Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) - [2011] QLC 59

LAND COURT OF QUEENSLAND

CITATION:Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liquidation), Terence Burt, Judy-Anne Galway and Robert Kirkby [2011] QLC 59

and
MCG Resources Pty Ltd (In Liquidation) v Mentech Resources Pty Ltd [2011] QLC 0059

PARTIES:Mentech Resources Pty Ltd
(Applicant)
v
MCG Resources Pty Ltd (In Liquidation)
and
Terence Burt, Judy-Anne Galway and Robert Kirkby
(Respondents)
MCG Resources Pty Ltd (In Liquidation)
(Applicant)
v
Mentech Resources Pty Ltd
(Respondent)

FILE NOs:LAA027-11
MRA065-11

DIVISION:General Division
PROCEEDING: Applications to remove caveats pursuant to s.156(2) of the Mineral Resources Act 1989 and for other Orders.
HEARD ON:                  20, 21 and 22 June 2011
DELIVERED ON:          15 September 2011
HEARD AT:Brisbane
MEMBER:His Honour WA Isdale
ORDER/S:1.     That caveat No. 1020676 be removed.

2.That caveat No. 1018474 be removed when this is sought by MCG Resources Pty Ltd.
3.That the costs of MCG Resources Pty Ltd of and incidental to these proceedings, including any reserved costs, be paid on the standard basis by Mentech Resources Pty Ltd. In accordance with s.34(3) of the Land Court Act 2000 this Order is made an Order of the Supreme Court of Queensland and may be enforced in the Supreme Court.

CATCHWORDS: Acts Interpretation Act 1954
Land Court Act 2000
Mineral Resources Act 1989 s.156
Native Title Act (Queensland) 1993
AG(CQ) Pty Ltd v A & T Promotions Pty Ltd [2011] 1 QdR 306
Anning v Anning (1907) 4 CLR 1049
Black & Ors v Garnock & Ors (2007) 230 CLR 438
Brown v Heffer 1967 116 CLR 344
C.M. Group Pty Ltd’s Caveat. 1986 1 QdR 381
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2010] QLC 0122
Colgate Palmolive Co & Anor v. Cussons Pty Ltd (1993) 118 ALR 248
Dougan v Ley and Another (1946) 71 CLR 142
Foran and Another v Wight and Another (1989) 168 CLR 385
JNJ Investments Australia Pty Ltd v Sunnyville Pty Ltd [2006] QSC 138
News Limited & Ors v Australian Rugby Football League Limited& Ors (1996) 64 FCR 410
Platzer v Commonwealth Bank of Australia [1997] 1 QdR 266
Sattel v The Proprietors Be Bees Tropical Apartments Building Units Plan No. 71593 (No. 2) [2002] 2 QdR 427
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315
TEC Desert Pty Ltd and Another v Commissioner of State Revenue (Western Australia) (2010) 241 CLR 576
Titan Sandstone Pty Ltd v ChongHerr Investments Pty Ltd (2008) 29 QLCR 242

APPEARANCES: Mr MD Martin of counsel instructed by ClarkeKann Lawyers for the Applicant, MCG Resources Pty Ltd (In Liquidation).

Mr TS Hale SC with Mr H Trotter instructed by Macdonald and Michel Lawyers for Mentech Resources Pty Ltd.
Mr M Middleton, solicitor for Mr Kirkby and Ms Galway.

Background

Pursuant to s.137 of the Mineral Resources Act 1989 (the Act) the Honourable Minister for Mines and Energy granted Exploration Permit for Coal (EPC) number 1044 on 17 September 2008. For a period of 5 years expiring on 16 September 2013 it allows exploration for coal on specified land. The holders were stated to be:-
Share%
BURT Terence John  33.334
KIRKBY Robert William  33.333
GALWAY Judy-Anne  33.333
On 15 March 2010 MCG Resources Pty Ltd (In Liquidation) (MCG) entered into a written agreement with the holders of EPC 1044, Messrs Burt, Kirkby and Galway to have EPC 1044 assigned to it.
On 31 March 2010 MCG lodged a caveat under the Act in respect of EPC 1044. Pursuant to s.154(2) of the Act, the caveat would remain in force for 3 months unless otherwise ordered by the Court.
On the application of MCG, this Court ordered on 23 June 2010 that the caveat, number 1018474 was to continue in force until further ordered by the Court.
Mentech Resources Pty Ltd (Mentech) lodged its own caveat dated 20 December 2010 forbidding the approval of dealings with EPC 1044. That caveat, numbered 1020676 was, by Order of this Court on 18 March 2011, to continue in force until further ordered by the Court.
Both MCG and Mentech claim to be entitled to the right to have the Honourable Minister consider an application by them for EPC 1044 to be transferred to them. Each claims pursuant to what they assert to be a valid contract with Burt, Kirkby and Galway.

What MCG seeks

MCG’s claim is set out succinctly in its counsel’s Outline of Argument in the following words:-
“MCG Resources Pty Ltd (MCG) seeks to remove a caveat lodged by Mentech Resources Pty Ltd (Mentech) in respect of EPC 1044. MCG maintains it entered into a contract to purchase EPC 1044 from its owners on 15 March 2010. Mentech entered into a contract to purchase the same permit on 30 March 2010. As MCG’s contract is first in time its interest should prevail.”

What Mentech seeks

Mentech’s Senior Counsel provided, in response to the Court’s request, the following list of what it is seeking:-
“Amended ORDERS and RELIEF SOUGHT by the APPLICANT”
1.A declaration that, in the events that have happened, the Agreement dated 15 March 2010, between MCG Resources Pty Ltd and the 2^nd, 3^rd and 4^th Respondents (Burt, Galway and Kirkby), was avoided on or about 30 March 2010, and is no longer of any force or effect.
2.A declaration that, subject to the approval of the Minister under section 151 Mineral Resources Act 1989, pursuant to the Assignment of the Exploration Permit, received by DEEDI, as dealing number 1018811 (exhibit 5) the 2^nd, 3^rd and 4^th Respondents (Burt, Kirkby, and Galway) have assigned Exploration Permit 1044 to Mentech Resources Pty Ltd.
3.An order, pursuant to section 156 Mineral Resources Act1989, that the caveat over Exploration Permit 1044 lodged by MCG Resources Pty Ltd, dated 31 March 2010, and registered as dealing number 1018474 (Exhibit 3), be removed.
4.An order the 2^nd, 3^rd and 4^th Respondents (Burt, Kirkby, and Galway) do all things and execute all documents which are proper and necessary in order to enable the Applicant, Mentech Resources Pty Ltd to present a proper application for the Minister to approve the assignment under section 151 of the Mineral Resources Act1989 and have it recorded, including the withdrawal of their letters to DEEDI dated 22 June 2010 (exhibit Nos. 9, 10, & 11).
5.An order that the 1^st, 2^nd, 3^rd and 4^th Respondents, be restrained from taking any steps:
i.Pursuant to the Deed of Settlement; and
ii.To have registered any assignment of EPC 1044 the 2^nd, 3^rd, and 4^th Respondents (Burt, Kirkby, and Galway) to the First Respondent, MCG Resources Pty Ltd.
6.An order that the first Respondent, MCG Resources Pty Ltd pay the Applicant’s costs of and incidental to the proceedings.”

