Crossland v Auctus Resources Pty Ltd [2026] QSC 74

SUPREME COURT OF QUEENSLAND CITATION: Crossland v Auctus Resources Pty Ltd [2026] QSC 74 PARTIES: ELIZABETH HAZEL DAWN CROSSLAND (First Applicant) JANEY MAE CROSSLAND as personal representative of STEPHEN JOHN CROSSLAND (dec) (Second Applicant) DALE ALBERT CROSSLAND (Third Applicant) v AUCTUS RESOURCES PTY LTD ACN 136 606 338 (In Liquidation) (First Respondent) MT GARNET MINERAL FINANCE PTY LTD ACN 658 095 080 (Second Respondent) FILE NO/S: Cairns Registry No 16 of 2018 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 20 April 2026 DELIVERED AT: Cairns HEARING DATES: 7, 8, 9, 10 October 2025, supplementary submissions received 15 and 29 October 2025 JUDGE: Henry J ORDERS: 1. The applicants are relieved from forfeiture in respect of the breaches alleged in this proceeding. 2. The second respondent’s Counterclaim is dismissed. 3. The applicants will, by 4pm 1 June 2026, file and serve evidence showing that, since the trial hearing, they have paid: (a) an amount totalling at least $34,000 to the Department of Natural Resources and Mines, Manufacturing and Regional and Rural -- 1 of 65 -- 2 Development towards rent in respect of the subleased property; and (b) an amount totalling at least $68,000 to Mareeba Shire Council towards rates and water charges in respect of the subleased property. 4. I will hear the parties, including the liquidator of the first respondent, at a mention at 10am 5 June 2026, out of town parties having leave to appear by video link, the purpose of the mention being: (a) to confirm compliance with order 3; (b) for the Crosslands to inform the Court of their election; and (c) for the Court to list the matter at a later date, to hear the parties as to: i. the form of order for specific performance; ii. and as to costs. 5. The Registrar will forthwith notify KordaMentha (as liquidator of the first respondent) of these orders and my reasons and of its right to be heard, as contemplated in order 4. CATCHWORDS: SPECIFIC PERFORMANCE OF THE RIGHT TO GRANT OF A NEW SUBLEASE – SUBLEASES – LEASES – RELIEF AGAINST FORFEITURE – MORTGAGEE IN POSSESSION – TERMINATION OF A LEASE – ENFORCEMENT OF SPECIFIC PERFORMANCE OF A REGISTERED LEASE – BREACHES OF A SUBLEASE – READY, WILLING AND ABLE – where the applicants were sublessees of a pastoral lease – where the first respondent obtained a new lease and failed to grant a new sublease to the applicant as required by the old sublease – where the applicants applied for relief from forfeiture and specific performance from the respondents – where the second respondent became mortgagees in possession of the first respondent’s pastoral lease – whether the applicants’ right to the grant of new sublease was unenforceable because of uncertainty – whether breaches previously alleged by the first respondent ought to result in termination of the sublease or relief from forfeiture – whether new alleged breaches by the second respondent ought to result in termination of the sublease or relief from forfeiture – whether the applicants are ready willing and able to perform -- 2 of 65 -- 3 their obligations as sublessees – whether there should be an order for specific performance of the applicants’ right contained in the registered sublease to the grant of a new sublease. SPECIFIC PERFORMANCE OF A DEED – SUBLEASE – TERMINATION OF A DEED – ENFORCEABILITY OF A DEED AGAINST A THIRD PARTY – where the applicants and first respondent entered into a settlement deed to execute a new sublease which the first respondent failed to register – where the second respondent was not a party to the settlement deed – whether the first respondent used all reasonable endeavours to procure registration of the new sublease – whether the failure to register the new sublease within the specified timeframe time allowed for termination of the settlement deed – whether the settlement deed was terminated by the second respondent – whether the settlement deed is enforceable against the first and second respondents under s 349 Land Act 1994 (Qld), the Ocean Island Equity or the principle of approbation and reprobation – whether the applicants are entitled to specific performance of the settlement deed. Acts Interpretation Act 1954 (Qld), s 36, s 48A, schedule 1 Corporations Act 2001 (Cth), s 477 Land Act 1994 (Qld), s 199A, s 301, s 302, s 332, s 335, s 338, s 349, s 341 Local Government Regulation 2012 (Qld), s 74, s 155 Property Law Act 1974 (Qld), s 118, s 124 Property Law Act 2023 (Qld), s 140, s 153, ss 160-162, s 256 Ace Property Holdings Ltd v Australian Postal Corporation [2011] 1 Qd R 504, applied Allied Rural Pty Ltd v Stimpson [2023] QCA 77, cited Aust-One Investment Pty Ltd v New World Investments Pty Ltd (2023) 111 NSWLR 39, cited Azkanaad Pty Ltd v Galanos Bros Pty Ltd [2008] NSWCA 185, cited Bellevue Station Pty Ltd v Consolidated Pastoral Company Pty Ltd [2024] QCA 47, distinguished Bell Group NV v Insurance Commission of Western Australia [2017] WASCA 229, cited Bluepoint Properties Pty Ltd v Zuri Properties Pty Ltd [2022] QSC 26, cited Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600, cited Butt v McDonald (1896) 7 QLJ 68, cited Clifford v Dove [2003] NSWSC 938, cited Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, applied Elsafty Enterprises Pty Ltd v Mermaids Café and Bar Pty Ltd [2007] QSC 394, cited -- 3 of 65 -- 4 Foran v Wight (1989) 168 CLR 385, cited Friedman v Barrett [1962] Qd R 222, cited Henderson v Miles (No 2) [2005] NSWSC 867, cited John Hillam v JPSF Pty Ltd [2017] NSWSC 1510, distinguished Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, applied Mackay v Dick (1881) 6 App Cas 251, cited McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, cited Mercantile Credits Ltd v Shell Company of Australia (1976) 136 CLR 326, applied New Standard Energy PEL 570 Pty Ltd v Outback Energy Hunter Pty Ltd (2019) 135 SASR 469, applied New Zealand Shipping Co Ltd v Société des Ateliers et Chantiers de France [1919] AC 1, explained Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, cited Palermo Seafoods Pty Ltd v Lunapas Pty Ltd [2014] NSWSC 792, cited Parwan Investments Pty Ltd v Hooper [2024] VSCA 86, cited Quyd Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited Re Eastdoro Pty Ltd (No 2) (1990) 1 Qd R 424, explained Re Golden Key Ltd [2009] EWCA Civ 636, cited Re Stockland (Macquarie) Pty Ltd [1995] 1 Qd R 65, cited Rural View Developments Pty Ltd v Eastfort Pty Ltd [2011] 1 Qd R 35, cited Sargent v ASL Developments Ltd (1974) 131 CLR 634, cited Scammell (G) & Nephew Ltd v HC & TG Ouston [1941] AC 251, cited, distinguished Secured Income Real Estate (Aust) Ltd v St Martin's Investments Pty Ltd (1979) 144 CLR 596, applied Sentinel Orange Homemaker Pty Ltd v Davis Investment Group Holdings Pty Ltd (in liq) [2021] NSWSC 550, cited Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245, cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, cited, applied Tannous v Cipolla [2001] NSWSC 236, considered Walsh v Lonsdale (1882) 21 Ch D 9, cited Whitlock v Brew (1968) 118 CLR 445, distinguished Zhu v Treasurer (NSW) (2004) 218 CLR 530, cited Covell and Lupton, Principles of Remedies, 7 th ed, cited COUNSEL: M A Jonsson KC with J McDiarmid for applicants No appearance for first respondent J P Hastie with J V Patty for second respondent SOLICITORS: Northpoint Law for applicants No appearance for first respondent Mills Oakley for second respondent -- 4 of 65 -- [1] The Crossland family have worked a large grazing property known as Chillagoe Station since 1989. They have done so as sublessees of a rolling term lease for pastoral purposes, namely a registered rolling term lease over pastoral holding 9/2161.1 [2] The lessee of the rolling term lease, that is, the sublessor of the sublease, has changed over the years.2 In recent decades the sublessors have typically been mining companies that conduct mining operations near and on parts of the leased land. In 2016, the sublessor of the rolling term lease became the first respondent company, Auctus, which had also taken over nearby mining tenements on which mining and mineral processing occurred. Some tenements overlap land within the area of the rolling term lease. [3] The sublease, which was registered years ago, was due to expire on 30 March 2018, however the rolling term lease was renewed by extension to 31 March 2048. A renewal clause in the sublease obliged Auctus, as lessee under the renewed rolling term lease, to grant a further sublease to the Crosslands. [4] By late 2017 Auctus tried to avoid the obligation to renew, relying, in a Notice to Remedy Breach, upon some unheralded allegations of breach of the sublease. The Crosslands filed the present proceeding, on 12 January 2018, seeking: • a declaration they were not in breach, • relief against forfeiture, and • specific performance of the obligation to renew the sublease.3 [5] Ensuing reviews of the matter for the purpose of allocating a trial date were repeatedly adjourned by consent during the next six years, on the basis the parties required more time to implement a settlement of the case. [6] The Crosslands and Auctus had indeed entered a deed of settlement, on 20 August 2019, under which they executed a new sublease to the Crosslands, due to expire on 30 March 2048. The terms of settlement obliged Auctus to procure the registration of the new sublease, after which there was to be a consent order dismissing the proceeding. However, Auctus did not do what was necessary to procure registration of the new sublease and it remains unregistered. [7] The finalisation of the case was complicated by Auctus defaulting on a mortgage of its leasehold interest to Mount Garnet Mineral Finance Pty Ltd (‘MGMF’). [8] That mortgage was registered on 11 April 2022. By that time this proceeding had long been on foot and the registered sublease had expired. The evidence shows MGMF had corporate knowledge of the existence of a continuing sublease. That 1 A species of lease under Land Act 1994 (Qld). 2 Section 322 Land Act 1994 (Qld) permits the transfer of a lease (or sublease) with the Chief Executive’s written approval. 3 The proceeding was initiated as an application but in February 2018 orders were made for it to continue as if started by claim. -- 5 of 65 -- 6 knowledge included a report by PwC, styled as a ‘legal red flags report’, which referred to ‘the Sublease between the parties dated 20 August 2019 and noted the sublease’s expiry as ‘March 2048’. The report was provided by Auctus to those behind the decision to provide the finance, when they were in the ‘due diligence’ phase, even before they incorporated MGMF as the vehicle for providing the finance. It coupled with the fact, evident from a titles search, that there was a registered pre- existing sublease. [9] Auctus defaulted in March 2023, later going into liquidation. In December 2023, MGMF became mortgagee in possession of the rolling term lease, while the Crosslands remained in physical possession of the property, continuing to operate their grazing enterprise. At first there was a period during which MGMF’s agent, a prospective purchaser of the rolling term lease, acknowledged the Crosslands’ interest in the land. However, after the potential sale of the rolling term lease fell through, MGMF then denied its interest in the land was subject to any interest of the Crosslands or that it was bound by the settlement agreement. [10] It is thus unsurprising that MGMF became the second respondent in the current proceeding, pursuant to orders made on 1 November 2024. At that time leave was also given for the Crosslands to proceed against Auctus, which was in liquidation. [11] While Auctus played no active role at trial, it remains the registered lessee of the rolling term lease and it is necessary for the Crosslands to make good their case as against Auctus, as well as MGMF. [12] The Crosslands seek relief via two alternative paths. First, they assert a continuing right of specific performance of the renewal clause of the pre-existing registered sublease, deriving from its renewal clause. Second, they argue they are entitled to specific performance of the settlement agreement. [13] It is necessary to deal with each alleged path to relief, for, if both are established, the Crosslands seek an election as to which should be granted. PART A: DETERMINATION OF THE CASE BASED UPON ENFORCEMENT OF THE SUBLEASE RENEWAL CLAUSE [14] Part A of the Crosslands’ case is founded upon them having an interest, deriving from their registered sublease, under which the sublease’s renewal clause can attract an order for specific performance. [15] In meeting that case MGMF argues the renewal clause is unenforceable, for lack of certainty. If wrong about that, MGMF relies upon the old breaches alleged by Auctus as grounds for termination. Those breaches lack substance. [16] Further, some more recently alleged breaches, of the Crosslands’ obligation to pay rent, rates and outgoings, are relied upon by MGMF as grounds for termination and in support of a Counterclaim by MGMF for damages. However, that controversy stems from patchy managerial attention by the respondents to communicating the amounts the Crosslands were obliged to pay, not an unwillingness by the Crosslands to pay. -- 6 of 65 -- 7 [17] MGMF additionally argues the Crosslands should in any event be refused specific performance because they are not ready, willing and able to perform their obligations as sublessee. Yet, to the extent the evidence points to any recalcitrance by the parties in performing their obligations, it does not point to the Crosslands. [18] Part A of the case falls for determination by reference to the following issues: (i) Do the Crosslands have an interest capable of attracting an order for specific performance? (ii) Is the renewal clause unenforceable for lack of certainty? (iii) Should the old alleged breaches deprive the Crosslands of relief? (iv) Should the more recently alleged breaches deprive the Crosslands of relief? (v) Are the Crosslands ready, willing and able to meet their obligations as sublessees? (vi) Does determination of the foregoing issues dispense with the Counterclaim? (vii) Should an order for specific performance be made? Do the Crosslands have an interest capable of attracting an order for specific performance? [19] The sublease was, and still is, registered as an interest in the rolling term lease . It was registered years before MGMF’s mortgage was registered. [20] The lease and sublease were both due to expire in March 2018, however, in 2014 the rolling term lease was renewed by extension, to 31 March 2048. This triggered the operation of cl 18.2 of the sublease. [21] Clause 18 provides: 18. Extensions and renewals of lease 18.1 The Sub-Lessor shall make applications to the Minister for Land Management for renewals of the Lease or the grant of new leases on similar terms and conditions to the Lease and shall take all reasonable steps to have such renewals or new leases granted to the Sub-Lessor. 