Single v Van Motman

[2015] NSWLEC 1133

Land and Environment Court

New South Wales

Medium Neutral Citation:	Single v Van Motman [2015] NSWLEC 1133
Hearing dates:	28 April 2015
Date of orders:	04 May 2015
Decision date:	04 May 2015
Jurisdiction:	Class 8
Before:	Moore SC
Decision:	The Court declares that: 1. Rodney Glen Single has a fifty per cent (50%) equitable interest in Mineral Claim 51706; and 2. Rodney Glen Single has a fifty per cent (50%) equitable interest in Mineral Claim 51707.
Catchwords:	MINERAL CLAIM: adjudication between competing interests; equitable interest claimed; renunciation of interest by deceased estate
Legislation Cited:	Evidence Act 1995 Mining Act 1992 Uniform Civil Procedure Rules 2005
Category:	Principal judgment
Parties:	Rodney Glen Single (Applicant) Alphonse Van Motman (Respondent)
Representation:	Applicant in person Respondent in person
File Number(s):	80973 of 2014

Judgment

Introduction

1. SENIOR COMMISSIONER: Lightning Ridge is a town in north-western New South Wales. It is a significant population centre for opal mining and has, in its general district, two significant areas of opal exploration and mining. Exploration for opals and mining to recover the gemstones has been taking place in the Lightning Ridge district since the early 1900s. The opal fields are the Lightning Ridge opal fields and the Grawin Glengarry Sheepyards opal fields (the latter being some 60 km from the Lightning Ridge township). There are also a number of other, smaller satellites opal fields in the broader Lightning Ridge district. Individual opal mining workings, known as mineral claims, dot these opal fields.

2. As Lightning Ridge is somewhat remote from major population centres, it is fair to say that there is a deal of informality associated with the town. This is starkly demonstrated when driving into Lightning Ridge on the access road from the Castlereagh Highway. Conventionally, country towns in New South Wales will display a sign at their outskirts giving the name of the town and its current population. There is such a sign on the outskirts of Lightning Ridge but in lieu of a population number, there is a “?”. This informality also extends, at least to the extent demonstrated by the matters in dispute in these proceedings, to dealings (or alleged dealings, given the matters requiring resolution) concerning mineral claims.

3. In the context of this decision, I use the words “district” and “opal field” in a purely descriptive fashion not in any sense that might be derived from a statutory meaning of either of those terms.

The mineral claims

4. Mineral claims are a form of mining title established by Part 9 of the Mining Act 1992 (the Mining Act), a Part designed to regulate the activities of the small-scale mining sector in a fashion that is modestly less formal than that which is provided for in other parts of the Mining Act regulating larger scale mining such as coal mining.

5. There is a limit of two on the number of mineral claims that can be registered in the name of any individual or entity.

6. These proceedings concern two adjacent mineral claims in the Grawin Glengarry Sheepyards opal fields - Mineral Claim 51706 and Mineral Claim 51707.

7. There is no dispute that the respondent in these proceedings, Mr Van Motman, is the registered title holder of each of these claims. What is in dispute, however, is whether Mr Single, the plaintiff in the proceedings, has an unregistered equitable interest in either or both of the claims and, if so what is the extent of his interest(s).

8. By way of commencing observation, it is appropriate to note that the Mining Act does not require that dealings concerning mineral claims are required to be in writing (a position in distinction with the requirements of s 160 of the Mining Act that requires that any dealings in some defined classes of mining interests must be in writing - a matter discussed in more detail later).

Commencement of the proceedings

9. Although Mr Single had initially retained a firm of solicitors to represent him, he subsequently withdrew their instructions and he represented himself in the proceedings. Mr Van Motman had been self-represented from the time he became aware of the proceedings being commenced against him.

10. The summons commencing the proceedings was prepared by Mr Single's former solicitors and an affidavit of service of the originating process was sworn by the principal of the firm. This affidavit attested that the author had ascertained Mr Van Motman's email address; that Mr Van Motman had agreed to accept service of the originating process by email; and that this had, in fact, been effected.

