Sieber v Taylor
[2017] QLC 9
•1 March 2017
LAND COURT OF QUEENSLAND
CITATION: Sieber v Taylor [2017] QLC 9 PARTIES: Andrew Alfred Sieber
(applicant)v David Gordon Taylor
(respondent)FILE NO: MRA505-15 DIVISION: General division PROCEEDING: Hearing of Originating Application DELIVERED ON: 1 March 2017 DELIVERED AT: Brisbane HEARD ON: 15 November 2016.
Submissions closed 6 February 2017.HEARD AT: Brisbane MEMBER: WA Isdale ORDER/S: 1. respondent pay the applicant the sum of $30,000 within 14 days of this order being made.The
2. The respondent pay the applicant’s costs of this proceeding on the standard basis.
CATCHWORDS: ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – TITLES – RIGHTS, PERMITS, LICENCES AND LEASES - where applicant claims respondent agreed to sell half share of mining lease with equipment and camp for $48,000 – where applicant claims to have paid respondent $48,000 in the form of cash, silver and opals – where respondent has failed to transfer half of his said share to applicant – where new agreement made that respondent agreed to pay applicant $30,000 for the property the subject of the earlier agreement – where respondent has not paid the $30,000.
Land Court Act 2000 s 34
Mineral Resources Act 1989 s 286C, s 363.APPEARANCES: GF Jongkind (solicitor), Frank Jongkind & Co, for the applicant.
DG Taylor, in person.
Background
The applicant, by his solicitors, filed an Originating Application on 22 October 2015. It concerns Mining Lease (ML) 60170 which is in the Koroit Opal Field near Cunnamulla. The ML is known as “Red Trace”.
The applicant’s claim
The applicant claimed in the Originating Application that in March 2012 he and the respondent agreed that the applicant would purchase half of the ML, which the respondent owned, together with equipment and the camp on the ML for $48,000.
Pursuant to this agreement, the applicant claims to have paid the respondent $48,000 in the form of cash, silver and opals, cut and uncut.
The respondent has failed to transfer half of his interest in the ML to the applicant.
On or around 8 June, 2014 a new agreement was entered into whereby the respondent agreed to pay the applicant $30,000 for the property the subject of the earlier agreement, which had been in dispute.
As the respondent has not paid the $30,000, the applicant has come to Court.
The orders sought
The applicant sought orders that a caveat lodged under dealing number 146544 be extended until the proceedings were finalised and that the respondent transfer half of his interest in “Red Trace”, the equipment and camp, to the applicant or, in the alternative, pay the applicant the sum of $30,000. The applicant has also sought an order that the respondent pay his costs of this proceeding.
The expiry of ML 60170
It emerged at the hearing that the ML had expired on 31 May 2015 and it was not renewed.[1]
[1]T 1-23 L 26-34, T 1-24 L 10-11, T 1-43 L 11-29.
The hearing
The hearing took place on 15 November 2016. The applicant was represented by his solicitor and the respondent appeared for himself. The applicant gave and called evidence. The respondent neither gave nor called evidence. At the conclusion of the hearing, the applicant was allowed until 6 December 2016 to make written submissions, which were duly received. The respondent was allowed until 3 February 2017 to provide his submissions.
The respondent’s failure to provide submissions
On 6 February 2017, an email was received by the Court on behalf of the respondent, apologising for his failure to provide the submissions due on 3 February 2017 and stating: -
“However, I regret to inform that I have exhausted all financial means available to me & am not able to renew the mining lease. I am happy for Mr Seiber (sic) to arrange payment with the Mines Department if he wishes to continue his mining endeavours.
Regards
Jodie Mahommed
(for David Taylor)”
Ms Mahommed has previously been the point of contact with the respondent so there is no reason to doubt the authenticity of the communication.
The outcome of this
It appears that the lease has long expired and the hope was to renew it. There is no prospect of the respondent doing that.
The respondent has not provided any submissions so the Court only has the benefit of those provided on behalf of the applicant.
It is submitted that the Court has jurisdiction in the present matter because of s 363 of the Mineral Resources Act 1989 (MRA).
The parts of s 363 upon which the applicant relies are as follows:
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, to any activity under section 386V, 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; and
(b) the rights and entitlements to minerals mined under any mining tenement or other authority granted under this Act or any other Act relating to mining and to the products of mining; and
…
(3)The Land Court also has jurisdiction to hear and determine actions, suits and proceedings with respect to any demand for debt or damages arising out of or made in respect of—
(a) the carrying on of prospecting, exploring or mining; or
(b) any agreement relating to prospecting, exploring or mining; or
(c) the carrying out of an activity under section 386V.
The applicant accepts that the caveat cannot be extended as it has expired.
Reliance is placed on s 286C of the MRA for the proposition that the ML is still in force so that the Court would be able to proceed as the applicant requests in respect of it. Section 286C is in the following form:
286C Continuation of lease while application being dealt with
(1)Subsection (2) applies if—
(a) a properly made application for renewal of a mining lease is not withdrawn, refused or granted before the lease’s expiry day ends; and
(b) after the expiry day, the holder—
(i)continues to pay rental on the lease and other amounts required to be paid under this Act; and
(ii)otherwise complies with this Act and the lease conditions.
(2)The lease continues in force subject to the rights, entitlements and obligations in effect immediately before the end of the expiry day until the application is withdrawn, refused or granted.
Nothing in the evidence would allow the Court to form a view contrary to that suggested by the email of 6 February 2017 on behalf of the respondent, which is not evidence, namely that there is no evidence of the existence of any of the requirements set out in s 286C. Indeed, the evidence is to the contrary. In his examination-in-chief, the applicant provided a printout of a text message from the respondent. It became Ex 3. It included the following passage:-
Fri., 16 Sep., 11:49 am
Hang Up Message: [telephone #] reached your MessageBank on 16/09/2016 at 11:49 & did not leave a message.
