Lonergan & Anor v Friese - [2020] QLAC 3

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Lonergan & Anor v Friese [2020] QLAC 3

Patrick Joseph Lonergan & Prue Madeline Lonergan
(appellant)

V

Murray John Friese

(respondent)

FILE NOs:

LAC 007-19

Land Court No MRA219-18

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal from the Land Court of Queensland

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

19 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2020

THE COURT:

Crow J
FY Kingham, President of the Land Court
WA Isdale, Member of the Land Court

ORDER:

The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the appellant was required to lodge security for costs in compliance with s 282A MRA – where the appellant did not do so – where the appeal lapses if security is not provided as required -where the registrar accepted verbal notice from the Bank and an emailed copy of the security as substantial compliance with the requirement - whether the registrar could exercise the power to accept substantial compliance under s 392 MRA – where the Court found he could

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the Appellant argued the Member at first instance erred in their assessment of compensation – where the learned Member made a calculation error in assessing land valuation but the error did not give rise to an incorrect assessment of total compensation – where the Court found that none of the grounds of appeal could succeed

Land Court Act 2000 s 7, s 48, s 49
Mineral Resources Act 1989 s 279, s 280, s 281, s 282A, s 392

Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49; [1982] HCA 13, applied
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, cited
Esso Research and Engineering Co v Commissioner for Patents (1960) 102 CLR 347; [1960] HCA 31, applied
Friese v Lonergan & Anor [2019] QLC 27, considered
Hunt v Australian Associate Motor Insurers Limited [2012] QCA 183, applied
McAusland v Deputy Federal Commissioner of Taxation (1993) 118 ALR 577, applied
Sullivan v Oil Co of Australia Ltd and Santos Petroleum Operations Pty Ltd [2003] QLRT 2, cited
Valantine v Henry [2018] QLC 21, cited

APPEARANCES:

SW Trewavas (instructed by Marland Law) for the appellant

R Cunningham (solicitor), Taylors Solicitors, for the respondent

CROW J:
Preliminary issue
The respondent raises a preliminary issue as to whether the appeal has lapsed because the appellant did not comply with the requirement for lodging security for costs under the Mineral Resources Act 1989 (MRA). The relevant facts and circumstances are set out in President Kingham’s reasons for judgment at paragraph [59] to [103]. I agree with President Kingham’s reasons and the conclusion that the appeal did not lapse.
Background
In 2012, the appellants, Mr and Mrs Lonergan, purchased “

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QLAC 3
Decision Date: 19 May 2020

CaseChat Overview and Summary

The appeal in Lonergan & Anor v Friese involved the appellants, Mr and Mrs Lonergan, against the respondent, Mr Friese. The dispute centred on the compensation payable for the renewal of a mining lease for a property named Rolfe Creek. The Queensland Court of Appeal was tasked with deciding whether the appeal could proceed given that the appellants had not complied with the requirement to lodge security for costs under the Mineral Resources Act 1989 (MRA). Additionally, the court had to assess whether the appellants' grounds of appeal, which included an alleged calculation error in the land valuation, were sufficient to warrant a new trial or an appeal.

The court found that the registrar had the authority to accept substantial compliance with the security for costs requirement under section 392 of the MRA. This decision was based on the registrar accepting verbal notice from the Bank and an emailed copy of the security. The court further held that the appellants' grounds of appeal were not valid, as the alleged calculation error in the land valuation did not result in an incorrect assessment of total compensation. Consequently, the appeal was dismissed, and no new trial was ordered.

In light of the foregoing, the court ordered that the appeal be dismissed. The decision affirmed the original determination of compensation by Member Stilgoe, which included an uplift of 10% as required by the MRA. This ruling ensures that the original compensation amount of $3,726.38, which was determined after thorough inspection and consideration of the site, remains upheld.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