11. This, in fact, was not valid service commencing the proceedings as all originating process is required to be served personally (Part 6 rule 2(3) and Part 10 rule 20(2)(a) of the Uniform Civil Procedure Rules 2005). Fortunately, this defect in service was remedied by Mr Van Motman filing a Notice of Appearance with the Court - the filing of which had the effect of curing the defect in service and obviating the necessity to consider that procedural aspect further.

The site inspection

12. The proceedings commenced with me meeting the parties at the Lightning Ridge courthouse at 9.30 AM on the morning of the hearing to proceed to a site inspection.

13. I drove myself, in convoy with the parties, to the two mineral claims. We travelled approximately 60 km from Lightning Ridge to the location of Mineral Claim 51706 and Mineral Claim 51707. These are located in the Grawin Glengarry Sheepyards opal fields, the second of the two main opal fields in the wider Lightning Ridge district.

14. After our arrival at the two mineral claims, we walked the perimeter of the two claims. Each of Mr Single and Mr Van Motman was invited by me to point out any matters that they wished to draw specifically to my attention.

15. On each claim, I observed the top of a vertical shaft leading to the underground working galleries below. The parties had indicated to Dixon C at the final pre-trial directions hearing that no underground inspection was required of either mineral claim and no change to this position was proposed during the site inspection.

16. Mr Single identified an access shaft on Mineral Claim 51707 which he said had been put down by a previous holder of a claim over the area, a claim that he had waited to expire before he had, himself, pegged a claim over the area.

17. Mr Single also pointed out seven or eight mounds of spoil that had been removed by him from underground workings and left on Mineral Claim 51706. He said that he had removed additional truckloads of material excavated from the workings under the claims to the communal disposal dump.

18. Mr Van Motman did not dispute that Mr Single had excavated the visible material nor did he dispute that Mr Single had, as Mr Single claimed, removed further material to the communal dump.

19. Mr Van Motman showed me a covering that he said he had put on a 9 inch exploration borehole on Mineral Claim 51706 and showed me the safety measures for (including an enclosure of) the access shaft to the workings on claim 51706 through which Mr Single had removed the earlier discussed material.

20. Mr Van Motman said that these safety measures together with safety measures he had needed to undertake to other 9 inch boreholes on both claims were measures he had been required to take in response to concerns expressed by the Department about safety issues associated with the two claims (this was also adverted to in para 10 of Exhibit 1).

21. We then returned to Lightning Ridge courthouse where the proceedings commenced at 12 noon and concluded at ~ 2.45 PM without needing to extend into the reserve day.

Procedural matters

22. Both Mr Single and Mr Van Motman conducted their case with the only evidence (apart from that which was seen or given as observations during the site inspection) being given by affidavit or statutory declaration. At the final pre-trial directions hearing, Mr Single and Mr Van Motman indicated that neither of them proposed to cross-examine any of those providing evidence in the other party's case (including each of the principals - as Mr Single was the author of three affidavits in his own case whilst Mr Van Motman was the author of one affidavit in his case).

23. Mr Single and Mr Van Motman both adhered to this position during the course of the hearing at Lightning Ridge courthouse. The necessary consequence of this is that, where there is a conflict of evidence, I have not had any opportunity to observe the demeanour or responsiveness of any of the witnesses in the witness box to assist me in undertaking an evaluation of the evidence and a resolution of the tensions that necessarily arise from the matters in dispute in the proceedings. However, given my final conclusions in the proceedings, no insurmountable difficulties have arisen as a consequence of this.

24. At the commencement of the proceedings in Lightning Ridge courthouse, I advised Mr Single and Mr Van Motman that, as they were both self-represented, I had an obligation to assist them with procedural matters but that such assistance did not and could not extend to assisting either of them with matters going to the merit of their case. I explained that, whatever the informality of dealings that might arise outside the courtroom concerning rights and entitlements of any type concerning mineral claims, I was obliged to deal with the matters in dispute in these proceedings within the framework set out by the Mining Act and, for the conduct of the proceedings, within the constraints imposed by the Evidence Act 1995.

