Titan Sandstone Pty Ltd v ChongHerr Investments Pty Ltd
[2008] QLC 235
•24 December 2008
LAND COURT OF QUEENSLAND
CITATION: Titan Sandstone Pty Ltd v ChongHerr Investments Pty Ltd [2008] QLC 0235
PARTIES:Titan Sandstone Pty Ltd
(applicant)
v
ChongHerr Investments Pty Ltd
(respondent)
FILE NO:MRAA118/2007
DIVISION:Land Court of Queensland – General Division
PROCEEDING: Application and Counterclaim relating to ownership of minerals on ML 50013
DELIVERED ON: 24 December 2008
DELIVERED AT: Brisbane
MEMBER:Mr PA Smith, Member of the Land Court
ORDERS:1. I declare that the sandstone extracted by or on behalf of Titan from Mining Lease ML 50013 and currently contained in stockpiles 1,3,4,5,6,7 and 11 is the property of Titan, subject to the rights to royalty payments of the Crown in right of the State of Queensland, and payments to the local authority, which such payments are payable via ChongHerr.
2. I Order that ChongHerr give to Titan by itself, its employees, agents and independent contractors, for a period of four months from 1 January 2009, free and unimpeded access to so much of ML 50013 as is reasonably required to remove the sandstone contained in stockpiles 1,3,4,5,6,7 and 11 from ML 50013.
3. I restrain ChongHerr by itself, its employees and agents and independent contractors, for the period of 4 months from 1 January 2009, from removing any of the sandstone contained in stockpiles 1,3,4,5,6,7 and 11 without the written consent of Titan or by order of the Land Court or of a court of competent jurisdiction.
4. I Order that Titan pay to ChongHerr the sum of $4,000 per month in advance for the period of 4 months from 1 January 2009.
5. I Order that, for the 4 month period commencing 1 January 2009, Titan pay to ChongHerr the sum of $100 per load (inclusive of GST) of sandstone transported from ML 50013 in excess of 40 loads per month, such payment to be made by Titan to ChongHerr within 14 days of the end of each monthly period.
6. I Order that, for the 4 month period commencing 1 January 2009, Titan pay to ChongHerr the Crown royalty of $0.50/tonne for all sandstone extracted and transported from ML 50013 in the previous calendar month, such payment to be made by Titan to ChongHerr within 14 days of the end of each monthly period.
7. I Order that, for the 4 month period commencing 1 January 2009, Titan pay to ChongHerr the local authority royalty of $0.50/tonne for all sandstone extracted and transported from ML 50013 in the previous calendar month, such payment to be made by Titan to ChongHerr within 14 days of the end of each monthly period.
8. I Order that, for the 4 month period commencing 1 January 2009, Titan provide to ChongHerr at its principal place of business by the 7th day of each calendar month all necessary documentation relating to sandstone removed from ML 50013 in the previous calendar month.
9. I Order that Titan pay to ChongHerr the sum of $32,275 forthwith, being the monies payable by Titan to ChongHerr with respect to Titan’s operations on ML 50013 in the period 10 May 2006 to 28 May 2007.
10. I order that Titan pay to ChongHerr the sumo f $1,925 forthwith for the storage of stockpiles 1, 3, 4, 5, 6, 7 and 11 on Zack’s Quarry from 25 May 2007 to 31 December 2008.
11. I order that Titan pay to ChongHerr within 28 days of the date of this order the sum of $2,700 for removal and storage costs incurred by ChongHerr, unless Titan has already paid the outstanding sum of $2,700 either to ChongHerr directly or to the third party contractor who removed and stored the plant and equipment.
12. I declare that the sandstone extracted by or on behalf of Titan from Mining Lease ML 50013 and currently contained in stockpiles 2,8,9 and 10 is the property of ChongHerr, subject to the rights to royalty payments of the Crown in right of the State of Queensland, and payments to the local authority, which such payments are payable by ChongHerr.
13. I order any party seeking costs to file and serve any submissions they wish to make as to orders for costs, including reserved costs, by 4:00pm on 30 January 2009.
14. I order any reply to such submissions as to costs to be filed and served by 4:00pm on 6 February 2009.
15. Save as ordered in Orders 1 to 14 above, I dismiss the balance of the claims made by Titan.
16. Save as ordered in Orders 1 to 15 above, I dismiss the balance of the counterclaims made by ChongHerr.
17. I grant the parties liberty to apply on the giving of 3 days notice.
CATCHWORDS: MINING – MINING LEASE – SUBLEASE – OWNERSHIP OF MINERALS – DEFINITION OF MINERAL – OVERBURDEN – MINING OF ROCK IN BLOCK OR SLAB FORM – JURISDICTION OF LAND COURT – EQUITABLE JURISDICTION – POWERS OF LAND COURT – RESTITUTION – CONSTRUCTIVE TRUST – UNJUST ENRICHMENT – CONVERSION – UNLAWFUL OCCUPATION – ACCOUNT OF PROFIT – CREDIT OF WITNESSES – ISSUE ESTOPPEL – ANSHUN ESTOPPEL – EQUITABLE ESTOPPEL – VOLUME OF SANDSTONE – SURVEY REPORTS – INDEPENDENT EVIDENCE – SIGNIFICANTLY DISTURBED AREA – ENVIRONMENTAL CONDITIONS
APPEARANCES: Mr S Fisher for the applicant
Neumann & Turnour for the applicant
Ms S Moody for the respondent
Hemming & Hart for the respondent
Background
On 26 June 2007 Titan Sandstone Pty Ltd (Titan) commenced proceedings in the Land and Resources Tribunal against ChongHerr Investments Pty Ltd (ChongHerr). ChongHerr responded to Titan’s institution of proceedings by both denying Titan’s claims and making its own substantial counterclaims.
The original application and counterclaim and related documents filed by the parties have undergone significant amendment. There have been a number of interlocutory proceedings.[1]
[1] See [2007] QLRT 96; [2007] QLRT 123; [2007] QLRT 126.
Significantly, on 21 September 2007, relevant provisions of the Land Court and Other Legislation Amendment Act2007[2] came into effect. In simple terms, the bulk of the jurisdiction previously undertaken by the Land and Resources Tribunal of Queensland transferred to the Land Court of Queensland. This matter was included in those which transitioned from the Land and Resources Tribunal to the Land Court. Despite the change in judicial bodies hearing the matter, I have maintained the carriage of the case throughout, firstly as a Deputy President of the Land and Resources Tribunal and currently as a Member of the Land Court.
[2] Act no. 39 of 2007.
The dispute between Titan and ChongHerr has arisen this way. At all material times, ChongHerr has been the holder of mining lease no. 50013 granted under the Mineral Resources Act 1989 (MRA) for a term of 20 years commencing 1 February 1992 for the mining of sandstone. On 6 May 2004 Titan and ChongHerr entered into an agreement, referred to as a “sub-lease” which allowed Titan to undertake mining activities on a 10 ha part of ML 50013. It would seem that the colloquial name given to the 10 ha area mined by Titan is “Zack’s Quarry”, although that term is also used to describe the total area of ML 50013, which is 129.3 ha in size.
Under the “sub-lease”, Titan was required to pay ChongHerr $2,500 per calendar month as a minimum amount and, if Titan extracted more than 25 loads of sandstone at approximately 25 tonnes per load in any calendar month, an additional $90 per 25 tonne load.
On 12 May 2005, Titan and ChongHerr varied the “sub-lease”. The variation required Titan to pay a minimum of $3,000 per month to ChongHerr and, in the event that more than 30 loads of sandstone were taken per month, an additional $100 for each additional load taken that month. Further, the variation also required for royalty payments by Titan.
In 2006 a dispute arose between Titan and ChongHerr as to whether or not Titan had renewed its “sub-lease”. Titan maintained that it had properly renewed the “sub-lease” and was entitled to remain on Zack’s Quarry post 10 May 2006. ChongHerr, on the other hand, maintained that the agreement between Titan and ChongHerr came to an end on 10 May 2006. ChongHerr instituted Supreme Court proceedings against Titan seeking to recover the immediate possession of Zack’s Quarry. On 7 November 2006, the Supreme Court dismissed ChongHerr’s application with costs.[3] ChongHerr appealed, and on 25 May 2007 the Court of Appeal allowed the appeal; set the judgment of 7 November 2006 aside; ordered that ChongHerr recover possession of the land and that Titan pay its costs of the application and the appeal.[4]
[3] See [2006] QSC 366.
[4] See [2007] QCA 167.
Titan ceased operations on Zack’s Quarry on 28 May 2007. It did not, however, remove all its plant and equipment from Zack’s Quarry at that date.
As at 28 May 2007, there were 11 sizeable stockpiles of sandstone at Zack’s Quarry on the 10 ha portion previously used by Titan.
Orders sought
Titan seeks the following orders against ChongHerr:
“1. A declaration that the sandstone extracted by or on behalf of the Applicant from Mining Lease ML 50013 on land described as lot 130 on Crown Plan CA 311458 County Cavendish, Parish Helidon (Seventeen Miles Rd, Helidon) and being the property shown on Survey Plan Catalogue Number MP 36037 (“the Land”) which remains on the Land after the termination of the sub-lease dated 6 May 2004 granted by the Respondent ChongHerr Investments Pty Ltd (ACN 054 161 821) (‘the Mining Lease’) is the property of the Applicant (‘the sandstone’) subject to the rights to royalty payments of the Crown in right of the State of Queensland and the Respondent.
2. An Order that the Respondent give to the Applicant by itself, its employees, agents and independent contractors free and unimpeded access to the Land for a period of four months from the date of these orders to remove the sandstone from the Land.
3. An Order restraining the Respondent by itself, its employees and agents and independent contractors from removing any of the sandstone from the Land without the written consent of the Applicant or by order of the Land and Resources Tribunal or of a court of competent jurisdiction.
4. An Order that the Applicant pay to the Respondent $100 per load (inclusive of GST) of sandstone transported from the Land payable by the 14th day of each calendar month.
5. An Order that the Applicant pay to the Respondent a royalty of $0.50/tonne for all sandstone extracted and transported from the Land in the previous calendar month.
6. An Order that the Applicant provide to the Respondent at its principal place of business by the 7th day of each calendar month all necessary documentation relating to sandstone extracted from the Land in the previous calendar month.
7. An Order that Respondent at its own cost deliver to the Applicant all of its plant and equipment and other items of personal property removed from the Land on or about 21 and 22 June 2007 at the location or locations to be specified by the Applicant to the Respondent.
8. Such other orders and relief as the Honourable Tribunal considers appropriate.
9. Liberty to apply on not less than three business days’ notice.
10. Alternatively, a Declaration that the Applicant is entitled to:
A. Restitution; or
B. A constructive trust in respect of the Land; or
C. A resulting trust in respect of the Land, in respect of the unjust enrichment of the Respondent by reason of or as a result of the Applicant extracting or winning sandstone from the Land on and after 6 May 2004 which sandstone the Applicant has not been able to remove from the Land on and after 25 May 2007 despite demand made on the Respondent.
11. A declaration that the Respondent has converted to its own use or dealt in a manner inconsistent with the rights of the Applicant or wrongfully detained adversely to the rights of the Applicant and without the consent of the Applicant on or after 25 may 2007 13,000 litres of diesel fuel situated in and upon the Land, which diesel fuel was the property or possession of the Applicant.”
ChongHerr, on the other hand, seeks the following orders against Titan:
“The Tribunal Orders that in respect of the Application:
1. The Applicants Application be dismissed.
The Tribunal Orders that in respect of the Cross Claim:
2. Damages for breach of the Agreement, or alternatively damages in tort arising out of Titan’s unlawful occupation of the Land, being:
(a)$103,354 (being Chongherr’s loss of market rental as a result of Titan’s unlawful occupation of the land between 10 May 2006 and 28 May 2007); and
(b)$23,467 (being Chongherr’s loss of market rent after 28 May 2007), with costs continuing to accrue on a daily basis; and
(c)$2,000.00 (relating to Titan’s failure to remove its plant & equipment from the Land); and
3. An account of profit in the sum of $1,026,260, or otherwise as assessed by the Tribunal.
4. Costs.”
The Hearing
The hearing of this matter occurred over 7 sitting days conducted over a number of months. An inspection of Zack’s Quarry which I found highly beneficial was also conducted.
Titan was represented at the hearing by Mr Fisher of Counsel, whilst Ms Moody of Counsel represented ChongHerr. Counsel assisted the Court greatly by providing a number of comprehensive written submissions each, as well as handing up a significant amount of legislation, authorities, and other material.