18.2 Upon such renewals or new Leases being granted, the Sub- Lessor shall grant sub-leases thereof upon similar terms and conditions to this Sub-Lease. (emphasis added) [22] Under cl 18 the Crosslands’ right to the grant by the sublessor of the renewed or new rolling term lease was not merely an option to renew, dependant for its operation upon whether the Crosslands requested a grant of it. The clause’s operative effect was automatic. The rolling term lease having been renewed by extension, cl 18.2 of the -- 7 of 65 -- 8 registered sublease obliged Auctus to grant the Crosslands a sublease of the renewed rolling term lease ‘upon similar terms and conditions’ as the existing sublease. [23] Auctus having failed to renew the registered sublease, the Crosslands sought specific performance of that obligation, commencing the present proceeding on 12 January 2018, before the March 2018 expiration date. [24] Once the expiration date passed, the Crosslands continued in occupation. The Crosslands’ continuing tenancy, including their obligations under it, was pursuant to an equitable lease of the kind recognised in Walsh v Lonsdale.4 That equitable lease derived from the right of grant of a new sublease. That was of continuing effect pending this Court’s determination of whether to order specific performance of that right.5 It was on terms as per those which prevailed previously under the sublease and to which the Crosslands were also entitled had the new sublease been executed as it should have been, pursuant to cl 18.2 of the sublease. [25] While the lessee’s rights under the rolling term lease are exercisable by MGMF as mortgagee in possession, it remains that the lessee, still registered as such, is Auctus. It is Auctus against which the Crosslands are entitled to enforce their continuing right of grant of a new sublease pursuant to cl 18.2 of the sublease. It is thus Auctus against which the primary terms of an order for specific performance enforcing that entitlement would be directed. [26] I will return later to how the competing priorities of the Crossland’s entitlement, contained in the previously registered sublease, and MGMF’s registered mortgage may bear upon the making of an order for specific performance. But the present question is whether the Crosslands have an interest capable of attracting an order for specific performance. [27] To ground an order for specific performance of a contractual obligation, it is necessary there is an agreement, that it has been breached, that common law damages are an inadequate remedy and that there is no discretionary defence or denial disentitling relief.6 In the context of such a long term lease and the long and close familial connection of the Crossland family and their grazing enterprise with the property, damages would not be an adequate remedy. It is not argued otherwise. Rather it is argued that the agreement’s relevant terms are not clear enough to be binding, there have been disentitling breaches of the sublease and the Crossland’s are disentitled from relief because they are not ready, willing and able to perform their obligations as sublessees. For the reasons which follow, those arguments must fail. [28] It follows the Crosslands do have an interest capable of attracting an order for specific performance. Whether such an order should be made, specific performance being an equitable remedy, is a topic dealt with later in these reasons. 4 (1882) 21 Ch D 9. 5 Palermo Seafoods Pty Ltd v Lunapas Pty Ltd [2014] NSWSC 792, [44]. 6 Covell and Lupton, Principles of Remedies, 7 th ed, [7.3]. -- 8 of 65 -- 9 Is the renewal clause unenforceable for lack of certainty? [29] MGMF argues that cl 18.2 is unenforceable for lack of certainty. Specifically, it relies upon the alleged lack of certainty arising from the words, ‘upon similar terms and conditions’. [30] It is well settled that, for an agreement to be binding, its ‘terms must be so definite, or capable of being made definite without further agreement of the parties, that the promises and performances to be rendered by each party are reasonably certain’.7 MGMF submits that cl 18.2 is nothing more than an agreement to agree, because of its use of the word ‘similar’ as distinct from ‘same’, its absence of stipulation of what the terms of the new sublease were to be and its absence of a mechanism for determining them. [31] In support of its argument MGMF relies upon Bellevue Station Pty Ltd v Consolidated Pastoral Company Pty Ltd.8 In that case, holders of adjoining pastoral properties held under Crown leases entered into a give-and-take agreement as a practical means of dealing with the cost of constructing a boundary fence between their properties along rugged terrain which was difficult to erect a fence on. They instead agreed to erect a boundary fence that followed a less rugged course, deviating in parts into each of the properties. Each owner agreed that the other could have the use of that part of their property into which the fence line deviated. Their agreement contained this clause: In the event that either party disposes of its land, it will draw the attention of the incoming purchaser to this Agreement and have them enter into a similar arrangement with the continuing party.9 [32] There was subsequently a sale of one of the leasehold properties. The purchaser was informed of the agreement but refused to enter into the new proposed agreement, instead giving notice it intended to construct a fence along the actual boundary. The trial judge dismissed an application which attempted to oblige the purchaser to sign the proposed new agreement. [33] Dalton JA, with whom Mullins P agreed, identified several bases for dismissing the ensuing appeal, one of which was that the phrase ‘enter into a similar arrangement’ was too uncertain to be enforceable. Her Honour observed that, ‘A promise to contract on similar terms is an agreement to agree and not enforceable’.10 That observation is unlikely to have been intended to be followed as a statement of universal application, regardless of the facts of the case. It is well established that a mere agreement to agree at some time in the future is not an enforceable agreement.11 But the language of cl 18.2 was not an agreement to agree. It was part of the existing sublease under which it had already been agreed the sublessor was obliged to grant a new sublease on similar terms and conditions as the sublease. [34] Dalton JA explained in Bellevue Station she would have found there was no uncertainty if the words ‘a similar arrangement’ had instead been ‘this same 7 Scammell (G) & Nephew Ltd v HC & TG Ouston [1941] AC 251, 269. 8 [2024] QCA 47. 9 Ibid [4]. 10 (2024) 19 QR 179, [19]. 11 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600, 604. -- 9 of 65 -- 10 agreement’. Her Honour explained it could not be assumed those words meant the same thing, because of variables such as the passage of time, changes in the business operation of the two stations and factors peculiar to the identity of an incoming purchaser. Her Honour observed that no one could say at the time of the contract what the terms of the new give-and-take agreement were to be,12 citing the cases of Scammell (G) & Nephew Ltd v HC & TG Ouston13 and Whitlock v Brew.14 The facts of both those cases are quite different to the present. [35] Scammell involved an order placed for the acquisition of a hire van, qualified by a term stating the order was ‘given on the understanding that the balance of purchase price could be had on hire purchase terms over a period of two years’. Because of the potentially numerous forms of hire purchase transactions and the multiplicity of potential terms and details which they involve, it was held the term was so uncertain as to prevent the existence of an enforceable contract.15 [36] In contrast, in the present case, the form of the future sublease, as well as its terms and details, are readily ascertainable by referring to the sublease and the rolling term lease. [37] In Whitlock v Brew, the contractual clause at issue required the purchaser of land, a portion of which contained a Shell petrol station, to grant a lease of that portion for use for sale of products by Shell ‘upon such reasonable terms as commonly govern such a lease’. The agreement provided, in the event of a dispute as to the interpretation of that clause, that such dispute shall be referred to an arbitrator to be appointed, failing agreement, by the President of the Law Institute of Victoria. In the High Court the majority held the clause was uncertain because it did not prescribe the term of the lease or the rent and the arbitration provision did not authorise an arbitrator to fix the term of the lease or the rent. [38] In contrast, in the present case, the term of the sublease and the clause providing for rent to be paid are readily ascertainable by reference to the sublease read with the rolling term lease. Firstly, as to the term of the lease, the existing sublease term mirrored the term of the existing rolling term lease. The term of the sublease was conditioned to be ‘to the 30th March, 2018’ and the rolling term lease had been due to expire on 31 March 2018 before it was renewed by extension to 31 March 2048. Obviously, the term of the new sublease would be to 30 March 2048. As to the rent, it was simply a matter of drawing upon the existing mechanism in cl 2.1 of the sublease, which provided the rent ‘shall be equal to the rent payable from time to time by the Sub-Lessor under the terms of the [Pastoral] Lease’. [39] Obvious points of distinction between Bellevue Station and the present case are that the clause at issue in Bellevue Station sought to impose a personal arrangement between interested parties upon a future stranger to the parties’ relationship and did so in a shortly stated way, rather than as part of longer instrument regulating the parties’ legal relationship. In contrast the right of renewal clause in the present case, is, to adopt the language of Stephen J in Mercantile Credits Ltd v Shell Company of 12 [2024] QCA 47, [18]. 13 [1941] AC 251. 14 (1968) 118 CLR 445. 15 Scammell (n 12) 261-262. -- 10 of 65 -- 11 Australia,16 intimately concerned with the existing relationship between sublessor and sublessee. Because the right arises in that context, there is an instrument regulating that relationship, that is, the existing sublease. It articulates the rights and obligations of the parties and thus brings certainty to the terms and conditions of a grant by new sublease of those rights and obligations. [40] There is no reason to infer that, by using the word ‘similar’ as distinct from the word ‘same’, the parties were here trying to accommodate variables and uncertainties of the kind Dalton JA reasoned the parties were conscious of in Bellevue Station. Of course, it was inevitable there would be some differences in the wording of the new sublease in the present case. For example, the dates of its term would be different. It was also at least possible that, with the passage of time, the names and descriptions of persons in the sublease may change or there may be variations in the titling of the land the subject of the rolling term lease. For example: the lessor changed; cl 1.1 made the sublease ‘subject to the approval of the … Minister for Land Management’ who is nowadays described as the Minister for Natural Resources and Mines (etc); and the description of the land changed from Lot 3 on Plan LD 123 to Lot 11 on SP 104550 and Lot 3 on SP150971. [41] The prospect of variations of that kind doubtless explains why, in the present case, the parties chose the word ‘similar’ rather than ‘same’. However, it remains that the content of such variations is readily ascertainable, without the need for negotiation of some additional agreement of the parties. Further, such variations require no material change to the substance of the parties’ rights and obligations as described in the sublease. [42] Assessments of certainty depend on the individual circumstances of the case. The same word or words may carry variable levels of certainty depending upon the factual context of the case in which such words are used. The above analysis demonstrates material differences in the level of certainty as between this case and Bellevue Station, and should lead to a different conclusion here. [43] MGMF also placed faint reliance on John Hillam v JPSF Pty Ltd,17 where Sackar J concluded an agreement, in which there was reference to sending lease documents which would include standard terms and be ‘similar’ to another lease, did not evidence an intention to contract on certain terms. But that case involved an oral agreement, the terms of which his Honour considered were too uncertain and vague to objectively show an intention to be bound to any alleged agreement. It was a very different case from the present. [44] The use of the word ‘similar’ in the present case worked no uncertainty. It catered for the inevitability of variations in the currency of descriptors used in the former sublease when drafting a new sublease. Considered in context, the language of cl 18.2 meant that the new sublease should otherwise replicate, and thus continue, the rights and obligations of the parties contained in the former sublease. [45] In my conclusion, cl 18.2’s requirement that the sublessor grant subleases upon similar terms and conditions to the existing sublease, allowed sufficient certainty for it to be enforceable. 16 (1976) 136 CLR 326, 351. 17 [2017] NSWSC 1510, [266]. -- 11 of 65 -- 12 [46] That conclusion enlivens the potential availability of specific performance as a remedy. In light of that conclusion, it is convenient to next move chronologically through the various sets of alleged conduct by the Crosslands which MGMF relies on as precluding the remedy of specific performance. Should the old alleged breaches deprive the Crosslands of relief? [47] On 25 October 2017 Auctus’s solicitors wrote to the Crosslands noting the ‘current term’ of the sublease was to expire on 30 March 2018 and advising that Auctus required the Crosslands to vacate the property by then. [48] The Crosslands responded by email of 29 November 2017, pointing out that cl 18 of the sublease required Auctus to extend the sublease to the date which the rolling term lease had been extended to, namely 31 March 2048. The email requested the provision of the lease extension documents to give effect to the extension of the sublease. [49] Auctus then confected a different means of getting the Crosslands to vacate. On 13 December 2017 it served a ‘Notice to Remedy Breach of Covenant’ per s 124 Property Law Act 1974 (Qld). The notice made allegations of breach in connection with control of noxious plants and animals, clearing vegetation for an access track, construction of cattle yards and damns, spill containment for diesel storage and evidence of insurance. [50] The Notice to Remedy Breach set a deadline date of 12 January 2018. On that date the Crosslands filed the present proceeding, seeking a declaration it was not in breach, relief against forfeiture and specific performance of the obligation to renew the sublease. On 15 February 2018 Auctus served a Notice to Tenant requiring delivery up of the subleased premises on 3 April 2018.18 Auctus’s subsequently filed Defence relied upon the breaches alleged in the Notice to Remedy Breach. The Court has discretion to grant relief from forfeiture [51] The process of giving of Notice to Remedy Breach, enforcing forfeiture and seeking relief against forfeiture was, in that era, provided for by s 124 Property Law Act 1974 (Qld). In summary, s 124(1) provided that a right of re-entry or forfeiture under a lease, for a breach of it, shall not be enforceable unless and until the lessor serves on the lessee a notice: • specifying the particular breach complained of and, if it is capable of remedy, • requiring the lessee to remedy it within a reasonable time.19 [52] Section 124(2) in turn provided for a lessee to be able to apply for relief against forfeiture and conferred a discretion upon the court to ‘grant or refuse relief, as it thinks fit’. [53] The Act was repealed and replaced by the Property Law Act 2023 (Qld) effective from 1 August 2025, but it preserved the relevant notice of breach procedure of s 18 The Tuesday following the long weekend during which the sublease was due to expire. 