisition of the action should be assessed;

13. The Warden erred in not being satisfied that there are grounds on which an additional amount of compensation more than 10% minimum could be awarded;

14. The Warden erred in failing to give reasons, or adequate reasons, and, in breach of Section 360(1) of the Act, failed to set out fully the facts found by the Warden, and failed to set out decisions on relevant questions of law raised during the hearing of the matter;

15. The Warden erred in not accepting, in its entirety, the evidence of the appellants' valuer, Mr Todd, and, in its entirety, the evidence of the appellants' tax, accounting and capital gains tax expert, Mr Newby.

Before I come to the substantive matters raised in this appeal, I will dispose of Appeal Ground No. 14.   This ground suggests that the Warden erred in failing to abide by s.360(1) MRA regarding the form of his determination.  For the same reasons given by me in Wills v. Minerva Coal Pty Ltd in response to a ground expressed in similar terms, I will not comment further on this appeal ground.

The appellants did not take me to the record to make reference to the evidence in support of the appeal, however, left it to me to read the 717 pages in the appeal book placed before me to ascertain which parts, if any, of the evidence were relevant to and in support of the appeal.  I am selectively benign when I say that this is not the preferred way of conducting an appeal of this nature.
Inspection
           I was invited by the appellants to inspect the properties which make up the "Comet Downs" aggregation in order that I might appreciate the impact of the mining lease on the property.  The respondent did not agree that an inspection was necessary.  I was aware that the Mining Warden had inspected the proposed lease area, only, as part of the process of hearing the mining lease application.  I have read the Report and Recommendations published following that hearing and note that the matters to which the Warden directed his mind were quite different from those to be considered under s.281.  During the hearing of the compensation matter at first instance the Warden raised the prospect of his carrying out an inspection, however both counsel agreed that, given the nature of the compensation agreements and the nature of the issues remaining for consideration, no inspection was needed.  Following my consideration of submissions made during the appeal and my reading of the record, I formed the view that as the appeal could be dealt with on the record, supplemented by some short evidence on the CGT issue, there would be no benefit in my carrying out an inspection.  For these reasons I decided to not inspect the appellants' properties.
Additional Amount
Grounds of appeal 1, 6, 12, 13 and 15 are of general relevance to the question of the quantum of the additional amount to be determined under s.281(4)(e) MRA, whilst grounds 2, 3, 4 and 5 may be grouped together as they are concerned with Mr Todd's use of "mining sales" in making his assessment of the additional amount to be determined under subsection (4)(e).
Russell Geoffrey Brown, Registered Valuer, provided evidence for the respondent in the case presented to the learned Warden and gave evidence that he could not ascertain any loss to the appellants which had not been accounted for in the settlement amount and which should be considered separately under s.281(4)(e). Mr Todd, on the other hand, suggested additional amounts of 15%-50% be applied to the respective properties as the additional amount in lieu of the minimum statutory 10% provided for. It was agreed between the parties that the additional amount to be awarded under s.281(4)(e) be calculated at a percentage of the compensation settlement figure made, but without consideration of the disturbance amounts. Mr Todd's recommended percentage figures were based both on his consideration of "mining sales" and what he referred to as the "emotional attachment" of the appellants to their land, as well as "the insensitivity to the particular stage of development".
           Mr Todd said that the aspect of emotional attachment was not significant in his assessment of his 50% figure.  In my decision in Wills v. Minerva Coal Pty Ltd I said this:

"Now these words indicate to me quite clearly that any additional amount awarded under subsection (4)(e) must be of such character that it is connected with the land of the owner impacted upon by the mining lease.  That is, for example, no allowance could be made in assessing the additional amount for matters that are purely personal to the owner of the land, either because of the nature of the impact on the person or because of any choice the person has made which is not the natural and reasonable consequence of the grant of the mining lease.  It may well be the case that Parliament has recognised in providing for a minimum additional amount of 10% (subject to consideration of subsection (4)(c)) that the personal association of the owner with the land is the subject of compensation under subsection (4)(e), but not that this proposition extend to an enlargement of the amount based purely on personal considerations.  There is no language in s.281 which imports into the concept of compensation any proposition that the personal circumstances of the owner, apart from his connection with the land, are to feature in the award made.  Thus, personal illness, disappointed hopes, worry or distress resulting from compulsory action would not in my opinion be compensable by way of the award of an additional amount greater than 10%.  The phrase 'compulsory nature of the action' is focused on the process involving the owner's land, not on the owner."