25. It was necessary for me to provide some little explanation to them concerning the difference between evidence and submissions and concerning relevance and other admissibility issues relating to the “evidence” in the affidavits. I did so as it had become obvious to me, from my examination of the proposed evidentiary material as part of my pre-trial preparation, that none of the affidavits had been prepared with the benefit of legal advice concerning statutory provisions relating to:

• Relevance;

• Opinion evidence;

• Hearsay evidence; and

• Appropriate language including gratuitous and/or accusatory comments.

26. I explained the broad nature of these restrictions to Mr Single and Mr Van Motman prior to inviting Mr Single to open his case by reading the affidavit material upon which he proposed to rely. I also explained to them the formal concept of “reading” an affidavit in an in trial evidentiary sense as opposed to an informal examination of such a document for the purposes of understanding the nature of the case (with the former causing the documents to become evidence whilst the latter did not do so).

27. I explained to Mr Single and Mr Van Motman the nature of my concerns about the proposed evidentiary material by referring to a number of examples from the affidavits that were proposed to be read that offended against the requirements for admissibility. I did so by reference to equal numbers of examples from the material that had been filed and served by each of the parties.

28. I indicated to them that, if necessary, I would go through each affidavit as it was proposed to be read and rule sentence by sentence, on the admissibility of the material contained therein.

29. However, I indicated that, if it was acceptable to each of them, an alternative approach would be for me to take the affidavits in the form in which they had been filed but do so on the basis that, in my evaluation of the content of each affidavit, I would ignore all material that was inadmissible (for whatever reason); treat as evidence that which was relevant as such and treat such other material as relevant submissions where that was the position.

30. I indicated I would set out in my judgement those matters that I determined to be admissible, relevant and requiring consideration and analysis in my resolution of the matters in dispute. Mr Van Motman and Mr Single both agreed that this course was acceptable to them and was the appropriate one to be adopted in light of the explanation that I had given to them.

Can there be an interest in a mineral claim that is not evidenced in writing?

31. The Mining Act requires that, for some classes of mining interests, all transactions must be in writing. This is as a consequence of the provisions of s 160(1) of the Mining Act, a provision in the following terms:

A legal or equitable interest in an authority may not be created or disposed of except by instrument in writing.

32. As can be seen from the terms of the provision, it applies to mining authorities. Authority is a term defined in the dictionary to the Mining Act, a definition in the following terms:

authority means an exploration licence, an assessment lease or a mining lease.

33. The Mining Act defines mining lease as being a mining lease granted under Part 5 of the Mining Act.

34. It is clear that this definition is confined to interests created under Part 5 of the Mining Act.

35. Mineral claims such as are the subject of these proceedings do not fall within this definition. The Mining Act defines mineral claim in the following terms:

mineral claim means a mineral claim granted under Part 9.

36. It therefore follows that it is possible to have interests created in or dealings undertaken with respect to mineral claims where those dealings are not recorded in documentary form and the absence of such documentary evidence of a transaction does not render any such transaction (to the extent to which such a transaction is otherwise demonstrated to exist by satisfactory evidence) incapable of enforcement in proceedings such as these.

Can there be equitable interests in mineral claims?

37. I have earlier noted the comparatively informal nature that, at least in the instance of the matters requiring to be dealt with in these proceedings, can attend dealings with mineral claims in the opal fields of the Lightning Ridge district.

38. However, the Mining Act itself, in s 218B, specifically envisages not only the existence of equitable interests but also provides a method for the formal recording of them (if an application is made to the Secretary of the Department for this to occur).

39. It is relevant to note, as part of the framework within which the matters in dispute require to be considered and the evidentiary analysis undertaken concerning them, that there is no evidence that Mr Single has made an application to have recorded the interests that he asserts he has with respect to these two mineral claims through the process provided for by this section of the Mining Act.