19 Statutory reference to a lease includes a sublease, per s 36 and sch 1 Acts Interpretation Act 1954 (Qld). -- 12 of 65 -- 13 124(1), in s 153, and the relevant features of s 124(2), regarding relief against forfeiture, in ss 160 to 162. I will exercise my discretion whether to grant relief against forfeiture pursuant to the new Act, because the assessment of whether relief should be granted falls for determination now and, further, s 256 of the new Act provides the abovementioned provisions apply whether the lease was entered into before or after the commencement. [54] That said, there is no material difference. Under the new Act the court has the discretion to make such orders as the case requires, including granting relief against forfeiture, even if there may have been breaches. It is inevitable that, as before, the assessment of what orders the case requires would take all the relevant circumstances of the case into account. [55] The usually relevant circumstances were described in this way by Keane JA in Ace Property Holdings Ltd v Australian Postal Corporation:20 Consideration of the question of relief from forfeiture requires attention to a number of issues: the gravity of the breach or breaches in question, whether the breach was inadvertent or wilful, the damage to the covenantee and the relative loss to the covenantor if relief is not granted. Sometimes these issues overlap in practice. … Such considerations are apt here and they all favour the Crosslands. There was no historical concern about the Crosslands’ conduct under the sublease [56] Before moving to the specific allegations of breach it is helpful to remember that this is not a small suburban property with a short-term lease managed by a real estate agent who rarely sees the property. [57] Chillagoe Station is a working cattle station of over half a million acres. The Crossland family have operated it as sublessees since 1989, when the sublessees became Donald and Elizabeth. Donald later retired and his and Elizabeth’s sons, Stephen and Dale, were added as sublessees with Elizabeth. [58] The Crosslands have made significant improvements to the property over the years. In 1989 the station was in a rundown condition. The homestead and the yards near the house were in disrepair. There were no workable dams, functioning pumps or bores, and the yards and fences all had to be rebuilt. When Stephen and Dale Crossland took over management of the property from their Uncle James in the mid- 1990s, a lot of work had already been done to improve the property to restore it to a productive condition. They continued that pattern, working to re-establish reliable watering points, build loading ramps, restore outbuildings, repair existing fencing and build additional fencing, including boundary fencing and containment areas around stock water points to allow for effective stock management. [59] On the strength of their long-term sublease of the rolling term lease, with its promise of a further sublease on the rolling term lease’s renewal, the Crosslands have built a viable working cattle station. It has long been the Crosslands’ home, with Stephen 20 [2011] 1 Qd R 504, 554. -- 13 of 65 -- 14 and Dale Crossland raising their families on and near the property, and a source of their livelihood. [60] The sublessor of the property has in recent times been a series of mining companies who carried out their own operations on and near the property and whose representatives from time to time had contact with the Crosslands. Despite that proximity there is no evidence that any of the Crosslands’ activity, in maintaining and operating a working cattle station, had ever been a cause of concern to the past sublessors. [61] Auctus did not become the new registered sublessor until 13 May 2016. In February 2016, at a time when Auctus was named Atherton Resources Ltd, it had instructed Lane Infrastructure to inspect Chillagoe Station and prepare an assessment of the performance of the lessees against their obligations under the sublease. If they did so hoping to find fault with the Crosslands’ performance, the ensuing report, in May 2016, would have been a disappointment. It described an apparently well run and maintained cattle station. Nonetheless well over a year later Auctus drew upon some information in the report in assembling its collection of allegations of breach for its Notice to Remedy Breach. What breaches were alleged? [62] The Notice to Remedy Breach in summary alleged the following breaches and actions required to rectify each breach: (a) failure to control weeds, noxious plants, vermin and noxious animals, in breach of cls 3.1, 10.1: ‘Remove and exterminate all weeds and noxious plants…all vermin and noxious animals from the Premises’; (b) clearing or cutting of timber or vegetation, unlawfully or without sublessor consent, to clear an access track in breach of cls 3.1, 7.1, 14.2: ‘Reinstate the Premises to their original condition’; (c) construction of cattle yards and dams without prior written consent, in breach of cl 14.2: ‘Reinstate the Premises to their original condition’; (d) failure to provide a spill containment system for bulk diesel storage, in breach of cl 3.1: ‘Provide bunding and/or adequate spill prevention measures for bulk diesel storage’; and (e) failure to take out fire, storm, tempest and public liability insurance, in breach of cl 12.1 – ‘Provide copies of certificates of currency’.21 I now deal with each of the alleged breaches in turn. Was there a failure to control weeds, noxious plants, vermin and noxious animals? [63] The Notice to Remedy Breach alleged there had been a failure to control weeds, noxious plants, vermin and noxious animals, in breach of cls 3.1, 10.1 of the sublease. Those clauses provide: 21 Exhibit 1.1, exhibit p29. -- 14 of 65 -- 15 3. Statutory requirements 3.1 The Sub-Lessees shall comply with all the obligations (other than the payment of rent) of the Sub-Lessor under the Lease, the Land Act and any other relevant statutory provision in respect of the Demised Premises and agree to indemnify and hold harmless the Sub-Lessor in respect of any loss, damage, action or liability suffered by, brought against or incurred by the Sub-Lessor as a result of any failure or omission by the Sub-Lessees to comply with such obligations. … 10. Control of Noxious Plants and Pests 10.1 During the term of this Sub-Lease, the Sub-Lessees shall use all proper means for keeping down and exterminating upon the Demised Premises all rabbits and other vermin, noxious animals, insects, all thistles, weeds and other noxious plants and comply with all laws and regulations now or hereafter in force with relation to the keeping down and extermination of the same. … [64] Clause 3.1 refers to compliance with obligations under the lease and statutory provisions. It is not apparent, nor argued, that this alleged breach failed to comply with statutory provisions. As to cl 10, it required the use of ‘all proper means for keeping down and exterminating’. The mere presence of weeds, noxious plants, vermin and noxious animals was logically not evidence of a failure to ‘use all proper means’. In requiring the Crosslands to ‘remove and exterminate all weeds and noxious plants… [and] all vermin and noxious animals from the Premises’, the Notice to Remedy Breach went beyond the requirements of cl 10. It purported to impose an absolute requirement, which would be unrealistic for such a large area of land, and was not required by the sublease. [65] The evidence shows the Crosslands have long endeavoured to remove and exterminate weeds, noxious plants, vermin and noxious animals, deploying substantial and well considered programmes, in concert with government agencies, with substantial success. There is no evidence that they did not use ‘all proper means’ and no argument was advanced to the contrary. There was no breach. [66] Further, the one month period allowed for the taking of the required remedial action was unreasonably short for a property of this size. That is an additional reason why the notice was ineffective in respect of this alleged breach. Was there clearing or cutting of timber or vegetation, unlawfully or without sublessor consent, to clear an access track? [67] The Notice to Remedy Breach alleged there had been clearing or cutting of timber or vegetation, unlawfully or without sublessor consent to clear an access track, in breach of cls 3.1, 7.1, 14.2. [68] Clause 3.1 is quoted above. Again, it is not apparent what statutory provisions this alleged breach failed to comply with. As to cls 7.1 and 14.2, they provide: 7. Cutting of timber -- 15 of 65 -- 16 7.1 The Sub-Lessees shall not cut, sell, remove or in any way interfere with any timber on the Demised Premises except for the purposes of maintaining or erecting fencing required by these provisions or for the domestic use of the Sub-Lessees. However, no timber shall be cut or removed without the prior issue to the Sub-Lessor of a Permit to Destroy Trees by the District Land Commissioner. … 14. Consent of the Sub-Lessor required … 14.2 The Sub-Lessees shall not make any alterations or additions to the Demised Premises or erect any improvements thereon without the prior written consent of the Sub-Lessor, which consent shall not be unreasonably withheld, provided the Sub-Lessees have performed the terms, covenants and conditions of this Sub-Lease. [69] The activity Auctus seized upon in support of the alleged breach was the clearing of an already existing access track near the Walsh River. The photographs taken by Auctus’s Mr Grabski in mid-2016, reveal there had been some clearing of the track because there are some fallen trees which appear, at some indeterminate past point in time, to have been pushed over or cut away from the track, in positions consistent with them having grown near and over the track.22 [70] Stephen Crossland deposed that Chillagoe Station is covered with a multitude of old access tracks, some of which the Crosslands have identified as useful for station management purposes. They have undertaken maintenance of the tracks, as and when required. They undertook such maintenance on the Walsh River track because it had become so narrowed through encroachment of vegetation regrowth and so rough through erosion, that it was to the point of becoming impassable, making management of the property in the areas serviced by that road extremely difficult. Mr Crossland deposed: We used a bulldozer to clear the road of encroaching vegetation and to fix the erosion degradation where it had occurred, and construct drainage as required in various places to prevent future erosion issues. All of these works were to re-establish the track as it had previously existed. [71] It is not apparent whether such cutting or removal of timber was of a kind which required the issue of a permit of the kind contemplated by cl 7.1, particularly bearing in mind that, even on Mr Grabski’s evidence, there are regulatory exemptions allowing leaseholders to undertake clearing to maintain roads. For this activity to have been in breach of cl 7.1, it would be necessary to interpret the first sentence of 7.1 as precluding the cutting of, removal of or interference with encroaching timber in order to maintain access tracks on the premises. [72] Such an interpretation is admittedly open on the literal language of cl 7.1, read in isolation. On the face of it, cl 7.1 precludes interfering with timber on the premises ‘in any way’, other than for the purposes of maintaining or erecting fencing or for 22 Mr Grabski’s affidavit also referred to and photographed some other clearing beyond the leased area, which is irrelevant. -- 16 of 65 -- 17 domestic purposes. Such an interpretation would have the curious result that the Crosslands could not remove or even prune trees or branches that had fallen or grown across the access tracks of their property unless their purpose in doing so was to use the wood domestically or for fencing. Contextual considerations tell strongly against such an interpretation. [73] When interpreting terms of commercial contracts, the High Court affirmed in Electricity Generation Corporation v Woodside Energy Ltd,23 that the terms of the contract should be determined by what a reasonable businessperson would have understood those terms to mean. The High Court explained this is done by considering the language used, the surrounding circumstances and the commercial purpose of the contract.24 The court should approach a commercial contract with a businesslike interpretation and assume the parties intended to produce a commercial result.25 Further, a commercial contract should be construed in such a way that it avoids ‘making commercial nonsense or working commercial inconvenience’.26 [74] Clause 7.1 is contained within a sublease that clearly contemplates the sublessee will be using the land for agricultural purposes27 and that this will include the running of cattle on the property.28 Moreover, other clauses of the sublease impose a positive obligation upon the sublessee to use all proper means to control noxious plants and pests,29 and to keep all fencing in good repair and condition.30 In short, provisions of the sublease clearly contemplate the need, which is obvious in the context of the subletting of a rolling term lease for pastoral purposes, for the sublessees to transport workers, plant, equipment and stock about the property, including by vehicles, for many pastoral purposes. Given the sheer scale of the property, such movement would obviously include the use of tracks already running through the property. An inherent part of the need to use those tracks is the need to maintain them, which necessarily includes removing growth impeding the use of the tracks. [75] Accordingly, read in the context of the entire sublease, the reference in cl 7.1 to ‘timber’ should not be read as applying to timber which has grown or fallen in such a way as to impede the use of the property’s existing tracks. [76] For the same reasons I would not interpret cl 4.2 of the lease, in its reference to the making of alterations requiring prior written consent, as being intended to apply to the cutting or removal of timber which is impeding the use of access tracks. Reading 4.2 in the context of the entire lease, the word ‘alteration’ should not be read as applying to the carrying out of works reasonably necessary to maintain the property, including its existing facilities such as access tracks. [77] It follows there was no breach. Even if I am wrong in so concluding, the unremarkable nature of the supposed breach would not have warranted, as the Notice 23 (2014) 251 CLR 640, 656-657 [35]; McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, 589 [22]. 24 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451, 461-462 [22]. 25 Re Golden Key Ltd [2009] EWCA Civ 636 [28]. 26 Zhu v Treasurer (NSW) (2004) 218 CLR 530, 559 [82]; (2014) 251 CLR 640, [35]. 27 Clause 9.1. 28 Clauses 6.1, 15. 29 Clauses 10.1. 30 Clause 6.1. -- 17 of 65 -- 18 to Remedy Breach asserted, the reinstatement of the premises to their original condition. [78] A party may terminate a contract where there has been a breach of an essential contractual term or a sufficiently serious breach of a non-essential term by the other party.31 A party may not terminate if there has been a breach of a non-essential term that does not satisfy the requirement of being ‘sufficiently serious’. Sufficiently serious means ‘going to the root of the contract’ and results in the deprivation of a substantial benefit of the contract to the injured party.32 [79] The submission of MGMF’s counsel that the Crosslands’ lack of attempt to remedy the alleged breach was ‘defiant’, rather misses the point that the reinstatement of the premises to their original condition, would bizarrely involve replanting or placing timber to again impede the Crosslands’ use of the access track. The point demonstrates that, even if this was a breach, it required no remediation. [80] If it was a breach, it was committed unwittingly, in good faith, in order to maintain access to a track the Crosslands were entitled to the use of. It was also so insubstantial that this Court should relieve the Crosslands from forfeiture founded upon it. It likewise would have been a breach of such minor character that it could not ground a right of termination. Was there construction of cattle yards and dams without prior written consent? [81] The Notice to Remedy Breach alleged there had been construction of cattle yards and dams without prior written consent, in breach of cl 14.2. Clause 14.2, quoted above, requires written consent to the making of alterations or additions or erections of improvements. [82] So far as this alleged breach relates to cattle yards, the allegation appears to be founded upon information that was contained in the Lane Infrastructure report of May 2016 as follows: 5.1.6 New cattle yards The sub-lessee has undertaken construction of a new set of steel cattle yards on the property. Predominantly new materials have been used which would be a substantial investment on his behalf. They appear to be well planned and constructed. The yards are capable of handling up to 750 head… Facilities include: • 6 way draft • Cattle crush • Portable loading ramp • Calf race and branding cradle • All steel gates No water at yards at present. Large holdings square around yard. 31 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, 115. 