Mentech’s claim

On 30 March 2010 Mentech and Burt, Kirkby and Galway entered into an Acquisition Agreement[1] in respect of EPC 1044. The purchase price was $115,000[2] apportioned between the vendors. The agreement shows the shares of two of the holders of the EPC incorrectly in that Burt is shown as holding 33.333% and Kirkby 33.334%, which should be reversed.[3] The apportionment of the purchase price[4] reflects that error. It will however have no effect on the outcome of this case.
[1]        Ex. 1 The Applicant’s Trial Bundle of Documents, pp. 140-162.
[2]        Ibid, p. 141.
[3]Ex. 1 p. 141 The Department of Employment, Economic Development and Innovation (DEEDI) file, provided to the Court in response to a subpoena discloses the correct details of EPC.
[4]        Ex. 1 p. 143.
The contract is, by clause 3.1[5] expressed to be subject to conditions precedent, which is to say its completion, not inception, is subject to these conditions. See [59] and [60]. It is unnecessary to canvass them at present but sufficient to observe that by clause 3.3 they are expressed to be for the benefit of the Buyer, Mentech, which may waive any of them.
[5] Ex. 1 p. 143.
Mentech and the vendors proceeded expeditiously and the vendors assigned their rights to Mentech.
A view into Mentech is provided by the affidavit sworn on 17 March 2011 by Mr Kevin Dunnell, a director. In oral evidence he stated that he suffers from a short-term memory problem but was firm in asserting the accuracy of his affidavit, paragraphs 1 to 17 only of which were read.
Mr Dunnell relates in his affidavit that around late March, 2010 he was interested in investing in mining tenements and came across two EPC’s advertised by a broker on his website “miningtenements.com”. The broker, Mr Manners, told him that EPC 1044 was not available at the time.
Three or four days later the broker called to advise that Burt, Kirkby and Galway, the vendors, had entered into a contract with MCG “but that that contract had been terminated and that EPC 1044 was on the market for sale.”
Mr Dunnell proceeded to negotiate through the broker for the purchase of EPC 1044.
On 29 March 2010 the broker, Mr Manners, contacted Mr Dunnell by telephone as recorded at paragraph 5 of the affidavit sworn on 17 March 2011 and said to him that:-
“i.Mr Burt had terminated the contract with MCG Resources because its solicitors were taking too long to complete their due diligence and that MCG Resources had not made payment to the Group within the agreed period of 14 days.
ii.The contract was terminated and that he was able to offer EPC 1044 for sale to Mentech.
iii.Mr Burt would call me back after lunch.
iv.After lunch I received a call from Mr Burt and he said to me that if Mentech made payment promptly, then MCG Resources was prepared to sell EPC 1044 to Mentech. Mr Burt also said to me that time was of the essence in making payment.”
I note in passing that it does not appear likely that Mr Burt was purporting to speak on behalf of MCG Resources in this conversation. This was not pursued at the hearing and nothing turns on it.
Mr Dunnell goes on to depose to his further dealings in the following terms:-
“6.At about 10am on 30 March 2010, I received a telephone call from Mr Burt who said to me that EPC 1044 was available for sale. I said to Burt that I had completed nearly all of my due diligence searches and that everything was on track.
7.Later that day, and prior to signing the contact, I caused a search to be conducted to see if there were any caveats over EPC 1044. The result of the search was that no caveat had been lodged over EPC 1044. Upon that basis I, as a director, advised my other directors to purchase EPC 1044.
8.Thus, on 30 March 2010, Mr. Dehong Yu, a director of Mentech, and I signed a contract on behalf of Mentech for the purchase of EPC 1044 from the Group. The following day, on 31 March 2010, I received the Group’s contract executed by all three members of the Group. Exhibited hereto and marked “1” is a true copy of the contract.
9.Payment to the Group for EPC 1044 was due in three instalments. I instructed Mr Yi to make these payments, totalling $115,000.00, on 8, 12, and 15 April 2010, to Mr Burt, on behalf of the Group, for EPC 1044. In addition, I instructed to pay $20,000.00 to Mr Manners as an agency fee. Shortly afterwards, both Mr Burt and Mr Manners telephoned me and confirmed receipt of these amounts. Also Mentech was called upon to pay, and did pay, to the Department of Environment, Economic Development and Innovation (DEEDI) arrears of rent on EPC 1044 being approximately $17,000.00. To this day the money paid to the Group and to DEEDI and to Mr Manners have not been returned.
10.I submitted the Application for transfer of EPC 1044 to DEEDI and the Queensland Mines Department on 12 April 2010 for the transfer of EPC 1044 from the Group to Mentech. There was a filing fee imposed by DEEDI for submitting the application. Exhibit 2 is a true and correct copy of a cheque dated 11 April 2010 made payable to DEEDI for the filing fee for EPC 1044. Exhibit ‘3’ is a true and correct copy of a letter dated 12 April 2010 that I sent to DEEDI on behalf of Mentech enclosing Mentech’s application.
11.The application required the lodgement of three documents. First, an ‘Application form: Transfer of an environmental authority (mining activities)’. Second, an ‘Assignment of an Exploration Permit or a Mineral Development Licence.’ Third, a ‘Request to Record Change of Address for Service of Correspondence.’ Exhibit ‘4’ hereto is a true copy of these three documents.
12.On 24 May 2010, I contacted DEEDI, to ask about the progress of the applications for the transfer of EPC 1044. I spoke to Kate Byrne, Registrar of the Mines Department, and Ms Byrne said to me that:
i.The transfer had taken a long time to get through because a Staff member who was handling those applications has been away on holidays.
ii.There was no problem about the transfer of EPC 1044 to Mentech going forward.
13.At no time was I informed that a caveat had been lodged by MCG Resources. It was not until about July/August that I became aware of a problem with EPC 1044, as I discuss in the paragraph below. All that time I was waiting for DEEDI to transfer EPC 1044 to Mentech.
14.In particular, I was told by Mr Burt’s daughter, Ms Kylie Gavin, who manages Mr Burt’s business affairs, that a caveat was lodged over EPC 1044 by a company called MCG Civil. Up to that point I was not told about MCG Civil’s alleged interest in EPC 1044 or its caveat. It was not until 24 February 2011, that I learnt that MCG Civil was actually called MCG Resources.
15.As a consequence of the phone call from Ms Gavin, I then telephoned Ms Byrne at DEEDI and I was told by Ms Byrne that there was a problem with tenement EPC 1044 in that it had a caveat lodged over it.
16Ms Byrne said to me that:
i.A caveat was issued to stop any dealings on EPC 1044 by anyone other than the caveator and the date of its issue was 31 March 2010.
ii.I asked her why I had not been informed and I was told that it was an administrative oversight by DEEDI and that DEEDI had not entered the caveat on its computer documentation system until June 2010.
17.I was told by Ms Byrne that Mentech’s application for transfer of EPC 1044 had still not been approved by DEEDI.”
Mr Burt and Mr Manners did not give evidence. In response to a subpoena, Mr Burt’s daughter Kylie Gavin produced a medical certificate to the Court to the effect that he was unfit for his usual occupation for several days and Mr Manners sent an email stating that he was in Malawi, Africa.
Neither Kirkby nor Galway gave or called evidence although they were present and represented at the hearing. Their solicitor did not introduce any material or question any witnesses.
When Mr Dunnell was cross-examined, he was shown the copy of the contract entered into by Mentech to acquire EPC 1044 which was in the trial bundle of documents provided to the Court by Mentech’s Senior Counsel. He was able to recognise his signature[6] but was unable to confirm that the document was what it purported to be, pointing out the blank pages and other material which was interleaved. I note that the copy of the agreement was part of the affidavit of Craig Manners sworn in April, 2011. Mr Dunnell again referred to his memory difficulties. I am however satisfied that this document is what it purports to be.
[6] Ex. 1 p. 162.
Mr Dunnell was unable to find anything in the contract which required Mentech to pay the purchase price of $115,000 within 14 days of the agreement. The point being that the payments by Mentech, made earlier than required by the written agreement, should not improve its equity. It is stated at paragraph 19 of MCG’s Outline that it has paid the purchase price into the trust account of its solicitors, inviting the conclusion that if payment has improved Mentech’s equity then MCG has done something similar.
The Acquisition Agreement provides, in clause 3.1 for three conditions to be satisfied before completion. However, by clause 3.3 they are expressed to be for the benefit of the buyer who may waive any of them.
By clause 4.1 completion is to take place at the time and place agreed by the parties. Clauses 5.1 to 5.3 specify what has to be done on completion.
Clause 9.3 states that the agreement can only be altered in writing signed by each party. By clause 9.5 the agreement is stated to be entire, that is it constitutes the whole of the agreement between the parties and by clause 9.8 time is of the essence.
Clause 9.9 provides that any waiver must be in writing and signed by the party giving it.
Clause 7 provides that:
“7. Warranties
7.1Each Seller represents and warrants to the Buyer that the Warranties at Schedule 2 are true and accurate at the date of this Agreement and will be true and accurate on the Completion Date.
7.2The Seller acknowledges that the Buyer has entered into the Agreement in reliance on the Warranties.”
Schedule 2 is in the following terms:-
“SCHEDULE 2
Warranties
The Seller warrants:
(a) The Seller is the absolute holder of the Exploration Permit.
(b)The Exploration Permit is good and valid and not subject to any equities of any kind.
(c)The Seller is not aware of any fact or circumstances that may give rise to the forfeiture of the Exploration Permit.
(d)The Seller has complied with all conditions, including:
(i)under the Mineral Resources Act 1989 (Qld); and
(ii)General Conditions.
of the Exploration Permit.
(e)The Exploration Permit is not subject to any Encumbrances.
(f)The Seller has not granted any options or other rights to any other person over the Exploration Permit.
(g)The Seller has paid all rent, charges and penalties (if any) in respect of the Exploration Permit, all such payments are up to date or disclosed by the buyer.
(h)The Seller has given the Minister all reports and statements, including annual reports and expenditure statements, and any other information required by the Minister or under the Mineral Resources Act 1989, from time to time.”
I note (a), (b), (e), (f), (g) and (h) particularly.
On 4 April 2010 Burt and on 6 April 2010 Kirkby and Galway signed a form MRA-07, Version 5, under the Mineral Resources Act1989 (the Act). It is described as an “Assignment of an Exploration Permit or a Mineral Development Licence”. It refers to EPC 1044 and is the document which Mr Dunnell states in clause 10 of his affidavit was submitted to DEEDI on 12 April 2010.
As Mr Dunnell relates in his affidavit, the vendors were paid in full, the broker’s fee was paid and arrears of rent on the EPC was paid to DEEDI.
Since he had caused a search to be made on 30 March 2010, before signing the contract, and no caveats were found, Mr Dunnell, and therefore Mentech, saw no obstacle to the acquisition of EPC 1044.

MCG’s caveat

On 31 March 2010 MCG lodged a caveat numbered 1018474. DEEDI operates a registry for these tenures not unlike that which exists for land[7] and under the authority of s.152(1) of the Act the caveat was lodged.
[7]The mining tenement is personal property and no interest in land is involved in the ordinary sense of that term. The Act s.10. See also TEC Desert Pty Ltd and Another v Commissioner of State Revenue (Western Australia) (2010) 241 CLR 576 at 586-587 [28].
Section 152(1) of the Act provides that:
“(1)A person who claims a right or interest in or in respect of an exploration permit may by a caveat in the approved form forbid the approval of any assignment in respect of the exploration permit (save any assignment the approval of which is excepted in the caveat) either absolutely or until after notice of intention to approve such an assignment is served on the caveator.”

By s.152(3)(d) the caveat shall specify the nature of the right or interest claimed by the caveator.
Section 154(1) operates to prevent the Minister from approving any assignment of the exploration permit identified in the caveat for a period of 3 months[8] or where the Land Court so orders, for as long as that order remains in force.[9]
[8] S.154(2)(d).
[9] S.154(2)(c).