I therefore conclude that emotional attachment to land is not a factor which can give rise to an additional amount under s.281(4)(e) greater than the statutory 10% minimum. Counsel for the respondent submitted that given that there was no evidence of the emotional attachment, nor the implications of that given before the Warden, there is nothing on this matter to which the Court might direct its mind in making any assessment under subsection (4)(e). Given my view on the law, this submission becomes superfluous, however, it is certainly the case that there is nothing that I could find in the record which would support an increase of the additional amount above the statutory minimum were the statutory provision construed differently.

I turn now to the view expressed by Mr Todd concerning the insensitivity of the compulsory process to the particular stage of development.  I have already mentioned how the individual "Comet Downs Aggregation" properties benefit from working together with the others.  It follows from this that the imposition of the mining lease will impact upon the capacity of the owners to continue that cooperative arrangement.  "Comet Downs"  and "Southfork" which constitute the centre of the operations will be substantially affected by the mining lease area, whilst "Miambaa"  and "Coolibah Plains" will be impacted upon to a lesser though not insignificant extent.  Let me provide some detail from Mr. Todd's valuation which gives a greater sense to what I have just written.  In the case of "Miambaa" which has an area of 4,297 ha, the area of the mining lease within the property is 1,255 ha or about 25.5% of the surface area.  This mining lease area is roughly triangular in shape and includes, on Mr Todd's estimate, 90 ha of high quality cultivation, together with 665 ha of blade ploughed scrub and forest country.  In his valuation Mr Todd lists a number of specific impacts including those associated with the location of a coal mine within the boundary of the land and made the general observation that the diversity of "Miambaa" as a mixed farming and grazing property will be reduced by halving the carrying capacity and requiring the property to depend upon cultivation production for its income stream.  He went on to say that this dependence on the farming aspect impacts upon the overall after value.  Mr Todd assessed compensation apart from any amounts to be determined under s.281(4)(c) and (e) and disturbance in the amount of $855,250.  He assessed a joint percentage of 50% as being applicable under subsections (4)(c) and (4)(e) but, given an agreement in the deed of settlement that no amount apply under subsection (4)(c), he adjusted the 50% to produce his assessment of the additional amount under subsection (4)(e) at a figure of 40%.
"Coolibah Plains" has an area of 4,662 ha and will have 797 ha of mining lease placed over it. That is, about 17% of the property will be subject to the lease. The lease area is roughly rectangular in shape and comprises the south-eastern section of the property. In his valuation Mr Todd listed a number of specific matters relating to impact on the property and which I will not detail here and concluded that the additional amount to be awarded under s.281(4)(e) should comprise 40% of the agreed compensation figure, apart from disturbance. Each of the items listed as impacts flowing from the grant of the mining lease is taken into account in the valuation method that he employed, which resulted in a figure of $665,870 to which he added costs of replacement of a bore, the construction of a small set of yards and fencing costs of $113,125.
           The mining lease area on "Southfork" comprises 398 ha or about 4.4% of the 8,996 ha in that property.  The mining lease area is triangular in shape and Mr Todd assessed the effect of the mining lease as leading to a diminution in land value at a figure of $410,030, to which an incidental amount of $10,500 was added, to cater for the requirements of new boundary fencing.  Mr Todd's after valuation was arrived at by summating the value of the lost land and injurious affection plus a diminution of 10% in the balance area value.  In this case he suggested a 15% calculation ought to be employed in calculating the additional amount to be paid under subsection (4)(e).
"Comet Downs" is the location of a Santa Gertrudis stud and as I have indicated earlier, contains the management centre of the family properties. Mr Todd describes the country as comprising a balanced mixture of open downs, soft and lighter forest and scrub country. He says that the property is suitable for breeding, growing and fattening cattle on native and improved pasture, together with fodder cropping and will carry 1,700 head at the moment, but with a potential of in excess of 2,000 head. In his opinion, the carrying capacity will stabilise as the buffel pastures throughout the developed country become fully established. It is not clear to me from the evidence just how much of "Comet Downs" has been developed with improved pastures, however, the evidence generally points to the Armstrongs having substantially improved the property since purchase in 1981. Mr Todd valued the property on a before and after basis, striking a value of $2,700,000 before and $740,000 after, indicating a diminution in value of $1,960,000. Mr Todd, nevertheless, calculated the diminution in value at $2,600,000 on the basis that the property left after the mining lease in the case of "Comet Downs" could not be economically managed as an entity and that therefore the appellants ought to have been given the full value of the property, together with disturbance and the additional amount calculated under s.281(4)(e). His full value for the property is $100,000 greater than the amount claimed. I can find no explanation for the apparent discrepancy, though it does not impact on my final conclusion. He said that the proposed mining lease will cover 4,446 ha or 50.4% of the 8,828 ha in "Comet Downs" and deals in his valuation with the topic of injurious affection in a comprehensive fashion. I will not repeat the detail of that evidence, however, I note that Mr Todd expresses concern that the property will be reduced to being well below an economic unit. He went on to say in his written valuation, "Over 50% of the property will be included within the mining lease which requires 100% surface. A viable property such as this will be reduced by 50% plus, and severed into two sections 6.6 km apart. The property, because of the capital cost inputs, is now within reach of full development. Time and substantial capital has been spent on scrub and property development and now there is insufficient time to recoup the costs … its carrying capacity will be reduced to below 700 head - well below district living area standards. … The only reasonable option for the owners is to purchase a replacement property of comparable carrying capacity in the district within a reasonable distance."