Analysis of the evidence
At the hearing, Titan relied on evidence from four persons, Paul Gregory Ebsworth, Nathanael Lee, Luke James Keane and Barry Jukes. Titan relied on five affidavits from Mr Ebsworth.[5] Mr Ebsworth was called to give evidence and was subject to lengthy cross-examination. Mr Ebsworth is the managing director of Titan and the person primarily responsible for Titan’s activities.
[5] Exhibit 1 – affidavit sworn 4 July 2007, exhibit 2 – affidavit sworn 27 July 2007, exhibit 3 – affidavit sworn 1 August 2007, exhibit 4 – affidavit sworn 2 August 2007, exhibit 5 – affidavit sworn 12 September 2007.
Nathanael Lee also provided a sworn affidavit and was called to give evidence at the hearing.[6] Mr Lee is an accountant employed by Specialised Business Solutions.[7] Mr Lee is the person currently responsible for maintaining and compiling the financial records of Titan.
[6] See exhibit 13 – affidavit sworn 1 August 2007.
[7] See transcript page 121.
Luke James Keane is a solicitor employed by Neumann & Turnour Lawyers, the solicitors for Titan. Titan relies on his affidavit of 1 August 2007. Mr Keane was not required for cross-examination. His affidavit is essentially procedural, annexing a copy of a survey report of sandstone stockpiles located at Zack’s Quarry dated 11 July 2007 as completed by J.B. Goodwin, Midson & Partners. Although the affidavit of Mr Keane is not contentious, the survey report annexed to his affidavit is certainly contentious and will be dealt with separately in this decision.
Barry Jukes is currently semi-retired but still undertakes some work in the sandstone quarrying and rock retaining wall industries. He submitted affidavit evidence to the Court[8] and was subject to important cross-examination. Mr Jukes’ evidence principally concerned issues relating to various terminologies used in relation to the mining of sandstone, the activities of his previous company when it undertook mining on Zack’s Quarry, and other issues relating to stockpiles on Zack’s Quarry.
[8] See affidavit of Mr Jukes 3 October 2007. As regards this affidavit, initially paragraphs 10 to 15 were excluded (see transcript page 7). However, following some rather unusual twists para 14 was restored to the affidavit (see transcript p.12).
ChongHerr relied upon evidence from four persons, namely Patrick Ng, Graeme Atkins, Pieter Bulthuis and Duane Damman Williams.
Patrick Ng relied on four sworn affidavits[9] and gave oral evidence at the hearing. Mr Ng was subject to extensive cross-examination. Mr Ng holds the position of general manager of ChongHerr and was the person principally responsible for all negotiations and interactions between Titan and ChongHerr.
[9] See exhibit 21 – affidavit sworn 31 July 2007, exhibit 22 – affidavit sworn 31 July 2007, exhibit 23 – affidavit sworn 6 August 2007 and exhibit 24 – affidavit sworn 13 September 2007.
Graeme Atkins provided affidavit evidence to the Court[10] and was also subject to cross-examination. Mr Atkins is employed as a quarry manager with Boulder Wall Constructions Pty Ltd and his evidence related to the mining and quarrying of sandstone and his observations and views regarding stockpiles of sandstone remaining at Zack’s Quarry.
[10] Exhibit 16 – affidavit sworn 26 September 2007.
Pieter Bulthuis also gave affidavit evidence[11] and was subject to cross-examination. Like Mr Atkins, Mr Bulthuis is also employed by Boulder Wall Constructions Pty Ltd. He holds the position of operations manager. His evidence basically relates to the commercial value of various grades of sandstone.
[11] See exhibit 17 – affidavit of 28 September 2007.
Duane Damman Williams is a solicitor employed by Hemming & Hart Lawyers, solicitors for ChongHerr. Mr Williams gave affidavit evidence[12] and was subject to short cross-examination. Mr Williams’ evidence related to the provision of the survey report by JB Goodwin Midson & Partners of 11 July 2007 and a subsequent survey report from that same firm of 31 July 2007 and the circumstances surrounding the obtaining of the further report of 31 July 2007.
[12] See exhibit 18 – affidavit of 1 August 2007.
Analysis of the credit of the witnesses
It is a normal part of the judicial process to consider the evidence of various witnesses and, where there is a conflict in the evidence, to prefer the evidence of one witness over another for a multitude of reasons. On occasions, the evidence of a particular witness may be such as to be partly or wholly disregarded by the Court due to the nature of the evidence[13] or, indeed, the clear untruthfulness of the evidence. I have taken a great deal of time in carefully considering the evidence of each of the witnesses in the matter at hand. I took detailed notes of their evidence while each of the witnesses was under oath, and my views as to the truthfulness and reliability of those witnesses has not changed in the time since I heard their evidence to the date of delivery of this decision.
[13] Such as evasive, non-responsive, argumentative and disruptive.
This is a matter that, were I to analyse the evidence of each of the witnesses in forensic detail, this decision may indeed reach into many hundreds of pages. In my view, little is to be gained by such a forensic approach. Instead, in the following paragraphs I have undertaken a general account of my views as to the reliability and weight of the evidence given by each of the witnesses and my reasons for preferring the evidence of one witness over that of another. Whilst, where necessary, I have referred to specific elements of the evidence, I have not provided a comprehensive analysis of all of the evidence of each of the witnesses but instead I will deal with such evidence of the witnesses as is necessary in considering each of the sub-elements of this decision in the various sub-headed items that follow in this decision.
Mr Ebsworth
Mr Ebsworth impressed me as an essentially honest, reliable witness. He generally had a good recollection of events that occurred, and when documents were put to him which showed his recollection of events to be in error, he readily conceded those points. Mr Ebsworth is clearly a person whose skills lay in building sandstone retaining walls, operating heavy machinery used in sandstone mining, and running a sandstone and rock retaining wall and extraction business. He has only a very limited understanding of legal processes and clearly, in my view, did not comprehend in full the consequences of the circumstances as they unfolded in 2006. In my view, one obtains an accurate view of Mr Ebsworth as a witness by reference to his following evidence during cross-examination:[14]
“I’m not sure what – forgive me, I can dig rock and I can drive trucks and I do this, but when I hand the MYOB file to the accountant, he takes care of that. I pay a monthly fee for business advice as well as – they basically do everything: ‘That is what we’ve done, there’s the file’ and the guys I employ to do this for me – you know, they may pinch off Peter to pay Paul or whatever they do, but they’re the professionals, they get paid for that, and why there’s zero operating costs here – we very well know that I was up there from ’04 to ’05 for 12 months and I paid lease payments. I mean, ChongHerr aren’t chasing definitely for 12 months of lease payments that never got paid. We paid bills and why this says that is probably a question for the accountant, because I’m not sure why it’s not showing up there.”
[14] Transcript page 100.
Mr Lee
Mr Lee gave his evidence in a forthright, professional manner as one would expect a qualified accountant to do. I accept his evidence.
Mr Jukes
I now turn to the evidence of Mr Jukes. Bearing in mind that Mr Jukes gave evidence on behalf of Titan, it is noteworthy that Mr Fisher, Counsel for Titan, had this to say of Mr Jukes during his submissions:[15]
“Mr Jukes gave evidence, he was a garrulous witness, he was certainly argumentative but for all his sins in the witness box he readily conceded that his figure of 300,000 was wrong.”
[15] Transcript page 312.
As I have indicated, Mr Jukes was subject to extensive cross-examination by Ms Moody for ChongHerr. Although it is lengthy, the following excerpt from the transcript gives a very good characterisation of Mr Jukes’ evidence as a whole:[16]
[16] Transcript pages 142-148.
“What I'm putting to you is that applying your skills and judgment to assessing the stockpiles at Zack's Quarry you came within 10,000 cubic metres of what the surveyor opined the stockpile to be, correct?-- That's what the figures show.
Yes, so glad we got there. You say that you have been in the sandstone industry for 16 years. That's what you say?-- Yes.
And you want this Court to believe that with that 16 years of experience and with the skills that you say demonstrated in assessing the current stockpile at Zack's Quarry you want the Court to believe that back in 2003 when your company was in administration you got it so horribly wrong?-- As I've said that was an off the top remark. It wasn't a measured remark or anything. There I'm trying to picture what's up there in my mind, hadn't been up there for a while because we were in administration. It wasn't my duty to go up there. February I think it was in that year. He asked me a question and --
Mr Jukes, we have a number of alternatives here given what you told the administrators of your company. One alternative you'll agree is that you were negligent in terms of your assessment of the stockpile on Zack's Quarry as at February 2003. You would agree it's horribly out?-- I wasn't negligent --
MR FISHER: I object to that Your Honour, I object.
BY MR SMITH: Mr Jukes, if you can just stop for a moment?--
MR FISHER: Your Honour, this witness can't possibly give evidence about negligence because that's a legal standard. The question is improper.
MS MOODY: I'm happy to rephrase it.
BY MS MOODY: One alternative you'll agree Mr Jukes is that you got it horribly wrong. That's one alternative you'd agree in terms of explaining how you could be so wrong in estimating the soil and shale piles up at Zack's Quarry as being 300,000 cubic metres?-- At the time when I was talking to the administrators I thought that that was a reasonable guess.
The other alternative of course Mr Jukes is that you were misleading the administrators?-- No, not misleading the administrators because we then discussed that stock value and we came to the conclusion that it had no value because the only market really over a period of time would have been to road making such as the Main Roads or the councils.
Mr Jukes, you for reasons which we'll explore in just a short while told the administrators that there were 300,000 cubic metres of rubble on the site and, as I understand your evidence, you now wish to resile from that statement to the administrators, you wish to tell the Court now that you told the administrators the wrong information, is that correct?-- Now that we've measured - there are two piles of things at the --
I don't want your explanation, I want you to answer the question. Am I to understand the effect of your evidence that you're now telling the Court that the information that you provided to the administrators of Opdale as set out in their report, allowed to go to the creditors, are you now saying to the Court that that information was wrong?-- As I've said that was an estimate.
Are you saying to the Court that it was wrong, it was not a correct estimate?-- I can't answer that correctly because we never measured it at the time. Whether it was right or wrong at that time I cannot answer that, whether I was wrong or right. I just sort of came up with an estimate in that time in my mind.
Do you at least agree with this concept, and let's say for argument's sake for theoretical purposes, there was 300,000 cubic metres of something left behind by Opdale. Do you agree that if that was the case it couldn't possibly have comprised simply topsoil and shale. Based on the calculations that we've just done that could be no more than 13,500 cubic metres?-- That could be the assumption but what you're trying to infer there is the fact that 300,000 --
Don't leap into assuming what I'm trying to infer. I'm putting the concept to you and it's a simple concept, don't tell me what I'm thinking. I'm putting to you that if we assume that there was --?-- I can read you like a book.
Mr Jukes?-- All right, let's go.
Mr Jukes, in our theoretical example we're assuming that there are 300,000 cubic metres of something described by you as rubble in the administrator's report left behind by Opdale. This is the basis of our assumption. What I'm putting to you is that if there was in fact 300,000 cubic metres of something no more than 13,500 cubic metres of that at most could have been topsoil and/or shale?-- What you're asking me to say is what did that 300,000 off the top of my head statement, you're trying to say whether that contained other material, it didn't.
I'm putting to you that based on what we've just discussed in your own evidence that no more than 13,500 cubic metres of that overall stockpile could have been topsoil and shale. I'm not asking what in fact it was, I'm putting to you that only up to 13,500 cubic metres could have been topsoil or shale?-- Yes that is correct.
We know that if there was 300,000 cubic metres of something left behind by Opdale it would have been something other than topsoil and shale minus the 13,500?-- No, that wasn't the discussion or the statement I was inferring to the administrator. As far as --
I'm not asking what you meant by the term "administrator". We had a theoretical --?-- You asked me the question.
MR SMITH: Ms Moody, if you can let him answer this part of his question.
WITNESS: When I was talking to the administrator about stock there was no sandstone at all for saleable use whatsoever up there and that had all been cleared out. The only thing that was left up there when this report was made was overburden. The estimate of the overburden was obviously incorrect at that time. There was no other material in that overburden apart from what's been described as being shale or soil.
So your evidence is that Opdale didn't leave behind any A grade, B grade or random sandstone?-- They did not leave anything behind.
I accept that Mr Jukes and I agree with you but I put it to you that in fact the bulk of that 300,000 cubic metres that you talk about in the director's report, the bulk of that, was less than random sized bits of rubble of sandstone, the off cuts of Opdale's mining operations?-- That is incorrect, no.