On 3 June 2010 MCG filed an originating application in the Land Court for, inter alia, an order that caveat 1018474 remain in force until final orders.
On 23 June 2010 this Court ordered, among other orders, that the caveat continues in force until further ordered.
The right and interest claimed by MCG in its originating application is set out in that part of the form where the applicant is required to:-
“Briefly state the facts, circumstances or other relevant matters on which application is based.”
The claim was made in the following terms:-
“1.On 15 March 2010 the applicant and the respondents entered into an agreement to assign an exploration permit EPC 1044 to the applicant. A copy of the agreement forms annexure A to this application.
2.On 1 April 2010 the applicant notified the respondents that the applicant was satisfied with the information provided under clause 3.1 of the agreement.
3.The respondents have failed or refused to complete the agreement.
4.At all material times the applicant has (sic), and remains, ready willing and able to perform it (sic) obligations under the agreement.
5.A caveat was lodged on 31 March 2010.”
The respondents were Burt, Kirkby and Galway. Mentech was not made a party.
MCG’s claim then was, as it is in the present proceedings, that it was a purchaser for value under an agreement of 15 March 2010, prior to Mentech’s contract to purchase the same thing. Mr Dunnell received the signed acceptance on 31 March 2010.[10]
[10] Clause 8 of Mr Dunnell’s affidavit.
Mentech says that it was a necessary party to that originating application[11] and, not having been made a party, is not bound by the orders made in those proceedings and that the orders would have to be set aside on its application.[12]
[11] It refers to r.62 of the Uniform Civil Procedure Rules 1999.
[12] News Limited & Ors v Australian Rugby Football League Limited& Ors (1996) 64 FCR 410.
Additionally, Mentech argues that MCG does not have “a right or interest in or in respect of an exploration permit” as required by s.152(1). In this respect it contrasts its having received the assignment of EPC 1044 from Burt, Kirkby and Galway and lodged that with DEEDI.
The DEEDI file shows it as being received on 15 April 2010 at 10.15 am and having Dealing Number 1018811. It also bears a received stamp showing that it was received at 9.45 am on 23 April 2010. The meaning of this was not explained or explored but I am satisfied that nothing turns on it for present purposes.
Mentech asserts that MCG’s equity or interest in or in respect of EPC 1044 “is commensurate with the availability of specific performance.”[13]
[13]Black & Ors v Garnock & Ors (2007) 230 CLR 438 at 449 [32]. Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at 333 [53].
Taking this, it was argued on behalf of Mentech that should MCG obtain specific performance of its 15 March 2010 agreement that would simply compel Burt, Kirkby and Galway to assign their interest to MCG. Should that assignment be approved by the Minister it would operate from the date it was given which, whenever that might be, would have to be later than the assignments already provided by Burt, Kirkby and Galway to Mentech, which have already been lodged with DEEDI. It must also be assumed that MCG’s contract would in fact be completed to take it to possession of the assignments that are in any event second in time to those held by Mentech.
In Black v Garnoch[14] Gummow and Hayne JJ, who with Callinan J formed the majority said:
“To speak of the purchasers having an "equitable interest" in the land has the difficulties and limitations identified in Tanwar Enterprises Pty Ltd v Cauchi. As five members of the Court pointed out in Tanwar: ‘the 'interest' of the purchaser is commensurate with the availability of specific performance.’ Upon completion of the contract now under consideration the judgment debtor, as vendor, was bound to tender transfers in registrable form. In the events that happened, the transfers tendered could not be registered because of the intervening recording of the writ. To focus upon the rights and duties of the vendor and the purchasers, without regard to this intervening event, entails circularity of reasoning of the kind referred to in Tanwar.”
[14] (2007) 230 CLR 438 at 449, 450 [32].
Black v Garnoch was a case where a vendor and purchaser contracted for the sale of Torrens title land. Two hours prior to settlement, a writ of execution in favour of a judgment creditor of the vendor was recorded against the Title by the Registrar. The settlement took place; the purchasers later learning of the writ, which prevented the transfer to them being registered. They applied for an injunction and consequential relief, the injunction being sought to stop the execution of the writ by the sale of the land to a third party.
The passage quoted at [47] refers to the decision of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ in Tanwar Enterprises Pty Ltd v Cauchi & Ors[15] where their Honours said:
“… that the "interest" of the purchaser is commensurate with the availability of specific performance. That availability is the very question in issue where there has been a termination by the vendor for failure to complete as required by the essential stipulation. Reliance upon the "interest" therefore does not assist; it is bedevilled by circularity.”
[15] (2003) 217 CLR 315 at 333 [53].
Avoidance of this circularity comes with considering what the appellants were trying to achieve in Black v Garnoch. Callinan J set this out in the following sentence.[16]
“The appellants' appeal to this Court has as its object the obtaining of damages pursuant to the detailed undertaking given by the purchasers pending the determination of the appeal to the Court of Appeal.”
[16] (2007) 230 CLR 438 at 461 [71].
In view of that goal, logically unsatisfying outcomes stemming from the concept of “interest” will not influence the possible remedy that this Court could provide in the present case.[17]
[17] See [55] and [128] to [139].

Jurisdiction

The jurisdiction of the Land Court in the present dispute is conferred by s.363 of the Act, the parts of that section presently most relevant provide that:-
“363 Substantive jurisdiction
(1)The Land Court shall have jurisdiction to hear and determine actions, suits and proceedings arising in relation to prospecting, exploration or mining or to any permit, claim, licence or lease granted or issued under this Act or any other Act relating to mining.
(2)Without limiting the generality of subsection (1), the Land Court shall have jurisdiction to hear and determine actions, suits and proceedings with respect to—
(a)the right to possession of or other interest or share in any mining claim, exploration permit, mineral development licence or mining lease;”
As to the Court’s powers in the present case, s.32J of the Land Court Act 2000 relevantly provides that:-
32J Land Court has power of the Supreme Court for particular purposes
(1)    This section applies when—
…
(b)the Land Court in its general division is exercising jurisdiction under any of the following Acts that was conferred on the Land Court under the Land Court and Other Legislation Amendment Act 2007—
...
• Mineral Resources Act 1989
…
(2)The Land Court has, for exercising jurisdiction conferred under an Act, all the powers of the Supreme Court, and may in a proceeding before the Land Court, in the same way and to the same extent as may be done by the Supreme Court in a similar proceeding—
(a)grant any relief or remedy; and
(b)make any order, including an order for attachment or committal because of disobedience to an order; and
(c)give effect to every ground of defence or matter of set-off, whether equitable or legal.
(3)    Without limiting subsection (2), the Land Court has, in a proceeding before it, power to grant relief—
(a)      under a declaration of rights of the parties; or
(b)under an injunction, whether interim, interlocutory or final, in the proceeding; or
(c)by staying the proceeding or a part of the proceeding; or
(d)by appointing a receiver including an interim receiver.
...
(6)To the extent that the practice and procedure of the Land Court in exercising its jurisdiction in particular matters, including enforcing its judgments and orders, are not provided for in the rules, they must as far as practicable be the same as the practice and procedure of the Supreme Court in similar matters.
...
(9)    Subsections (2) and (6) have effect subject to—
(a)another provision of this Act; and
(b)a provision of another Act under which jurisdiction is conferred on the Land Court.”
The manner in which the Court must exercise the jurisdiction granted to it is set out in s.7 of the Land Court Act2000 in the following terms:
“7 Land Court to be guided by equity and good conscience
In the exercise of its jurisdiction, the Land Court—
(a)is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.”
His Honour Mr Smith considered s.7 in Titan Sandstone Pty Ltd v ChongHerr Investments Pty Ltd[18] and I respectfully adopt and apply his Honour’s statements at [44] to [47] of the report of that decision and his conclusion at [47] that s.7 concerns the manner of exercise of jurisdiction, it does not confer jurisdiction.
[18] (2008) 29 QLCR 242 at [44] to [47].
The Court has been provided with the most comprehensive range of tools in order to carry out its duty and, if needed, orders could be crafted to avoid the circularity to which Mentech referred resulting in an unsatisfactory outcome.
In Black v Garnock Callinan J made some observations concerning conveyancing practice that are instructive. His Honour said:[19]
“It used to be the practice of careful conveyancers, acting for persons acquiring registrable estates or interests in Torrens title land, to lodge with the officials in charge of the Register, a caveat as soon as the agreement for the relevant dealing was made, in pre-emptive protection of their clients' prospective legal estates or interests pending completion of their agreements and registration of the instruments perfecting them. It was a further practice of those conveyancers to effect the actual settlement of the agreement by the exchange of all relevant instruments and funds at that office, simultaneously with a search of the Register, to verify that no other such caveat or record of dealing had been lodged as might obstruct, delay or detract from the registration of their clients' instruments to perfect their estates or interests.
The questions raised in this case would be unlikely to have arisen had those salutary practices not fallen into disuse, whether by reason of electronic recording of dealings or otherwise, although it is difficult to understand why some comparable prudent practice could not equally, and perhaps more easily, have been adopted here to accommodate electronic lodgment, searching and recording.”
[19] (2007) 230 CLR 438 at 455 [52] and [53].

