MCG Resources Pty Ltd (In Liquidation) v Burt, Kirkby and Galway
[2012] QLC 32
•9 July 2012
LAND COURT OF QUEENSLAND
CITATION:MCG Resources Pty Ltd (In Liquidation) v Burt, Kirkby and Galway [2012] QLC 0032
PARTIES:MCG Resources Pty Ltd [ACN 129 717 531] (In Liquidation)
(Applicant)
v.
Terence John Burt
(First Respondent)
and
Robert William Kirkby
(Second Respondent)and
Judy-Anne Angelique Galway
(Third Respondent)
FILE NO:MRA237-12
DIVISION:General Division
PROCEEDING: Originating Application and General Application for orders requiring lodgement of annual reports and expenditure statements
DELIVERED ON: 9 July 2012
DELIVERED AT: Brisbane
HEARD ON: 4 July 2012
HEARD AT:Brisbane
MEMBER:Mr WA Isdale
ORDERS:1. The respondents lodge with the Department of Natural Resources & Mines (DNRM) (previously known as the Department of Employment, Economic Development and Innovation (DEEDI)) annual reports and expenditure statements for the periods ending 17 December 2010 and 17 December 2011 in a form that complies with DNRM’s (previously known as DEEDI’s) requirements by no later than 4pm on 8 July 2012.
2.The respondents are relieved from complying with paragraph 1 of this order if on or before 4pm on 8 July 2012 they:
(a)authorise the applicant in writing to prepare and lodge the reports referred to in paragraph 1 hereof on behalf of the respondents such authorisation to be provided by the solicitors for the applicant;
(b)provide the following information to the applicant with respect to EPC 1044 for the periods ending 17 December 2010 and 17 December 2011:
(i)assay results;
(ii)geological, geophysical, geochemical, drilling or remote sensing data, including maps showing the geophysical and geochemical anomalies and prospects or mineralisation of the area; and
(iii)any three dimensional models generated as part of the exploration in the area;
(iv)whether the program of activities for the permit was complied with during the reporting period, including details of, and reasons for, any failure to comply with the program;
(v)the activities proposed to be carried out under the permit for the next reporting period;
(vi)details of any resources and reserves identified;
(vii)details of any significant mineralisation identified and related geological or structural features;
(viii)the expenditure incurred in relation to each authorised activity carried out under the permit during the reporting period including but not limited to:
A.drilling and completion activities;
B.trenching, costeaning or pitting;
C.geophysical and geochemical surveys;
D.technical evaluation and analysis;
E.data management or date interpretation;
F.operational and administrative expenses, limited to 10% of the total expenditure;
G.complying with native title conditions;
H.allowable costs under a native title agreement or native title conditions.
3.If the respondents or any one of them fail to provide the authorisation referred to in paragraph 2(a) hereof the Registrar of this Court is hereby authorised to sign such documents on behalf of the respondents as are necessary to authorise the applicant to prepare the report referred to in paragraph 1 hereof.
CATCHWORDS: Mineral Resources Act 1989, s.241
Mineral Resources Regulation 2003, s.13A, s.13B
Land Court Act 2000, s.32J(2)(a)
APPEARANCES: Mr M D Martin, instructed by ClarkeKann Lawyers, for the applicant
No appearance by or for the First Respondent
The Second and Third Respondents appeared on their own behalf by telephone
Background
The applicant seeks orders for the specific performance of an agreement with the respondents for the sale of Exploration Permit, Coal (EPC) 1044. More particularly, that the respondents lodge with the Department of Natural Resources and Mines, formerly the Department of Employment, Economic Development and Innovation, annual reports and expenditure statements for the periods ending 17 December 2010 and 17 December 2011.
The proceedings
In seeking these orders the applicant has on 21 May 2012 filed an originating application dated that day and a general application dated 17 May 2012.
These applications came before the Court at 10.00am on 4 July 2012 at which time the applicant was represented by Counsel and the second and third respondents appeared by telephone links. The first respondent did not appear.