You say that you've now had an opportunity to examine what you told you the directors and, as I understand your evidence, your views changed at some time in the past as to how much Opdale had left behind, is that correct?-- Repeat that again?
Your evidence, as I understand it now, is that you believe that you were mistaken in terms of the figure of 300,000 cubic metres that you gave the administrators?-- Yes, you could say that.
Because you accept, as I understand it, that no more than 13,500 cubic metres of topsoil and shale could have been produced by Opdale over the time of its tenancy?-- Yes, that could be right.
You came to swear an affidavit in these proceedings?-- Yes.
You checked your affidavit and made sure that it's true and correct?-- Mmm.
Yes Mr Jukes?-- Yes.
You wouldn't wish to be careless in giving a false impression to the Court about any very important fact of course would you?-- That's correct, I would not like to do that.
Particularly if you're aware that you had provided a mistaken figure to the directors you'd be very careful to correct that mistaken statement wouldn't you in any affidavit that you provided?--
MR FISHER: I object Your Honour to perhaps just one very small fragment of that. I'm not sure what relevance the directors have to the question being put about this particular affidavit as distinct from any other document. I'm confused I must frankly say.
MS MOODY: I'll rephrase the question.
BY MS MOODY: Let me rephrase it this way: before signing your affidavit you no doubt read it once and were happy before you signed it?-- Yes.
When you came here to Court today you didn't know did you that certain paragraphs of your affidavit had been struck out did you?-- No.
Your counsel asked you whether --
BY MR SMITH: Again if you can answer instead of just shaking your head?-- No, not until you told us.
BY MS MOODY: You came here today thinking that the whole of your affidavit was going in?-- Yes.
Your counsel asked you I think, I'm not mistaken in saying, that he asked you whether you had read your affidavit and were happy with the whole of its contents. Do you recall that question?-- Yes.
You said that yes you were happy except for that amendment you wanted to make to paragraph 14?-- Correct.
Can I ask you to look at paragraph 14 of your affidavit? The amendment that you wanted to make was in the third line as I understand it. You were talking about you wished to change the word "aware" to "assume" is that correct?-- Yes, that was one of the amendments that I wanted to do but you cut me off short.
Mr Jukes, I'll read the first sentence of paragraph 14. You say there in your sworn affidavit, "In relation to paragraph 8 of this affidavit I agree that approximately 300,000 cubic metres of sandstone material was left at the Zack's Quarry site by Opdale when it ceased operations." You agree that's a sworn statement that was in your affidavit?-- Yes.
Mr Jukes, I put to you that in fact that gives the light of what you have in fact told the Court today. I put to you that in fact that sentence in your affidavit confirms that the 300,000 cubic metres which you told the administrators about and which is referred to in their report to creditors was sandstone rubble?-- That's the terminology of the administrator, it is overburden.
But do you see where you say in paragraph 14, you use the words "sandstone material"?-- Yes.
Okay, so you have sworn to the fact that those 300,000 cubic metres were sandstone material?-- Again it is not sandstone material. I've said earlier that this affidavit was prepared in haste and after I've re-read it that's when I said there were a few things there I wasn't happy about. It is not sandstone material that we were talking about with the administrator, it was overburden.
Mr Jukes, are we to understand it you've made two errors now. First, in the information you provided to the directors and now in your sworn statement to this Court?-- Your Honour --
MR FISHER: Your Honour, I again object to the form of the question. What Mr Jukes said to the directors isn't at all relevant. I'm not sure what my learned friend does mean but it can't be the directors.
MS MOODY: I must have mistakenly used the wrong word. I meant administrators. I do apologise.
BY MS MOODY: The question was in relation to this very important issue about what the 300,000 cubic metres were you will agree that in your affidavit which you told the Court this morning that you read and that you read before signing you described those 300,000 cubic metres as sandstone material, you'll agree with that?-- No, it's not sandstone material. That's what is written here but it is not sandstone --
Mr Jukes, listen to my question. I asked you if you had sworn to that. You may have a different explanation for that and that's fine but my question was simply whether you agreed that you had sworn that the 300,000 cubic metres was sandstone material?-- I've sworn to that affidavit.
Yes, and of course you keep referring to overburden don't you because you make such an important distinction between what overburden is and what sandstone is in your mind. You agree that you have very important distinction that you wish to get across?-- Yes it is. It always has been right from 16 years ago.
Mr Jukes, I put it to you that it's most interesting then that you didn't choose to use the word "overburden" in paragraph 14 of your affidavit and it's most significant and telling that you didn't use the word "overburden" to the directors where they quote you as having described the 300,000 cubic metres as rubble?-- Ah --
MR SMITH: Again to the receivers.
BY MS MOODY: To the receivers, to the administrators?--
MR SMITH: Administrator
WITNESS: That is not a quote from me. That is a statement written by the administrator. He used rubble in his statement to creditors. Rubble is totally different in an accounting point of view than rock sandstone.
BY MS MOODY: I agree it's completely different Mr Jukes. What we say rubble is neither A grade nor B grade nor random, it's the off cuts of the bits of rocks that are smaller than random, the dust, the rubbish if you like that comes from the sandstone mining process?-- That is a Boulder Wall Construction's definition, so be it.
Mr Jukes, you will also agree that you did not when you came to swear your affidavit - let me put it differently, you'll agree that when you came to swear your affidavit you expressly swore to the fact that you agreed with the fact that there were 300,000 cubic metres of something left behind by Opdale. That figure is quoted by you in paragraph 14 of your affidavit and sworn to by you. You'll agree with that wouldn't you?-- Yes I've said that.
Mr Jukes, I put it to you that what you told the directors, what you told the administrators, what you allowed them to present to creditors in their report is in effect identical to what you swore to in paragraph 14 of your affidavit? You would agree that there is a marked similarity between the two?-- That was in answer to Patrick's affidavit which he had said and he produced as you know the exhibit of that report. I must reiterate here that I was not the author of that report. It was in a conversation where he asked me what material was up there and I said around about 300,000. I did not see that draft before it went out. I was on the list of creditors as you can see, both myself and my wife are in the creditors. We were sent that after the report was compiled. I was there verbally in giving him assistance but after that I didn't see what was written.
Mr Jukes, now you've just given different evidence to what we talked about before?-- I don't think so.
Do you recall me asking you specifically whether you had seen the report before it was sent to creditors. You said you did. Do you recall that being in your evidence before?-- As a written document, no.
No Mr Jukes, I'm not asking you to embark on another dissertation. I'm asking you to recall what your evidence was and the transcript will show so we can rely on the transcript, but your evidence at the beginning of our cross-examination was to the effect that you had seen the report before it went out and you didn't tell Hall Chadwick that they had misquoted you. Do you recall that being your evidence?-- Just recently, well if the transcript - okay, righto.
The transcript will show that that was your evidence Mr Jukes. What I'm putting to you though is that in terms of what you told the administrators, what you told the administrators and what you allowed them to present to creditors the figure of 300,000 cubic metres is what you deposed to in paragraph 14 of your affidavit. Again having had the benefit of some four years to think about the matter you come on 28th September 2007, so a deal of time has passed since the administrators' report of February 2003 and in September this year you still say, "I agreed that approximately 300,000 cubic metres of sandstone material was left behind at Zack's Quarry site by Opdale." You didn't change your mind in September 2007 did you?-- No.
No?-- I've said it there.
Yes, and the reason that you were so consistent I put to you Mr Jukes is because Opdale did in fact leave beside 300,000 cubic metres of sandstone rubble?-- You've just proven in your mathematics that there couldn't have been anywhere near that figure.
Indeed Mr Jukes, at the most only 13,500 cubic metres of that could have been topsoil and shale and what I'm putting to you is that the rest of that was sandstone rubble?-- No, it was not otherwise the administrator would have not declared the stock as being of no value.
Mr Jukes, I find it telling that in the administrators' the administrators report to you as having said initially, and I'll ask you to refer to the report, where it says, "The director claims that he may be able to sell this rubble at $3 per cubic metre." That was a statement you made to the administrators wasn't it?-- Yes.
And you see where the administrator says, "It is our opinion that this rock has no value. The director also agrees to this." Do you see that?-- Yes.
You'll agree that that's a statement that you told the administrator wasn't it that you agreed it had no value?-- Yes.
I'm putting to you Mr Jukes that in fact it is true to say that sandstone rubble mixed with topsoil and shale but those off products of the sandstone quarrying process they in fact have no value as indeed you told the administrators arising out of the administration of Opdale?-- You were wrong in the assessment that rock sandstone, what you call random and so on, small sizes, bits and pieces of sandstone, it does have a value and it's regularly in the market on small sizes and you'll find that if you visit Boulder Wall Construction's quarry at Helidon Sandstone Industry's quarry you'll find that Graham does an excellent job up there in cleaning up his site because he has a market for all that small rock. Now if that has a value, however --
Mr Jukes --?-- May I finish? However, when we were discussing stock with the administrator we did not have any such material that was saleable apart from overburden which was a market for, as I said the governments. That can be sold to the governments for around about $10 to $12 per cubic metre. At that stage we estimated that it would take such a long time for it be sold, we came to the conclusion, Harry and myself came to the conclusion, that's the administrator and myself came to the conclusion that in the time frame we had it was of no value and he reported that. If the flippant remark of 300 at that time which we reflect back on what we're talking about now when he asked me how much we've got up there I said around about 300.”
I have absolutely no doubt that Mr Jukes’ evidence as to the classification and amount of sandstone reported by himself to the administrator of his company as being left behind at Zack’s Quarry when his company ceased operations to be deliberately misleading and untruthful, and apt to change depending on the circumstances of the particular need he saw at any particular time. I find all of his evidence as to the amount of sandstone that his former company left at Zack’s Quarry when it ceased operations totally self serving and unreliable. However, when Mr Jukes has provided the Court with more general evidence, such as that as to the proper classification of the term overburden in mining terms, or the markets that are available for various sizes and shapes of sandstone product, his evidence is both believable and consistent with other evidence given in this case. A good example of evidence which falls within this category of Mr Jukes’ testimony is that as set out above in the latter part of page 148 of the transcript.
Mr Atkins
As regards the evidence of Mr Atkins, I found him, in the main, to be a truthful, credible witness. My main reservation with respect to his evidence relates to his use of the word “overburden” in describing the stockpiles of material remaining at Zack’s Quarry. In this regard, as indicated elsewhere in this decision, his description is contrary to normal mining terminology.
Although Mr Atkins provides evidence as to his understanding of the likely contents of various stockpiles at Zack’s Quarry, his evidence in this regard is suspect for the reasons which he properly points out in his affidavit. He has only made a visual inspection of the outside of each stockpile and does not know what is to be found on the inside of various stockpiles, so he has acted on an assumption that the consistency of material throughout each stockpile is consistent with what he sees at the outside of each stockpile. Mr Atkins was not the operator of Zack’s Quarry and was not responsible for making each stockpile. Accordingly, his evidence as to the likely amount of B grade and random sandstone to be found in the stockpiles, being 15 truck and dog loads of B grade and 40 truck and dog loads of random,[17] are at best, problematical guesses.
[17] See exhibit 16 para 39.
Mr Bulthuis
I now turn to consider the evidence of Mr Bulthuis. I was impressed by Mr Bulthuis as a witness. He gave evidence clearly and directly. For instance, although Mr Bulthuis works primarily in the financial side of the operations of Boulder Wall Constructions Pty Ltd, and has extensive expertise from 25 years working in the finance industry, and now principally is concerned with the provision of quotes and tenders for work for Boulder Wall Constructions, invoicing, and the maintenance of accounts. Nonetheless, Mr Bulthuis provided a definition of overburden which, whilst not completely consistent with the accepted industry definitions, was nonetheless relatively accurate.[18] Although this would not normally be an issue worthy of comment, given the highly unsatisfactory nature of the evidence as between the various witnesses who between them have many decades of experience in sandstone mining, the evidence of Mr Bulthuis in this regard was refreshing.
[18] Mr Bulthuis’ evidence in this regard is to be found at page 190 of the transcript.
Save for that part of Mr Bulthuis’ evidence as to the meaning of overburden which does not accord with industry standard, I accept his evidence in its entirety. In this regard, I particularly accept his evidence of his business dealings with Mr Ng regarding a proposal by Boulder Wall Constructions Pty Ltd taking over Zack’s Quarry under a commercial arrangement from ChongHerr whereby Boulder Wall Constructions would pay ChongHerr a minimal rental of between $3,000 to $4,000 per month and that, if more than 30 or 40 loads of sandstone were removed in any one month, an additional $100 per load. I specifically prefer Mr Bulthuis’ evidence in this regard to the rather evasive evidence on the same topic by Mr Ng.