Mentech’s answer to MCG’s prior Acquisition Agreement

Mentech points out that any claim for specific performance will require MCG to establish a contractual right. MCG has an Acquisition Agreement dated 15 March 2010. The agreement is almost identical to the subsequent Mentech Agreement. The MCG agreement has a $100,000 purchase price plus a $12,500 fee to the broker whereas the Mentech Agreement has a $115,000 purchase price and a $20,000 fee to the same broker, Jayni Francis Manners but Manners is described as trading under different names on each contract; that appears innocuous for present purposes.
Mentech points to the Conditions Precedent in clause 3, particularly clause 3.1(b).
Clause 3.1 is expressed in the following way:-
“3.1Completion under this Agreement is subject and conditional upon the following conditions precedent (“Condition Precedent”):
(a)The Minister providing indicative approval (on terms satisfactory to the Buyer) in writing pursuant to section 151 of the Mineral Resources Act 1989 (Qld) to the assignment to the Buyer of the Seller’s Interests in the Exploration Permit.
(b)The Seller providing to the Buyer within 5 Business Days after the date of this Agreement, the agreement reached by the Seller with native title parties under section 31 of the Native Title Act 1993 (Qld) (“Section 31 Agreement”), and such agreement being acceptable to the Buyer (to be notified to the Seller within 10 Business Days after this Agreement);
(c)the Seller requesting the relevant government body to provide the Buyer all expenditure commitment statements within 5 Business Days after the date of this Agreement, and the Buyer advising the Seller that such expenditure commitments are satisfactory to the Buyer within 5 Business Days after receipt of such statements by the Buyer”.
The conditions are precedent to completion rather than the formation of the contract. The requirement in clause 3.1(b) of notification to “the Seller” was due by the close of 29 March, 2010. Mentech points out that MCG did not notify the seller of its satisfaction by 29 March 2010 so the condition was not met and MCG did not waive compliance with this requirement.
As I have noted at [24] and [25] the written agreement is expressed to be the entire agreement between the parties, can only be altered in writing signed by the parties and any waiver must be in writing and signed by the party giving it.
Clause 3.2 of the Agreement requires the Sellers to use their best endeavours to obtain the fulfilment of the Conditions Precedent in clause 3.1 and that the Sellers must keep the Buyer informed of any circumstances which may result in any of those conditions not being satisfied in accordance with their terms.
On 17 March 2010 MCG’s solicitors sent to Craig Manners at miningtenements.com, which seems to have been indistinguishable from the broker named in clause 6.2 of the agreement, Jayni Francis Manners trading as Exploration Permits and Blue Sky Mines, an email with an attached document for Burt, Kirkby and Galway to sign and return to the solicitors. This is exhibit HLD 10 to the affidavit of Esme Hui Ling Dean sworn on 25 May 2011 and filed on behalf of MCG.
These were duly signed by each of Burt, Kirkby and Galway and sent to the solicitors, see HLD 11, 12 and 13.
The documents inform DEEDI that the permit holders have entered into an agreement to sell EPC 1044 to MCG and consent to DEEDI providing to MCG and its solicitors, inter alia, the things referred to in clause 3.1 of the Acquisition Agreement.
On 22 March 2010 the solicitors sent an email to DEEDI attaching the documents and asking to be informed of the copying costs. The 22 March 2010 is five business days from the date the agreement was entered into on 15 March 2010. This fulfils the first part of clause 3.1(c) but there was no compliance with clause 3.1(b) whereby the Sellers had to provide the Buyer by this date with the agreement reached by the Sellers with the native title parties under s.31 of the Native Title (Queensland) Act1993.
It was instructive to observe what was occurring in relation to this. The file note of the solicitor for MCG records a telephone call received from Mr Terry Burt on 22 March 2010, starting at 3.58 pm. It is exhibit HLD 15 to Ms Dean’s affidavit. Mr Burt is recorded as saying that there was no s. 31 agreement. The solicitor replied that his searches showed that one was in place. Mr Burt responded that he was the principal owner, therefore he would know.
I observe that EPC 1044 shows[20] that Mr Burt has, at 33.334%, a slightly larger interest than Kirkby and Galway, each with 33.333% shares. I also observe that the name of this permit holder is variously expressed in the material, as Terrence John Burt on EPC 1044[21], Terence John Burt on the first page of the s.31(1)(b) Native Title Act Deed,[22] John Terence Burt on the signature page of the same document[23]and Terence J Byrt on a copy of an email from that person on 22 April 2010 to MCG’s solicitor in reply to an email about EPC 1044. I note that the DEEDI file supplied in response to a subpoena contains a copy of Australian Passport M5693841 issued on 1 March 2006 and valid to 1 March 2016. It is in the name of Terence John Daleen Burt, born on 6 November 1942. I am satisfied that these names all relate to one person.
[20]        Ex. 1 p. 104.
[21]        Ex. 1 p. 104.
[22]        Ex. 1 p. 117.
[23]        Ex. 1 p. 126.
Clearly there was an agreement under s.31, Mr Burt’s signature is on it next to the date 20 September 2007[24] and he was not correct in his claim to the contrary.
[24] Ex. 1 p. 126.
This information from Mr Burt, albeit incorrect, did serve to inform MCG under clause 3.2 of a circumstance that might result in the conditions under clause 3.1 not being satisfied in time.
Mr Burt’s firmly asserted but erroneous statement as to the s.31 agreement makes it difficult to accept that, as a Seller, he was using his “best endeavours” as required by clause 3.2.
Mentech’s argument is that MCG “had clearly assumed”[25] the obligation of obtaining the s.31 agreement from DEEDI and took no steps to require Burt, Kirkby and Galway to provide it.
[25] Applicant’s Outline of Argument. 17.
The strict wording of the contract does not contemplate this without the formality of compliance with those parts of the contract which do stipulate what is to occur for amendment[26] of the agreement which is wholly in the written agreement[27] for which time is of the essence[28] and where waiver must be in writing and signed by the party giving it.[29]
[26]        Ex. 1 p. 16. 9.3.
[27]        Ex. 1 p. 16. 9.5.
[28]        Ex. 1 p. 16. 9.8.
[29]        Ex. 1 p. 17. 9.9.
The Sellers, Burt, Kirkby and Galway have failed to comply with clause 3.1(b) and the contract’s mechanisms for accommodating that have not been employed. The contracting parties did not seek to vary their agreement in the manner provided in it. The buyer MCG did not act under a varied agreement and assume the obligation of obtaining the s.31 agreement but prudently made its own inquiries and sought a copy from DEEDI. It might have hurried to DEEDI to search the file but was content to await a copy which it requested from DEEDI. It did not allege a breach of clause 3.2 when it was clear that Mr Burt’s assurances were without basis.
Neither Sellers nor Buyer acted in any way inconsistent with treating the contract as still on foot and they continued to interact differently to what the wording of the Acquisition Agreement would suggest.
The solicitors acting for MCG made a note of a telephone call from Ms Kylie Gavin, Mr Burt’s daughter, at noon on 24 March 2010. The actual solicitor then acting was not called to verify the notes that he made but the handwritten record is found in exhibit HLD 17 to the affidavit of solicitor Ms Dean who now has the conduct of the matter. The absence of the author of this and other notes made by the solicitor who had the conduct of the matter at the time has not been a matter of contention.
HLD 17 records that Ms Gavin stated that Mr Burt did not hold a s.31 agreement and that the solicitor suggested that it may have been provided along with the original instrument. This exchange occurred more than 5 days after the entry into the agreement and therefore later than provided for in clause 3.1(b). Its occurrence illustrates that the parties were not doing anything other than treating the contract as proceeding without recourse to the specifics provided in it for variation.