The scope of the proceedings

40. The summons commencing the proceedings was filed on 26 November 2014 and sought both interim and final relief. The interim relief that was sought was injunctive and directed to preventing Mr Van Motman from operating either mineral claim and from selling or otherwise disposing of any opal mined from the claims (whether before or after the granting of the injunction sought).

41. The matter came before the List Judge (Biscoe J) on the first return date, 12 December 2014. On that occasion, the Court's file does not record the making of any interim orders and there was no appearance on behalf of Mr Van Motman.

42. When the matter was again before the List Judge (Craig J) on 6 February 2015, Mr Single and Mr Van Motman both appeared in person. On that occasion, the Court's file also does not record the granting of any interim relief.

43. The final relief, as pleaded in the Summons commencing the proceedings, was drafted by Mr Single’s then legal representatives. It is necessary to reproduce what is set out in the Summons in precisely the form that it appears in that document in order to understand why it was necessary for me to seek to explore with Mr Single, at the commencement of the hearing, precisely what relief he was seeking given that, as can be seen below, that which was set out in the Summons is garbled and, at least as written, incapable of being ordered. The final relief sought, as pleaded, was in the following terms:

1. A declaration of the complainant interest in the claims via taking accounts in relation to all transactions in relation to the claims.

2. The defendant to all such things and such all such documents to give effect to the orders of the court in the event of any failure to act or sign any documents then the Registrar of the Land and Environment Court at Lightning Ridge be empowered to do such acts and sign such documents or any other orders this honourable court deems fit.

3. Any other order this Honourable court deems fit.

4. Costs

44. Because the final relief that was set out in the summons was, as can be seen, in such garbled form as to be incapable of being granted, I asked Mr Single to explain to me precisely what he was seeking as an outcome from the proceedings.

45. I suggested to Mr Single that I take a short adjournment to enable him to consider this. After that adjournment, Mr Single indicated to me that what he was seeking was that I decide that he was the true owner of both mineral claims and that I should order that that both claims be registered in his name. In order to make it clear what I understood, in more formal terms, what I was dealing with, I suggested to Mr Single that the final relief that he was seeking might be formulated as follows:

1. A declaration that, with respect to each mineral claim, Mr Single was entitled to a 100% interest in the claim; and

2. To the extent that the Court might have power to do so, the Court make orders directing those responsible for the registration of mineral claims to register each mineral claim in Mr Single’s name.

46. Mr Single indicated, in response to a question from me, that those propositions reflected the nature of the relief he was seeking in the proceedings. I indicated to Mr Single that the appropriate way to have me to deal with those matters was for me to grant him leave to amend the summons so that the final relief sought would be in those terms. He indicated, in response to a further question, that he wished to be granted leave to do so. Mr Van Motman indicated that he did not object to this course and, therefore, I granted Mr Single leave to amend in those terms.

The evidence

47. As earlier noted, Mr Single and Mr Van Motman indicated that neither of them wished to cross-examine any of the witnesses proposed to give evidence for the other party by way of affidavit or statutory declaration. Mr Single and Mr Van Motman also each agreed that the appropriate way to deal with questions of admissibility, relevance and the like, was for me to deal with the contents of each document on the following basis:

• Such of each document as was clearly evidence relevant to the issues in the proceedings would be treated as such; and

• Such of each document as was in the nature of a submission on matters relevant to the issues in the proceedings would be treated as such; but

• Any material contained in any of the documents that was irrelevant or otherwise inadmissible on any basis would not be taken into account by me in determining the issues in dispute in the proceedings.

48. On the basis of the acceptance by Mr Single and Mr Van Motman of this as being the appropriate basis for the admission of the written material, six affidavits were read and tendered by Mr Single. They were:

• Affidavit of Rodney Glen Single dated 23 October 2014 (Exhibit A);

• Affidavit of Rodney Glen Single dated 10 February 2015 (Exhibit B);

• Affidavit of Rodney Glen Single dated 31 March 2015 (Exhibit C);

• Affidavit of Stanley Single (brother of the applicant) dated 12 February 2015 (Exhibit D);

• Affidavit of Tony Grace dated 13 February 2015 (Exhibit E); and

• Affidavit of James Robinson dated 12 February 2015 (Exhibit F).