Mr Todd's written valuation and the transcript of his oral evidence make it clear that the after value of $740,000 found by him reflects the impact that he perceives the mining lease will have on the value of "Comet Downs". He says that an additional amount of 50% ought to be determined under s.281(4)(e). As a matter of mathematics, Mr Todd said that the combined "Comet Downs" 50% and "Southfork's" 15% came to 45%.
He explained during cross-examination that the main matter for consideration in his adoption of the percentage rates for the calculation of the additional amounts under s.281(4)(e) is that the mining lease comes at a stage which is insensitive to the stage of development of the property. Mr Todd, and for that matter Mr Compton, valued each of the properties in the "Comet Downs Aggregation" on the basis of their present stage of development, and assessed diminution in values in accordance with their views as to the impact of the mining lease on each property. Such a method carried out skilfully and resolving doubts in favour of the landholder will produce an assessment of diminution in value which takes into account loss of land, severance and injurious affection, that is all of the matters referred to in s.281(3)(a), items (i) to (v) inclusive. Mr Todd acknowledged during cross-examination that the stage of development of the "Comet Downs" aggregation was taken into account in his valuation, but he went on to add two further points. He said that the "Comet Downs Aggregation" was virtually undeveloped when the Armstrongs purchased the property and that they have carried out all development since then and, second, that the pastures are not yet at optimum production level, therefore the benefits from their work and investment have not yet emerged. He said that the pure market value approach does not reflect the input in time and the fact that the Armstrongs have not yet had time to recoup their investment. He estimated that it would be more convenient if the mining lease proposal had come along in, say, 20 years' time when the invested capital had been repaid.
           There are two responses that I make to this argument.  First, I note the virtual absence of evidence in support of the claim.  I was not presented with evidence beyond that to which I have referred in these reasons nor taken to the record and provided with a comprehensive view of the nature of the matter complained of.  I gained from the record the understanding that I discuss herein, however, evidence in support of some monetary sum being awarded is vague, impressionistic and unsupported.  When one considers that on the basis of Mr Todd's valuation approach the additional amounts claimed in respect of each of the properties making up the "Comet Downs Aggregation" runs into millions of dollars, it is clear that comprehensive evidence and submissions needs to be made and the owners called to give a first-hand account of the nature of the facts which give rise to the claim.  None of the Armstrong family gave evidence.
           Second, the matter complained of here is not an aspect of land value, but rather a concern or disappointment on the part of the appellants that their hopes and aspirations for the "Comet Downs" aggregation will not be realised and they will not recoup, except to the extent that it is reflected in land value, the time, sweat and effort invested in creating the asset which is now to become subject to a substantial area of mining lease.   Such concerns are very real and no doubt to be found in a range of similar cases involving loss of land.  They fall for consideration in the same manner, in my view, as other matters touching or infecting the emotions and, given the words from Wills v. Minerva Coal Pty Ltd that I have quoted above, it will be clear that I do not find such a matter to be sufficient to enlarge the additional amount provided for in s.281(4)(e). Nevertheless, I should now make reference to some other aspects.
Mining Sales
           Mr Todd employed a similar approach here to that described in Wills v. Minerva Coal Pty Ltd where, in his assessment of the percentage premium to be applied under s.281(4)(c) and the additional amount under subsection (4)(e), he made reference to the sales of properties to mining companies and settlements with mining companies in respect of land over which a mining lease or mining infrastructure was proposed.  In the present case he was concerned with subsection (4)(e), only, given the terms of the partial settlement agreement.  I will not repeat the reasoning that I supplied in Wills v. Minerva Coal Pty Ltd, however, will restate my view that reference to such transactions is of no assistance in the determination of an additional amount under subsection (4)(e). Parliament has provided through that subsection a minimum additional amount (subject to the interrelationship between subsections (4)(e) and (4)(c)) and relevant evidence can be taken into account in assessing an additional amount greater than that reflected by an application of the statutory 10%, but not otherwise. Certainly it is clear that s.281(4)(e) is not concerned with the finding of the price that the land owner might have received had he traded in the marketplace and not been subject to the statutory processes resulting in an imposition of a mining lease over his land.