The date of 29 March 2010 was 10 business days after the agreement was entered into. It happened to be the date for another step in the agreement to occur. The Buyer was due to notify the Seller that the s.31 agreement was acceptable to it. The provision itself is not intrinsically either more or less significant than, for instance, the one contained in the first part of the same sentence and which was not complied with.
On 29 March 2010 the solicitor for MCG, Mr Yuen, spoke with Mr Burt and requested an extension of time until 12 April 2010 in order to give the notification referred to in clause 3.1(b). The file note, now HLD 18, shows that Mr Burt advised Mr Yuen at 12.04 pm that Mr Kirkby was sitting next to him and he, which seems to mean they, agreed to an extension to 12 April 2010 and that Mr Yuen said he would send an email to confirm. Again, this is not what the agreement requires but is what the parties did, clearly treating their agreement as still operational and acting in furtherance of completing it.
Exhibit HLD 19 records that Mr Yuen had telephoned Ms Galway at 10.08 am that day and that she had agreed to the extension to 12 April 2010. Ms Galway had stated that she would arrange for written confirmation from all 3 of the Sellers and Mr Yuen also referred to written confirmation although his note “I said something in writing to confirm” is ambiguous as to whether this was a statement that he would arrange something in writing from MCG or was merely requesting it from Burt, Kirkby and Galway.
This ambiguity is resolved in Mr Yuen’s email of 10.40 am to Ms Galway requesting the extension, HLD 21. It states, inter alia:
“Since the Sellers have not provided our client with the necessary documentation for our client to review, our client requests an extension of time for the following:-
1.The Buyer to advise the Seller whether the Section 31 Agreement is acceptable to the Buyer by Monday 12 April, 2010; and
2.The Buyer to advise the Seller whether the expenditure commitment statements are satisfactory to the Buyer by Monday 12 April 2010.”
The reply from Ms Galway at 11.59 am was that she had “no problem” with the extension of time.
No written amendment of the contract had occurred but the course of dealing between the parties shows that they had intended to vary it to extend the time for compliance with obligations to 12 April 2010.
This situation was not long lived. At 12.10pm on 29 March 2010, Mr Burt rang Mr Yuen and advised that he and Mr Kirkby now only were prepared to agree to an extension of 5 days and if the Buyer could not agree by then the “deal is off”. Mr Burt said that the Buyer should be able to get information from the Mines Department and if the Buyer can’t settle within 5 days – no deal. Mr Yuen said that even if his client could review the documents and agree, there was still the indicative approval to be obtained. The notes indicate that Mr Burt was very direct in his statements. It was very clear once again, that certainly Mr Burt saw it as suitable to vary the contract in this fashion and that it was still on foot, for 5 more days anyhow.
Mr Yuen’s note of a telephone call from Mr Kirkby at 12.47 pm on 29 March 2010 is HLD 23 and appears to be the next development. Mr Kirkby said that the sellers wanted a 5 day extension to the close of business on 6 April 2010. Mr Yuen said he would need to get instructions. This 5 day extension proposal is very different to Mr Burt’s earlier 5 days for settlement.
At 4.29 pm on 29 March 2010 the solicitors for MCG sent a letter by email to Messrs Burt, Kirkby and Galway. It states that the Sellers have not provided the section 31 agreement and as a result MCG is required to seek it from DEEDI. It states that MCG is willing to accept Burt and Kirkby’s proposal for an extension of time to 5pm on 6 April 2010 “in order to obtain the section 31 Agreement from the Department and advise you whether such agreement is acceptable to our client”. It goes on to say that expenditure commitment statements are still awaited and notes MCG’s obligation to advise the Seller if it is satisfied with them within 5 business days after receiving them.
The better view is that Mr Burt's rather “hot under the collar” statement about 5 days or the deal is off and referring to 5 days for settlement had been moderated by Mr Kirkby to relate to the actual matter referred to in clause 3.1(b). The solicitors’ letter of 29 March 2010, HLD 24, reflects a common understanding here. The letter does not amount to an amendment of the contract as referred to in clause 9.3 of the agreement, which requires that the agreement “can only be altered in writing signed by each party.”
Once again, despite not complying with its terms, the parties appear to nonetheless still be treating their agreement, as informally altered, as on foot and leading to a commonly contemplated completion.
On this same Monday, 29 March 2010, at 3.08 pm, DEEDI sent by email to Mr Yuen the section 31 agreement (see HLD 25), and advised that the expenditure statement for the first year was outstanding. At the time this was received, Mr Yuen had already obtained the offer of an extension to 6 April 2010. The solicitors’ letter emailed to the Sellers at 4.29 pm that day accepted it.
I note that the section 31 agreement came to Mr Yuen at 3.08 pm and that the letter signed by the partner of the legal firm for which Mr Yuen worked was emailed out at 4.29 pm but do not see this as significant. The seller had offered to give MCG until close of business on 6 April 2010 and the letter simply accepted this offer.
Paragraph 27 of Ms Dean’s affidavit states that Mr Yuen actually received the email with the requested section 31 agreement at 10.37 am on 30 March 2010. This information appears to be obtained from a handwritten note on “the file”.[30] The note was not exhibited and it seems to be implied that the email was “actually received” at sometime later than its time stamp indicates. On the view that I have taken, this is not significant and I have proceeded on the basis most favourable to Mentech, namely that the email was communicated at the time printed on it.
[30] Affidavit of Esme Hui Ling Dean sworn 25 May 2011, paragraph 27.

How to treat the variations of the contract

It is necessary to consider how the various purported alterations of the Acquisition Agreement are to be understood. I have dealt with them so far on the basis that the evidence shows the parties intended them to be effective but I have pointed out their shortcomings compared to the requirements of the Acquisition Agreement.
There are other difficulties which appeared as the matter progressed. The email from DEEDI at 3.08 pm on 29 March 2010[31] contains the following information:-
“The actual expenditure statement for the first year is outstanding. The annual report for the same period is also outstanding.”
[31] HLD 25 of Ms Dean’s affidavit.
The rent for EPC 1044 was also in arrears to the extent of about $17,000, which was eventually paid by Mentech.[32]
[32] Affidavit of Kevin Dunnell affirmed on 17 March 2011. Paragraph 9.
Mr Burt described himself as the “principal owner” of EPC 1044[33] and said that “He has done 20 of these deals”,[34] which does indicate some familiarity with them. He also took an assertive part in the negotiation of the extension of time although he seems to have moved fluidly between the concept of extending time for a requirement and for settlement.
[33] Exhibit HLD 15 to the affidavit of Ms Dean.
[34] Exhibit HLD 22 to the affidavit of Ms Dean.
At the time this was going on, the Seller under the Acquisition Agreement appears to have been in some difficulties in respect of its own warranties to the Buyer, particularly (g) and (h),[35] which provide as follows:-
“(g)The Seller has paid all rent, charges and penalties (if any) in respect of the Exploration Permit, all such payments are up to date.
(h)The Seller has given the Minister all reports and statements, including annual reports and expenditure statements, and any other information required by the Minister or under the Mineral Resources Act 1989, from time to time.”
[35] Exhibit 1, page 20.
It is clear that the solicitor for MCG became aware of these apparent breaches of warranties by Burt, Kirkby and Galway only after the extension of time was negotiated and equally clear that they are warranties and not conditions. They do however illustrate the need to consider how to treat the “Conditions Precedent” in clause 3.1. These warranties appear never to have received any consideration by the parties but the Condition Precedent in clause 3.1(b) relating to the 10 day period was altered, and not in the way the contract required. The process for varying the contract to, for instance, make the extension of time which the parties appear to have believed they had negotiated, or indeed to move the settlement date as Mr Burt appears to have envisaged, was not followed. As I have indicated, I have so far treated the parties actions as having effect according to what the evidence shows they intended. Resolving whether this is correct becomes necessary now because of the major change which occurred. It seems that MCG had secured an extension of time until close of business, which appears to be taken to be 5 pm, on 6 April 2010. The change of circumstances was referred to by Mr Dunnell in his affidavit.[36] The relevant parts of paragraph 5 of his affidavit are set out at [16] above. On 29 March 2010 Mr Manners, the broker, telephoned Mr Dunnell and told him that the contract with MCG had been terminated and that EPC 1044 was available for sale to Mentech. Mr Dunnell affirms in paragraph 6 of his affidavit that Mr Burt called him at about 10 am on 30 March 2010 and told him that EPC 1044 was available for sale.
[36] Affidavit of Kevin Dunnell affirmed on 17 March 2011, Paragraphs 4 and 5.
At 1.33 pm on 30 March 2010 Mr Yuen received an email from Craig Manners.[37] It was in the following terms:
“Hi Nathan,
I have been informed by Terry that the sellers have withdrawn from the arrangement for MCG to buy EPC 1044 due to failure regarding settlement time. Can you please confirm by email that this is the case.
Thanks and regards
Craig”
[37] Exhibit HLD 26 to the affidavit of Ms Dean.
At 2.15 pm on 30 March 2010 Mr Yuen made a file note, HLD 27, which appears to reflect a telephone conversation with Mr Manners. It records that “Terry” had called Mr Manners and told him that the agreement was taking too long to settle, he wanted to pursue selling to someone else and another agreement might have been signed.
The next recorded action by the solicitors for MCG would seem to be lodging caveat 1018474 on 31 March 2010.
At 2.21 pm on 1 April 2010 the solicitors emailed Burt, Kirkby and Galway a letter, HLD 28, stating that they had obtained the section 31 agreement from the Department and that it was acceptable to MCG, as were the expenditure commitments. They enclosed a letter to be signed by Burt, Kirkby and Galway and addressed to DEEDI requesting the Honourable Minister’s indicative approval of the assignment of their interests in EPC 1044 to MCG.
However, by 31 March 2010, Mr Dunnell had received the Acquisition Agreement in favour of Mentech signed by Burt, Kirkby and Galway.[38]
[38] Affidavit of Kevin Dunnell affirmed on 17 March 2011. Paragraph 8.
Mentech argues that the condition precedent, the 10 day period, in clause 3.1(b) had not been met so the Sellers, Burt, Kirkby and Galway, were free to contract with Mentech after 29 March 2010.
Mentech argues that the purported extension of MCG’s requirement under clause 3.1(b) does not comply with clause 9.3 of the agreement. The only writing from a Seller is from Ms Galway and is HLD 1 of Ms Dean’s affidavit. It is an email in which Ms Galway advises Mr Yuen that “I have no problem with an extension of time.” It appears to have a signature below the name Judy-Anne A Galway.
The outline of argument on behalf of Mentech sets out four specific objections to this, stating that it falls short of the requirements of clause 9.3 in that:-
“i.     The alleged extension is not executed.
ii.      The alleged extension is not seeking to amend the agreement.
iii.     The alleged extension is not specific and sufficiently particularised; and
iv.    The alleged extension is not from all four parties to the agreement.”
This puts aside, as the written agreement clearly requires, any dealings not in writing including the telephone exchanges to which I have referred. If the contract is to be construed in accordance with its written terms only then this would be a powerful argument, reducing the verbal agreement evidenced by Mr Yuen’s note to a frolic of no effect.
When the Court is exercising its jurisdiction in this case it has been granted the powers of the Supreme Court (see [53]) and directed to exercise its jurisdiction in the way stated in s.7(b) of the Land Court Act2000 (see [54]). It provides that this Court:-
“(b)must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.”
This raises the question of whether the Court must apply these principles throughout the case so that every question’s resolution must be subject to them or if, for instance, the question of compliance or otherwise with clause 9.3 should be a matter only of construction and the outcome of that determination a matter only of contract law leading to a conclusion where the final determination only is subject to the direction in s.7.
This may be answered by looking at the opening words of s.7:-
“In the exercise of its jurisdiction, the Land Court—“
The jurisdiction conferred by s.363 (see [52]) is “to hear and determine” this dispute which, when considered with s.7 appears to be a legislative direction to act as required by s.7 throughout the whole process of exercising its jurisdiction.
Section 363 confers jurisdiction to the Land Court and does not impose any limitation or restriction on how it is to exercise that jurisdiction.[39] Section 7 does not in its terms provide any support for the view that it ought to be read in a limited way such that it applies to less than every aspect of a case before the Court. It will apply to all decisions the Court is required to make, including on points which are antecedent to the final decision. When s.7 is construed in this way there is no unreasonableness, ambiguity to resolve or confirmation required such that there is any need to refer to extrinsic material as contemplated by s.14B of the Acts Interpretation Act 1954.
[39]The breadth of s.363 as an indicator that s.7 of the Land Court Act 2000 is to be construed without limitation so that it applies to the question of the validity of the extension of time avoids the difficulty of discerning the meaning of s.7 only from its text and from the Act in which it appears. That would lead to the self-referential regress exemplified by the expression “turtles all the way down” referred to by Justice Scalia in the judgment of the United States Supreme Court in Rapanos v. United States, delivered on 19/6/2006. accessed 19/7/11. His Honour said, at n.14: -
I am satisfied that s.7 must be applied in considering whether the extension of time is to be regarded as effective.