49. On behalf of Mr Van Motman, two affidavits were read and tendered and two statutory declarations were tendered. The affidavits were:

• Affidavit of Alphonse Van Motman dated 14 March 2015 (Exhibit 1);

• Affidavit of Christine Van Motman (Mr Van Motman's wife) dated 14 March 2015 (Exhibit 2).

50. The two statutory declarations tendered in Mr Van Motman's case were:

• Statutory declaration of Marianne Webb dated 1 February 2015 (Exhibit 3); and

• Statutory declaration of Christopher Waterford dated 1 February 2015 (Exhibit 4).

51. Although there were eight affidavits and two statutory declarations in evidence, the relevant information necessary to be considered to resolve the fundamental issue in dispute in these proceedings is comparatively limited. I have set out below the relevant timeline/facts that I am able to extract from the various affidavits that were in evidence. These are as follows:

• Mr Peter Waterford and Mr Single had a mining partnership since at least 1995;

• The mining partnership between Mr Waterford and Mr Single was generally on an equal shares basis with Mr Waterford providing the mining equipment and necessary financing and Mr Single providing his mining skill and labour;

• In August 2006, Mineral Claim 51706 and Mineral Claim 51707 are registered with Mr Van Motman as the claim holder;

• Although each mineral claim was registered in the name of Mr Van Motman, this was done pursuant to an agreement with Mr Peter Waterford that Mr Van Motman would act as the nominal claim holder on behalf of the mining partnership between Mr Waterford and Mr Single;

• Throughout the period since Mineral Claim 51706 and Mineral Claim 51707 were registered in Mr Van Motman's name, the necessary annual fees were paid by or on behalf of Mr Van Motman. Although there is a dispute between Mr Van Motman and Mr Single as to whether or not some of those fees were paid by Mr Waterford or paid by Mr Waterford with reimbursement by Mr Van Motman or paid personally by Mr Van Motman, this, in my opinion, does not raise issues requiring resolution in these proceedings. It is sufficient that this evidence demonstrates that registration of each of the mineral claims was properly maintained in the name of Mr Van Motman throughout all relevant periods;

• In 2009, Mr Single undertook underground mining activity on Mineral Claim 51706 and Mineral Claim 51707 with a greater extent of that activity taking place on Mineral Claim 51706. The time and the extent of Mr Single’s underground working on the mineral claims was accepted by Mr Van Motman (comment by Mr Van Motman during the course of the site inspection);

• In 2009, Mr Waterford contracts a serious and eventually terminal illness;

• In 2009, after his diagnosis, Mr Waterford loses all interest in mining activities and gives Mineral Claim 51706 and Mineral Claim 51707 to Mr Van Motman in recompense for work that Mr and Mrs Van Motman have performed for Mr Waterford (Mr Van Motman’s position). However, Mr Single disputes that Mr Waterford lost interest in mining and says that, from 2009 until his death, Mr Waterford maintained his interest in mining activities and Mr Single held regular discussions with him about mining matters;

• In 2012, Mr Waterford dies;

• No further Mining Activity takes place on Mineral Claim 51706 or Mineral Claim 51707 after 2009 other than the sinking of a new shaft;

• In 2014, Mr Van Motman is advised of safety issues on the mineral claims and undertakes works to secure the access shaft on Mineral Claim 51706 and boreholes on both mineral claims;

• In 2014, Mr Kelly, the land owner of the land upon which Mineral Claim 51706 and Mineral Claim 51707 are located, wrote to Mr Van Motman as the claim holder to point out that, since the hiatus in collection of landholder compensation payments that had occurred in 2010, no compensation payments had been made with respect to either of these claims. Mr Van Motman paid the outstanding compensation amounts;

• In February 2015, the executors of Mr Waterford’s estate renounce any claim that the estate might have concerning ownership of Mineral Claim 51706 or Mineral Claim 51707 (Exhibit 3 and Exhibit 4).