I should also include in my discussion on s.281(4)(e) that Mr George Tenant Houen, a gentleman with some experience in the process of the grant of mining leases, gave evidence to the effect that the word "part" in subsection (4)(e) referred to various other provisions in Part 7 of the MRA which involve actions of a compulsory nature.  He discussed a number of sections and I have listed those in Wills v. Minerva Coal Pty Ltd, together with my conclusion that s.281(4)(e) is concerned with the compulsory nature of the action associated with the grant of a mining lease and not with other actions provided for in Part 7 MRA.  Apart from this conclusion of law explained in Wills v. Minerva Coal Pty Ltd, I must say that Mr Houen's evidence does not reveal how any of the provisions he suggests are relevant to s.281(4)(e) have in fact affected the appellants' land. His evidence is of a theoretical, not a specific, nature and would not support any claim to compensation even if the appellants' contention on the meaning of s.281(4)(e) was accepted.
           What I have said concerning subsection (4)(e) in these reasons and in Wills v. Minerva Coal Pty Ltd may be contrasted with the approach employed by Mr Todd in the case of the "Comet Downs" property.  In that case he contended for compensation for the diminution in land at $2,600,000; costs associated with purchasing a replacement property $102,000; business interruption $10,725 and an amount for disturbance which in the final settlement came to $45,000.  To these figures he suggested that the premium under s.281(4)(c), together with the additional amount under (4)(e) be calculated at a total 70%.  Now I calculate the compensation based on those figures to total $4,688,000 or $4,964,000 in round figures, depending on how the calculation is done, whereas on Mr Todd's evidence the value of "Comet Downs" without the mining lease in place is $2,700,000.  It is quite inconceivable in my view that Parliament would have intended that s.281 MRA be applied  to provide compensation in such an enlarged amount following the granting of a mining lease. 
Finally on this point, the Warden's determination includes these words, "… I decline to make any award in excess of an amount of 10% under s.281(4)(e) of the Mineral Resources Act", however, no determination at 10% appears to have been made.  It is appropriate, therefore, that I determine that the additional amount in the case of the properties when I make my final determination.
Capital Gains Tax
           Grounds of appeal 7, 8, 9, 10, 11 and 15 are concerned with the application by the appellants that the Warden at first instance and the Land Court on appeal order the respondent to provide an indemnity with respect to the prospect of a CGT assessment being made with respect to compensation flowing from these proceedings.  The learned Warden records in his determination that two-thirds of "Comet Downs"  and "Southfork" is pre-CGT land, one third of "Coolibah Plains" is pre-CGT land and "Miambaa" is all post-CGT land.  Evidence was given before the Mining Warden by Mr John Newby, a taxation accountant, however, as in the case of in Wills v. Minerva Coal Pty Ltd, Mr Newby's evidence before me reflected a change in his understanding of the stance that the Commissioner would adopt in assessing CGT on compensation awarded as a result of the grant of the mining lease.  No evidence was given before the Warden from the respondent on the CGT matter, however, a statement prepared by a Mr Maurie Maughan, also a taxation accountant, was tendered as additional evidence in the hearing before me.  I have recorded in Wills v. Minerva Coal Pty Ltd what led Mr Newby to change his mind on the matter and how he had spoken with officers of the CGT cell in the Australia Taxation Office (ATO).  Mr Maughan also spoke with Mr Martin and Ms Staples of that office and his statement reports that he was told by them that the ATO placed reliance on paragraph 131 of the Taxation Ruling TR95/35, though I would think that the ATO was probably referring to paragraph 135 as 131 does not appear relevant.  In any event, the evidence of both Mr Newby and Mr Maughan is that the assessment of CGT on the compensation proceeds is probable, though pre-CGT assets would not be so affected.