Conclusion on the extension of time for MCG

Proceeding in this way, I am satisfied that equity, good conscience and the substantial merits of the case applying to the purported extension requires that the Court give full credit to the course of dealing between the Sellers and the solicitor for MCG and ought to regard the agreement they reached verbally as they clearly regarded it, as an extension of time until the close of business on 6 April 2010 to comply with the 10 day period for notification in clause 3.1(b).
Once notified by the broker of the possibility that Burt, Kirkby and Galway had made or might make an agreement with someone else to sell their interest in EPC 1044 MCG did not accept this but lodged a caveat to protect its interest and proceeded to try to progress the contract. MCG had a caveatable interest within the meaning of s.152(1) of the Act (see [33]).

The availability of Specific Performance to MCG

At the time Burt, Kirkby and Galway entered into the Acquisition Agreement with Mentech their prior agreement with MCG was still in force. Mentech argues that specific performance of MCG’s contract was not available. Two bases are suggested for this conclusion.
Firstly, Mentech ought to have been joined in proceedings for specific performance brought by MCG[40] and was not. Accordingly, the outcome of those proceedings is not binding on Mentech. It is also argued that it should be assumed that if Mentech was joined the Deed of Settlement in those proceedings would not have been agreed.
[40]Uniform Civil Procedure Rules 1999 Rule 62. The proceedings bear the Land Court file number MRA 147-10. The orders made in that case are at the back of Ex. 1, the trial bundle, in this case. See also News Limited & Others v Australian Rugby Football League Limited and Others (1996) 64 FCR 410 at p. 523-527.
Secondly, it is argued that any obligations of the parties under MCG’s acquisition agreement no longer exist due to the Deed of Settlement, Release and Indemnity entered into between MCG and Burt, Kirkby and Galway to end the proceedings between them in this Court.[41]
[41] See Ex. 1 page 235 and following.
As there is no application to set aside the earlier proceeding and in view of the reliance on the Deed made in that proceeding I regard the first point as moot and will focus consideration on the second as that would be most likely to be fruitful.

The Deed of Settlement, Release and Indemnity

Mentech argues that its agreement with Burt, Kirkby and Galway has been carried out, the only outstanding matter is the consent of the Minister, which is delayed by MCG’s caveat. It has made all payments and that MCG is not longer relying on its Acquisition Agreement since the Deed of Settlement replaces it. The Deed was made, it appears, sometime in the period from 4 June 2010 to 4 August 2010. The actual date was not in the evidence but the wording of the Deed recites proceedings commenced on 3 June 2010 and a step to be taken under the Deed by 5 August 2010.
Mentech’s argument is that MCG’s acquisition agreement no longer has effect and that the Deed is now the sole source of contractual obligations between Burt, Kirkby and Galway and MCG.
Clauses 2.1 to 2.10 of the Deed contain detailed terms of settlement and set out all the steps that must be taken to carry out, in effect, the Acquisition Agreement, thus seeming to be in place of it. Further support for Mentech’s contention is found in clause 11.2 which provides that:-
“11.2 Operation of this Deed
(a)This Deed constitutes the entire agreement between the Parties relating in any way to its subject matter and supersedes and merges all prior discussion and any prior agreement. Each Party acknowledges that in entering into this Deed it has not relied on any warranty, representation or other promise of any nature not contained in this Deed.
(b)Any right that a person may have under this Deed is in addition to, and does not replace or limit, any other right that person may have.”
I note (b) and the words “its subject matter” in (a).
In the deed “Background” does not form part of the deed[42] but may nonetheless be informative. The “Background’ portion states:
“BACKGROUND
A. The Respondents are the registered holders of the Exploration Permit.
B.The Applicant and the Respondents entered into an agreement dated 15 March 2010 to assign all right, title and interest in and to the Exploration Permit to the Applicant (“Agreement”).
C.The Applicant commenced proceedings in the Queensland Land Court on 3 June 2010, proceedings numbered MRA147-10, against the Respondents seeking specific performance of the Agreement, and costs and interest against the Respondents for alleged breach of the Agreement (“Dispute”).
D.The Parties have agreed to settle the Dispute on the terms set out in this Deed.”
[42] Ex. 1 p. 244. Clause 17 of Part 2 – Interpretation.

This indicates that the subject matter of the Deed is the settlement of the dispute as distinct from it being a replacement for the Acquisition Agreement as the agreement for the sale and purchase of EPC 1044.
This proposition is supported by clause 3 of the Deed, which provides:-
“3. Release and Discharge
(a)Subject to clause 3(b) and upon satisfaction of clause 2, each party forever releases and discharges each other party from all existing and future actions, causes of action, potential causes of action, suits, rights, claims, expenses, losses, proceedings and demands of whatsoever nature, including, without limitation, any claim for costs, interest or indemnity, wherever and however arising, known or unknown, which arise out of or in connection with the Dispute.
(b)The provisions of clause 3(a) does (sic) not apply in respect of all existing and future actions, causes of action, potential causes of action, suits, rights, claims, expenses, losses, proceedings and demands of whatsoever nature, including, without limitation, any claim for costs, interest or indemnity, wherever and however arising, known or unknown, by the Applicant which arise out of or in connection with the Agreement (except those relating to the Dispute), Proposed Assignment or any dealing or purported dealing of the Exploration Permit by the Respondents with any third party (including Mentech Resources Pty Ltd).
My reading of clause 3 is that it demonstrates that the Deed is to end the “Dispute”(a) but does not apply to the “Agreement”(b). The “Applicant” in (b) is MCG.[43] I conclude therefore that MCG has not abandoned its rights under its earlier agreement and rested all in the Deed. The Deed is to settle the dispute but specifically preserves its position under the Acquisition Agreement. Accordingly, the Deed cannot be characterised as an attempt by MCG to deprive Mentech of its equity, it merely serves to settle MCG’s dispute with the Seller.
[43] Ex. 1 p. 237.
This conclusion makes it unnecessary to revisit Mentech’s first point mentioned at [116]; it remains moot. There was no order for specific performance in that proceeding and I have found that the Deed settling the proceeding did not relevantly alter MCG’s position under its Acquisition Agreement. The relevant part of that proceeding is MCG’s caveat, which is now in issue and Mentech is using the opportunity in the present proceedings to seek to have that caveat removed.
The contest resolves to MCG with its contract and Mentech with its contract, both for the same things, which only one can have.

