Suzanne Hunt & Tony Johnstone v Kendall Jones (Number Two)

[2009] SAWC 4

Wardens Court of South Australia

(District Court Administrative and Disciplinary Division)

SUZANNE HUNT & TONY JOHNSTONE v KENDALL JONES  (NUMBER TWO)

[2009] SAWC 4

Judgment of Senior Warden Cannon

16 September 2008

MINING LAW

Extractive Mineral Lease; Landowner rights under s.75 Mining Act 1971; Contrast to exempt land rights; Breach of Deed by assignment without consent; MARP; Landfill; Concurrent obligations under the Mining Act 1971 and Development Act 1993

SUZANNE HUNT & TONY JOHNSTONE v KENDALL JONES  (NUMBER TWO)
[2009] SAWC 4

I have found that there was a breach of the deed and the breach is that there was a transfer without prior written consent and that continued under their protest for more than the time set out in the default clause in the deed.  They are entitled therefore to the remedy set out in the deed in the event of default and that is that there should be an order that the lease is surrendered and the land is vacated.

None of what I am saying now supplants the written reasons I have handed out.  I am just giving a short hand summary for you to understand the position.  You may want the opportunity to read the judgment.  I had intended it be posted out so that you could come prepared with the good and bad news, as the case may be, and the reasons for it so that you could argue any consequential matters.

It seems to me that there are consequential matters.  One is that there is a right of appeal.  One is that I intend to make a finding that Mr Jones rehabilitation of the lease so far has been sufficient compliance with his obligation to rehabilitate so the land owner can’t come back on him under the terms of the deed and require him to do further rehabilitation.

I note that the department may have other rights and impose other obligations and that is a matter for them, not me and he is entitled of course to orders to permit him to remove his equipment and there may be issues of costs. 

Adjourned to 25 September 2008 at 9.15am for consideration of consequential orders.