I see no benefit in dealing with each of the CGT grounds of appeal seriatim but will make reference generally to what I had to say in Wills v. Minerva Coal Pty Ltd. on this issue and will draw into these reasons all that I said there on this topic, except that which is confined to the facts of that case.  For the sake of clarity, I emphasise that I also adopt the reasoning in Wills v. Minerva Coal Pty Ltd where I concluded that exposure to a CGT assessment is not a matter which arises for assessment as an item of compensation under s.281(3)(a)(vi) MRA as it is not a consequence of the grant of the mining lease.  Whilst I find that the prospect of exposure to a CGT assessment is not compensable under s.281(3)(a)(vi) and I decline to order the giving of an indemnity, there is another aspect concerning CGT that I will now address.

I have concluded in the cases of Wills v. Minerva Coal Pty Ltd and Berry and Parkinson v. BHP, also handed down today, that subject to a certain qualification, the facts of each case support the award of a greater additional amount than the minimum statutory 10% provided in s.281(4)(e). The present case differs from the others in that here I can find no evidence that the owners intended to remain on the properties. Without such evidence, I cannot conclude that a CGT assessment would comprise an unexpected business inconvenience and that therefore some enlargement of the additional amount ought to be determined. In addition, the appeal appears to be limited to a request that I order the grant of an indemnity. I therefore think it appropriate that the parties be given the opportunity to deal with the question of the state of the evidence to which I have referred above and to address on the question as to whether the grounds of appeal allow me to order compensation by the enlargement of the additional amount above the 10% provided for in s.281(4)(e). I should mention that if it were the case that the miner offered to the land owners an indemnity in a form acceptable to the Court indemnifying the appellant with respect to the costs and expenses reasonably incurred in contesting any CGT assessment of the Commissioner with respect to the award of compensation; then such an offer is a matter which I would take into account in the determination of the additional amount under s.281(4)(e).

Conclusion
           I have not, in these reasons, directed my comments to specific language in the grounds of appeal as to do so would result in a series of convoluted unhelpful statements.  I have, however, read my reasons and the grounds of appeal together and am confident that each ground of appeal has been dealt with.  For completeness, though, let me refer to Appeal Grounds 12 and 15 which appears to be concerned with a submission made by the appellant, at first instance, that the Wardens Court was bound as a matter of law to accept the evidence of Mr Newby and Mr Todd:  Mr Todd because he made reference to part 7 MRA in considering s.281(4)(e) and Mr Newby because his was the only evidence on the matter of CGT. Any expert evidence, whether uncontradicted or not, is still subject to general principle including the requirements of cogency and weight, and relevance to the law. These appeal grounds are therefore adequately dealt with in my reasons in this matter.

In conclusion, I refer to my comments under the heading "Capital Gains Tax" where I invite further submissions.  I also invite submissions on the form that final orders should take.

RP SCOTT

MEMBER OF THE LAND COURT