Specific Performance

Mentech points out that pursuant to the Deed[44] MCG seeks to have Burt, Kirkby and Galway take steps to put it in the position Mentech has been in since April, 2010, that is to have an Application for Transfer suitable for submission to DEEDI. Paragraph 10 of Mr Dunnell’s affidavit deposes that he submitted such an application on 12 April 2010, see [17]. It also points out that the Deed seeking to compel Burt, Kirkby and Galway to provide the same thing to MCG was entered into when MCG knew of Mentech’s position and was seeking to deprive Mentech of the benefit of its transfer application already lodged, a consideration when comparing the relative equitable positions of the parties. It points to MCG’s not joining it in those proceedings as similarly relevant.
[44]Mentech’s outline of argument; paragraph 8, says it is the Deed of August, 2010. MCG’s outline, at paragraph 14, says December, 2010. The copy in Ex. 1, at page 237 is dated only 2010. At [119] I simply place it in the period 4/6/10 to 4/8/10 for want of better evidence. Nothing, however, will turn on this.
MCG submits that the Court must decide who has the better equity and MCG’s equity, being first in time, must prevail unless there is a basis for postponing its prior equitable interest.[45]
[45]Citing JNJ Investments Australia Pty Ltd v Sunnyville Pty Ltd [2006] QSC 138 at [62] and [70] and Platzer v CBA [1997] 1 QdR 266 per McPherson JA at 278.
As McPherson JA said in Platzer v Commonwealth Bank of Australia:[46]
“As between equitable estates or interests created in succession in or in respect of the same property, the rule is that, where the merits are equal, the first in time prevails.”
[46] [1997] 1 QdR 266 at 278
The Court of Appeal considered priority between equitable interests in AG(CQ) Pty Ltd v A & T Promotions Pty Ltd.[47] Holmes JA, with whose reasons McMurdo P and McMeekin J agreed, said[48]
“the question is as to which is the better equity, and in determining that question the conduct of both parties will be relevant. But one can also say that it is proper to look for both meritorious and unmeritorious (or disentitling) conduct as, in my respectful view, the learned judge did in this case; and it is legitimate to determine the worse of the equities in order to establish the better.”
The fact that one interest was created before the other is a factor of last resort.[49]
[47] [2011] 1 QdR 306.
[48] [2011] 1 QdR 306 at [36].
[49] [2011] 1 QdR 306 at [35] where Her Honour said:-
In Clark v Raymor (Brisbane) Pty Limited [No 2], purchasers of land who had received the certificate of title had been unable to register themselves as proprietors before the holder of an equitable charge on the property given prior to its sale lodged a caveat. The first instance decision, that the purchasers’ equity to have their transfer registered took priority, was upheld on appeal. Thomas J, with whom the other members of the Court agreed, cited the passage already set out from Kitto J’s judgment in Latec Investments and observed that in determining the question of priority:
“The fact that one interest was created before the other is a factor of last resort only. The correct function is ‘to determine where the better equity lies.’”
In Real Property Law in Queensland. 3^rd Edn. MacDonald, McCrimmon, Wallace and Weir. 2010 Lawbook Co the learned authors as good as set out the nub of the present case at [5.90] and point out that who is entitled to the estate, realty was being considered there, depends on the rules of priority. The Court of Appeal has noted the relevant rule in AG.
Equity provides personal remedies such as requiring someone to fulfil their obligation. The remedies are discretionary and the Court of Appeal in AG(CQ) Pty Ltd v A & T Promotions Pty Ltd has shown how this Court must approach the present situation. Here the putative purchasers were never going to have an interest in land in the sense that a purchaser of Torrens system land may acquire, they would only ever have an interest sufficient for the Minister to consider whether to approve the assignment of EPC 1044. The principles however remain the same and such a contract will be within the scope of the remedy of specific performance.[50]
[50]Dougan v Ley and Another (1946) 71 CLR 142 where the High Court held that a contract for the sale and purchase of a taxi is within the scope of specific performance.
The caveats in this case, MCG’s and Mentech’s, are grounded in s.152(1) of the Act [33] and that provision provides sufficient basis for them.[51]
[51]Compare the C.M. Group Pty Ltd’s Caveat. 1986 1 QdR 381 where an agreement for the sale of land subject to Council approval did not create an interest in land sufficient to support a caveat but did create an equity sufficient to support an injunction. Similarly in Brown v Heffer 1967 116 CLR 344 at pages 351-352 Windeyer J pointed out that a purchaser’s rights to have the testator and his executor do nothing to his prejudice were enforceable in equity by injunction. But they did not create an equitable interest in the land. There the giving of consent by the Minister led to a retroactive effect making the instrument effective from its date. The transfer here would act along those lines.
Senior Counsel for Mentech referred the Court to the decision of the High Court in Perri and Another v. Coolangatta Investments Proprietary Limited.[52] There a contract for the sale of land fixed no time for completion. A special condition made the completion of the sale of the purchaser’s property a condition upon which their obligation to purchase the vendor’s property depended.[53] It was reasonably implied that settlement must occur in a reasonable time.[54] Where a conditional contract fixes a date for a condition to be fulfilled then when the date arrives and the condition has not been fulfilled the contract may be terminated without prior notice to the other party.[55]
[52] (1982) 149 CLR 537.
[53] The clause is set out in the judgment of Gibbs CJ on p. 540, at the end of the first paragraph.
[54] (1982) 149 CLR 537 at 543.
[55] (1982) 149 CLR 537 at 545.
Mentech argues that this is applicable to clause 3.1(b). In view of my finding in relation to the granting of the extension, it is unnecessary to consider this further as the date was advanced to beyond the time that the Mentech contract was entered into. In any event, clause 3.3 provides that clause 3.1(b) is for the benefit of MCG and would not provide the Sellers with a right to terminate the contract.
Reference was made on behalf of Mentech to the decision of the High Court in Anning v Anning.[56] In that case a man about to die executed, in 1899, a deed of gift voluntarily conveying his personalty in equal shares to his wife and infant children. The question before the High Court was the extent to which the deed was effective to pass the personal property.[57] Nothing had been done beyond the execution and delivery of the deed before Mr Anning’s death and his widow who was also executrix of his will of realty and guardian of the children brought an administration action against them to decide whether she was to share in the personalty either under the deed or in intestacy.
[56] (1907) 4 CLR 1049.
[57] (1907) 4 CLR 1049 at 1056 per Griffith CJ.
In the Supreme Court of Queensland Cooper CJ concluded that the donor had intended to constitute himself a trustee of the property and therefore the deed was effectual. Chief Justice Griffith was unable to share that view[58] and saw the question as whether the donor did everything necessary in order to transfer it and to make the gift binding on himself.[59] His Honour said:[60]
“If, however, anything remains to be done by the donor, in the absence of which the donee cannot establish his title to the property as against a third person, the gift is imperfect, and in the absence of consideration the Court will not aid the donee as against the donor. But, if all that remains to be done can be done by the donee himself, so that he does not need the assistance of the Court, the gift is, I think, complete.”
[58] (1907) 4 CLR 1049 at 1057.
[59] (1907) 4 CLR 1049 at 1057.
[60] (1907) 4 CLR 1049 at 1057.
In the present case there is no gift, no absence of consideration, so the Court’s unwillingness to use a trust to convert imperfect instruments into perfect trusts[61] is not relevant to the facts of the present case.
[61] (1907) 4 CLR 1049 at 1057.
I conclude that specific performance is in theory available in this case. The remaining question is whether that remedy and any others ought to be provided.[62]
[62]Real Property Law in Queensland, 3^rd Edition, at 5.80, page 143. Situations where equity might refuse specific performance include where the order would cause undue hardship, the party seeking it has been guilty of excessive delay in seeking the remedy or is itself in breach of the contract.

Which is the better equity

In this case there are two purchasers for value of the one thing. One contract was entered into before the other, which must almost inevitably be the case, and that factor is one of last resort [131] in any event. This Court must determine which of the two competing equities is the better one.
MCG argued that Burt, Kirkby and Galway were never in a position to terminate MCG’s contract for a breach. Clause 3.1(b) was for the benefit of MCG. In any event, even if there had been no extension of time, Burt, Kirkby and Galway were not ready, willing and able to perform the contract as they had not provided the section 31 agreement.[63] I have found that there was an extension of time obtained by MCG.
[63]Sattel v. The Proprietors - Be Bees Tropical Apartments Building Units Plan No. 71593 (No. 2) [2002] 2 QdR 427 at 439 [49] per de Jersey CJ.
MCG’s submissions were that the Court must compare the equities and sought to stress the importance of priority in time.[64]
[64]Referring to JNJ Investments Australia Pty Ltd v Sunnyville Pty Ltd [2006] QSC 138 at [62]; Platzer v Commonwealth Bank of Australia [1997] 1 QdR 266 was also referred to in that regard. The AG case, see [131] must now be taken to be the law and temporal priority the factor of last resort.
MCG’s equity, it was argued, was improved by the terms of clauses 3.1(b) and 3.3 as non-compliance was not expressed to end the contract.[65] MCG also argued that it did not have to comply with the 10 day period in clause 3.1(b) when the Seller had not met its obligation, in the same clause, to provide the section 31 agreement to MCG.[66]
[65]Compare Gange v Sullivan (1966) 116 CLR 418 at 425 where the contract clause there required the purchaser to apply for a Council building approval. If that was not granted by a set date it was provided that the contract “shall be deemed to be at an end” and all moneys paid by the purchaser were to be refunded. This was a clear road-block to specific performance.
[66]Foran and Another v Wight and Another (1989) 168 CLR 385 at 417 where mutually dependent and concurrent obligations are discussed. Here the obligations were not concurrent but the detailed consideration of this aspect is made unnecessary by my finding that an extension of time was in place.
MCG’s entry into its Acquisition Agreement was not attended by any conduct on its part that is worthy of reproach. It brought its action for a caveat and specific performance of its contract without joining Mentech. I have concluded that as specific performance was not granted in that action, which settled in terms of the Deed, and as Mentech’s rights to be heard in relation to the caveat are sufficiently available in the present proceeding,[67] MCG’s failure to bring Mentech into the earlier proceeding in view of r. 62 UCPR is not determinative. It is however a matter weighing against its equity. The weight can be but slight, however, since at the time of that failure the second contract, Mentech’s Acquisition Agreement, was already in existence. The relevant effect of MCG’s failure was only to postpone the dispute to the present proceedings. It will not, however, be able to improve its equity by doing so and can have no benefit in that respect by the fact of its Deed of Settlement, Release and Immunity.
[67][117], [125]. Mentech did not seek to intervene in the other proceeding, which is technically still before the Court. See r.304 UCPR. Section 12 of the Land Court Act 2000 would also allow a rehearing on application of a party.
At the time of entering into its agreement, Mentech had the benefit of the Warranties in Schedule 2. This agreement is practically identical to the MCG agreement and Schedule 2 is absolutely identical to that set out in [27]. The Sellers, Burt, Kirkby and Galway were comprehensively in breach of Schedule 2 at the time they made a bargain with Mentech, although they may not have been in breach of Warranty (c).
It is clear that the Sellers, particularly due to the actions of Burt, sold the same thing twice. Mentech was clearly a purchaser for value in good faith. In order to discern its equity, however, it will be necessary to look closely at the events leading up to its entering into the contract it made.
Mr Dunnell’s affidavit affirmed on 17 March 2011 and filed on 18 March 2011 related his dealing with Mr Manners at paragraph 5. It is set out at [16]. At [17] I have reproduced his recounting of subsequent events. His earlier dealings with Mr Manners are described in paragraphs 3 and 4 of his affidavit in this way:-
“3.In or about late March 2010, I was looking for some investments in relation to mining tenements throughout Australia. I came across two tenements (exploration permits for coal) in Queensland and contacted the broker who was advertising the EPCs on his website ‘miningtenements.com’. The broker’s name was Craig Manners. During that telephone conversation, Mr Manners said to me that EPC1044 was not available at that time.
4.Three or four days later, Mr Manners telephoned me and said to me that:
i.Terence Burt, Robert Kirkby and Judy-Anne Galway (hereinafter referred to as the Group) had entered into a contract with MCG Resources Pty Ltd (MCG Resources) but that that contract had been terminated and that EPC1044 was on the market for sale.
ii.I said to Mr Manners that I was seriously interested in buying EPC 1044.
iii.I then proceeded to negotiate through Mr Manners the purchase of EPC 1044 from the Group.”
An earlier “affidavit” by Mr Dunnell was filed on 2 March 2011. Each page is signed and I have compared the signatures to that on the affidavit of 17 March 2011. I am satisfied that they are in the same hand. This “affidavit” has not been dated or sworn. Mr Dunnell has provided some more detail in it and I am prepared to accept it into evidence as a statement since it is signed by him. Paragraphs 4 to 9 of this statement are in the following terms:-
“4.In or about late March 2010, I was looking for some investments in relation to mining tenements throughout Australia. I came across two tenements (exploration permits – coal) in Queensland and contacted the broker who was advertising the EPCs on his website ‘miningtenenments.com’. The broker’s name is Craig Manners. I said to Craig Manners:
‘I’m interested in those two Queensland EPCs, can you supply me some more information.’
Craig Manners told me they were owned by … ‘Terence Burt, Robert Kirkby and Judy-Anne Galway’ (hereinafter referred to as the Group) and the person who has direct control is ‘Terrence Burt’. At the time I was not aware how Burt spells his name. I am now aware that Burt spells his name three ways (i) Burt (ii) Birt and (iii) Byrt).
5.Manners said words to the effect
‘EPC 1065 is available; EPC 1044 has been sold to another party and is not available. This is a great opportunity grab a great deal while the tenement is being sold so cheaply. Time is of the essence, the owners are seeking a quick settlement’.
I then said words to the effect
‘We are seriously interested in buying the two tenements but will proceed with EPC 1065.’
6.I then proceeded to negotiate through Craig Manners the purchase of EPC 1065 and there is no issue as to the ownership of that tenement.
7.On the 29 March, Craig Manners contacted me by phone and said words to the effect
‘EPC 1044 is now for sale; Terry Burt’s daughter has told me that the sale has fallen through because Terry had an argument with the other side’s lawyers who wanted an extension of time on the deal. The other party is MCG Resources. I’ll get Burt to phone’.
Just after lunch, I received a call from a man who purported to be a Terry Burt (Burt) and he said to me words to effect. ‘Craig tells me that you are still interested in buying 1044.’ I said yes ‘I’m interested.’ Terry Burt then said words to the effect ‘McDonald’s lawyers have been playing games with me and they know time is of the essence and I need the money. There’ve had just on two weeks to pay and they haven’t. They’re telling me they need more time for their due diligence. When I signed the agreement, they assured me I would have my money in ten days. It’s not (sic) just on 14 days and I have told them that the contract is ended and I’m free to sell to whoever wants to buy.’ I said words to the effect ‘We’ll buy it but we need a period of time for our due diligence.’ Burt said words to the effect ‘You buy it now and you can have five days to pay. If you don’t pay then your contract is finished as I told McDonald and I tell you, time is of the essence.’ On that basis, Mentech negotiated the purchase of EPC 1044 from Burt and the group. It is this tenement (1044) over which there is the current legal dispute between MCG Resources and the Applicant in these proceedings.
8.Applications were submitted to DEEDI, the Queensland mines department on 12 April 2010 for the transfer of EPCs 1065 and EPC 1044 from the Group to the owners Mentech.
9.MCG Resources on the 31^st March 2010 and without notice to the applicant in these proceedings lodged a Caveat on tenement number EPC 1044. The Applicant had (i) conducted its due diligence before the contracts exchanged and thereafter and (ii) on the 30^th March 2010 had searched to see if there were any other caveats over EPC 1044. The result of the caveat search I found there was no caveat over EPC 1044. Upon that basis I, as a director, advised my other director to purchase EPC 1044.”