Mr Williams
The evidence of Mr Williams for ChongHerr can be dealt with quickly. Mr Williams’ evidence relates to the reports obtained from JB Goodwin Midson & Partners and the circumstances surrounding the obtaining of the additional report of 31 July 2007. I will deal separately with the legal issues which arise from the provision of two reports by JB Goodwin Midson & Partners. I accept Mr Williams’ as a truthful witness and accept that the reasons set out in both his affidavit and during cross-examination as to why a second report was obtained are his truthful reasons for taking such action. That of course however does not impact upon the legal status which is to be attributed to the second report vis-à-vis the first report.
Mr Ng
I now turn to the final witness who gave evidence in these proceedings, Mr Ng. I found Mr Ng to be a careful and, in the main, truthful witness. However, from time to time, Mr Ng became evasive in answering questions. For example, as regards the amount of material left by Titan at Zack’s Quarry, Mr Ng had this to say during cross-examination:[19]
“You're aware that Mr Ebsworth through Titan has left behind a lot of material of sandstone aren't you?-- I can't say yes or I can't say no.”
[19] At transcript page 223.
Further, during cross-examination regarding his discussions with Mr Bulthuis, Mr Ng had this to say:[20]
[20] At transcript pages 232-3.
“BY MR FISHER: Mr Bulthuis gave evidence in this Court yesterday Mr Ng. He said a proposal, and that was his exact word because I wrote it down, he sent a proposal to ChongHerr offering to pay for a sublease. He offered to pay $3,000 for the first 30 loads. He also offered to pay $100 per truck and dog load for every load over 30?-- Was that a question.
That's what I'm saying Mr Bulthuis said. My question is this and think very carefully before you answer, do you remember getting such a proposal from Mr Pieter Bulthuis?-- No. I haven't received anything like this.
Are you saying that Mr Bulthuis was wrong when he said he wrote to your company?-- I can't say he's wrong. The reason is that maybe Pieter if he had something on his table but after he received my e-mail regarding that we are not ready so he stop over there. Have I answered your question?”
I also have serious doubts about Mr Ng’s evidence regarding the use that he would make of the eleven stockpiles of material remaining at Zack’s Quarry were he to commence operations on ChongHerr’s behalf at Zack’s Quarry. Relevantly, Mr Ng had this to say:[21]
[21] At transcript pages 233-4.
“Mr Ng, you've given evidence that your company would simply push all the overburden in to fill the hole, that's your evidence isn't it?-- We, Zack's Quarry?
In Zack's Quarry that's right?-- If we are going to go to the quarry to operate the quarry, my apologies for my English, if I'm going in to run the quarry to start something afresh definitely I have to put all the overburden back in the hole so that I can start another area to do the extraction.
That's what you say ChongHerr would do?-- Yes.
…
You've also given evidence that you sell some boulders to people who want boulders from your quarry?-- Yes.
Before you would rehabilitate the quarry would you sell any of the sandstone there to anybody else?-- Would you mind to repeat your question again?
You've given evidence that you would rehabilitate the quarry?-- Yes. When you say the quarry are you talking about Montgomery quarry?
No, no, thank you for clarifying that. With Zack's Quarry, you've given evidence that you would rehabilitate it?-- Yes.
You've seen the piles of what you have said is dirt and what you have said are sandstone boulders lying around the quarry haven't you?-- Some of the piles are dirt.
No, no, no, that wasn't my question. Please listen carefully. I said to you you have given evidence that you have seen piles of dirt and you have seen boulders of sandstone. That's what you said to the Court earlier?-- Yes.
Before you rehabilitate the quarry would you try and sell some of the boulders of sandstone to people who want to build retaining walls?-- According to the quantity or the quality of the boulders sitting on the floor or where the pile is I don't think so.”
In this regard, Mr Ng gave important evidence during re-examination by Ms Moody when he said:[22]
“Before we turn to a different topic, you were asked questions about how an excavator could go into certain of the stockpiles on Zacks Quarry and pick random rocks out and you mentioned that you stockpile your overburden and boulders differently at Montgomery to Zacks. Tell the Court how you stockpile material differently at Montgomery?-- When we start extraction of the dimensional block, okay we pull the block out by the machine and then, by the time we pull it out, we create a lot of boulders or dirt or overburden. After we take away a certain amount, we put these boulders or overburden on one side because inside they still have, just because of the size of the block, we still have a certain amount of good size of boulder inside and it may be worth for some operator to go through - we call that the first stage overburden - to get some boulders for the boulder people.
Do you separate small rubble from the boulders or are they lumped together?-- We do not separate because once we get the block out, we used to backload it to push all the thing in a big pile and then, after that, maybe ourself or other contractor, they would go through this first stage of overburden to get some of the right size of the boulder for them to sell and after a couple of times this piles of overburden, we used the machine to put on another site and this we keep for rehabilitation.
So whatever the contractors that you have on site don't take gets used, then, in rehabilitation?-- No.
Is that a wrong statement?-- Can you repeat it again?
Yes. What happens to the overburden and the rubble that isn't picked off by contractors?-- They do not touch the second stage of overburden because it's not worth them to touch it. Even though they go through the overburden and then they spend maybe a couple of hours and maybe they get two boulders. So they would much prefer to go to the first stage of overburden because they can spend one hour to get the boulders out and load on their truck. There's a lot of overburden all the time no matter in which quarry.”
[22] Transcript page 274.
In my view, given the totality of the evidence in this matter, and particularly the evidence for ChongHerr by Mr Bulthuis, I am in no doubt that, should ChongHerr determine in the future to remediate Zack’s Quarry prior to commencing further mining operations thereon either itself (which on the evidence is highly unlikely) or through an agent/sub-lessee, then ChongHerr prior to such rehabilitation would allow other contractors, such as Boulder Wall Constructions, access to Zack’s Quarry for the purpose of removing sandstone (B grade and random) from the various stockpiles. I also find, on the evidence, that ChongHerr would receive a not insignificant sum from the sale of the B grade and random sandstone contained in such stockpiles.
In summary therefore, whilst I am generally satisfied by the evidence of Mr Ng for the most part, from time to time his evidence is evasive and not to be preferred to that of other witnesses. In addition to those areas where I find Mr Ng not to be preferred to other witnesses as set out above, I will discuss such evidence, as is necessary, under various topics as and when appropriate.
Jurisdiction of the Land Court
In response to Titan’s equitable claims for restitution based on unjust enrichment, Ms Moody submitted[23] as follows:
“8.29 Finally, it is submitted that the Land Court, while a court of record, does not have equitable jurisdiction. It is a statutory court and has such power as is granted to be by the statute. That does not include equitable jurisdiction.”
Ms Moody expanded on her written submissions significantly during oral submissions.[24] Ms Moody submits that the Land Court, although a court of record, is an inferior court which has no implied powers. She then points out that, pursuant to s.5 of the Land Court Act 2000 (LCA), the Land Court has the jurisdiction given to it under an Act. After examining the operation of s.7 of the LCA which requires the Land Court to be guided by equity and good conscience, Ms Moody then examines s.32J of the LCA. Ms Moody pointed out that s.32J was included in the LCA following the amalgamation of most of the jurisdiction of the Land and Resources Tribunal into the Land Court in September 2007. Section 32J only applies with respect to some of the jurisdiction of the Land Court, but that jurisdiction does include the MRA, and further that s.32J is in effect in like terms to s.65 of the Land and Resources Tribunal Act 1999 (LRT Act). At first glance, s.32J gives very broad powers to the Land Court, just as s.65 of the LRT Act had been taken in the past to confer very broad powers on the Land and Resources Tribunal. Ms Moody pointed out that the error which the Land and Resources Tribunal had fallen into previously, as set out in the case of Lee v Kokstad Mining Pty Ltd,[25] could easily occur unless a careful reading is had of s.32J. Relying on what the Court of Appeal said in Lee, Ms Moody submitted that s.32J of the LCA was relevant to only the powers of the Land Court and did not confer any jurisdiction on the Land Court. Thus, s.32J could only be relevant when one was considering a case brought within the jurisdiction conferred on the Land Court by a statute. Ms Moody then referred to the provisions of the MRA, particularly those set out in s.363, to submit that the MRA does not give any specific equitable jurisdiction to the Land Court.
[23] Submissions of ChongHerr para. 8.29.
[24] See transcript 382-390.
[25] [2007] QCA 248.
The foundation of Ms Moody’s submission is well made. Section 5 of the LCA sets out the jurisdiction of the Land Court. Section 5 is as follows:
5 Jurisdiction of Land Court
(1)The Land Court has the jurisdiction given to it under an Act.
Note—
Various Act confer jurisdiction on the Land Court. See the Acts Interpretation Act 1954, section 49A.
(2)If jurisdiction for a proceeding is expressly conferred on the court under an Act, the jurisdiction is exclusive.
(3)Subsection (2) does not limit parts 3 and 4.
(4)The jurisdiction of the Land Court can not be ousted only because a proceeding before it is about claims or interests of an equitable nature or involves making a decision about title to land.
The question of the Land Court’s jurisdiction was considered by the Land Appeal Court in the case of Niall Preferential Pastoral Holding.[26] Although that case involved an interpretation of previous legislative provisions governing the Land Court, some of the observations made in that case remain relevant. I note in particular the following statement of principle by the Land Appeal Court:[27]
“The Land Court and the Land Appeal Court were created by statute and their jurisdiction, functions and powers are similarly conferred. These courts possess no natural or inherent jurisdiction.”
[26] [1974] 1 QLCR 180.
[27] At page 182.
I am in no doubt that the Land Court only has such jurisdiction as conferred on it by statute and that, in particular, it is not a court of general jurisdiction.
I now turn to consider s.7 of the LCA, which is in the following terms:
6 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.
Keane J.A. in Townsville City Council v Chief Executive, Department of Main Roads[28] examined s.7 of the LCA in some detail. His Honour had this to say:
[28] [2005] QCA 226.
[37] The discretion conferred by s. 12 of the Act is conferred to avoid an unjust outcome of proceedings before the Land Court and to ensure that the decision of the Land Court reflects the true merits of the case as between the parties. It must be exercised in accordance with that purpose. This is especially so in light of s. 7 of the Act which instructs the Land Court to exercise its jurisdiction according to ‘equity, good conscience and the substantial merits of the case’.
[38] The precise effect of a provision such as s. 7 of the Act will depend on the nature of the decision to be made by the relevant tribunal. In Qantas Airways Ltd v. Gubbins (1992) 28 N.S.W.L.R. 26 at 30, Gleeson C.J. and Handley J.A. noted that:
‘the words “equity, good conscience and the substantial merits of the case” are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found …’
[39] A statutory exhortation to have regard to ‘equity, good conscience and the substantial merits of the case’ must be given effect. As Olsson J. pointed out in Trittenheim Pty Ltd, Heaney & Heaney v. H & H Gill Nominees Pty Ltd (1994) 63 S.A.S.R. 434 at 442:
‘What must firmly be borne in mind is that what is appropriate in a particular case must derive from a consideration of the nature of the issues involved and, where appropriate, the clear intendment of any statute applicable. These may patently demand an application of strict principles of law or of a statute either because the notion of equity, good conscience or the substantial merits of the case unerringly points to the need or desirability of so doing, or the statute expressly or impliedly mandates such an approach …
However, in certain types of case … there remains scope for the court … to adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. If it were otherwise then a mandate to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities … ” would have little or no room to operate at all.’[40] The view that the inclusion of such a provisions widens rather than restricts the discretion available to a decision-maker has received support in the High Court. In Minister for Immigration and Multicultural Affairs v. Eshetu [1999] HCA 21; (1999) 197 C.L.R. 611, the High Court was concerned with construing s. 420 of the Migration Act 1958 (Cth), which provides:
‘(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.’
[41] Gleeson C.J. and McHugh J. noted that such provisions:
‘… are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.’
[42] An example of how effect may be given to such a provision is provided by the decision of the Full Court of the Supreme Court of South Australia in Featherston v. Tully [2002] SASC 243 at [156] – [158]; (2002) 83 S.A.S.R. 302 at 341 – 342. The case concerned the operation of the Supreme Court of South Australia when sitting as the Court of Disputed Returns under s. 103(1) of the Electoral Act 1985 (S.A.). Section 106 of the same Act provides that:
‘(1) The Court is to be guided by good conscience and the substantial merits of each case without regard to legal forms or technicalities.