The respondent raises a preliminary issue as to whether the appeal has lapsed because the appellant did not comply with the requirement for lodging security for costs under the Mineral Resources Act 1989 (MRA). The relevant facts and circumstances are set out in President Kingham’s reasons for judgment at paragraph [59] to [103]. I agree with President Kingham’s reasons and the conclusion that the appeal did not lapse. Background In 2012, the appellants, Mr and Mrs Lonergan, purchased “Rolfe Creek”, a property north west of Clermont. Rolfe Creek has a land area of 4,690.306 hectares and is held on two titles: Lot 11 on CLM 109 and Lot 11 on CLM 130. Rolfe Creek is currently subject to two mining leases: ML70052, a mining lease of 5 hectares due to expire 31 December 2022; and ML70152, an area of 3.17 hectares, upon which the original lease expired on 28 February 2019. These leases were purchased by the respondent, Mr Friese, in 2017 and since then, Mr Friese has paid $100 per annum for each mining lease, that sum being the compensation agreed between the prior lessee and the prior owners of Rolfe Creek. As ML70152 was due to expire on 28 February 2019, Mr Friese applied to renew it for a further 10 years. The renewal was granted, but an agreement could not be reached as to the amount of compensation Mr Friese should pay. Mr Friese therefore sought a determination of the compensation payable pursuant to s 281 of the MRA. The determination was conducted by Member Stilgoe, on 1, 2 and 3 April 2019, with submissions closing on 10 May 2019. Importantly, Member Stilgoe inspected the site of ML70152. On 4 June 2019, Member Stilgoe determined the compensation to be $3,726.38 and imposed a condition upon the lessee to contribute to the expense of track maintenance by paying 10% of any invoice for track grading. The compensation sum of $3,726.38 comprised of two parts and a 10% uplift pursuant to s 281(4)(e) of the MRA. The first compensation part, $2,931.92, was the sum of the net present value of an annual payment of $320 per annum over 10 years.[1] This 10-year annuity was to compensate for weed management, biosecurity, interference with property operations, livestock management and firebreak management.[2] The second compensation part was $455.70, for diminution in land value, calculated for the 3.17 hectare area (subject to ML 70152) at $147 per hectare. The two compensation parts totalled $3,387.62. Member Stilgoe then applied an additional 10% uplift pursuant to s 281(4)(e), bringing the total compensation to $3,726.38.[1]Discounted at 2%. [2]Friese v Lonergan & Anor [2019] QLC 27 [35].Compensation under s 279 for a grant or renewal of a mining lease Section 279(1) of the MRA provides:279Compensation generally(1) A mining lease shall not be granted or renewed, and an application under section 275A must not be granted for the surface of restricted land to be included in a mining lease, unless—(a) compensation has been determined (whether by agreement or by determination of the Land Court) between the applicant and each person who is the owner of land the surface of which is the subject of the application and of any surface access to the mining lease land; or(b) there is no person (other than the applicant) who is the owner of any of the land referred to in paragraph (a);and the conditions of the agreement or determination have been or are being complied with by the applicant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lonergan & Anor v Friese [2020] QLAC 3
Patrick Joseph Lonergan & Prue Madeline Lonergan (appellant) V Murray John Friese (respondent)
FILE NOs:	LAC 007-19 Land Court No MRA219-18
DIVISION:	Land Appeal Court of Queensland
PROCEEDING:	Appeal from the Land Court of Queensland
ORIGINATING COURT:	Land Court of Queensland
DELIVERED ON:	19 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2020
THE COURT:	Crow J FY Kingham, President of the Land Court WA Isdale, Member of the Land Court
ORDER:	The appeal is dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the appellant was required to lodge security for costs in compliance with s 282A MRA – where the appellant did not do so – where the appeal lapses if security is not provided as required -where the registrar accepted verbal notice from the Bank and an emailed copy of the security as substantial compliance with the requirement - whether the registrar could exercise the power to accept substantial compliance under s 392 MRA – where the Court found he could APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the Appellant argued the Member at first instance erred in their assessment of compensation – where the learned Member made a calculation error in assessing land valuation but the error did not give rise to an incorrect assessment of total compensation – where the Court found that none of the grounds of appeal could succeed Land Court Act 2000 s 7, s 48, s 49 Mineral Resources Act 1989 s 279, s 280, s 281, s 282A, s 392 Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49; [1982] HCA 13, applied Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, cited Esso Research and Engineering Co v Commissioner for Patents (1960) 102 CLR 347; [1960] HCA 31, applied Friese v Lonergan & Anor [2019] QLC 27, considered Hunt v Australian Associate Motor Insurers Limited [2012] QCA 183, applied McAusland v Deputy Federal Commissioner of Taxation (1993) 118 ALR 577, applied Sullivan v Oil Co of Australia Ltd and Santos Petroleum Operations Pty Ltd [2003] QLRT 2, cited Valantine v Henry [2018] QLC 21, cited
APPEARANCES:	SW Trewavas (instructed by Marland Law) for the appellant R Cunningham (solicitor), Taylors Solicitors, for the respondent