32 Ibid 116. -- 18 of 65 -- 19 [83] Stephen Crossland deposed that over the years much work has been done to rebuild and maintain existing cattle yards with the only new yards being those built near the Walsh River. In an affidavit dated 11 January 2018 Mr Crossland deposed those Walsh River yards had been built approximately 10 years ago and ‘were constructed under the verbal approval of the then sub-lessor’. They are apparently the yards referred to in the above-quoted passage from the Lane Infrastructure report and the breach notice. [84] What Stephen Crossland meant in deposing to having ‘verbal approval’ is unclear. Stephen Crossland was not available to give evidence or be cross-examined, because he died before the trial. [85] It is likely that the Crosslands did believe, based on their apparently cordial relationship with Kagara Pty Ltd, the then lessee of the rolling term lease, that they had Kagara’s verbal approval of the construction of the Walsh River cattle yards. But it is not apparent whether that perceived verbal approval arose before, during or after the construction, or derived impliedly or expressly from oral exchanges with Kagara personnel. [86] A response to a request for further and better particulars indicated a verbal approval to fixing a cattle yard up had been given in the course of a conversation between Stephen Crossland, Dale Crossland and Andrew Beaton, a representative of Kagara, in 2007. No evidence was given as to that detail by Stephen Crossland, who died prior to the hearing, or Dale Crossland. Mr Beaton had no recollection of it. Dale Crossland did not allude to the topic in his affidavit nor did either counsel ask him questions about it when he gave evidence. Continuing the uncertainty, this conversation apparently involved consent to fixing up a cattle yard which is not the same as constructing a new cattle yard. Further, a depreciation schedule raises the possibility the Walsh River cattle yards were not built until 2010. [87] These aspects of the case are immaterial. At best the Crosslands could only have had, as Stephen Crossland deposed, ‘verbal approval’. Clause 14.2 required the prior ‘written’ consent of the then sublessor Kagara. [88] I accordingly accept there was a breach, technical as it may have been, of the requirement of written consent contained in cl 4.2. As to its gravity, I accept from Stephen Crossland’s evidence and the historically good relations between the Crosslands and former sublessors, that the Crosslands believed the sublessor did not require its permission to be in writing. The Crosslands were not acting in wilful breach. Moreover, it was an old breach. There is no evidence that it provoked any concern or complaint from the then sublessor Kagara or the next sublessor, Mungana Pty Ltd, or the next sublessor, Mungana Goldmines Ltd. [89] It was not only an old, technical breach, it was also a breach without adverse consequence to anyone. It will be recalled cl 14.2 provides that written consent ‘shall not be unreasonably withheld’. Had written consent been sought there exists no apparent reason why it would have been withheld. For instance, there is no evidence to suggest the yards were constructed in a location that was likely to impede, or has since impeded, mining activities by the sublessor. [90] Once again, MGMF’s counsel tried to characterise the Crosslands’ non-response to the Notice to Remedy this breach as recalcitrant, describing it as ‘uncooperative’. -- 19 of 65 -- 20 Again, there is no substance to such a characterisation. I dwell on this for a moment because, as with the earlier resort to describing the Crosslands as ‘defiant’, it was obviously engaged in to give some kind of momentum to MGMF’s penultimate argument that, despite their decades of stewardship of the property as sublessees, the Crosslands are not ready, willing and able to perform their obligations under the sublease and should thus be refused specific performance. It gives no such momentum. The only unwilling party in the present context was Auctus. [91] MGMF’s counsel went so far as to suggest that the Crosslands could have sought Auctus’s retrospective written approval. But why would they have sought that? It would in substance have been a waiver of reliance on a breach which occurred three sublessors earlier. It was plainly not going to be forthcoming, given Auctus’s determination to make the Crosslands leave the premises and the unreasonableness of its conduct in trying to rely on this old, technical and inconsequential breach in doing so. [92] In this instance that unreasonableness also included Auctus requiring, by its Notice to Remedy Breach, that the premises be reinstated to their original condition. That could only be read as meaning that the cattle yards should be removed. No reason has been advanced as to why it would be necessary to remove a construction of a kind which meets the pastoral purposes of the sublease, likely enhances the inherent value of the property and is not alleged to interfere with the use of the property for mining. [93] Because this was an old breach, of no ongoing consequence, a grant of relief from forfeiture would not have the undesirable effect of regularising an ongoing breach or disadvantaging Auctus, as for example it would have had in Ace Property Holdings Ltd v Australian Postal Corporation.33 In that case there was a breach by unauthorised subletting, which was ongoing and depriving the lessor of an opportunity to take commercial advantage of what was occurring. [94] In the present case, the stark contrast between the inconsequential and inadvertent nature of this old breach and the devastating consequence to the Crosslands if relief from forfeiture is not granted, well demonstrates that relief from forfeiture based on this breach should be granted. As with the alleged breach by clearing or cutting timber, it was likewise a breach of such minor character that it could not ground a right of termination. [95] As to the allegation of breach by constructing damns without consent of the sublessor, there are a number of dams on the property and some were apparently constructed by the Crosslands. But it is not possible to discern from the notice, the pleadings or the evidence, what damns are alleged to have been constructed on the property without prior written consent. Nor was there any argument advanced at the hearing regarding this alleged breach. There is thus no basis to conclude there was a breach. Was there a failure to provide a spill containment system for bulk diesel storage? [96] The Notice to Remedy Breach alleged there had been a failure to provide a spill containment system for bulk diesel storage, in breach of cl 3.1. The remedial action sought was, ‘Provide bunding and/or adequate spill prevention measures for bulk diesel storage’. 33 [2011] 1 Qd R 504, 554-555. -- 20 of 65 -- 21 [97] This allegation, which was not further detailed or argued, presumably arose from a reference in the Lane Infrastructure report to what the author assumed was a bulk diesel tank without a bund wall to contain spillage. In fact, as is apparent from the affidavit of Stephen Crossland, that tank, positioned at some cattle yards, was a former bulk fuel tank that was used as a water storage tank to supply stock with water. There was in fact a bulk diesel tank in use for diesel storage at the property, but it was nearer to the homestead and had a bund wall around it as a containment system. [98] There was no breach. Was there a failure to take out fire, storm, tempest and public liability insurance? [99] The Notice to Remedy Breach alleged there had been a failure to take out fire, storm, tempest and public liability insurance, in breach of cl 12.1. The remedial action sought was ‘Provide copies of certificates of currency’ [100] Clause 12.1 of the sublease relevantly requires the sublessees to ‘take out fire, storm and tempest insurance cover and a public liability policy’. The evidence shows the Crosslands did take out and continue such insurance cover. No argument was advanced to the contrary. [101] There was no breach. Should the old alleged breaches deprive the Crosslands of relief? [102] The above analysis explains why, to the extent there was any breach, this court should grant relief from forfeiture premised upon any such breach. [103] As to specific performance, the sublessor’s obligation to grant a further sublease was not specifically conditioned upon there having been compliance with the sublease’s other terms. However, MGMF argues the Notice to Tenant requiring delivery up of the subleased premises on 3 April 2018, had the effect of terminating the sublease for breach, thus depriving the Crosslands of their right to enforce the sublessor’s obligation per cl 18.2 to grant a further sublease. [104] That argument must be rejected. Section 124 Property Law Act 1974 (Qld) and its counterparts in the Property Law Act 2023 (Qld) operate to suspend the exercise of a right of termination of the sublease on grounds of the breaches in respect of which statutory relief from forfeiture is sought. An ensuing grant of relief from forfeiture for those breaches, would necessarily mean the sublessee’s rights under the sublease have not been lost because of those breaches, and thus preclude an effective termination because of them. [105] Further, for reasons already explained, to the extent there were any breaches they were not of a quality grounding a right of termination. [106] It follows that no aspect of the circumstances of the old alleged breaches would cause this court to decline the specific performance of the sublessor’s obligation per cl 18.2 to grant a new sublease. -- 21 of 65 -- 22 [107] These conclusions make it unnecessary to determine whether, as the Crosslands submitted, Auctus’s entry into the deed of settlement, including the new sublease, bargained away their continued right to complain about old alleged breaches. Should the more recently alleged breaches deprive the Crosslands of relief? [108] Moving from the old, alleged breaches, it is next necessary to deal with two very recently alleged breaches of the obligation to pay rent and outgoings contained in a Notice to Remedy Breach, received by the Crosslands’ solicitor only two weeks before the trial. [109] The registered sublease and the new sublease each required the Crosslands to pay rent and outgoings. In the context of this case the relevant payment obligations are the payment of rent to the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development (‘the Department’) and the payment of rates and water charges to the Mareeba Shire Council (‘Council’). [110] The alleged breaches are that the Crosslands failed to pay rent, in respect of the Department’s land rent invoice of 1 August 2025, and failed to pay rates and water charges, in respect of Council’s rates notice of 11 August 2025. [111] Those breaches are relied upon as grounds to re-enter the premises and terminate the new sublease and to also argue the Crosslands should be refused relief from forfeiture and refused relief from specific performance because of them. They are also relied upon in support of MGMF’s related argument that specific performance should in any event be refused because the Crosslands are not ready, willing and able to perform their obligations under a new sublease. The alleged non-payment of rates is also relied upon in support of MGMF’s Counterclaim. [112] For the reasons which follow, the alleged non-payments did not constitute breaches and, even if they did, they occurred in circumstances of such uncertainty as to be incapable of grounding MGMF’s purported termination, or of supporting the inference sought by MGMF that the Crosslands are not ready, willing and able to meet their obligations to pay rent and outgoings. The notice of breach relied upon a sublease which had not commenced [113] It is convenient to begin with the content of the Notice to Remedy Breach. [114] On 22 September 2025 the Crosslands’ solicitor received, from MGMF’s solicitor, a Notice to Remedy Breach, dated 19 September 2025, signed by Ms Yang as ‘sole director and secretary’ of MGMF. It alleged breaches of a lease described as ‘a (unregistered) lease dated the 20 August 2019 commencing on the 20 of August 2025’. [115] The significance of the reference to 20 August 2025 is not apparent. The date of 20 August 2019 was the date of the settlement deed and of execution of the new sublease. Further the clauses quoted in the notice, as being the clauses the Crosslands were in breach of, were cls 6.2, 6.3 and 22.1(a) of the new sublease. It is thus clear that in proof of this breach MGMF was relying upon the new sublease having effect. But the new sublease had not yet commenced, indeed the circumstances of its non- -- 22 of 65 -- 23 commencement are relied upon by MGMF to argue that I should not order the specific performance of the settlement deed. [116] The need for the new sublease to have commenced, so as to ground the obligation to pay the rent and outgoings payable pursuant to it, is made obvious by the new sublease’s clause dealing with rent and outgoings, namely cl 6. It relevantly provides: 6. RENT AND OUTGOINGS 6.1 The Sublessee must pay the Rent in advance by annual payment to the Sublessor with the first payment on the Commencement Date and all subsequent payments on 15 September in each following year. 6.2 The Sublessee must pay the Periodical Outgoings under this Sublease on or before the due date for payment or, if the Sublessor has already paid any Periodical Outgoings, must reimburse the Sublessor within twenty Business Days of demand by the Sublessor. 6.3 The Sublessee’s liability for the Periodical Outgoings commences on the Commencement Date subject to any proportionate payment, as is reasonably determined by the Sublessor, with any Periodical Outgoing which is incurred and is attributable to: (a) a period which includes the whole or any part of the Term together with a period outside the Term; and (b) the whole or any part of either or both of the Leased Land and the Premises and any other land and premises. … (emphasis added) [117] It is clear from cls 6.1 and 6.3 that the sublessee’s liability to pay rent and periodical outgoings under the new sublease commences from the new sublease’s commencement date. The definition of ‘commencement date’ in cl (e) of the form 20 clauses of the lease is defined as the date stated in item 6 of the covering form 7 of the lease, which entry reads, ‘Refer Form 20 Schedule clause 4’. Clause 4.1 makes the sublease subject to and conditional upon Ministerial approval and registration of the sublease, and cl 4.3 provides that on satisfaction of cl 4.1 ‘the Sublessor must notify the Sublessee that the conditions have been satisfied and that notice must specify the Commencement Date’. Moreover cl 4.1 also provides that, until its conditions are satisfied, the new sublease ‘does not take effect as a sublease of the Premises’. It is a live issue, discussed in part B below, whether Auctus used all reasonable endeavours to procure registration and, if they failed to do so, whether this Court should order specific performance of the settlement deed. However, on any view of its terms, the new sublease has not yet commenced. [118] That conclusion is also consistent with cl 5.2 of the new sublease, in that it provided at cl 5.2 that, ‘The Existing Sublease is terminated on satisfaction of the last of the conditions in clause 4.1’. Clause 2.1(1) defined the existing sublease as meaning ‘the sublease between the sublessor and the sublessee dated 27 October 1989 entitled “Sub-Lease of Pastoral Holding 09/2161” ’. The last of the conditions in cl 4.1 was registration of the new sublease. Clause 5.1 provided the subleasing of the premises -- 23 of 65 -- 24 under the new sublease was ‘subject to’ cl 4.1. Clause 4.1 also provided the new sublease ‘does not take effect’ until the conditions of cl 4.1 ‘are satisfied’. The settlement deed thus treated the pre-existing lease as ongoing, terminating only upon registration of the new sublease, with the new sublease only commencing at that point. [119] Despite this, the notice of breach of 19 September 2025 relied upon the new sublease as if it had commenced, citing it as the sublease which had been breached. That was not the first time MGMF placed such reliance on the new sublease. [120] On 15 February 2024 solicitors Hamilton Locke, emailed the Crosslands’ solicitors advising they had received instructions to issue two notices to remedy breach to the Crosslands on behalf of the mortgagee in possession, MGMF. Attached were two notices to remedy breach of covenant per s 124 Property Law Act 1974. The first related to water charges and an alleged breach of a lease of lots the Crosslands no longer controlled water use of, requiring it to be remedied by payment of outstanding outgoings, for unpaid water charges totalling $108,009.82. The second such notice alleged a breach of ‘the lease of the Premises, dated the 20th day of August 2019, for a term of 28 years, 7 months and 11 days commencing on the 20 th day of August 2019’. This was clearly a reference to the new sublease. The notice required the alleged breach to be remedied by the payment of $106,480.96 said to relate to four rates notices issued between 8 August 2022 and 5 February 2024. [121] On 28 February 2024 the Crosslands’ solicitors wrote to Hamilton Lock, requesting the withdrawal of the Notice to Remedy Breach in respect of water, because the notice referred to amounts owing in respect of Lot 6 on Crown Plan LD4 and that the use of Lot 6 had been taken over by agreement in March 2007 by Kagara, the then lessee of the rolling term lease, for use as a mine camp. Hamilton Locke subsequently emailed the Crosslands’ solicitors, advising they were instructed to withdraw the