(2) The Court is not bound by the rules of evidence.’
Bleby J., with whose judgment Mullighan J. agreed, in relation to s. 106, that:
‘The Court is obliged to act judicially, to apply the requirements of the Act and the common law and to afford all parties and legitimate interveners the principles of natural justice. However, the common law criteria which I consider are applicable, as well as the requirements of s 107(3) and s 107(4), require a judgment to be made about whether there has been an election at all, whether the statutory electoral procedures have been so abused that there has been no election and whether, in the circumstances stated in s 107(3) and s 107(4) the result of the election was affected by the relevant defect or irregularity. Without the provisions of s 106, some might take the view that the only way of reaching a conclusion on those requirements is to hear evidence from every relevant elector as to their inability to vote, how they would have voted, how they in fact voted or, if the relevant circumstances had been different, how they would have voted. It might be said that at least a sufficient number of such people would have to give evidence in order to reach such a conclusion.
Section 106 avoids the need for any such requirement. It means, in the context of this Act, that the Court must exercise its judgment according to its good conscience and according to what it considers to be the substantial merits of the case as to whether the respective common law or statutory criteria have been met. It permits resort to a common sense judgment in all the circumstances. However, the court’s judgment cannot be merely arbitrary. It must still apply the common law principles. In the case of s 107(3) and s 107(4) it must apply the well known standard of being satisfied on the balance of probabilities that the result of the election was affected by the defect, irregularity or defamation as the case may be.
The section therefore has a useful function, but it does not, as was suggested in the course of the petitioner’s argument, allow the court to create new law.’ (emphasis added)
[43] The authorities suggest that a statutory obligation to have regard to the ‘substantial merits of the case’ means that the merits may not be able to trump a countervailing rule of law but that they are one factor that must be taken into account when exercising a discretion.
[44] In my opinion, where there is reason to suppose that the outcome of the rehearing may substantially affect the parties in terms of the ultimate result, then the possibility of injustice in the sense of a decision which does not reflect the ‘substantial merits of the case’ if leave is not granted, inevitably emerges as a consideration material to the exercise of the discretion conferred by s. 12 of the Act.
[45] It may be that, in the circumstances of a particular case, considerations of justice require that the desirability of a ‘perfect’ outcome give way to the practical consideration that ‘justice delayed is justice denied’; and, in some cases, the conduct of the applicant may have been so egregious as to lead to a refusal of a rehearing without considering the impact of the resolution of the issue sought to be reagitated. But to say this is merely to acknowledge that the discretion falls to be exercised as a matter of balancing competing considerations having regard to all relevant circumstances. Generally speaking, the likely impact of the alleged error on the outcome of the case will be a consideration relevant to that balancing exercise.
[46] For these reasons, I consider that the Land Appeal Court was correct in holding that the learned member erred in failing to regard this consideration as material to his exercise of the discretion under s. 12 of the Act.”
In my view, the approach adopted by Keane JA in the Townsville City Council case is completely consistent with that adopted by the Land Appeal Court in Niall[29] where the Land Appeal Court said, at 183:
“The subsection contains no power to enable this Court to exercise a jurisdiction based on equity and good conscience … . In other words the provisions operate only during the exercising of lawful jurisdiction and do not empower the Court to assume a jurisdiction or enable the Court to waive statutory requirements precedent to its jurisdiction.”
[29] [1974] 1 QLCR 180.
In my view, s.7 of the LCA clearly concerns the manner in which the Land Court is to exercise its jurisdiction and powers in any particular matter, and is not of itself a conferral of jurisdiction.
I now turn to consider the provisions of s.32J of the LCA. Section 32J states as follows:
32J Land Court has power of the Supreme Court for particular purposes
(1)This section applies when—
(a) the Land Court in its cultural heritage division is exercising jurisdiction; or
(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—
·Environmental Protection Act 1994
·Fossicking Act 1994
·Geothermal Exploration Act 2004
·Mineral Resources Act 1989
·Petroleum Act 1923
·Petroleum and Gas (Production and Safety) Act 2004
·State Development and Public Works Organisation Act 1971
·Water Act 2000
(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.
(4)The Land Court may order that a record of, or information about, a proceeding before the Land Court must not be made available to the public.
(5)Without limiting the things the Land Court may have regard to in deciding whether to make an order under subsection (4), the Land Court may have regard to Aboriginal tradition and Island custom.
(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.
(7)Without limiting subsection (6), the appropriate officer of the Land Court must, in addition to duties otherwise imposed on the officer, discharge—
(a) any duty an officer of the Supreme Court would be required under the practice of the Supreme Court to discharge in similar circumstances; and
(b) any duty imposed on the officer by an order of the Land Court.
(8)For subsection (7), the appropriate officer of the Land Court has the powers of the relevant officer of the Supreme Court.
(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.
As indicated by Ms Moody, s.32J was placed into the LCA as part of the Parliamentary process of transferral of the bulk of the jurisdiction from the Land and Resources Tribunal to the Land Court. Section 32J effectively picks up s.65 of the LRT Act.
Whilst sitting as a deputy president of the Land and Resources Tribunal, I had the opportunity to review in detail the operation of s.65 of the LRT Act in the matter of Kokstad Mining Pty Limited v Lee.[30] Relevantly, I had this to say in Kokstad:
[30] [2006] QLRT 122.
“President Koppenol stated his view of the relevant law as follows:
‘The Tribunal may set aside an order (including a recommendation) at any time if the order was made in the absence of a party. Footnote: Uniform Civil Procedure Rules, rule 667; Land and Resources Tribunal Act 1999, section 65(1). Absence in that context is regarded as physical absence. The question is then one of considering whether a satisfactory reason for the person’s absence has been provided. All of the circumstances are considered, including whether the person would suffer injustice if the original order stands.’
Clearly, the issue then becomes whether or not the Tribunal has the jurisdiction or power to make the orders made by President Koppenol in his December 2005 decision.
The Tribunal, by s 51 of the Land and Resources Tribunal Act 1999 (‘the LRT Act’), has the jurisdiction conferred on it under that Act and other Acts. Sections 51A to 53A of the LRT Act operate to confer certain exclusive jurisdiction on the Tribunal. The MRA is another source of jurisdiction for the Tribunal. The Court of Appeal closely examined the jurisdiction of the Tribunal with respect to the MRA in De Lacey v Juunyjuwarra People and Anor.
De Lacey involved an appeal against a Panel decision of President Koppenol and Deputy President Kingham (as she then was) in circumstances where the Tribunal had decided that it had jurisdiction to decide if any native title over certain land had been extinguished. The Court of Appeal found that the Tribunal did not have the relevant jurisdiction. Davies JA, with whom Justices MacKenzie and Mullins agreed, had this to say:
‘There is no provision of the Act which contemplates an application to the tribunal such as that made on 12 December 2003 or any decision by the tribunal of the question stated in that application. There is a general jurisdiction provision in the Act, s 363, but that section must be read in the context of the specific provisions which permit application to and decision by the Tribunal. It is not contended that the Tribunal has any relevant jurisdiction other than that conferred by the Act; nor, in my opinion, could it be so contended. The Tribunal plainly saw its jurisdiction to make the decision which it did make, in or implied by s 669.’
Justice Davies then continued, at paragraphs 22 and 23, as follows:
‘Having rejected the contention that s 81 of the Native Title Act 1993 conferred exclusive jurisdiction on the Federal Court to decide these questions, the Tribunal said:
However like Levine J, we do not see anything in the NTA which expressly or impliedly ousts a State court’s (or tribunal’s) jurisdiction to determine whether extinguishment of native title has occurred.
The underlining is mine.
In this passage the Tribunal likened itself to a superior court of general jurisdiction. It is plain therefore that the Tribunal, in making the decision which it did, did not see itself as embarking on a ‘decision’ in the limited sense in which I have described it but on a decision binding on the parties that it had jurisdiction to determine whether the Starcke Pastoral Holdings Acquisition Act 1994 extinguished all native title rights and interests of the Juunyjuwarra People in relation to the subject land. That view is plainly wrong. It is a statutory tribunal having only the jurisdiction conferred on it by statute, relevantly the Act.’
Footnote 15 of Justice Davies reasons detail the only sections of the MRA which permit decisions by the Tribunal. Those are “ss 40 and 42, 70, 78, 83, 85, 86, 118, 120, 125, 174, 194A, 222, 250, 269, 278A, 281, 282, 283B, 380, 381, 406, 436A, 491A, 547A, 675 709ff.”
As set out in paragraph [12] above, President Koppenol in his December 2005 decision relied on s. 65 (1) of the LRT Act and UCPR Rule 667 as the source of jurisdiction for his decision. On this point, Mr Fraser QC says that s 65 does not confer jurisdiction or power because:
‘a.Section 65 is not a source of jurisdiction, as is plain from its introductory words;
b.it operates by providing the Supreme Court’s powers to it only when the Tribunal has jurisdiction under some other provision – which it does not in this case;
c.it operates such that when the Tribunal’s jurisdiction arises, it can, in relation to that jurisdiction, grant any relief or remedy, or make any order that the Supreme Court might;
d. it does not purport to give the Tribunal the Supreme Court’s jurisdiction;
e.sub-section 65(5) is to the same effect – the relevance of the practice and procedure of the Supreme Court, including presumably the procedural powers of the Supreme Court pursuant to the UCPR, concerns only those matters in which the Tribunal has jurisdiction;
f.the foregoing is recognised by s 65(8) which provides that subparagraphs (1) and (5) have effect subject to the provision of another act under which jurisdiction is conferred on the Tribunal.’
Mr Fraser’s submissions are entirely consistent with Justice Davies in De Lacey. In my view, the inescapable conclusion must be that those submissions are correct.
In my view, there is no power or jurisdiction for the Tribunal to extend the time for lodging objections under the MRA.”
Although my decision in Kokstad was subject to appeal to the Court of Appeal,[31] before the Court of Appeal, senior counsel for both parties acknowledged, consistent with my reasoning set out above, that the orders made by Koppenol P were made without jurisdiction.[32] At any rate, the decision in Kokstad was upheld by the Court of Appeal.[33]
[31] See Lee v Kokstad Mining Pty Ltd [2007] QCA 248.
[32] See [2007] QCA 248 at paras 34 and 44.
[33] The point on Koppenol P acting beyond jurisdiction having been conceded, the Court of Appeal decision dealt with other matters not directly relevant to the case currently under consideration.
Consistent with the statutory provisions set out above, it is my clear view that the Land Court only has such jurisdiction in a matter as is conferred it by a relevant statute. In the case at hand, the relevant statute is of course the MRA. The principal provision conferring jurisdiction on the Land Court is s.363 of the MRA which provides as follows:
Division 2 The Land Court
363 Substantive jurisdiction
(1)The Land Court shall have jurisdiction to hear and determine actions, suits and proceedings arising in relation to s 363 412 s 363 Mineral Resources Act 1989 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; 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
(c) the area, dimensions and boundaries of land (including the surface area of land) the subject of a mining tenement; and
(d) any encroachment or trespass upon or interference with or damage to land the subject of a prospecting permit, mining claim, exploration permit, mineral development licence, mining lease or other authority granted under this Act or the buildings, plant, machinery or equipment thereon; and
(e) any matter arising between applicants or holders in relation to prospecting, exploring or mining, or arising between applicants or holders and owners of land in relation to prospecting, exploring or mining; and
(ea) any dispute or other matter arising between persons identified in native title protection conditions as an explorer or as a native title party, if the conditions—
(i)under section 25AA, are included in the conditions imposed on a prospecting permit; or
(ii)under section 141AA, are included in the conditions determined for an exploration permit; or
(iii)under section 194AAA, are included in the conditions determined for a mineral development licence; and
(f) any determination or review of compensation as provided for under this Act or any other Act relating to mining; and
(g) the enforcement of any agreement or determination as to compensation under this Act or any other Act relating to mining; and
(h) any assessment of damage, injury or loss arising from activities purported to have been carried on under the authority of this Act or any other Act relating to mining; and
(i) any application required by this Act or any Act relating to mining to be made or heard in the Land Court.
(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;
(b) any agreement relating to prospecting, exploring or mining.
(4)This section does not confer jurisdiction on the Land Court in relation to the recovery of wages or amounts owing under an industrial award or agreement.
Clearly, the bulk of the claims and counter-claims made by the parties in this matter fall within the substantive jurisdiction of the Land Court as conferred by s.363, in particular s.363(2)(b), relating to the rights and entitlements to minerals mined under a mining tenement.