This is more detailed than the information in the later affidavit and makes plain Burt “has direct control” and is the same person, spelling his name in different ways. In paragraph 7, Burt is stated to have told Mr Dunnell that a firm of lawyers, not MCG's lawyers but it does appear that he was referring to MCG's lawyers, told him they needed more time to pay. He said they had assured him when he signed the agreement that he would have his money in 10 days. He says he told them that the contract is ended. This compares unfavourably with Mr Yuen’s note at HLD 022 of Ms Dean’s affidavit which refers to Burt’s call to Mr Yuen at 12.10 pm on 29 March 2010, recording Burt’s agreement to a 5 day extension and purporting to include his assurance of Kirkby’s agreement to that. The relevance of this is that Mentech had an assurance from Burt that MCG’s contract had ended and that Burt, as the person in “direct control’ was free to sell.
It will be recalled that in HLD 26 [98] Mr Manners sought confirmation from Mr Yuen of what he writes that Burt had told him, that “the sellers” have withdrawn from the MCG arrangement. What is recorded at HLD 27 [99] and 28 [101] happened after that but it is not recorded what, if anything, Mr Yuen advised Mr Manners in response to his specific question. I note that HLD 27 records that Mr Yuen was told by Mr Manners that another agreement may possibly have been signed. It may have been seen as too late to simply correct Mr Manners’ information.
As Callinan J said (see [56]), a caveat (by MCG) at an earlier stage would have been useful. It would have alerted Mr Dunnell when he had a search done on 30 March 2010.[68] I do note however, as his Honour acknowledges, that this is not the practice at present so I cannot find fault with MCG and/or its lawyers for not doing so.
[68] See [17] where paragraph 7 refers to the search.
In view of the clear search, and Burt’s statements to Mr Dunnell, I cannot find that Mentech was imprudent in entering into its agreement. A careful investigation of the facts after the event does not inform Mentech at the relevant time. It can now be seen that the Sellers, Burt, Kirkby and Galway, were not free to sell to Mentech but at the time Mentech had the blunt assurance from Burt, the person in “direct control”, that EPC 1044 was on the market. I do not believe that a purchaser in Mentech’s position ought to be required to make more detailed inquiries and to have, for instance, followed the line taken by Mr Manners, to no relevant result, on 30 March 2010. Once informed by a person in the position of a vendor that the property, the EPC in this case, was on the market, it would not be reasonable to expect Mentech to first obtain a form of clearance from the previous suitor before making its attempt to contract. That may have only had the effect of stimulating MCG to compete with it.
Mentech made its payments earlier than required under the written contract (see [21]) and [17] (at paragraph 9 of Mr Dunnell’s affidavit) though not so quickly as Mr Burt wanted (see [148]) (at paragraph 7 of Mr Dunnell’s statement). In view of the nature of the dealings examined in this case it appears that this is another instance of parties to a written agreement treating it as having been varied verbally or, in this instance, as being subject to a prior verbal agreement which was different to the written agreement. Mr Burt was not paid in the 5 days he asked for, nor when the written agreement contemplated that settlement was to occur, but the sellers were paid sooner than the written agreement provided. There is an element of imprudence on the part of Mentech in apparently in effect waiving the conditions precedent in clause 3.1, though not in the manner required by clause 9.9, and paying before the written agreement would have required. In my view this weighs equally against any benefit it could be said to have gained by having paid the contract price. In view of MCG having placed the purchase price in its solicitor’s trust account, I see the parties’ equities as equal in respect of these financial aspects.
I conclude that MCG and Mentech have equal equities and I cannot put the claim of one before the other on the basis of who has the better equity. The relevant conduct of both is equal and neither is disentitled on the basis of their conduct.
In the circumstances, I must have regard to the factor of last resort,[69] the fact that MCG was first in time with its Acquisition Agreement and find that it should be allowed to proceed with it.
[69] [131].

Costs

The successful party has sought its costs. The power of the Land Court to order costs is found in section 34 of the Land Court Act 2000.[70] The discretion is unfettered but must be exercised for reasons that can be stated. Although there is no preconception that costs follow the event, the rule that costs will usually follow the event is deeply embedded in our law and is a factor which I may take into account in exercising my discretion.[71]
[70] See Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2010] QLC 0122.
[71] [2010] QLC 0122 at [12].
I do not propose to order that Kirkby or Galway pay the costs of this hearing. They were represented but took a position which may be described as in effect abiding the orders of the Court. The controlling vendor, Burt did not appear and, in any event, MCG has only sought its costs, including reserved costs, against Mentech.[72]
[72] Outline of Argument for MCG. Paragraph 20.
MCG and Mentech essentially had to have this contest and neither can be criticised for doing so or for its conduct in the case. In the circumstances I apply the rule that costs including reserved costs, ought to follow the event and to be payable on the standard basis[73].
[73] Colgate Palmolive Co & Anor v. Cussons Pty Ltd (1993) 118 ALR 248 at 257. See also Rule 681 UCPR.

Orders

1. That caveat No. 1020676 be removed.
2.That caveat No. 1018474 be removed when this is sought by MCG Resources Pty Ltd.
3.That the costs of MCG Resources Pty Ltd of and incidental to these proceedings, including any reserved costs, be paid on the standard basis by Mentech Resources Pty Ltd. In accordance with s.34(3) of the Land Court Act 2000 this Order is made an Order of the Supreme Court of Queensland and may be enforced in the Supreme Court.

HIS HONOUR, WA ISDALE
MEMBER OF THE LAND COURT

In our favored version, an Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies “Ah, after that it is turtles all the way down.”
See also A Matter of Interpretation: Federal Courts and the Law. Antonin Scalia, 1997 Princeton University Press. Page 76, note 22 where the same allusion is made.