At the hearing Counsel for the applicant sought leave to read and file an affidavit sworn by William Yates on 3 July 2012. When it was ascertained that the respondents had not been provided with this material the matter was stood down until 3:30pm so that the material could be provided to the respondents who had appeared. The Court also asked that a draft of the order that the applicant was seeking be provided to the respondents and to the Court.
When the matter resumed, the Court heard from Counsel for the applicant and from the respondents, who opposed the order sought. The draft order which was provided requires the respondents to lodge with what is now the Department of Natural Resources and Mines annual reports and expenditure statements for the periods ending 17 December 2010 and 17 December 2011 in a form that complies with the Department’s requirements by no later than 4.00pm on 8 July 2012. The draft further provides that the respondents are relieved from lodging the reports and statements if on or before 4.00pm on 8 July 2012 they authorise the applicant to do so on their behalf and provide the applicant with the necessary information to do so. Thirdly, the proposed order provides that if the respondents fail to authorise the applicant to proceed on their behalf then the Registrar of this Court should be authorised to sign on behalf of the respondents such documents as are necessary to prepare the reports in question.
Some history
This mining tenure has been the subject of proceedings before this Court and before the Land Appeal Court.[1] The result of those proceedings is that the present applicant has been found to be free to proceed with acquisition of the tenure EPC 1044 from the respondents.
[1] Mentech Resources Pty Ltd v MCG Resources Pty Ltd(In Liquidation), Terence Burt, Judy-Anne Galway and Robert Kirkby [2011] QLC 0059; Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liquidation) & Ors [2012] QLAC 001.
The evidence
Evidence was provided in affidavit form in support of the case for the applicant. No evidence was provided on behalf of any of the respondents and no requirement was made for any deponent to be cross-examined. The Court therefore accepts the evidence provided on behalf of the applicant.
The urgency
The affidavit of William Yates sworn on 3 July 2012 and filed on 4 July 2012 includes, in Exhibit WZY1, at pages 1 and 2, a letter dated 27 June 2012 from Mr Todd Ellis, Mining Registrar. The letter makes it clear that in accordance with s.139(7) of the Mineral Resources Act 1989 (the Act) the permit area will be reduced on 9 July 2012 unless certain advice is received from the tenure holder. In addition, assignment of the tenure cannot be approved until the statutory reports for the periods ending 17 December 2010 and 17 December 2011 are received.
In view of the closeness of this 9 July 2012 deadline to the hearing on 4 July 2012 I decided to proceed to deal with the matter and to provide these reasons as soon as possible thereafter.
The evidence includes the affidavit of Esme Hui Ling Dean sworn on 21 May 2012. Exhibit HLD1 includes at page 5 of the affidavit, clause 2.7 of a Deed of Settlement, Release and Indemnity between the present parties. It requires the respondents to “fully cooperate and do all things necessary or desirable” to assign EPC 1044 to the applicant. I am satisfied on the evidence of the letter from the Mining Registrar to which I have referred that lodgement of the 2010 and 2011 reports is necessary to allow the assignment to proceed.
The Court’s jurisdiction and power to make the orders sought
Section 363 of the Act confers on the Court substantive jurisdiction to hear and determine proceedings arising in relation to exploration permits. Section 32J(2) of the Land Court Act 2000 provides that the Court, in exercising that jurisdiction, has all the powers of the Supreme Court. In view of these statutory provisions, I am satisfied that the Court has jurisdiction to decide the present dispute and power to make the orders sought, effectively for specific performance of the Deed of Settlement to which I have referred.[2]
[2] Deed of Settlement, Release and Indemnity between the parties. Exhibit HLD1 to the affidavit of Esme Hui Ling Dean sworn on 21 May 2012.