The key point made by Ms Moody is that the applicant’s claim for restitution on the basis of unjust enrichment is a claim purely sourced in equity and the Land Court does not have any equitable jurisdiction conferred on it by s.363. Of course, one must take care not to confuse the notion of the exercise of equitable principles and remedies as an exercise of power in a matter in which the Land Court has jurisdiction.
I have considered Ms Moody’s submissions in detail and I am inclined to agree, although the matter is not without some doubt. This doubt arises because some jurists view claims for restitution, including those based on unjust enrichment, as arising not so much in equity as in common law.
I note in particular the learned work titled Restitution Law in Australia[34] which has this to say under its part titled ‘Basis for classifying restitutionary claims’:[35]
“[320] Common law and equity. In historical terms, the origin of restitution in the old common law writs and the common counts stamps claims in restitution with a common law origin. True to its origins in quasi-contract, most of the law of restitution is concerned with what might be termed ‘principles of the common law’. A loose connection with equity is inherent in Lord Mansfield’s description in Moses v Macferlan, of the basis of all such claims as being ‘the ties of natural justice and equity’. Although he was clearly not referring to Chancery jurisdiction, it is not inconsistent with Lord Mansfield’s description to regard some claims in restitution for unjust enrichment as ‘founded in the equitable notions of fair dealing and good conscience’.
Nevertheless, the reference is to a norm which justifies relief of a type more familiar to the common law than equity, namely, the recovery of a liquidated sum. Moreover, where the requirements of unjust enrichment are satisfied, restitution may be claimed as of right. Discretionary features which characterise equitable relief do not figure in claims for restitution based on unjust enrichment because the ability to obtain restitutionary relief does not assume a (prior) conclusion that some alternative relief is inadequate. It follows that, unlike the position in relation to most equitable claims, there is no ability to withhold restitution from a plaintiff on the basis that relief of some other kind is more appropriate.
A concern to prevent or reverse unjust enrichment has not been a driving force behind the equitable relief, although it would be both unrealistic and wrong to exclude the desire to ensure that one person does not retain unfairly a benefit obtained from another as a relevant factor in the exercise of discretion, or as a basis for relief in certain situations where there may be no relevant common law basis for restitution. An example of the former is relevance to the grant of relief against forfeiture of the gain to the party insisting on the forfeiture. An example of the latter is an account of profits. There are also examples of equitable relief which are relevant to this work because their operation does often have the effect of preventing or reversing an unjust enrichment. Some instances of such relief may also be justified by direct reference to restitution for unjust enrichment. Releif against forfeiture, and an account of profits are also examples of this. But there are other illustrations, including relief by way of equitable lien or constructive trust; and an order for the delivery up or re-transfer of property.
Certain claims or processes, which are capable of being viewed as restitutionary, have a basis both at common law and in equity. Contribution and subrogation, specific restitution, and perhaps also recission of a contract for fraud, are examples of such claims. Again, a bribe taken by an agent is recoverable by the principal both at common law or in equity. Examples of processes common to equity and the common law include restitution in intergrum, and tracing.There are finally, claims which are difficult to classify as legal or equitable in any meaningful sense, and appear to us to be sui generis.[34] By Mason & Carter, Butterworths Sydney 1995.
[35] At para 320.
To make matters worse for Titan, Mr Ebsworth conceded in cross-examination that he hadn’t queried the refund or credit notice with Zimms Fuel.[76]
[76] Transcript page 64.
Whilst it may be that some diesel fuel that titan had on site as at 28 May 2007 is unaccounted for, it has failed to establish in any way that ChongHerr should account to Titan for such diesel. What’s more, Titan has also failed to clearly establish what quantity of diesel, if any, is unaccounted for. Titan’s claim with respect to the diesel therefore cannot stand.
Failure to clean up Zack’s Quarry
ChongHerr claims that when Titan left Zack’s Quarry on 28 May 2007, it left the site in an untidy state, which included an area of spilt diesel. Again, much of the evidence relating to ChongHerr’s counter-claim in this regard flows from the events that occurred between 28 May 2007 and 21 June 2007 which I have set out in the preceding paragraphs dealing with plant and equipment and diesel fuel.
On the evidence, it is clearly my view that Titan did leave Zack’s Quarry in an untidy state and did leave an area of land contaminated by spilt diesel fuel.[77]
[77] See, in particular, exhibit 11, photo marked 9.27 am.
I note from the evidence[78] that Titan had paid a bond to ChongHerr which, it would appear, covered matters such as the cleaning up of any environmental damage caused by Titan at the site.
[78] Exhibit 21 paragraph 29.
In the circumstances, and due to the lack of evidence as to the loss if any incurred by ChongHerr in excess of that retained in its bond from Titan, I am unable to quantify any additional award that should be made to ChongHerr under this head.
Titan’s activities at Zack’s Quarry from 10 May 2006 to 28 May 2007
From the evidence, it is clear what Titan did at Zack’s Quarry from 10 May 2006 until 28 May 2007. The answer is, quite simply, that Titan continued to mine sandstone just as it had done up until 10 May 2006 pursuant to its sub-lease. However, it is also clear from the Court of Appeal’s decision in ChongHerr that the sub-lease held by Titan came to an end on 10 May 2006. Much flows from the characterisation of the legal consequences of Titan continuing its mining operations post 10 May 2006 in circumstances where it no longer held a sub-lease. ChongHerr by its counterclaim has sought, on a number of alternate basis’, significant sums from Titan as a result of Titan carrying out mining activities on ChongHerr’s land after 10 May 2006. For its part, Counsel for Titan submits that ChongHerr’s counterclaim should be dismissed in its entirety.[79]
[79] See rebuttal submissions of the applicant at para 37.
I have conceptual difficulties with both the claims made by ChongHerr and many of the responses made by Titan, particularly in light of the provisions of the MRA.
ChongHerr claims by its counterclaim and has submitted strongly both in its written submissions and orally via Ms Moody that Titan was a trespasser on ChongHerr’s land subsequent to 10 May 2006. Both Mr Fisher and Ms Moody have referred me to a significant number of authorities in support of their various contentions as to the legal consequences that flow to either Titan or ChongHerr as a result of Titan’s continued mining operations at Zack’s Quarry after 10 May 2006. Clearly, all of the cases referred to by Counsel espouse important legal concepts. However, none of those authorities, in my view, neatly fit the rather special circumstances that exist in this case.
To solve the dilemma that I am found in, it is necessary to turn to first principles as set out in the MRA and apply those principles to the circumstances of this case. The first section of the MRA which needs to be considered in my view is s.310, which has already been the subject of consideration in this decision.
As already considered, s.310 of the MRA deals with the property of minerals moving from the Crown to the mining leaseholder (or sub-lessee). The opening words of s.310 crucially refer to “all minerals lawfully mined under the authority of a mining lease”. This of course begs the question, when are minerals “lawfully mined”? In the further submissions of ChongHerr, Ms Moody approached this issue this way:[80]
[80] Further submissions of ChongHerr paras 7.3 – 7.9.
“7.3 First Chongherr was at all times the holder of a mining lease pursuant to s.310 of the MR Act.
7.4 Second, under the MR Act, the holder of a mining lease may lawfully engage an agent or subcontractor for the purposes of the latter carrying out the holder’s permitted mining activities under the mining lease. See here the following:
(a)Section 235(1) of the MR Act which states that ‘ … the holder of the mining lease and any person who acts as agent or employee of the holder (or who delivers good or substances or provides services to the holder) for a purpose or right for which the mining lease is granted … (b) may do all such things as are permitted or required under the lease or by this Act.’
(b)That the holder of a mining lease is also apparent from s.276 of the MR Act. While that section states in s.276(1)(e) that the holder of a mining lease may not ‘assign, sublease or mortgage’ the mining lease without the Minister’s consent, there is no prohibition on subcontracting out the actual mining activity.
(c)See also s.320 of the MR Act, which imposes an obligation on the holder of a mining lease to pay royalties where the holder ‘mines or allows to be mined’ mineral from land which is the subject of that mining lease.
7.5 Third, before 10 May 2006, Chongherr and Titan entered into the Agreement, pursuant to which Chongherr subcontracted to Titan a part of its permitted mining activities pursuant to the Mining Lease.
7.6 Fourth, after 10 May 2006, Titan continued on in occupation of the Land and continued mining sandstone in breach of the Agreement.
7.7 Fifth, the terms of the contract between Titan and Chongherr are irrelevant to the enquiry to be undertaken pursuant to s.310 of the MR Act. All that is relevant there is that the mining activities are lawful in the sense that they are permitted under the terms of the holder’s mining lease. In the instant case, they were, insofar as Chongherr’s mining lease permitted Chongherr (either personally or via an agent or subcontractor to mine sandstone. The fact that Titan was itself in breach of its contractual obligations to Chongherr under the Agreement is irrelevant.
7.8 In the instant case, Chongherr was the owner in fee simple of the Land, and the holder of a mining lease over the Land which entitled Chongherr to mine and sell all sandstone on or under the Land. However, until the sandstone was mined (that is, while it remained under the Land) it was property of the Crown, but it was in the possession of Chongherr.
7.9 Thus Titan, by its unlawful trespass and nuisance in occupying the Land without Chongerr’s permission, carrying out mining operations on Chongherr’s land without its permission, and creating overburden stockpile’s on the Land, has deprived Chongherr of its rights pursuant to the mining lease to mine and sell the sandstone and/or its right to enter into an agreement with a new subcontractor and thereby receive rent and royalty payments.”
Mr Fisher, for his part submits on Titan’s behalf as follows:[81]
“28. The Applicant submits that the corollary of minerals not being lawfully mined within section 310 is that they cease to be the property of the miner (on the question posed, putatively the Respondent) and become the property of the Crown. This follows naturally if not inexorably from the text of the provision. Section 310 operates against the backdrop of section 8 which reserves the property in certain products (gold, coal and certain forms of minerals by including sandstone) to the Crown. The integer of ‘lawful mining’ is the fulcrum which determines the proprietary consequences (or the allocation of ownership) of minerals mined under a mining lease. A consequence of the determination of whether or not minerals are lawfully mined is the question of liability to pay any royalties (refer in particular to section 311 and 320 and Part 9 more generally). The crucial question then becomes the question of construction of section 310: what is ‘lawful mining’?
29. The Respondent contends (refer para 7.7) that the activities of the Applicant in mining sandstone are irrelevant to the illegality issue. The Applicant agrees with the Respondent to the extent that the expression ‘lawfully mined under the authority of a mining lease’ is sufficiently broad to encompass mining by the Respondent in its Mining Lease with the Crown and any mining taking place by authority or consent of the Respondent as well as any mining which is within the four corners of the mining lease is held by the Respondent from the Crown (even if not undertaken personally by the Respondent). The Applicant submits that the question of ‘lawful mining’ is concerned predominantly with ensuring that mining activities undertaken by the mining leaseholder with whom the Crown deals (here the mining leaseholder, namely the Respondent) take place in accordance with the requirements laid out in the statute to justify the grant and exploitation of a mining lease.”
[81] Rebuttal submissions paras 28 and 29.
Both Mr Fisher and Ms Moody have danced around some of the important consequences that flow through the construction of s.310 and the overall context of the MRA. To some extent, Ms Moody is seeking to have her cake and eat it too. As quoted above, she submits that ChongHerr as holder of the mining lease for Zack’s Quarry had the right (which it undoubtedly did have) to undertake mining operations on Zack’s Quarry post 10 May 2006 by either a contract arrangement or by way of a sublease.[82] Ms Moody then goes on to submit that Titan undertook its mining activities in breach of its contract with ChongHerr, which she submits is irrelevant to any question of the lawfulness of the mining undertaken by Titan insofar as the MRA is concerned, which then leads to her claims in trespass etc.
[82] Of course, any sublease subsequent to 10 May 2006 would have been required, pursuant to s.300(12) of the MRA, to have been consented to by the Honourable the Minister. It is common ground between the parties that no sublease post 10 May 2006 either existed or was agreed to by the Minister.
In a narrow but intriguing aspect, Mr Fisher, as quoted above, agrees with Ms Moody’s submissions. Mr Fisher’s submissions seem to go so far as to contend that all that the MRA in effect requires is for mining to be undertaken within “the four corners” of a mining lease in accordance with the requirements for mining under the MRA to obtain exploitation of the minerals on the mining lease. In my view, it is impossible to read s.310 of the MRA as broadly as either Titan or ChongHerr contend.