Notice to Remedy Breach relating to water. [122] As for the rates, on 13 March 2024 the Crosslands paid Mareeba Shire Council $106,480.96, the amount the subject of the Notice to Remedy Breach in respect of rates. Hamilton Locke emailed the Crosslands’ solicitors the following day, confirming the payment to Council satisfied the Notice to Remedy Breach in relation to unpaid rates. The notice which provoked that payment annexed a schedule which shows what the notice described as ‘contribution to rates’ in fact included a component of interest and debt recovery fees. [123] The earlier Notice to Remedy of 15 February 2024 in respect of rates must be taken to have been calculated by reference to the new sublease. The calculation of what was owing must thus be taken to have been founded on the state of the parties’ obligations as resolved in the settlement deed. The dispute settled by that deed included a so-called rates dispute in relation to five rates invoices said to have been issued between 30 April 2018 and 12 June 2018 totalling $170,579.49. The consequences of the settlement under the settlement deed did not include the payment of that amount. Rather the consequences were the execution of the new sublease and the taking of steps to register it, as well as the execution of a concurrent land use agreement under which the parties agreed to co-operate in allowing pastoral and mining activities to occur on part of the subleased property. -- 24 of 65 -- 25 [124] By successfully relying on the uncommenced new sublease and inferentially the state of the parties’ obligations as resolved by the settlement deed, the Notice to Remedy Breach in respect of rates of 15 February 2024 and its payment on 13 March 2024 marked the commencement of an alternative form of equitable sublease to the equitable sublease which I have already found was existing from the expiration date of the old sublease and was based on the Crosslands’ continuing right to the grant of a new sublease per cl 18.2 of the old sublease. The alternative form of equitable sublease arose from the apparently mutual acceptance by MGMF, in Auctus’s stead, and the Crosslands, that the terms of the uncommenced new sublease and the deed of settlement were regulating the Crosslands’ continuing tenancy. [125] For present purposes, it is not in dispute that a condition of the continuing tenancy must have been the continuation of the Crosslands’ obligation to pay the rent and outgoings payable for the rolling term lease land which they had continued to be tenants of. In such circumstances I would not regard the reliance in the Notice to Remedy Breach upon the uncommenced new sublease as making the notice defective. There are, however, other features of the notice which did have that consequence. The notice of breach was defective [126] Turning next to the facts alleged to constitute the breach, the Notice alleged: The Mareeba Shire Council issued rates notice dated 11 August 2025 in respect of the property, including the Subleased Land, with a total amount payable of $308,386.95 if paid by the due date (12 September 2025). The sum of $286,509.91 was not paid by your client within 14 days of falling due. A land rent tax invoice was issued by the Department of Resources on 1 August 2025 for Pastoral Holding 9/2161, being the land the subject of the Sublease, requiring payment of $86,101.27. Your clients have not paid that amount. The lessor requires the Sublessee to pay the total sum of $365,503.88 within 28 days of the date of this Notice, In accordance with clauses 6.2 and 6.3 of the Sublease. [127] It was submitted the notice did not comply with the form in respect of the section of the Property Law Act 2023 (Qld) under which it was purportedly issued, s 153. It will be recalled s 153 effectively preserved the relevant notice of breach procedure of s 124(1) in the old Act. Section 153 and the form related to it, form 7, both require that the nature and extent of the breach be stated. Form 7 requires that, if the breach is capable of being remedied, the Notice state: The Lessor requires you to remedy the breach of the lease by <set out the remedy> within <set out the period (which must be a reasonable period) to perform the remedy>. [128] If the amount of $365,503.88 was required to be paid to remedy the breach of the lease, then, in making its requirement of payment, the Notice failed to include after ‘requires’, the words ‘you to remedy the breach of the lease by’. -- 25 of 65 -- 26 [129] Further form 7 requires that if compensation is claimed, the Notice state: The Lessor requires you to pay the Lessor the sum of $ <insert amount>, calculated by <Provide description of how the amount is calculated> as compensation for the breach of the lease within <set out the period (which must be a reasonable period) to pay the amount>. [130] If the amount of $365,503.88 was being claimed as compensation, then the Notice failed to provide the requisite ‘description of how the amount is calculated’. The calculation is not readily apparent from the Notice itself. No combination of the amounts of money cited earlier in the Notice adds up to $365,503.88. [131] Form 7 also requires this concluding content: UNLESS you <remedy the breach by the action stated in this Notice or pay the compensation claimed, [amend as necessary]> within the period specified in this Notice, the lessor intends to terminate the lease. The notice did not contain that form of words or words which were even substantially compliant with them.34 Indeed, it did not contain any statement regarding the consequence of a failure to make the payment sought, which is a material departure from what the form required.35 [132] The Notice was defective because it did not comply, and was not substantially compliant, with the approved form for the giving of such notice. The notice did not describe the calculated inclusion of interest and penalty charges [133] The absence of description of how the amount is calculated is a particularly significant omission in the circumstances of this case. A failure to pay sufficient rent and outgoings on time can result in the imposition of penalty and interest charges by the entities to whom rent and outgoings were payable, namely the Department and Council. As will be discussed further below, such charges were imposed upon Auctus by the Department and Council. The amount alleged as payable in the Notice must have included the amount of those charges. [134] The parties barely joined issue in litigating and seeking a determination of what proportion of the charges imposed by the Department and Council upon Auctus should be paid by the Crosslands. In this context the most potentially relevant feature of MGMF’s Amended Defence, was the introduction, at [12B(iaa)], of reliance upon the recent Notice to Remedy Breach and an alleged failure to pay ‘$364,015.88 for land rent and council rates’. There was no indication that alleged amount of so-called ‘rent’ and ‘rates’ in fact included penalty and interest charges. [135] Further, the most potentially relevant feature of MGMF’s Counterclaim was its pleading at [11(c)] that the Crosslands ‘failed or alternatively refused to pay outgoings, at least to the extent of council rates in the sum of $286,509.91’. That pleaded fact was relied upon in support of an allegation of breach at [12((a)] and entitlement to unquantified indemnification at [12(c)]. Again, the reference to ‘rates’ did not mention that the amount included interest on overdue rates. 34 See s 48A Acts Interpretation Act 1954 (Qld). 35 Compare Quyd Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, 49-50. -- 26 of 65 -- 27 [136] The Crosslands in their Reply pleaded, at [2A], that their obligation to pay rent and rates was implicitly qualified by them being provided with ‘such timely information as is reasonably necessary’ for them ‘to ascertain and isolate the rent’ and ‘rates from time to time payable in respect of the land’. This was in effect an allegation that the sublessor had a duty to co-operate in providing such information to the Crosslands. The Reply relied upon the sublessor’s repeated failure, despite request, to provide them with the information, and pleaded they were not in breach ‘for having failed to pay rent or rates’. [137] At trial it initially appeared the contest about the amount allegedly owing per the Notice to Remedy Breach was being approached on an all or nothing basis. However, MGMF’s counsel took the position that, setting aside penalty and interest charges, the Crosslands must be liable to at least pay an outstanding accumulation of unpaid rent and rates. This informs discussion below of whether the Crosslands are ready, willing and able to perform their obligations as sublessees and discussion below of MGMF’s Counterclaim. For present purposes though, it highlights the significance of the fact that MGMF’s belated Notice to Remedy Breach alleged an amount owing which it failed to explain was calculated by including penalty and interest charges. [138] As will be seen, in an era of corporate malaise for Auctus, it had failed to keep the Crosslands informed of what and when rent, rates and outgoings were payable. It is obvious that the Crosslands would want to dispute their liability for charges deriving from late payments to the Department and Council on the basis Auctus, and subsequently MGMF, failed to advise the Crosslands of when and what rent, rates and outgoings were due. This further demonstrates the importance of the form 7 requirement of a description of how the amount allegedly payable is calculated. The Notice to Remedy Breach failed to provide that description. [139] Section 153(1) Property Law Act 2023 (Qld) provides a lessor may exercise a right to re-enter land under a term of the lease for a breach of the term of the lease only if the lessor has given the lessee a notice in the approved form. That did not occur here. The notice was not in the approved form and was consequently of no effect. [140] There are two other problems associated with MGMF’s reliance on the two alleged breaches. [141] The first problem, as just foreshadowed, is that Auctus and MGMF failed to co- operate in allowing the Crosslands to meet their obligation to pay rent and outgoings. The second problem, partly related to the first, is that the amount payable was uncertain. [142] Before explaining those problems, it is helpful to appreciate what the sublease provided about the obligation to pay rent and outgoings, for that informs the significance of the need for the sublessor to provide the information necessary for the sublessee to perform its obligations. What did the sublease provide about payment of rent and outgoings? [143] Several clauses in the registered sublease dealt with rent and outgoings. Firstly, cl 2 provided: 2. Rent and other outgoings -- 27 of 65 -- 28 2.1.The rent payable by the Sub-Lessees to the Sub-Lessor shall be equal to the rent payable from time to time by the Sub-Lessor under the terms of the Lease. 2.2.The Sub-Lessor acknowledges its sole responsibility to pay the rental under the Lease. 2.3.The Sub-Lessees shall pay all rates, taxes and outgoings payable by either party in respect of the Demised Premises and if at any time the Sub-Lessor shall pay any such rates, taxes or other outgoings, the Sub-Lessees shall pay upon demand from the Sub- Lessor and reimburse the Sub-Lessor in respect of same. [144] The effect of cl 2 is that it is Auctus’s responsibility to pay the rent under the rolling term lease and the rent which is in turn payable by the Crosslands to Auctus is to be equal to the rent under the rolling term lease. Clause 2 does not stipulate a singular mechanism for payment of rates, taxes and outgoings. On the one hand, cl 2.3 obliged the Crosslands to pay those amounts, whether payable by them or Auctus. On the other hand, it contemplated the mechanism for payment could involve Auctus paying such rates, taxes or other outgoings, in which case the Crosslands were obliged to pay equivalent such amounts to Auctus. [145] The other clauses touching on this topic are cls 13 and 16, but they add little. Clause 13 relevantly provides: 13. Outgoings, charges, Etc 13.1 All outgoings (including rents to the Crown, water assessments, licence fees, rates, land or other taxes, assessments, working expenses, fire insurance and other premiums) and all other charges and expenses in respect of the Demised Premises shall be paid by the Sub-Lessor up to and including the commencement of this Sub- Lease, thereafter the same shall be paid by the Sub-Lessees. … [146] The practical effect of cl 13.1 is to identify the commencement date of the sublease as the point from which the sublessee assumed financial responsibility for the payment of the outgoings. That occurred decades ago. [147] Clause 16 relevantly provided: 16. Attornment 16.1 In consideration of the Sub-Lessor granting this Sub-Lease, the Sub-Lessees hereby irrevocably appoint the Sub-Lessor to be the true and lawful attorney of the Sub-Lessees for the purpose of: (a) making any payments due under clauses 13.1 … hereof whereupon such sums shall be repayable by the Sub-Lessees to the Sub-Lessor upon demand … [148] Clause 16.1 thus contemplated the possibility, consistent with cl 2.3, that outgoings might be paid by the sublessor with the sublessees being obliged to repay the sublessor those amounts. -- 28 of 65 -- 29 How were the Crosslands to know what was payable? [149] That overview exposes that while the sublease and new sublease obliged the sublessee to pay rent, rates and outgoings they did not provide the mechanism, that is, the process by which the Crosslands were to know what amounts were payable for rent, rates and outgoings, to whom they were payable - the sublessor or the relevant government entity – or when they were payable. [150] MGMF submitted such information would have been readily ascertainable by the Crosslands inquiring directly of the Department and Council. I reject that submission both because it overlooks the need to know whether amounts should be paid to the sublessor or to the relevant government entity and because of the relative ease with which the sublessor, as distinct from the sublessee, could ascertain information from the Department and Council. [151] Dale Crossland deposed the Crosslands were reliant on the sublessor notifying them of the information they need to meet their payment obligations. [152] The evidence suggests the Department would not communicate with the Crosslands. As to the Council, MGMF highlighted Council is obliged per s 154 Local Government Regulation 2012 (Qld) to maintain a land record, which includes information about the date of each levy and due date for payment and about any overdue rates or charges, and to make the particulars available for inspection to an owner, lessee or occupier of the land per s 155. [153] This demonstrates it would not have been impossible for the Crosslands to repeatedly inspect Council’s land record to try and ascertain the rates and charges levied in the hope of timing their inspections before those amounts fell due. However, it is an inconvenient process to repeatedly undertake, particularly for occupiers of a rural property and particularly relative to the easy process by which the sublessor is invoiced for payment by Council. [154] That inconvenience does not stand alone. It combines with the ongoing uncertainty of who the sublessor required the sublessee to pay – the sublessor or Council – to support the inference that the information the Crosslands needed as to what was payable, when and to whom was not readily known to the Crosslands other than by being informed of it by the sublessor. [155] These reasons will shortly canvass the frustrating history of the Crosslands trying to find out what was payable from Auctus, MGMF and their agents. The very fact they were repeatedly confronting that problem, with the help of their solicitor, fortifies the inference it was not information that was readily known to them. [156] In the event that I am wrong about the new sublease not having commenced – so that its terms did become relevant in informing the process by which the Crosslands would know what amounts were payable, to whom and when – those terms did not remove the need for the Crosslands to be informed of what was payable by the sublessor. [157] Clause 6 of the new sublease has been quoted above. Its main differences from cl 2 of the sublease are to require the payment of rent annually to the sublessor on a fixed date and to require the payment of outgoings (described as periodical outgoings) on or before the due date for payment. Under those terms it remains