Whether to make the orders sought
I am satisfied that it is in the interests of justice to deal with the matter as quickly as possible in view of the implications for the parties of the foreshadowed action on 9 July 2012 as described in the letter from Mining Registrar Mr Ellis, namely that the permit area will be reduced. It is just that the applicant be allowed to be in a position, as tenure holder, to protect its interests in regard to this aspect by 9 July 2012. It cannot do this unless assignment to it can be perfected. In order to do so, the 2010 and 2011 reports must first be lodged. I am satisfied that it is both necessary and desirable that the reports be lodged before 9 July 2012 so as to allow the applicant to acquire the status of holder of the tenure EPC 1044 and then to be in a position to endeavour to protect its interest concerning the foreshadowed reduction in the permit area. In submissions, Ms Galway stated that she intends to bring an application in the Magistrates Court to set aside the contract relating to the transfer of the tenure to the applicant. As this has not yet occurred this Court must proceed with the matter on the basis of the legal position presently existing. There was no application by the respondents to adjourn the present proceedings. For the reasons which I have given the application is allowed and orders will be made in the form contended for, except in relation to costs.
Costs
In its general application, the applicant sought an order that the respondents pay its costs of and incidental to its application, on an indemnity basis. The Land Court Act 2000 provides[3] that the Court may order costs for a proceeding as it considers appropriate. This power must be exercised judicially, for reasons that can be stated and it is often the case that costs follow the event.[4] Indemnity costs may be awarded when, for instance, there is some unreasonable conduct on behalf of a litigant. An example of this could be the undue prolongation of a case by making groundless contentions.[5]
[3] Section 34.
[4] Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liquidation) & Ors (No. 2) [2012] QLAC 002 at [4].
[5] MCG Resources Pty Ltd (In Liquidation) v Greywolf Resources NL [2012] QLC 0021 and the cases referred to therein.
In the matter now before the Court, I do not consider that the respondents have acted in such a manner that indemnity costs ought to be awarded. As to costs on the standard basis, which I take to be a claim subsumed within one for indemnity costs, I decline to order the respondents to pay such costs. I do so on the basis that the applicant, although successful, did somewhat increase the length of proceedings by not having provided all of the material upon which it proposed to rely to the respondents before the matter came before the Court for hearing.
Orders
1. The respondents lodge with the Department of Natural Resources & Mines (DNRM) (previously known as the Department of Employment, Economic Development and Innovation (DEEDI)) annual reports and expenditure statements for the periods ending 17 December 2010 and 17 December 2011 in a form that complies with DNRM’s (previously known as DEEDI’s) requirements by no later than 4pm on 8 July 2012.
2. The respondents are relieved from complying with paragraph 1 of this order if on or before 4pm on 8 July 2012 they:
(a)authorise the applicant in writing to prepare and lodge the reports referred to in paragraph 1 hereof on behalf of the respondents such authorisation to be provided by the solicitors for the applicant;
(b)provide the following information to the applicant with respect to EPC 1044 for the periods ending 17 December 2010 and 17 December 2011:
(i)assay results;
(ii)geological, geophysical, geochemical, drilling or remote sensing data, including maps showing the geophysical and geochemical anomalies and prospects or mineralisation of the area; and
(iii)any three dimensional models generated as part of the exploration in the area;
(iv)whether the program of activities for the permit was complied with during the reporting period, including details of, and reasons for, any failure to comply with the program;
(v)the activities proposed to be carried out under the permit for the next reporting period;
(vi)details of any resources and reserves identified;
(vii)details of any significant mineralisation identified and related geological or structural features;
(viii)the expenditure incurred in relation to each authorised activity carried out under the permit during the reporting period including but not limited to:
A. drilling and completion activities;
B. trenching, costeaning or pitting;
C. geophysical and geochemical surveys;
D. technical evaluation and analysis;
E. data management or date interpretation;
F. operational and administrative expenses, limited to 10% of the total expenditure;
G. complying with native title conditions;
H. allowable costs under a native title agreement or native title conditions.
3.If the respondents or any one of them fail to provide the authorisation referred to in paragraph 2(a) hereof the Registrar of this Court is hereby authorised to sign such documents on behalf of the respondents as are necessary to authorise the applicant to prepare the report referred to in paragraph 1 hereof.
WA ISDALE
MEMBER OF THE LAND COURT
0
0
0