For very good reasons under mining legislation, including keeping of accurate records as to the royalty payable to the Crown and obligations for workplace health and safety, to name but two, the MRA places on the holder of a mining lease numerous obligations regarding the holding of the mining lease and the exploitation of minerals from the mining lease. Should a person not authorised by a mining leaseholder enter onto a mining lease, such entry onto the land is not lawful.[83] Of course, given the remote locations of many mining leases, it is hardly stretching the imagination to envisage circumstances where a third party, without any authority or indeed knowledge of the mining leaseholder, may enter into a mining lease, undertake mining activities on the mining lease, and remove minerals from the mining lease. Now, the actual mining activities undertaken by the third party may have been undertaken consistent with all of the codes for mining activities. The minerals taken may have been consistent with the minerals permitted to be taken pursuant to the mining lease. It would seem that Mr Fisher’s submissions would suggest that, for the purposes of s.310, the minerals were “lawfully mined”. That, in my view, simply cannot be the case, for if it were, then the holder of the mining lease would be liable to pay royalties to the Crown for the minerals mined on its mining lease without its authority and, on the hypothetical facts, without even its knowledge.
[83] See MRA s402.
Earlier in this decision, I considered the provisions of s.7 of the LCA which require the Court to act in accordance with equity and good conscience and the substantial merits of the case without regard to legal technicalities.
I fail to see how ChongHerr can seriously contend that, post 10 May 2006, Titan was unauthorised to be on Zack’s Quarry and was indeed a trespasser on ChongHerr’s land, yet nonetheless, for the purposes of s.310 of the MRA, Titan was lawfully mining minerals at that time on Zack’s Quarry.
For ChongHerr to contend that the mining activities undertaken on Zack’s Quarry by Titan post 10 May 2006 to fall within the category of “lawful” for the purposes of s.310, then there must exist at law some form of relationship as between ChongHerr and Titan recognisable under the MRA. This is of course consistent with Ms Moody’s reference to s.235(1) of the MRA referred to above. It is, in my view, also consistent with the facts of this case.
Mr Ng for ChongHerr gave clear evidence that he is not aware of ChongHerr ever operating Zack’s Quarry for itself, and certainly not since his involvement with ChongHerr in 2001.[84] Further, Mr Ng gave evidence that ChongHerr does not have any plans to take over Zack’s Quarry.[85]
[84] See transcript p.264.
[85] See transcript p.281.
On the evidence, there is no doubt that ChongHerr operates Zack’s Quarry as an asset to be exploited by others, with ChongHerr receiving rent and royalty payments from those who it authorises to undertake mining on Zack’s Quarry. This was clearly the case from 2000 to 2002 as regards Mr Jukes’ company. It was certainly also the case as regards the sublease between ChongHerr and Titan up until 10 May 2006.
On the evidence, and consistent with the operation of s.310 of the MRA, from 10 May 2006 to 25 May 2007, ChongHerr for all practical purposes allowed its mining lease to be used by Titan for the extraction of sandstone whilst the legal basis of the arrangement between Titan and ChongHerr was determined firstly in the Supreme Court and ultimately in the Court of Appeal. Unlike the situation regarding mining by Titan pre 10 May 2006 pursuant to the sublease, in a technical sense under the MRA property in the minerals did not move from ChongHerr to Titan, at least with respect to any minerals mined by Titan but left at Zack’s Quarry as at 28 May 2007. That answers part of the claims as between Titan and ChongHerr. I find that, consistent with the view I have expressed on the operation of s.310 of the MRA, Titan to be the owner of all stockpiled sandstone on Zack’s Quarry as at 10 May 2006, and that ChongHerr is the owner of all sandstone stockpiled by Titan at Zack’s Quarry from 10 May 2006 to 28 May 2007.
What compensation should ChongHerr receive for Titan’s mining operations during the period 10 May 2006 to 25 May 2007?
Consistent with my reasoning above, ChongHerr is entitled to be compensated for the use that Titan has made of Zack’s Quarry in the period 10 May 2006 to 28 May 2007.
ChongHerr claims that subsequent to 10 May 2006, it could have leased 10 ha of Zack’s Quarry for the amount of $11,000 per month, relying on the evidence of its subleasing of Zack’s Quarry to Mr Jukes’ company in 2000 for that sum. Mr Ebsworth, on the other hand, says that a mining operation such as his or another operator undertaking like mining could not economically survive were it required to pay ChongHerr a minimum sum of $11,000 per month.[86] Mr Ebsworth cites the liquidation of Mr Jukes’ company as evidence of the inevitable outcome that flows from a sublessee attempting to pay such a rental for Zack’s Quarry.
[86] See evidence of Mr Ebsworth at transcript page 33.
Mr Ng gave evidence that he had negotiated the original amount of rental for Zack’s Quarry by Titan in the sum of $2,500 per month minimum because Titan was a start up company and he understood that the rental would increase as Titan became more familiar with the mining on Zack’s Quarry.[87] Mr Ebsworth disagrees with Mr Ng in this regard.[88]
[87] See evidence of Mr Ng at transcript page 264.
[88] See transcript page 33.
As I have already indicated, where there is a conflict I prefer the evidence of other witnesses over that of Mr Ng. If it were the case that I only had the evidence of Mr Ebsworth to consider, that would be of itself sufficient for me to find that ChongHerr would not have been able to rent Zack’s Quarry on and from 10 May 2006 for the minimum amount of $11,000 per month. Mr Ebsworth however does not provide the only evidence in support of a figure much less than $11,000 per month. ChongHerr’s own witness, Mr Bulthuis, has given clear evidence in my view that he was prepared to enter into a rental arrangement with ChongHerr for somewhere between $3,000 and $4,000 per month minimum, plus an additional amount of $100 per load over and above the minimum.
Given the fact that the rental payable by Titan to ChongHerr had increased as per the amendment to the sublease from a minimum of $2,500 per month to $3,000 per month back in 2005, and consistent with the evidence of Mr Bulthuis, I do find it reasonable that ChongHerr would have been able to negotiate a rental of Zack’s Quarry post 10 May 2006 for the minimum rental of $4,000 per month, with this amount representing the taking of 40 truck and dog loads per month from Zack’s Quarry. Further, I find that ChongHerr would also have been able to recover by way of rental an additional amount of $100 for each truck and dog load in excess of 40 loads taken from Zack’s Quarry in any one month. On top of the minimum payment of $4,000 plus additional payments of $100 per load as appropriate, ChongHerr would also have received payments of 50 cents per tonne representing royalty payments that it is obliged to pay to the Crown, together with 50 cents per tonne that ChongHerr is required to pay the local authority.
On the facts and circumstances of this case, in my view ChongHerr should be entitled to recover no more and no less from Titan than it would have received had it entered into a new sublease agreement with an operator for the period 10 May 2006 to 28 May 2007. It therefore becomes a relatively simple matter to apply the rental rates that I have found ChongHerr could reasonably have received for Zack’s Quarry during the period in question to the amounts of sandstone actually mined by Titan from 10 May 2006 and removed from Zack’s Quarry by Titan. Accepting the evidence of Mr Ebsworth as to the amounts removed from Zack’s Quarry during the period in question, I calculate the amount owing to ChongHerr for this period as follows:
| SUMMARY TITAN’S OPERATIONS, 10 MAY 2006 – 28 MAY 2007 @ min of $4000 per month | ||||
| Date | Loads Removed from Quarry | Royalties Paid by Titan on loads | Rent paid by Titan | Monies owed by Titan |
| May | [41.73] * | Yes | 3,000 | |
| June | [41.73] * | Yes | 3,000 | |
| July | 30 | Yes | 3,000 | R: $1000 |
| August | 44 | No | 3,000 | (T= 1100t) GSC: $55 SG: $55 R: $1000 AR (4): $400 |
| September | 23 | No | 3,000 | (T= 57.50t GSC: $287.50 SG: $287.50 R: $1000 AR (0): 0 |
| October | 43 | No | 3,000 | (T= 1,075t) GSC: $537.50 SG: $537.50 R: $1000 AR: (3) $300 |
| November | 62 | No | 3,000 | (T= 1550tt) GSC: $775 SG: $775 R: $1000 AR (22): $2200 |
| December | 74 | No | 3,000 | (T= 1850t) GSC: $925 SG: $925 R: $1000 AR (34): $3400 |
| January | 36 | No | 3,000 | (T= 900t) GSC: #450 SG: $450 R: $1000 AR (0) $0 |
| February | 44 | No | 3,000 | (T= 1,100t) GSC: $550 SG: $550 R: $1000 AR (4): $400 |
| March | 41 | No | 3,000 | (T= 1,025t) GSC: $512.50 SG: $512.50 R: $1000 AR (1): $100 |
| April | 18 | No | 3,000 | (T = 450t) GSC: $225 SG: $225 R: $1000 AR: 0 |
| May | 33 | No | Nil | (T= 825t) GSC: $412.50 SG: $412.50 R: $4000 AR (0): $0 |
| TOTAL | 542.46 loads @ 25 tonnes per load = 13,561.50 tonnes | (TL = 459) | ||
[*] 41.73 = average tonnes removed by Titan per month, calculated at 459 loads / 11 months. Note that additional rent not owing as the extra loads were paid at the base rate of $100 per load, and over 40 loads were extracted (loads 30-40 accordingly paid for in the additional rental sum of $1000)
[T] = Total tonnage of sandstone removed based on 25 tonnes per truck load
[TL] = Truck loads removed where royalties owed by Titan
[GSC] = Gatton Shire Council Royalty (@ $0.50/tonne)
[SG] = State Government Royalty (@ $0.50/tonne)
R = Rent owing by Titan
AR = Additional rent owing by Titan for removal of in excess of 40 loads
ChongHerr’s use of balance area of Zack’s Quarry
As previously indicated, the subleased area that Titan held from ChongHerr had a total area of 10 ha. Both the aerial photograph[89] and the inspection of the 10 ha shows that the area of actual mining disturbance on that 10 ha part to be significantly less than the total area of 10 ha. I also note that the total area of Zack’s Quarry as granted by ML 50013 is 129.3 ha.[90]
[89] Exhibit 12.
[90] See exhibit 21, annexure PN-1.
Mr Ng in his evidence stated that, in his view, a new operator going onto Zack’s Quarry would choose to open up a new area rather than to continue working on the pits already opened up by Titan.[91] Mr Ng in his evidence also stated his understanding of what he referred to as an extended emos, which he also referred to as a “one time open area” and a maximum area that can be extracted of 5 ha. Specifically, Mr Ng had this to say:[92]
“WITNESS: Okay. In Zacks Quarry we have what we call extended emos.
BY MS MOODY: Extended emos – e-m-o-s?—E-m-o-s. It means that at one time the maximum area that we can extract is five hectares.
The maximum area you can extract from or that you can sublet someone else to extracted from is 5-hectare areas?-- Five hectares over there. Over there, I do measure from here to there or from here to there (indicating). Is very close to five hectares.
And if someone wanted to move into the forest, as you suggested would be a viable thing to do, what would ChongHerr’s obligations be with respect to that existing bare area and pit?-- It means that before they start to move on, they have to be happy with this pit first and then get the EPA staff coming in so we are doing some rehabilitation and then we can start to move out. This is called a one-time open area.
So by the EPA, do you mean the Environmental Protection Authority?-- Yes.”
[91] See transcript page 284.
[92] At transcript page 283.
I have raised with Counsel my concerns as to the amount of area that may be significantly disturbed at any one time on the entirety of Zack’s Quarry (that being the full 129.3 ha). As well as raising the issue with Counsel during submissions, I also caused the Land Court to send letters to the legal representatives for the parties.[93]
[93] See letters 30 October 2004 and 10 December 2008.
Ms Moody made reference in her submissions to various provisions and regulations of the Environmental Protection Act 1994 (EP Act). Unfortunately, I received no reply from the legal representative for ChongHerr to the recent Land Court correspondence.
ChongHerr of course by its counterclaim seeks a significant sum of money from Titan for its inability, so it says, to sublease or contract out Zack’s Quarry whilst disputed sandstone remains on Zack’s Quarry claimed by Titan. Specifically on this point, Mr Ng gave the following evidence:[94]
“And you said – and you said it a couple of times – that you didn’t want to talk to people about leasing or selling the freehold and you said ‘I’m not ready.’?-- Yes.
Can you tell the Court what you mean by that? When you say ‘I’m not ready’, what do you mean? What is ChongHerr not prepared to talk to people about leasing Zacks at this stage?-- Just because of the direction from the director. Once he want to sell or to promote something, we have to prepare ourself first, so we want to have a clear-cut. It means that when we lease the contract out, we make sure that we are legally to let the people go in because we don’t want somebody coming in for two days and then walk away and it’s a lot of money for them to move the machine in to get a lot of preparation, so we don’t want to be a bad people.