that the Crosslands -- 29 of 65 -- 30 could not readily know what amounts were payable and when and that was information readily known to the sublessor as the recipient of the relevant Council invoice for rates and water charges and the relevant State Government invoice for rent. Auctus and MGMF failed to provide the Crosslands with the information necessary to meet their obligation to pay rent and outgoings [158] Because the sublessor held the information as to the amounts, when and to whom the Crosslands were obliged to pay under the sublease, and the information was not otherwise readily known to the Crosslands, they should have been told that information by the sublessor. The sublessor’s obligation to provide that information was effectively an implied obligation to co-operate under the lease. [159] The general rule applicable in every contract, as held by the High Court in Secured Income Real Estate (Aust) Ltd v St Martin's Investments Pty Ltd,36 is that each party agrees, by implication, to do all things that are necessary to enable the other party to have the benefit of the contract. [160] The duty to co-operate arises for the performance of acts that are necessary to preserve the benefit of the contract. This implied duty is confined to acts which are necessary to the performance by a party of fundamental obligations under the contract, that is ‘something which the contract requires to happen’.37 On any view, the Crosslands’ obligation to pay rent and outgoings was fundamental. [161] There is no evidence to suggest any past problem in the Crosslands’ ability and willingness to pay rent and outgoings over the decades they have been sublessee. Significantly, even at the outset of the current proceedings, none of the breaches alleged against the Crosslands asserted a failure to pay rent or outgoings. The problem with alleged non-payment only arose after the start of the proceeding. [162] MGMF contends the source of that problem has been the Crosslands’ unwillingness or inability to pay rent and outgoings. The evidence does not support such an inference. To the contrary, it points powerfully to the sublessor’s failure to communicate the information the Crosslands needed to be able to meet their obligation to pay the rent and outgoing amounts. [163] Such a failure may seem surprising unless it is realised it developed during an era of obvious corporate disruption on the sublessor’s side. Examples of Auctus’s problems in managing its corporate existence abound. Auctus repeatedly failed to perform its obligations under the 2019 settlement agreement, despite repeated consent extensions of the time for performance through to 2023. Between 20 March 2020 and 25 June 2021 Auctus was under administration. In January 2022 its parent company, Aurora Metals Pty Ltd, sought a substantial loan and on 11 April 2022 Auctus mortgaged its interest in the rolling term lease to the company created to provide that finance, MGMF. On 3 July 2023, after a default on MGMF’s loan, Auctus again entered 36 (1979) 144 CLR 596, 607 following Mackay v Dick (1881) 6 App Cas 251; Butt v McDonald (1896) 7 QLJ 68, 70-71. 37 New Standard Energy v Outback Energy Hunter (2019) SASR 469, [130]; Bell Group NV v Insurance Commission of Western Australia [2017] WASCA 229 [113]. -- 30 of 65 -- 31 administration and MGMF purportedly entered into possession of the rolling term lease on 21 December 2023. [164] Before MGMF entered possession it can at least be said Auctus’s parent company apparently appreciated it should notify the Crosslands of what needed to be paid by them. For example, on 7 July 2022 Aurora Metals issued a tax invoice to the Crosslands for local authority rates and charges payable to 30 June 2022 in the amount of $29,365.63. Importantly, and unhelpfully to MGMF’s last minute attempt to cast the Crosslands as unable or unwilling to pay, the Crosslands paid the invoiced amount to Aurora on 13 July 2022. Further, on 21 July 2022 Aurora Metals issued a tax invoice to the Crosslands for land rent up to 1 February 2022 in the amount of $27,880. Once again, that amount was paid by the Crosslands to Aurora, on 8 August 2022. [165] The Council’s transaction ledger, and the Department’s exhibited statement of account, each of which include this era, do not show that any such amounts were paid on to the Council or Department. MGMF did not adduce evidence from Auctus or Aurora to explain this anomaly. It raises the real prospect that material components of Departmental rent and Council rates and charges now outstanding for payment to each were paid by the Crosslands to the sublessors’ representative who did not pay it on to those entities. Evidence of the amount of rent the Department has not been paid and the amount of rates and charges the Council has not been paid therefore does not equate to evidence of the amounts payable by the Crosslands. [166] When MGMF entered possession of the rolling term lease on 21 December 2023, it also signed heads of agreement to sell all assets of the Aurora Group to Taler Resources Pty Ltd and appointed Taler Resources to act as MGMF’s agent in respect of the Crown lease and the leased land. [167] On 7 February 2024 the anticipated settlement of the purchase by Taler Resources did not proceed. In emails of the same date by Taler Resources’ solicitors, Hamilton Locke, to the Crosslands’ solicitors, it was explained there were still issues with releases of securities and ‘the rates position has not been resolved’. Hamilton Locke’s email also provided an extract of correspondence received from the mortgagee in possession, MGMF, requesting them to ‘get the tenant to pay all outstanding amounts’ (as just explained, there is no evidence the tenant was responsible for all outstanding amounts). On the same date, KordaMentha were appointed as liquidators of Auctus. [168] As earlier mentioned, on 15 February 2024 Hamilton Locke emailed the Crosslands’ solicitors advising they had received instructions to issue two Notices to Remedy Breach and attached the notices. One relating to water was later withdrawn and on 13 March 2024 the Crosslands paid the amount of $106,480.96 sought in the other notice relating to rates. [169] Some months later, on 18 July 2024, the Crosslands’ solicitors, having heard nothing from Hamilton Locke, performed a title search of Chillagoe Station and noted Auctus was still listed as the registered proprietor. On the same date they emailed Hamilton Locke, enquiring after the progress of Taler Resources’ proposed purchase. [170] The following day Hamilton Locke emailed the Crosslands’ solicitors, advising their client, inferentially Taler Resources, expected to shortly issue Court proceedings -- 31 of 65 -- 32 against MGMF for specific performance in circumstances where it entered into a binding contract but MGMF had refused to settle. [171] On 23 July 2024 the Crosslands paid the Department of Natural Resources $35,000, the receipt for which payment recorded the amount as received from Auctus. The payment was for land rent for Chillagoe Station. The evidence shows the payment was made in circumstances where land rental notices used to be sent to Auctus who would send invoices onto the Crosslands to pay, but the Crosslands had not received any such notices for several years. The Crosslands knew there was a significant amount of land rent owing but did not know the amount because the Department would only communicate with the registered lessee, Auctus. [172] The making of that payment provides powerful evidence that the Crosslands wanted to meet their obligation to pay rent but were frustrated by Auctus’s failure to provide the information necessary to know what was owing. [173] The prospects of the Crosslands receiving any co-operation from MGMF in giving them the information necessary do not seem to have been any better. MGMF treated the Crosslands’ interests with disdain. For example, on 6 August 2024 the Crosslands’ solicitor, having been informed that DLA Piper acted for MGMF, emailed that firm to explain the Crosslands’ concern to protect their interest in the absence of an undertaking not to dispose of the property without a prospective transferee being given notice of the Crosslands’ interests. On the same date, the Crosslands’ solicitor received a telephone call from Mr Donato of Mills Oakley Lawyers, who explained they were acting for MGMF. He indicated any rights the Crosslands had were against Auctus in liquidation and that it was not his client’s problem. This was followed by an email from Mr Donato of Mills Oakley, asserting MGMF’s interest was not subject to any purported unregistered interest in the land claimed by the Crosslands, and that there was no point in continuing the proceeding because ‘the mortgagee’s interest has priority over any purported unregistered interest claimed by the Crosslands. [174] Undaunted by MGMF’s dismissiveness, the Crosslands continued to try and fulfill their obligations. On 5 November 2024 the Crosslands’ solicitors wrote to KordaMentha, acknowledging KordaMentha was acting in person on behalf of Auctus in liquidation and enquiring: Under the terms of our clients’ sublease, our clients are obliged to pay all local authority rates and land rents applicable to the area of the property utilised by them in their primary production activities. As our clients are not named on the title, they do not receive rate notices or land rent notices directly and are reliant upon the head lessee (Auctus) forwarding those notices from time to time for payment. To the best of our clients’ knowledge, they were fully paid up in local authority rates and charges and land rent up to 30/06/2024, however, they have not received any notification of new land rent or local authority rates charges for the current period. Could you please confirm that as at 30/06/2024, our clients were fully up to date in these obligations? -- 32 of 65 -- 33 Could you please forward local authority rate notices and any land rent notices so that our clients can attend to payment of that part of those notices which are their responsibility. (emphasis added) [175] This is further powerful evidence of the Crosslands wanting to and trying to meet their obligations to pay rent and outgoings under the lease but being frustrated by a lack of co-operation in provision of the information necessary to know what was payable. [176] On 8 November 2024 KordaMentha wrote to the Crosslands’ solicitor, advising that MGMF as mortgagee in possession remained in control of the company’s assets and that notices ‘for rate/land charges are being issued to MGMF given their control over the property’. [177] Accordingly, on 12 November 2024 the Crosslands’ solicitor, Mr Apel, wrote to MGMF’s solicitors, repeating the explanation they had given to KordaMentha in the letter of 5 November 2024 and continuing: Noting that your client is in possession of the property pursuant to the terms of its mortgage, it is understood (as advised by KordaMentha on behalf of Auctus …), that your client is receiving the local authority rate notices and land rent notices. Could you please forward any such notices indicating any present amounts owing, at your earliest opportunity so that our clients may attend to payment. If it is alleged that any arrears are owing, please advise as a matter of urgency so that our clients can attend to payment. (emphasis added) [178] Remarkably, MGMF did not respond. Over four months later, when Mr Apel’s affidavit of 19 March 2025 deposed to the above communications, he still had not received any local authority rates, invoices or land rent invoices from MGMF or otherwise. The trial had been listed for over a month by that point. [179] The above review demonstrates the Crosslands’ longstanding commitment to meet their obligation to pay rents and outgoings. It also heralds just how late in the life of the proceeding MGMF introduced its allegation of a breach of that obligation. On 7 February 2025 the trial of the proceeding was listed to commence on 22 April 2025. On 15 April 2025 the trial listing was vacated and on 22 April 2025 the trial was listed to commence on 7 October 2025. The Notice to Remedy Breach in respect of the payment of rent and outgoings was not received by the Crosslands’ solicitor until 22 September 2025 – only two weeks before the commencement of the trial. [180] So it is that MGMF, not having deigned to tell the Crosslands what amounts were payable when asked to do so more than ten months earlier, made a last-minute attempt to confect a Defence (and in large part a Counterclaim) out of the Crosslands not having paid such amounts. [181] The Crosslands’ solicitor immediately raised legitimate issues about the quantification of the amounts in the Notice and those issues were not resolved by the time of the listed trial. -- 33 of 65 -- 34 [182] Of course, the fact that the allegation of breach was made so belatedly does not alter the objective fact that there must have accrued outstanding amounts of rent and outgoings payable. After all, the Crosslands had been trying since the previous year to find out what amounts were payable. However, the timing of the allegation of breach well explains why the issue of what needs to be paid was not resolved by the time of trial. [183] The above review of events demonstrates that Auctus and MGMF failed to provide the Crosslands with the information necessary to pay the amounts that were payable. In my conclusion, the Crosslands could not have been in breach of their obligation to pay when the sublessor was failing to meet its obligation to inform them what needed to be paid. Because their failure caused, or alternatively materially contributed to,38 the Crosslands’ alleged breach of the obligation to pay, they are precluded from reliance upon the alleged breach as a ground for termination.39 The lack of certainty about what is payable [184] MGMF in effect contended that because, as a matter of objective fact, amounts the Crosslands were obliged to pay were outstanding at the time of trial, I should draw an adverse inference of breach or of unwillingness or incapacity to perform their obligations, from their failure to pay at least some component of the amount alleged to be outstanding. Such an inference is unsustainable having regard to the considerations already identified, as well as to the lack of certainty as to what was payable. [185] A lack of uncertainty has already been exposed in the context of demonstrating the Notice to Remedy Breach was defective. Developing that further, it will be recalled the Notice required payment of $365,503.88, an amount which did not match the total of either of the amounts said to be payable. Further the notice did not stipulate to whom the amount of $365,503.88 was to be paid. [186] Moreover, if the Crosslands decided to pay some component of that amount, say to the Council, how could it be known it would be treated as payment of rates as distinct from other amounts purportedly owing under the rates notice mentioned in the Notice to Remedy Breach? [187] The rates notice referred to in the Notice to Remedy Breach, was described as a rates notice issued by Mareeba Shire Council dated 11 August 2025 with a total amount payable of $308,386.95, but the content of the rates notice was not included. Its content, exhibited at trial, reveals it was issued by Mareeba Shire Council to Auctus c/- Aurora Metals Ltd for the period 1 July 2025 to 31 December 2025. It contained total recent ‘rates and charges’ of $24,250.04 plus a balance brought forward of $286,509.91, giving rise to a balance payable of $310,759.95 with a discount of $2,373, reducing the amount payable to $308.386.95, if paid by the due date of 12 September 2025. So, the Notice to Remedy Breach was apparently requiring payment of an amount of $286,509.91 additional to a comparatively modest amount of $24,250.04 for the most recent rates period. That breakdown was not apparent from the Notice to Remedy Breach. It follows it was not apparent the total amount asserted 38 See Sentinel Orange Homemaker Pty Ltd v Davis Investment Group Holdings Pty Ltd (in liq) [2021] NSWSC 550 [67]. 