52. It is now appropriate to turn to consideration of what conclusion is appropriate to be drawn from that material as to the interests that have existed in the past and, whether modified or not, continue to exist at the present time in Mineral Claims 51706 and 51707.

Should the two claims be considered separately?

53. First, it is appropriate to consider whether there is any distinction to be drawn that might suggest different conclusions might apply to each of the claims.

54. I do not consider that anything turns on the fact or extent or location of the underground mining activities undertaken by Mr Single accessed through Mineral Claim 51706.

55. During the course of the hearing, I asked Mr Single and Mr Van Motman whether they considered that there should be a common outcome for each of the mineral claims. They both agreed that this was appropriate.

56. There is nothing else in the evidence that could potentially cause me to reach a contrary conclusion.

The factual matter for determination

57. In the final analysis, what I am required to determine is what interest, if any, do each of Mr Single and Mr Van Motman hold in Mineral Claim 51706 and Mineral Claim 51707 as at the date of the hearing in these proceedings.

The scope and disposition of interests in Mineral Claim 51706 and Mineral Claim 51707

58. The is no contest between Mr Single and Mr Van Motman that, from the beginning, Mr Van Motman was the nominal titleholder of both Mineral Claim 51706 and Mineral Claim 51707 but that the beneficial owners of the two mineral claims were Mr Single and Mr Waterford through their equal shares mining partnership. In effect, Mr Van Motman held each of Mineral Claim 51706 and Mineral Claim 51707 in trust for the two mining partners.

59. Whether or not the mining partnership remained active or, if dormant, was intended to be able to be revived, does not matter, it seems to me, in the resolution of these proceedings.

60. Because Mr Van Motman, although the nominal titleholder, held the titles as trustee for Mr Single and Mr Waterford with each holding a 50% equitable interest in both mineral claims, it is necessary to consider what disposition, if any, might have been made of either or both of these equitable interests.

61. As both Mr Single and Mr Van Motman adopted the position that he was entitled to a 100% interest in both the mineral claims, I indicated to them that I wished them to explain to me how each of them said that they acquired such a complete interest and what was the relevant supporting evidence of their asserted position.

Mr Single’s position

62. In 2011, Mr Single moved from Lightning Ridge to Leeton to provide better opportunities for his children. It was Mr Single's position that:

• Although he had moved to Leeton with his family, he returned regularly to Lightning Ridge undertaken mining activities;

• There were valid reasons (flooding of the underground workings; equipment damage caused by the hardness of the ground) why there had been no further mining activity on Mineral Claim 51706 or Mineral Claim 51707 since 2009 and that these were set out in his evidence;

• Mr Waterford clearly intended that there be ongoing mining activity of their joint mining partnership and, indeed, that Mr Waterford intended that this continue after his death (unexecuted document - Attachment C to Exhibit 1 envisaging that Mr Single would use Mr Waterford's mining equipment for up to a further five years after Mr Waterford's death and apply portion of the profits to the benefit of Mr Waterford's fiancée);

• The unexecuted agreement evidenced Mr Waterford’s intention to give Mr Waterford's equitable interests in Mineral Claim 51706 and Mineral Claim 51707 to Mr Single.

Mr Van Motman’s position

63. The position taken by Mr Van Motman, as I understood him, was that Mr Single had effectively abandoned any interest he had after 2009 when he ceased active mining on the two mineral claims. The consequence of this was that complete ownership reverted to Mr Waterford and that Mr Waterford had made a gift, during his life, of his interest to Mr Van Motman.

64. Mr Van Motman also pointed to the fact that, in response to safety concerns expressed in 2014, he undertook the shaft and borehole safety works earlier described. He also relied upon his payment of the land owner compensation amounts that were outstanding.