When you say ‘clear-cut’, what issues are you referring to that at the moment have not been clear-cut that mean you can’t deal with the quarry?-- It means that, legally, they are authorised by us that they are entitled to go in to do their extraction. It doesn’t mean that they go in for two days’ time – ‘I’m sorry, Mr ABC, just because of the court case, I have to ask you to leave.’, something like that. So we make sure that we get 100% authority before we say something to somebody. I don’t want to say, ‘Oh, you can be there, but you are subject to dah, dah, dah.’ I don’t want to do that.
In terms of the things that are not clear-cut, is the dispute over ownership of the stockpiles a matter which has influenced you?-- Yes.”
[94] At page 279.
I do not accept Mr Ng’s evidence in this regard. As indicated, Zack’s Quarry has a large total area of 129.3 ha. On any view, only a very small proportion of those 129.3 ha have been significantly disturbed. Some of the areas that have been previously mined fall outside of the 10 ha on which Titan operated. Unfortunately, the lack of evidence put forward by ChongHerr as to the actual state of mining activities on the whole of Zack’s Quarry from an EPA perspective leaves me in a position where it is simply impossible for me to determine how much, if any, of the mining lease area outside of the 10 ha sublet to Titan would still fall to be categorised today as “significantly disturbed”. As I have already found, significantly less than the 10 ha sublet to Titan was significantly disturbed by Titan.
Within the realm of Queensland mining law, the term “significantly disturbed” has a very important meaning. An understanding of the way significant disturbance operates can be gleaned from perusing the standard environmental conditions authorised and gazetted pursuant to the Environmental Protection Act.[95]
[95] See EP Act s.549. The Standard Environmental Conditions approved by the Minister are set out on the EPA’s website.
Indeed, in compensation decisions relating to mining leases, the fact that it is usual for only 10 ha of a mining lease to be significantly disturbed at any one time can have a profound impact on the compensation paid to a landholder, as in real terms a landholder will often be able to continue to use and occupy the balance area of a mining lease which is not currently subject to significant disturbance.[96]
[96] See for example the Land and Resources Tribunal decision in the case ofHicks & Anor v Graham & Anor [2004] QLRT 47 at paragraph 26
It is my very clear view that ChongHerr’s claim to be entitled to recover as against Titan any amount for ChongHerr’s stated inability to sublease or contract out Zack’s Quarry while its dispute with Titan remains outstanding post 28 May 2007 (or post 10 May 2006) must fail due to a clear lack of evidence. On any view of the matter, Titan only undertook mining operations on a small part of a relatively large mining lease, and the disputed stockpiles on that small mined part of Zack’s Quarry leave a very large amount of land subject to ML 50013 which presumably could have been exploited on ChongHerr’s behalf even with the disputed stockpiles remaining in place. ChongHerr has failed to provide the Court with any reliable evidence as to the mining activities that it could have undertaken on ML 50013 but for the existence of the disputed stockpiles.
ChongHerr did not put the actual environmental authority for ML 50013 into evidence. ChongHerr did not put the extended EMOS referred to by Mr Ng into evidence. ChongHerr did not provide to the Court detailed evidence of the area of land on ML 50013 which is currently significantly disturbed. ChongHerr did not put any credible evidence before the Court as to the current rehabilitation requirements of the EPA for ML 50013 in its post 28 May 2007 state. As the holder of ML 50013 and all environmental authorities pertaining thereto, ChongHerr was certainly in a position where it could have placed detailed evidence regarding all of the issues just mentioned before the Court had it chosen to do so. I can only conclude, applying the rule in Jones v Dunkel[97] that such evidence, had it been placed before the Court, would have worked against ChongHerr in its attempt to establish liability for damages payable by Titan post 28 May 2007.
[97] (1959) 101 CLR 298.
Sandstone in pre 10 May 2006 stockpiles remaining on site post 25 May 2006
In accordance with my previous findings, stockpiles 1,3,4,5,6,7 and 11 are the property of Titan. Titan seeks orders allowing it to remove these stockpiles over a period of 4 months, subject to the payment by Titan to ChongHerr of the sum of $100, plus royalties, for each load removed.
For its part, ChongHerr says that Titan should be ordered to immediately pay it a sum calculated by converting the amount of sandstone in the said stockpiles (55,650 cubic metres) to truck and dog loads on the basis of 25 cubic metres per load, with $100 being payable per load[98], plus royalty. This amounts to $222,600 plus royalities. ChongHerr also submits that, if Titan is allowed 4 months to remove the said stockpiles from Zack’s Quarry, then Titan should pay the sum of $11,000 per month for lost market rent. Chongherr also says that any sandstone remaining in the stockpiles after the 4 month period has elapsed should be demed as abandoned and revert to ChongHerr[99].
[98] See Submissions by ChongHerr, page 10, paragraphs 6.2, 6.3 and 6.4
[99] See Submissions by ChongHerr, page 11, paragraphs 6.8 to 6.12
I agree with Mr Fisher that the way of approaching the taking of the stockpiles should be consistent with the previous sub-lease[100]. Specifically, I can see no justification for ChongHerr receiving immediate payment for all of the sandstone in the said stockpiles while those stockpiles remain on Zack’s Quarry. ChongHerr has never, on the evidence, been paid by a sub-lessee or contractor on the basis of the sandstone mined. Rather, payments to ChongHerr have always been based on the amount of sandstone removed from Zacks Quarry.
[100] See Submissions in Reply, page 5, paragraph 15
I have already made specific findings regarding my view that I am unable to accept that ChongHerr could not have entered into a new sub-lease with another operator for the mining of sandstone on some other part of Zachs quarry apart from that area significantly disturbed by Titan. Ms Moody does however correctly assert that Chongherr should be entitled to recover as against Titan for at least the costs of Titan’s stockpiles remaining on ChongHerr’s land. I agree. In the circumstances of this matter, and given the lack of detailed evidence quantifying such loss, doing the best I can taking all matters into consideration I consider that ChongHerr should be entitled to recover from Titan the rather nominal sum of $100 per month for the period 25 May 2007 to 24 December 2008 (the date of delivery of this decision) which equates to 19 months x $100 which equals $1,900.
During the 4 month period when Titan may remove the sandstone in stockpiles 1,3,4,5,6,7 and 11, I can see no reason why the same arrangement should not apply as I have found with respect to the operations by Titan between 10 May 2006 and 25 May 2007. Clearly, Titan’s operations in removing the sandstone would render it difficult, if not impossible, for ChongHerr to contract with another operator to mine on Zack’s Quarry during that 4 month period. As Titan would have to remove in excess of 500 loads per month to take all of the sandstone in the stated stockpiles over the 4 month period, which at $100 per load would equate to $50,000 payable to ChongHerr, the advance minimum payment of $4,000 per month in my view is reasonable. ChongHerr should not be financially penalised should Titan choose to remove less than 40 loads per month during the 4 month period. Titan should pay ChongHerr the sum of $4,000 per month in advance, plus $100 for each load in excess of 40 loads removed per month, plus government and local authority royalties for each tonne removed, for the 4 month period.
Given the date of delivery of this decision, in all of the circumstances I consider that the 4 month period should commence on 1 January 2009. Consistent with my previous rulings, Titan should pay to ChongHerr the nominal sum of $25 for the period 24-31 December 2008.
ChongHerr seeks an order that any sandstone contained in stockpiles 1,3,4,5,6,7 and 11 and not removed by Titan within the 4 month period be treated as abandoned by Titan and become the property of ChongHerr[101]. Titan urges the Court not to make any such orders as “this would be tantamount to the Court interfering in private property rights without the benefit of initiating process properly invoking the jurisdiction of the Court on the issue of abandonment”[102]. Although I am in little doubt that Titan should lose access to stockpiles 1,3,4,5,6,7 and 11 if it does not remove such stockpiles from ML 50013 within the 4 month period, Mr Fisher has correctly pointed out that the question of abandonment has not been argued, plus of course at this time such question is purely hypothetical. Whilst I am therefore not inclined to make the order sought by ChongHerr as to abandonment, I am certainly prepared to order as indicated that Titan’s access to ML 50013 ceases after the period of 4 months ends.
[101] Submissions, ChongHerr, page 11, paragraph 6.12.
[102] Submissions in reply, Titan, page 6, paragraph 17
Costs
On the substantive application by Titan and on ChongHerr’s counterclaim, both parties can be seen as having some measure of success. There were also a number of pre-hearing skirmishes between the parties which resulted in costs being reserved until the final determination of the matter. In the circumstances, as each party seeks their costs, and due to the relative complexity of this decision, I consider it appropriate to allow the parties until 4:00pm on 30 January 2009 to file and serve any submissions they wish to make as to orders for costs, including reserved costs. Should any such submissions be received by 30 January 2009, the other party may reply to such submissions by 4:00pm on 6 February 2009.
Orders
Consistent with my rulings and findings above, I make the following orders:-
I declare that the sandstone extracted by or on behalf of Titan from Mining Lease ML 50013 and currently contained in stockpiles 1,3,4,5,6,7 and 11 is the property of Titan, subject to the rights to royalty payments of the Crown in right of the State of Queensland, and payments to the local authority, which such payments are payable via ChongHerr.
I Order that ChongHerr give to Titan by itself, its employees, agents and independent contractors, for a period of four months from 1 January 2009, free and unimpeded access to so much of ML 50013 as is reasonably required to remove the sandstone contained in stockpiles 1,3,4,5,6,7 and 11 from ML 50013.
I restrain ChongHerr by itself, its employees and agents and independent contractors, for the period of 4 months from 1 January 2009, from removing any of the sandstone contained in stockpiles 1,3,4,5,6,7 and 11 without the written consent of Titan or by order of the Land Court or of a court of competent jurisdiction.
I Order that Titan pay to ChongHerr the sum of $4,000 per month in advance for the period of 4 months from 1 January 2009.
I Order that, for the 4 month period commencing 1 January 2009, Titan pay to ChongHerr the sum of $100 per load (inclusive of GST) of sandstone transported from ML 50013 in excess of 40 loads per month, such payment to be made by Titan to ChongHerr within 14 days of the end of each monthly period.
I Order that, for the 4 month period commencing 1 January 2009, Titan pay to ChongHerr the Crown royalty of $0.50/tonne for all sandstone extracted and transported from ML 50013 in the previous calendar month, such payment to be made by Titan to ChongHerr within 14 days of the end of each monthly period.
I Order that, for the 4 month period commencing 1 January 2009, Titan pay to ChongHerr the local authority royalty of $0.50/tonne for all sandstone extracted and transported from ML 50013 in the previous calendar month, such payment to be made by Titan to ChongHerr within 14 days of the end of each monthly period.
I Order that, for the 4 month period commencing 1 January 2009, Titan provide to ChongHerr at its principal place of business by the 7th day of each calendar month all necessary documentation relating to sandstone removed from ML 50013 in the previous calendar month.
I Order that Titan pay to ChongHerr the sum of $32,275 forthwith, being the monies payable by Titan to ChongHerr with respect to Titan’s operations on ML 50013 in the period 10 May 2006 to 28 May 2007.
I order that Titan pay to ChongHerr the sum of $1,925 forthwith for the storage of stockpiles 1, 3, 4, 5, 6, 7 and 11 on Zack’s Quarry from 25 May 2007 to 31 December 2008.
I order that Titan pay to ChongHerr within 28 days of the date of this order the sum of $2,700 for removal and storage costs incurred by ChongHerr, unless Titan has already paid the outstanding sum of $2,700 either to ChongHerr directly or to the third party contractor who removed and stored the plant and equipment.
I declare that the sandstone extracted by or on behalf of Titan from Mining Lease ML 50013 and currently contained in stockpiles 2,8,9 and 10 is the property of ChongHerr, subject to the rights to royalty payments of the Crown in right of the State of Queensland, and payments to the local authority, which such payments are payable by ChongHerr.
I order any party seeking costs to file and serve any submissions they wish to make as to orders for costs, including reserved costs, by 4:00pm on 30 January 2009.
I order any reply to such submissions as to costs to be filed and served by 4:00pm on 6 February 2009.
Save as ordered in Orders 1 to 14 above, I dismiss the balance of the claims made by Titan.
Save as ordered in Orders 1 to 15 above, I dismiss the balance of the counterclaims made by ChongHerr.
I grant the parties liberty to apply on the giving of 3 days notice.
PA SMITH
MEMBER OF THE LAND COURT
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