39 Suttor v Gundowa Pty Ltd (1950) 81 CLR 418, 441. -- 34 of 65 -- 35 in that Notice included a balance brought forward of $286,509.91, let alone what that amount related to. [188] On 25 September 2025 the Crosslands’ solicitors emailed MGMF’s solicitors, enquiring as to the basis upon which the calculation had been made in the Notice to Remedy Breach to arrive at the amount claimed to be owed by the Crosslands in respect of rates and land rent. No calculation explanation had been provided by 29 September 2025 when Mr Apel’s affidavit was sworn. [189] On 1 October 2025, less than a week before the trial started, Ms Penman of MGMF’s solicitors, emailed the Crosslands’ solicitors, attaching a ‘statement of account from the Department’, which became exhibit 13 at trial. That document is a report for ‘Titles Ref: 17664138’, describing ‘Lessees’ as Auctus. The report does not reveal what if any lots, other than the two subleased by the Crosslands, that titles reference includes. However, Ms Penman apparently ascertained it includes more lots than those subleased by the Crosslands, for her email asserted: We note that the area of land benefiting your client comprises 97% of the total land area of Chillagoe Station. Accordingly, our client’s notice to remedy breach has been calculated on that basis. [190] Ms Penman’s ensuing affidavit deposed: 16. Mills Oakley [MGMF’s solicitors] arrived at the 97% figure referred to in the correspondence to Northpoint Law [the Crosslands’ solicitors] dated 1 October 2025 by reviewing land rent notices issued by the Mareeba Shire Council referred to in paragraph 12 herein, in conjunction with title searches for the Chillagoe Station Lots. 17. Based on my review of the documents referred it in paragraph 16, I understand that the total land area of the Chillagoe Station is approximately 213,600.14 hectares. 18. Lots 3 and 11, being the lots the Applicants benefit from, together comprise approximately 208,301.00 hectares, which represents approximately 97% of the total land area of Chillagoe Station. 19. Pursuant to clause 22.1(a) of the Sublease (as defined in the NTRB), at the time of issuing the NTRB, the Applicants were in breach of the balance brought forward from previously unpaid rates only. 20. Mills Oakley therefore calculated the rates owing on 97% of $286,509.91 being the balance brought forward. 21. Pursuant to the terms of the Sublease, the Applicants remain liable for 97% of the gross balance outstanding in the sum of $315,394.12, as shown in the certified rates search exhibited at paragraph 12 herein … amounting to $305,932.30. [191] None of that information remedies the uncertainty. According to an email by Council’s senior rates and revenue officer, the lots to which the rates notice, the subject of the Notice to Remedy Breach, related were 13 lots, namely Lot 6 LD4, Lot 600 SP101788, Lot 5 LD4, Lot 1 MPH 24671, Lot 2 MPH 24671, Lot 1 MPH 24824, -- 35 of 65 -- 36 Lot 2 MPH 24824, Lot 1 MPH 31443, Lot 1 MPH 1948, Lot 11 SP 104550, Lot 1 MPH 24946, Lot 1 MPH 24951, Lot 3 SP 150971. It is Lot 3 on SP150971 and Lot 11 on SP104550 which are said to be the subleased land. [192] It is not apparent that there would be proportionate consistency in the imposition of the amounts levied for water and rates across the various lots by reference to proportionate lot surface area. Presumably the proportionate water usage of each lot, and the rateable value of the lots,40 would be more relevant to the apportionment of levies for water and rates. Ms Yang’s affidavit exhibited a rates notice for the period ‘01/07/2025 to 31/12/2025’ for all 13 lots but it only recorded a single valuation of $7,000,000, not the valuations of the 13 discrete lots. It may well be that there are no separate valuations but that MGMF had not yet gleaned more information from Council to better inform the apt apportionment suggests the Crosslands would be even less likely to be able to do so,41 fortifying the conclusion already reached above that the Crosslands needed to be informed of what was payable by Auctus or MGMF in its stead. [193] Significantly, the information provided by Ms Penman did not deal with the inclusion, in the amount allegedly payable, of interest on overdue rates, let alone its apportionment. That the amount included a very substantial amount of interest on overdue rates is apparent from the transaction history provided by the Mareeba Shire Council, exhibited to Ms Yang’s affidavit. [194] It will be recalled that back on 15 February 2024, MGMF’s agent solicitor had issued a Notice to Remedy Breach in respect of rates and interest and debt recovery fees arrears totalling $106,480.96. The Crosslands paid Mareeba Shire Council that amount on 13 March 2024 and on 14 March 2024 Hamilton Locke advised the Crosslands’ solicitors the payment satisfied the Notice to Remedy Breach in relation to unpaid rates. Since then, according to Council’s statement of account, the following further rates and outgoings were levied by Council: 12/08/2024 RatLevy, Generated Rates, Y $23,514.65 WatCons, Water Consumption, Y $3,629.31 24/02/2025 RatLevy, Generated Rates, Y $23,514.65 WatCons, Water Consumption, Y $137.62 11/08/2025 RatLevy, Generated Rates, Y $24,229.65 WatCons, Water Consumption, Y $20.39 Total: $75,046.27 [195] The total of $75,046.27 is an amount far less than the sum of $286,509.91 claimed in the Notice to Remedy Breach as not having been paid by the Crosslands. There has obviously been an accumulation of interest on overdue rates for some time. As much 40 See s 74(1) Local Government Regulation 2012 (Qld). 41 Even if they sought to inspect the land record kept by Council per s 155 Local Government Regulation 2012 (Qld). -- 36 of 65 -- 37 is apparent from Council’s statement of account, exhibit 13. Indeed, despite the payment on 13 March 2024 by the Crosslands of $106,480.96, according to Council’s statement there then remained an unpaid balance of $201,199.20. Payment of that amount by the Crosslands was not sought in the Notice to Remedy Breach of 15 February 2024, issued on behalf of MGMF, seeking payment of the $106,480.96. [196] The conclusion is irresistible that MGMF’s later Notice to Remedy Breach, of 19 September 2025, was attempting to have the Crosslands pay a far greater amount than was owing by them for rates and outgoings. That greater amount apparently consisted of an accumulation of interest and late payment charges on amounts which were overdue. It was an accumulation which would not have occurred had Auctus and MGMF provided the Crosslands with the information necessary to allow the Crosslands to make the timely payments I find the Crosslands were prepared to make. [197] As to rent, paragraph 16 of Ms Penman’s affidavit quoted above asserts that land rent notices were issued by the Mareeba Shire Council, however, the relevant statement of account, exhibit 13, emanates from the Department. The Department’s statement of account for Auctus as at 30 September 2025, recorded a current balance, inferentially a balance owing, of $86,074.92. [198] It is clear from the Department’s statement of account that the amount invoiced quarterly for annual rental varied, that is, it was not a fixed amount known to the Crosslands. [199] The statement of account shows the last time there was no outstanding balance was on 1 December 2020. Since then, the statement records there has been a total of approximately $116,101.12 invoiced quarterly for rent and a total of approximately $54,443.33 payments made, the last being the Crosslands’ payment of $35,000 on 23 July 2024. I use the word ‘approximately’ because of some arguable ambiguities and the absence of any explanatory evidence about the statement from the Department. [200] This suggests a balance of approximately $61,657.79 of rent payable to the Department may be outstanding. The evidence does not allow an informed finding as to what proportion of that amount is payable by the Crosslands. There is not only the possibility that the accurate apportionment of rental does not necessarily match the 97 per cent apportionment of land area mentioned in Ms Penman’s affidavit. There also remains uncertainty as to whether amounts paid by the Crosslands to Auctus on account of land rent have been on paid by Auctus or Aurora to the Department. [201] That the statement’s balance exceeds $86,000, reflects a substantial accumulation of amounts charged for penalty interest for late or overdue payment. It has not been demonstrated that the Crosslands ought to be liable for those charges, particularly given the sublessor’s failure to provide the Crosslands with the information needed to pay rent when due. [202] It is scarcely surprising that, presented with such a last-minute attempt by MGMF to allege a breathtakingly excessive amount of unpaid rent, rates and water charges as owing by the Crosslands, the Crosslands would await the trial that was about to commence. -- 37 of 65 -- 38 There was no breach [203] The above analysis demonstrates why in my conclusion there has been no breach as alleged in the Notice to Remedy Breach. It also demonstrates why, even if there has been, that it occurred in circumstances of such belated uncertainty as to be incapable of grounding MGMF’s purported termination. Further, it demonstrates the accrual of amounts that are payable by the Crosslands to the Department and Council, was not caused by the Crosslands. Rather it was caused by the failure of Auctus and MGMF to give the Crosslands the information needed for them to make payments of amounts due, when due. Are the Crosslands ready, willing and able to meet their obligations as sublessees? [204] The foregoing conclusions demonstrate that, subject to consideration of one further issue, the Crosslands are entitled to an order for specific performance of the above discussed obligation of the sublessor under the sublease to grant a new sublease on similar terms and conditions as the sublease. That further issue is whether the Crosslands are ready, willing and able to perform their obligations under a sublease of similar terms and conditions. [205] It is well established that a party seeking specific performance of a contract carries the onus of establishing it is ready, willing and able to perform its contractual obligations.42 A sublease is a form of contract, so it is for the Crosslands to prove they are ready, willing and able to perform their obligations under the sublease. [206] MGMF argues this court should not conclude the Crosslands are ready, willing and able to perform their obligations as sublessors based upon: (a) the past alleged breaches raised by Auctus in 2018; (b) the recent alleged breaches raised by MGMF soon before the trial; (c) an alleged lack of financial capacity to pay rents and outgoings; and (d) the Crosslands permitting a school camp to occur on the property. [207] These reasons have already explained why (a) and (b) do not support an inference the Crosslands are not ready, willing and able to perform their obligations as sublessees. The considerations telling against (b) also tell against the allegation of financial incapacity in (c) to which I now turn. Do the Crosslands lack the financial capacity to pay rent and outgoings? [208] MGMF argued I should infer the Crosslands are not financially able to meet their obligation to pay rent and outgoings and thus not ready, willing and able to perform their obligations as sublessees. In seeking that inference MGMF relied firstly upon the last-minute allegation of non-payment of rent and outgoings, and secondly upon evidence it adduced about the modest state of the Crosslands’ partnership finances. [209] My earlier reasons demonstrate why the first purported foundation lacks substance. It will be recalled there is no evidence to suggest any past problem in the Crosslands’ 42 Foran v Wight (1989) 168 CLR 385, 393, 424. -- 38 of 65 -- 39 ability and willingness to pay rent and outgoings over the decades they have been sublessee. Since the commencement of this proceeding, in the recent era of Auctus’s corporate malfunctioning and MGMF’s involvement, there has been a failure by the sublessee to provide the Crosslands with the information they needed to meet their payment obligations. Nonetheless, the Crosslands made repeated good faith attempts to ascertain what was payable. Then, only two weeks before trial, after a very long period of unresponsiveness, MGMF made an allegation of non-payment which was infected with uncertainty. Against that background it was not practicable to expect the uncertainty to be resolved by trial and unremarkable that the Crosslands would wait for the trial to take its course. That they did so in such last minute and uncertain circumstances before trial, against a demonstrated background of such good faith conduct in seeking the information needed to meet their payment obligations, cannot logically support an inference they must not be able meet their obligations to pay rent and rates. [210] Turning to MGMF’s reliance upon the modest state of the Crosslands’ business finances, its argument was principally founded on financial records apparently produced by the Crosslands in answer to a subpoena, some cross-examination of Dale Crossland about those records and the business and the vague state of the positive evidence of future capacity to pay. [211] Dale Crossland testified in cross-examination that the Crosslands ran Chillagoe Station as a partnership. He acknowledged there were running costs to be met, that on occasion the Crosslands would hire people to assist with mustering and some other jobs and that someone would need to be paid to work for some months of the year to fill the labour void left by Stephen Crossland’s death only weeks before the trial. [212] Dale Crossland was taken in cross-examination to a series of bank statements with modest account balances. That culminated in this exchange: So it’s the case, isn’t it, Mr Crossland, that as at the date of those bank statements – being the four bank statements that we went to, the four accounts for the partnership – the partnership had less than $40,000 of cash available to it at that time; correct?--- Roughly, yep. Thank you. So, for example, if you had been asked to pay a rates bill of more than $40,000 at that time, you wouldn’t have been in a position to do so?--- Not at that day, no. [213] The cross-examination then moved off to another topic with no attempt being made to deal with the obvious qualification inherent in the answer of Dale Crossland. His answer ‘Not at that day, no’ left open the obvious prospect that if the Crosslands did not have money immediately available in their bank accounts on the given day, there would be other means open to them to put themselves in a position to meet a required payment. [214] There was a similar skirting of serious engagement by the cross-examiner in the following final exchange prior to re-examination: So it’s – in fact, as we stand here now, there are insufficient funds in those accounts to enable you to pay all the rates and rent; correct?--- In the accounts, yeah, but I’ve more co – more money coming in. -- 39 of 65 -- 40 [215] Despite the evidence from Mr Crossland that more money was coming in, and that assertion tending against MGMF’s argument that the Crosslands cannot afford to meet their obligations, the response provoked no further cross-examination on behalf of MGMF. When asked to elaborate upon his answer in re-examination Mr Crossland explained they had sold cattle a couple of weeks ago and that more money was coming in from those sales. [216] Dale Crossland was earlier taken in cross-examination to various financial records the Crosslands had produced in answer to a subpoena given a week before the trial. The partnership income statements to which he was taken showed, for the financial year ending June 2022, total income of $550,604 and net profit of $226,646 (in that financial year $29,366 was recorded as paid for rates and taxes and $1,313 was recorded as paid for rent); for the financial year ending June 2023, total income of $404,695 and net profit of $41,859 (the amount paid for rates and taxes was recorded as $30,780 and no entry was made in respect of rent); and for the financial year ending June 2024, total income of $355,051 and a net loss of $109,991 (the amount of $107,995 was recorded as paid for rates and taxes and $1,915 as paid for rent). [217] This evidence obviously demonstrated undulating patterns of profit and loss in those years, but it is to borne in mind that, as Dale Crossland testified in cross-examination, the sale of cattle is the sole manner by which the partnership generates income. On that point cross-examination included this exchange: And the partnership uses the income it generates from the sale of cattle to pay those expenses, doesn’t it?--- Yep. And in fact, it’s reliant on that income from the sale of cattle to meet those expenses, isn’t it?