Today 4:09 pm
Andrew It would be in ur best interest to lift the caveat so the lease can be sold. That way u get money and I get money because I have none to give u. So give it some thought before morning.
Andrew the lease is up for newal (sic) and i am not going to renew it if the caveat is not lifted. So use some common sence (sic) and lift the caveat so it can be sold then we both get money. I need a (sic) answer by Friday because The Mines has put a time frame on it to be renewed or it reverts back to there (sic) property!
NO LEASE. NO LAND COURT NO MONEY for either party!”
In response to questions from the Court, Mr Jongkind stated from the bar table that the Mining Registrar had not taken any action in relation to the lease and was prepared to renew it after the decision in this case. This is not evidence, and the Mining Registrar must apply the MRA. The provision relied upon in closing submissions, s 286C, will not be of assistance since s 286C (1) (b) (i) has, on the evidence, not been shown to have been complied with. The Court is not able to be satisfied on the evidence before it that s 286C of the MRA is applicable in the present case so the ML cannot be the subject of the orders sought, since it has expired and does not continue to be in force by virtue of s 286C. The Court may not make an order that the respondent transfer to the applicant a half share of ML 60170.
There are no submissions concerning how the Court could make any orders in respect of transferring a half share of the camp and equipment referred to in regard to the ML. This concerns the verbal agreements said to have been made between the parties in about October/November 2011.[2] There is no evidence particularising what items might be included in this description so it would not be possible, on the evidence presented, to make any order certain enough to be capable of being carried out.
[2]Ex 1 paras 26, 29.
The alternative claim for $30,000
It is submitted that the Court has jurisdiction to make this order due to the operation of s 363(3)(b) of the MRA. The claim is for a debt arising out of or made in respect of an agreement relating to mining.
The applicant, in Exhibit 1, claims the existence of a verbal agreement with the respondent under which the respondent was to pay the applicant the sum of $30,000 in 2014 to dissolve their business partnership in the “Red Trace” ML.[3]
[3]Ex 1 para 5.
The respondent cross-examined the applicant at the hearing and did not challenge this at all.
Evidence was given by Ms Selena Marie Russell, who was called on behalf of the applicant. Her affidavit, Exhibit 4, states that on the morning of 8 June 2014 the respondent agreed to pay the applicant the sum of $30,000 in three deposits of $10,000 to the applicant’s National Australia Bank account on or before 15 October 2014[4]. Ms Russell confirmed her affidavit.[5] When cross-examined by the respondent[6], there was no challenge made to anything which is presently relevant. There was only brief questioning about whether he had raised his voice during a telephone call.
[4]Ex 4 paras 6-15 and exhibit SR1 to the affidavit of SM Russell.
[5]T 1-27 L 21-26.
[6]T 1-28 L 1-22.
Mr Kenneth James Langley was called to give evidence for the applicant. He was cross-examined. None of his evidence became necessary for the determination of this matter so it is unnecessary to refer to it any further.
Conclusion in relation to the claim for $30,000
The evidence of an agreement by which the respondent was to pay the applicant the sum of $30,000 to dissolve their business partnership regarding ML 60170 is all one way. This Court has jurisdiction in relation to the present claim as it is an action with respect to a demand for a debt in respect of an agreement related to mining, namely the agreement to dissolve the business partnership to exploit ML 60170.
The affidavit of Ms Russell, Exhibit 4, paras 13, 14 and 15 provides evidence that the debt has not been paid. To the extent that Exhibit 1, the applicant’s affidavit, at para 67 suggests that the money had been paid, it is clearly in error. It states:
“October – I rang the Respondent and questioned him as to why he had deposited $30,000.00 into my bank account as agree (sic). Ms Selena Russell was present with me when I made this phone call.”
Exhibit 4 states:
“13.Finally, on 15th October, 2014, I witnesses (sic) Andrew Sieber call David Taylor on his
14.mobile phone to discuss the progress of his payments, which had not landed in his National Australia Bank Account as agreed.
15.I heard David Taylor raise his voice and Andrew Sieber was visibly upset when David Taylor told him he would pay the money when he was ready and proceeded to hang up on Andrew Sieber, terminating the phone call.”
The Court is satisfied that it should order the respondent to pay the applicant the sum of $30,000 within 14 days of the Court’s order being made.
Costs
The applicant seeks an order that the respondent pay the applicant’s costs to be assessed. There is no submission to the contrary.
On behalf of the applicant, the Court was directed to s 34 of the Land Court Act 2000 as providing the authority to award costs in the present case. That submission is uncontradicted. Section 34 is in the following terms:-
Costs
(1)Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2)If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.
The purpose of costs it not punitive but is to reimburse the successful party for the costs which they have properly incurred in the case. The applicant has been successful on one of the alternative bases. The respondent did not give or call any evidence. The respondent filed an affidavit on 1 June 2016 but did not seek to tender it. Also filed by or on behalf of the respondent on 1 June 2016 were the affidavit of Sharon Ellen May Davey, the affidavit of Leonard Darvell, the affidavit of Dennis Arthur Giles and a contract of sale between the respondent and Schlangenotto Mining Pty Ltd dated 22 August 2011. They were not referred to at the hearing nor were they tendered. There is nothing in any of them which would influence the conclusions which the Court has reached in this case.
There was nothing put before the Court by the respondent which, if accepted, might have brought about a different outcome. The successful party, the applicant, ought to have an order for costs in his favour on the standard basis.
Orders:
1. respondent pay the applicant the sum of $30,000 within 14 days of this order being made.The
2. The respondent pay the applicant’s costs of this proceeding on the standard basis.
WA ISDALE
MEMBER OF THE LAND COURT
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