Consideration

65. Neither of these absolute positions is, in my opinion, sustainable on the evidence.

66. First, I am satisfied that the extent of the mining work carried out by Mr Single in 2009 and his evidence concerning the reasons why further activities were suspended is credible and, absent any express evidence to the contrary is to be accepted. I therefore am unable to conclude that there was any abandonment of the mining partnership nor any reversion to Mr Waterford of Mr Single's 50% equitable interest in each of Mineral Claim 51706 and Mineral Claim 51707.

67. On the other hand, the existence of the attachment to Exhibit 1 setting out the range of equipment that was proposed to be allowed to be used by Mr Single for a five-year period after Mr Waterford's death clearly does not support the proposition that Mr Waterford had, effectively, abandoned any interest in or ongoing involvement in mining activities from 2009 (or, indeed, any later date prior to his death).

68. I am therefore not satisfied that there is a proper evidentiary basis upon which I can accept Mr Van Motman's assertion that, in 2009, Mr Waterford relinquished his interests in Mineral Claim 51706 and Mineral Claim 51707 to Mr Van Motman. Beyond the mere assertions of this occurring made by Mr and Mrs Van Motman, the documentary evidence (such as it is) does not support this proposition.

69. I do not consider that the safety activities or landowner compensation payments assist Mr Van Motman's case as the payments and safety obligations were ones which necessarily fell on him as the registered claim holder and their satisfaction was clearly his responsibility.

70. I therefore cannot be satisfied to the degree of comfort necessary in these circumstances that Mr Waterford's 50% equitable interest in Mineral Claim 51706 and Mineral Claim 51707 was vested to Mr Van Motman in 2009.

71. However, there is also no proper evidentiary basis upon which I can be satisfied that Mr Waterford intended to divest his interest in Mineral Claim 51706 and Mineral Claim 51707 to Mr Single in the fashion for which Mr Single contends. There are a number of reasons why I have reached this conclusion.

72. First, to the extent that the mining equipment document (Exhibit 1 Attachment C) might be said to evidence Mr Waterford's intentions, the sole extent to which any express conclusion can be drawn concerning benefits from mining activities is that a nominated percentage of Mr Waterford’s entitlement was to be applied to the benefit of Mr Waterford's fiancée. There is nothing that would draw me to the conclusion that the remaining 40% of Mr Waterford's interest was being gifted to Mr Single. Indeed, on Mr Single’s own evidence, Mr Waterford retained an active interest in and involvement with mining activities until Mr Waterford's death.

73. I therefore conclude that, as at the date of his death, Mr Waterford retained a 50% beneficial interest in each of Mineral Claim 51706 and Mineral Claim 51707.

Preliminary conclusions concerning Mineral Claims 51706 and 51707

74. The following broad propositions can be distilled from the timeline and related evidence:

1. Although Mr Van Motman was the registered titleholder for Mineral Claims 51706 and 51707 since August 2006, the beneficial (equitable) owners of the claims from each relevant date were Mr Single and Mr Waterford in equal shares.

2. Nothing that Mr Waterford did the course of his lifetime had the effect of transferring his interest in either Mineral Claim 51706 or Mineral Claim 51707 to Mr Single or to Mr Van Motman.

3. At the time of his death, the beneficial interest that Mr Waterford had in each of Mineral Claims 51706 and 51707 was an entitlement of his estate.

75. However, these preliminary conclusions are not the end of the matter.

Renunciation by the estate of the late Peter Waterford

76. The executors of Mr Waterford's estate have expressly renounced any interest in Mineral Claim 51706 or Mineral Claim 51707 and have done so in favour of Mr Van Motman (Exhibit 3 and Exhibit 4).

