JH Fryar v IP Lewis
[2007] QLC 134
•30 November 2007 (Ex tempore)
LAND COURT OF QUEENSLAND
CITATION: JH Fryar v IP Lewis [2007] QLC 0134 PARTIES: Joanne Heather Fryar
(applicant)v. Ivan Peter Lewis
(respondent)FILE NOS: CAV00180/2007 DIVISION: Land Court of Queensland PROCEEDING: Application for extension of caveat DELIVERED ON: 30 November 2007 (Ex tempore) DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr PA Smith, Member of the Land Court ORDERS: 1. The caveat dealing number 1008432 is extended indefinitely.
2. The respondent to pay the reasonable costs of the applicant in this matter fixed in the sum of Five Hundred Dollars ($500).
CATCHWORDS: Mining lease – caveat – application for extension indefinitely – interest in mining lease – costs APPEARANCES: Ms JH Fryar, Applicant, in person
I have before me an application by Joanne Heather Fryar which was commenced in the Land and Resources Tribunal of Queensland by an application to start proceedings on 6 September 2007. The jurisdiction of this matter has since moved from the Land and Resources Tribunal to the Land Court but I have had the continuous operation and conduct of this matter both in the Tribunal and in the Land Court.
By her application to start proceedings Ms Fryar seeks the extension of a caveat indefinitely. The caveat in question is one that has been placed over mining lease 6782 held by Ivan Peter Lewis in the Georgetown Mining District. The caveat sought is over the whole of the interest held by Mr Lewis. Ms Fryar had taken out a caveat with the Mining Registrar in Georgetown earlier in the year. That caveat followed the normal processes of the Mineral Resources Act, s.301, which allows for a caveat to be in place for three months. It is because of the expiration of that caveat that Ms Fryar brought her application in a proceeding as she is required to do.
To maintain her interests in the mining lease while this matter was being considered by the Land Court I have extended the operation of the caveat as an interim measure on a number of occasions and as at the date of this decision the caveat remains in force as an interim measure. Mr Lewis has been served with the application to start proceedings and various efforts have been made by the Land Court to have him appear at directions hearings, mostly with little success. However, in recent times Mr Lewis has been represented before the Land Court by Kelly and Co Lawyers of Adelaide, South Australia. Kelly & Co participated in the last directions hearing in this matter and were preparing the matter for hearing which was listed to occur today.
On 26 November 2007 Kelly & Co forwarded a letter to Ms Fryar and copied to the Land Court which sets out the following:
“We confirm that we act for Peter Lewis, the Respondent in the above matter.
We write to advise that we have been instructed to not appear on or contest the hearing of this matter in Brisbane on Friday 30 November 2007. We are also instructed to inform you that not contesting the extension of the Caveat should not be taken as any form of admission of liability in respect of your underlying claim or entitlement in respect of ML6782.
It should also not be taken as an admission by Mr Lewis that the amount claimed by you is presently due and payable.
A copy of this letter is being provided to the Land and Resources Tribunal so that the court can make appropriate arrangements for the hearing of the matter and such orders as it thinks fit.”
Ms Fryar has provided a number of affidavits to the Land Court as well as submissions. I have read all of her affidavit material in considering this matter and preparing for hearing today. I note in particular the affidavit of Ms Fryar filed on 23 November 2007 as well as an earlier affidavit filed on 22 October 2007. The facts of this matter can be briefly stated. Ms Fryar claims to have a debt owing to her from Mr Lewis in the sum of $320,000 plus interest. Ms Fryar by her sworn testimony has linked the repayment of the loan by Mr Lewis to herself to the interest held by Mr Lewis in various mining tenements across Australia including mining lease 6782. In my view Ms Fryar, by her evidence, has established a sufficient interest in mining lease 6782 of a financial nature in financing Mr Lewis to enable the caveat to be granted.
In light of the failure of Mr Lewis or his solicitors to attend at today’s hearing and taking into account all of the evidence before me including the material contained in various correspondence received from the Mining Registrar at Georgetown, to which the Land Court is most grateful, I am in no doubt that in this matter it is appropriate that the Land Court agree to the orders sought by the applicant in her application to start proceedings. Accordingly, I order that the caveat dealing number 1008432 be extended indefinitely.
Ms Fryar also seeks an order for costs against Mr Lewis with respect to the proceedings in this matter. The award of costs are discretionary for the Land Court. In circumstances such as the extension of the caveat as I have just ordered it has always been open to Mr Lewis to consent to such orders. His actions have delayed this matter and it has only been of very recent days that the Land Court has been advised that neither he or his solicitors would be appearing at the hearing which has been listed for today. In those circumstances I consider it appropriate that an award of costs be made and I order that the respondent pay the reasonable costs of the applicant in this matter fixed in the sum of $500.00
Orders
1.The caveat dealing number 1008432 is extended indefinitely.
2.The respondent to pay the reasonable costs of the applicant in this matter fixed in the sum of Five Hundred Dollars ($500).
P A SMITH
MEMBER OF THE LAND COURT
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