Re Kimmoth & Poole - [2009] QLC 117

LAND COURT OF QUEENSLAND

CITATION: Re Kinmoth & Poole [2009] QLC 0117

PARTIES:In the matter of Application for Mining Lease No 5180 - Application by Dorothy Kinmonth and George Craig Kinmonth for determination of compensation payable to Robert George Poole
FILE NO:MLC00008//2009
PROCEEDING:  Application for determination of compensation
DELIVERED ON:         4 August 2009
DELIVERED AT:                   Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar

ORDER/S:1. I determine compensation under s.281 in the sum of $650.
2. I award an additional amount of $65 in accordance with s.281(4)(e).
3. I direct that the miner pay the total compensation in the sum of $715 to the landowner within three months of notification of grant of the mining lease by the Mining Registrar.
4. No order for costs.

CATCHWORDS: MINING – MINING LEASE – DETERMINATION OF COMPENSATION
Mineral Resources Act 1989, S.279, 281

S.P White v Warner [2003] QLRT 40

Smith v Cameron [1986– 87] 11 QLCR
Shaw v Heritage Holdings Pty Ltd [1992–93] 14 QLCR

APPEARANCES: Not applicable – Heard on the Papers

Background

The applicants Dorothy Kinmonth and George Craig Kinmonth (the miners) seek the renewal of grant of Mining Lease 5180 in the Mareeba District. The applicants seek a term of 21 years. The application was lodged at the office of the Mining Registrar, Mareeba on 12 June 2007.
The lease is located on Lot 578 on AP 13751. Access is through the same property. A grazing operation is conducted on the property. The lease is over a surface area of 6 ha and is sought for the purpose of mining for silver, copper, tin and other minerals.

The Act

Section 279 of the Mineral Resources Act 1989 (“the Act”) provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In this instance, no agreement has been lodged with the Registrar and the matter has been referred to the Court for determination.

The matters which must be considered by the Court are set forth in s.281 (3) of the Act. Although s.281 sets out the matters to be considered, it does not define any method of assessment. In Smith v Cameron (1986) 11 QLCR. 64, the Land Court held at p.74…”
“The section in my opinion merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation. No doubt each case will depend on its own facts and circumstances but it seems to me that either method is open to the valuer.”

In Shaw v Heritage Holdings Pty Ltd (1992-93)14 QLCR 139, the Court at p.146 said:
“the method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift from one method to another.”

In considering Mitchell v Oakhill and Mitchell (10)…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Re Kimmoth & Poole

Details

AGLC: Re Kimmoth & Poole [2009] QLC 117
Case: [2009] QLC 117
Decision Date: 4 August 2009

CaseChat Overview and Summary

In the Land Court of Queensland, Dorothy Kinmonth and George Craig Kinmonth applied for the determination of compensation payable to Robert George Poole under the Mineral Resources Act 1989. The applicants sought a mining lease renewal for a period of 21 years over a 6-hectare area of land located on Lot 578 on AP 13751 in the Mareeba District. The purpose of the lease was for mining silver, copper, tin, and other minerals.

The court was required to determine the compensation payable to the landowner, as no agreement in relation to compensation had been filed with the Registrar. The matters to be considered by the court were set forth in s.281(3) of the Act, but it did not define a method of assessment. The court referred to previous cases to determine that the method of assessment would depend on the facts and circumstances of each case.

The court considered the limited evidence available and awarded compensation of $5 per annum per hectare for the term of the lease, amounting to a total of $650. The court further awarded an additional sum of $65 under s.281(4)(e) to reflect the compulsory nature of the action taken under the Act. The court directed that the miner pay the total compensation in the sum of $715 to the landowner within three months of notification of the grant of the mining lease by the Mining Registrar.

The court made no order for costs as neither party had sought an order for costs, and it was not appropriate in this matter. The decision was made by Mr BR O’Connor, Judicial Registrar.

Orders