77. Mr Van Motman tendered statutory declarations from Mr Christopher Waterford and Ms Marianne Webb, each of whom deposed that they were an executor of the estate of the late Peter Waterford. Each of them deposed that, as executors, the estate did not seek to enforce any entitlement to any interest in either mineral claim. Although no copy of Mr Waterford's will was in evidence, I am satisfied that, to the extent that the evidence discloses it, at the time of his death, Mr Waterford had an unregistered equitable interest in each of the mineral claims with that equitable interest being to the extent of 50% in each of those claims, but that those interests had now effectively been renounced by the executors of Mr Waterford's estate.

78. Whether or not that renunciation is appropriate to have been made is not a matter requiring my consideration in these proceedings. It is sufficient for these proceedings that that renunciation has taken place. I am therefore satisfied that, from at least 1 February 2015 (the date of the statutory declarations), Mr Van Motman has been the holder of a 50% interest in each of Mineral Claim 51706 and Mineral Claim 51707.

79. It is unnecessary for me to determine whether or not Mr Van Motman's interests arise as a consequence of an express renunciation of Mr Waterford's estate’s interest in the two mineral claims with that renunciation being in favour of Mr Van Motman or whether the renunciation was a bare one with the effect that Mr Van Motman's interests arise solely through his status as the registered claim holder for each of the two mineral claims.

The concluded position with respect to interests of Mr Single and Mr Van Motman

80. From that set out above, it follows that I have determined that Mr Single and Mr Van Motman each have a 50% interest in Mineral Claim 51706 and that each has a 50% interest in Mineral Claim 51707.

How should this outcome be reflected in the orders of the Court?

81. As it seemed to me during the course of the hearing that the conclusion which I have reached was one that was potentially available to me as an outcome of the proceedings, I asked Mr Single and Mr Van Motman to propose to me what additional orders I might consider making if I were so to conclude.

82. Mr Single’s proposition to me was that, if I concluded that he and Mr Van Motman held at equal interests in the two mineral claims, each of them should be entitled to an exclusive interest in one mineral claim and that he, Mr Single, should have first choice as he was the active mining partner.

83. Mr Van Motman, on the other hand, expressed the view that one of them should buy the other one out so that either he or Mr Single would end up with a 100% interest in both mineral claims. Mr Van Motman did not express any preference as to which of him and Mr Single should be ordered to be the acquiring party if I were to adopt such a course. Whilst either of these courses might embody an effective resolution of the position that will follow from my conclusion as to the holding of interests in the two mineral claims, neither of them is appropriate to be adopted by me.

Conclusion

84. I have concluded that Mr Single and Mr Van Motman each have a 50% interest in Mineral Claim 51706 and Mineral Claim 51707. Mr Single’s interest is an equitable one capable of being registered pursuant to s 218B of the Mining Act whilst Mr Van Motman's interest in each mineral claim arises as a consequence of him being the registered claim holder and there being, at least from 1 February 2015, no other potential interest holder for the residual 50% interest in either of the mineral claims.

85. Mr Single’s application was for declarations as to the extent of his interests in each mineral claim and, had he been successful in his assertion that he was entitled to a complete and exclusive interest in each mineral claim, that I should require transfer of title holding to him. However, this latter element of his claimed relief does not arise as a consequence of my findings as to the partial nature of his interest in each mineral claim.

86. Although s 218B of the Mining Act permits the registration of equitable interests in mineral claims, the Act does not empower me to direct the registration of Mr Single’s equitable interests in the two mineral claims unless he were to have applied for their registration and such registration were to have been be refused. If this were to occur, Mr Single would then have the right to appeal to the Court against that refusal. As this has not occurred, I can make no such order. As consequence, it is appropriate that the outcome of the proceedings be confined to declarations setting out the nature of Mr Single’s interest in each of Mineral Claim 51706 and Mineral Claim 51707.

Orders

87. The Court declares that:

1. Rodney Glen Single has a fifty per cent (50%) equitable interest in Mineral Claim 51706; and

2. Rodney Glen Single has a fifty per cent (50%) equitable interest in Mineral Claim 51707.

Tim Moore

Senior Commissioner and

Commissioner for Mining

Decision last updated: 04 May 2015