Buttcroft Pty Ltd v Edgar

[2011] QLAC 7

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Buttcroft Pty Ltd v Edgar  [2011] QLAC 0007

PARTIES:

Buttcroft Pty Ltd

(Applicant)

v

Jeffrey Ridgway Edgar

(Respondent)

FILE NO:

LAC001-11

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Application for leave to appeal

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

12 September 2011

DELIVERED AT:

Rockhampton

HEARING DATE:

On the Papers

THE COURT:

McMeekin J

Member PA Smith

Member WL Cochrane

ORDER:

The application is refused.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – extent of delay – whether the applicant can reasonably explain delay

APPEAL – APPLICATION FOR LEAVE TO APPEAL – whether the applicant has any prospects of success on appeal

Land Court Act 2000 (Qld)

Mineral Resources Act 1989 (Qld)

Australian Securities and Investments Commission v Rich and Another [2005] NSWSC 149

Buttcroft Pty Ltd v Edgar [2010] QLC 0139

Coulton v Holcombe (1986) 162 CLR 1

Director General Department of Transport v Hibiscus Holdings Pty Ltd [1995] 15 QLCR 408

Fox v Percy[2003] HCA 22

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481

SOLICITORS:

Mr L Coleman, as agent for the applicant

Rees R & Sydney Jones, for the respondent

1. HE COURT:  TThe applicant, Buttcroft Pty Ltd, seeks an extension of time in which to institute an appeal against a decision of the Land Court.  That application is opposed by the respondent, Jeffrey R Edgar.

The Proceedings Below

1. The proceedings concern the determination of compensation for the further renewal of a Mining Lease 5856 under the provisions of the Mineral Resources Act 1989 (Qld) (“MRA”). The applicant is the miner and the respondent a grazier and the landowner on which the mining is to be conducted. The issue relevant on appeal between the parties is the compensation payable for loss of the use of surface area for grazing. The Land Court determined that the miner pay to the landowner the sum of $1,638 per annum as compensation for loss of possession of the surface area plus $163.80 per annum in advance “being the 10% allowance in recognition of the compulsory nature of the process” provided by s.281(4)(e) of the Mineral Resources Act 1989.

Relevant Matters

1. It is well established that the relevant matters to consider on an application for extension of time to lodge an appeal include:

   (a)        the extent of the delay;

   (b)        whether the applicant has any reasonable explanation for the delay;

   (c)        any prejudice to the respondent;

   (d)        the prospects of success on appeal.

The Delay

1. The determination was made on 12 November 2010. Section 282(1) of the MRA provides that “a party aggrieved by a determination of the Land Court made under section 281 may within 20 business days of the date of that determination or within such further period as the Land Appeal Court, on the application of that party in that behalf prior to the lodgement of the appeal, considers appropriate in any particular circumstances, appeal against the determination to the Land Appeal Court”.

1. Thus the…