--- Yep. [218] MGMF submitted, relying on the apparently low profit level shown in the Crosslands’ recent annual income statements, that I should infer cattle sales would not be sufficient to raise the money necessary to meet the Crosslands’ sublease obligations. However, that is to overlook that many variables would impact when and how many cattle may be sold and to wrongly assume that cattle sales would be constant every year. Mr Crossland explained cattle needed to reach a certain age and weight before being suited to be sold. He testified cattle sales occurred between March and mid- December each year and that at any given time about a third of the herd could be ready for sale. However, he did not testify that there was a fixed number of sales engaged in every financial year. [219] Moreover, conceding in response to a leading question in cross-examination that the Crosslands relied upon the sale of cattle to meet their debts is unlikely to have been understood by Dale Crossland as him meaning the partnership is solely reliant on cattle sales to be able to pay its bills in a timely way. [220] For instance, the personal resources of the Crosslands may be another such source of funds, particularly to bridge the gap in partnership income as needed between substantial cattle sales. Indeed, Dale Crossland alluded to his mother being able to make funds available. It was submitted I should give no weight to that evidence in the absence of evidence to that effect from Mrs Crossland, including evidence as to her financial worth. This is not an insolvency case. It is scarcely controversial that, in the context of an enterprise which has for decades been in the family and family -- 40 of 65 -- 41 run, and in which there may be variability in the rate at which it stages the sales of its cattle, family members may be willing to find the means to bridge a temporary shortfall in liquidity. [221] Further, it is to be borne in mind the Crosslands have substantial assets. They grew their breeding herd over the years to about 2,500 to 3,000 head of cattle. They have also invested substantially in plant and machinery. Stephen Crossland deposed the current value of their stock, plant and machinery and grazing operation exceeds $10 million. They may also be positioned to, if needs be, procure a short-term loan from a financial institution to bridge a temporary shortfall in liquidity [222] MGMF’s approach to exploring the Crosslands’ finances at trial appeared to encourage an expectation by the court that the Crosslands should have provided detailed evidence of financial capacity, as if this were like the case of a company meeting an allegation of insolvency. The circumstances did not raise such an expectation. [223] Of course, it is for the Crosslands in seeking specific performance to satisfy the court they are ready, willing and able to perform. But the court’s expectations of the kind of evidence sufficient to satisfy it of such readiness, willingness and ability is logically informed by the all the circumstances of the case. [224] The last-minute allegation of non-payment only found its way into MGMF’s pleadings via the filing of its Further Amended Defence, of which notice was given a mere week before the trial. Similarly, the allegation that the Crosslands are not ready, willing or able to perform their obligations as sublessees was only introduced then in the Further Amended Counterclaim at [20]. But the allegation was a confined one. It pleaded it ‘may be inferred from the matters pleaded in paragraphs 4 and 12B(b)(iaa) of the Defence and the matters pleaded in paragraphs 7 to 19 above, that the Crosslands … are not ready, willing and able to perform their obligations’. Those pleaded matters, in so far as they could be relevant to financial capacity to perform obligations, involved the allegation of non-payment of rent and rates and breach in alleged consequence thereof. The allegation was of a failure or refusal to pay, not a lack of capacity to pay. It is therefore unsurprising the Crosslands did not adduce detailed evidence of their financial position. Nonetheless, this is not a case in which there is no evidence of the Crosslands being ready, willing and able.43 [225] Dale Crossland’s deposed, as at 30 September 2025, that: I am aware that we do presently owe rates and land rent however we have been unable to determine the correct amount that is payable by us. We are willing and able to make payment as soon as the correct amounts are identified. (emphasis added) [226] Dale Crossland presented as a credible, honest witness when cross-examined. There was nothing about the manner or substance of his responses to questioning which detracted from the credibility of his affidavit’s deposed assertion of the Crosslands’ ability to make payment as soon as the amounts to be paid can be identified. It was particularly credible because of the fact the Crosslands have for decades been performing their obligations as sublessees, apparently without material controversy, 43 Compare Azkanaad Pty Ltd v Galanos Bros Pty Ltd [2008] NSWCA 185, [67]. -- 41 of 65 -- 42 and the fact they in good faith continued to seek information about was what payable and to make payments even during the recent era of inadequate provision of information from Auctus and MGMF. [227] This continued good faith conduct included the Crosslands on 13 July 2022 paying Aurora’s tax invoice to them of $29,365.63 for local authority rates and on 8 August 2022 paying Aurora’s tax invoice to them of $27,880 for land rent. It included them on 13 March 2024 paying Mareeba Shire Council $106,480.96 in respect of an amount of rates which Hamilton Locke had given them notice off. It also included them guessing at what rent was outstanding and paying the Department $35,000 on 23 July 2024. Finally, it included them on 12 November 2024 specifically asking MGMF what was payable, only to be ignored for over ten months until hit with an excessive demand for payment on 22 September 2025, just two weeks before the long-listed trial. [228] In all the circumstances of the case, I am satisfied the Crosslands are ready, willing and able to perform their financial obligations as sublessees to pay the Department rent and the Council rates and water charges in respect of the subleased property. Provisional nature of finding of financial capacity to meet obligations [229] Notwithstanding the above finding it is an objective fact that at the time of trial there must have been amounts of rent and rates and water charges, though not penalty and interest charges, owing to the Department and Council and payable by the Crosslands. It is therefore appropriate to qualify my finding as provisional. [230] If the finding is correct, then the Crosslands should be able, within a reasonable time, say within six weeks of me publishing these reasons, to file evidence that they have, between the hearing of the trial and then, paid amounts of rent and rates and water charges which were, at a minimum, owing as at the time of trial. If that occurs, it will remove the provisional quality of my findings and result in me forthwith ordering specific performance. If the Crosslands do not file such evidence of payment, then their inability to do so would mean, despite my provisional view to the contrary, that they are not ready, willing and able to meet their financial obligations as sublessees and result in me forthwith declining to order specific performance. [231] For reasons discussed above, the evidence does not allow precise identification of what amounts were payable to the Department and Council by the Crosslands at the time of trial. However, it is possible to conservatively estimate at least a minimum amount payable to each. [232] Firstly, as to rent payable to the Department, it will be recalled that back on 23 July 2024, being none the wiser as to what rent was payable, the Crosslands paid $35,000. The Department’s statement of account in exhibit 13 shows that, since then, the following additional rental amounts were the subject of so-called ‘annual/quarterly invoicing’ on the following dates: 01/09/2024 $7,472.93 01/12/2024 $7,472.93 01/03/2025 $7,310.47 01/06/2025 $7,391.69 01/09/2025 $8,220.22 -- 42 of 65 -- 43 Those amounts total $37,868.24. It is not alleged there were further payments by the Crosslands since 23 July 2024. It may be that the July payment did not have the effect of paying off all rent that was unpaid at that time but the evidence about responsibility for earlier rent not being paid to the Department is cloudy and includes the anomaly that the Crosslands made payments for rent to Aurora which are not recorded as being paid to the Department. On the other hand there was no dispute on the evidence at trial that the Crosslands had not made further payments of rent since 23 July 2024. [233] At a minimum then, a total of $37,868.24 for rent, invoiced quarterly between 23 July 2024 and trial, remained unpaid as at trial. It cannot be assumed the apportionment of that amount, which is payable by the Crosslands, equates to the 97 per cent asserted by MGMF.44 However, it is reasonable to assume a substantial majority of that amount, say $34,000, is payable by the Crosslands. [234] Accordingly, my orders will require the Crosslands to file evidence within six weeks thereof that, since the trial, they have paid an amount totalling at least $34,000 to the Department for rent. [235] Secondly, as to rates and outgoings payable to Council, it will be recalled that as at trial, a collective total of $75,046.27 for rates and water was payable to Council. Again, there is uncertainty as to the accurate apportionment of that amount to the land subleased by the Crosslands. However, it is reasonable to assume a substantial majority of it, say a collective total of $68,000, is payable by the Crosslands. [236] Accordingly, my orders will require the Crosslands to file evidence within six weeks that, since the trial, they have paid an amount to Council towards rates and water charges for the subleased property, totalling at least $68,000. [237] I emphasise this course does not reflect a finding as to what was in fact payable by the Crosslands at the time of trial for rent or rates and water charges, the evidence having been inadequate to allow such a finding. Rather it reflects a finding of the least amounts which would have been payable at the time of trial and an expectation that, if the Crosslands are ready, willing and able to meet their obligations, they will at least have paid those amounts within six weeks of the delivery of these reasons. Does permitting a school camp to occur on the property indicate the Crosslands are not ready, willing and able? [238] MGMF relies upon the nature of the permitted use of the land under the sublease as precluding the use of the land for camping. Clause 9.1 of the sublease provides: 9.1 The Sub-Lessees shall use the land comprised in the Demised Premises only for such agricultural and other purposes as the Sub- Lessor shall from time to time approve. [239] MGMF’s Counterclaim pleaded at [11] that between at least 11 December 2017 and the date of the pleading, filed 6 June 2025, the Crosslands: 44 To remove doubt, that is not a finding that a 97 per cent apportionment is necessarily wrong. It merely reflects a want of sufficient evidence on the point, doubtless because of the last-minute way the issue was raised. -- 43 of 65 -- 44 (a) permitted or caused to be permitted the Leased Land (or, alternatively, part of the Leased Land) to be used other than for its permitted purpose, namely, for the provision of accommodation and tourism activities to members of the public for profit such as camping, fishing and water sports; … [240] Stephen Crossland’s affidavit of 10 July 2025 noted it was difficult to respond to the allegation because of its lack of specificity but, attempting to address it, confirmed: For as long as we have held our sub-lease of the station, St Augustine’s School in Cairns has used the property for an annual school camp. This was an arrangement that had been in place for as long as I can remember, and I recall it had started when one of the mine owners many years ago had a son who was attending that school. As a matter of community goodwill, we have continued to allow the school access for its annual camp. I am aware that when St Augustine’s School is conducting its annual camp, the school sets up the temporary kitchen and ablution facilities used during the camp and then removes those facilities in their entirety at the conclusion of the school camp, returning the camp site to its natural state. I have never sought any payment or compensation from St Augustine’s School for access to the land for its school camp, though the school has made a token voluntary payment to us each year to offset the costs of road maintenance, as it is usually necessary for us to fix up the access road each year prior to the school camp to ensure the school can get access. [241] Stephen Crossland also deposed: From time to time, we are approached by members of the public seeking access to the station to go camping. Again, we usually allow such access as a matter of community goodwill, however, we never request any payment. From time to time, some members of the public give us a carton of beer as a mark of appreciation, however, that is never required or requested by us. [242] When Dale Crossland was cross-examined, he testified he does not let social campers on the property, explaining that was something Stephen did. However, he confirmed the school camp had been occurring annually for years. When asked whether he expected the practice would continue, he replied, ‘Well I hope so; they’re kids’. When asked if he had any intention of stopping it, he replied, ‘No’. I did not perceive such responses as indicating an intention to allow such camping in the future ‘come what may’, even in disregard of the points now made in these reasons. [243] It is notorious that recreational camping activity occasionally occurs on cattle properties in Far North Queensland, many of which are held under rolling term leases for pastoral purposes. It is a matter for MGMF if it wants to prevent the Crosslands from allowing such activity to occur, including allowing the apparently beneficial educative use of the property for an annual school camp. I am not asked to adjudicate -- 44 of 65 -- 45 the reasonableness of a refusal of approval for such use. Nor am I asked to decide this issue as a breach alleged in a Notice to Remedy Breach. [244] All that has occurred is that in arguing the Crosslands are not ready, willing and able to meet their obligations as sublessees, MGMF have thrown in reliance on the Crosslands allowing camping activity in the past and the fact that Dale Crossland agreed in cross-examination that he desires the continuation of the practice of allowing the annual school camp. [245] Had the past alleged non-compliance been raised within a Notice to Remedy Breach, it may have been argued that allowing guests to camp on the rural property, which is the Crosslands’ home, was an incident of the Crosslands’ right of habitation of the property as residents rather than a ‘use’ of the land in the sense contemplated by cl 9.1. Such an argument would be more persuasive in respect of visiting friends and relatives compared to more distantly connected persons or school groups. It appears well arguable that allowing camping on the property by those more distantly connected sets of people goes beyond an incident of residency and may be a ‘use’ per cl 9.1. Thus, as minor as it may seem, it is a use which a sublessor, who may be concerned by issues of occupier’s liability and compliance with the use authorised under the rolling term lease,45 is entitled to expect will only occur with the sublessor’s approval. [246] Had it been alleged as a breach and had I found it to be a breach, I would have concluded, in the absence of any evidence whatsoever of past complaint on the topic or that MGMF has been prejudiced by such past use, that the Crosslands should be relieved from forfeiture [247] The Crosslands are now aware MGMF raised its expectation of approval for camping being sought in arguing this case and will now know of the content of these reasons. They will therefore appreciate that, in the future, repetitions of the alleged breach may put the continuation of the sublease at jeopardy. It is therefore reasonable to infer that, now the Crosslands have knowledge of MGMF’s expectation, they are unlikely to proceed in disregard of it. [248] It follows that, despite MGMF’s various arguments to the contrary, I am satisfied the Crosslands are ready, willing and able to meet their obligations as sublessees. Does determination of the foregoing issues dispense with the Counterclaim? [249] The above determinations have the effect of dispensing with all but two aspects of MGMF’s Counterclaim. One aspect is that the Counterclaim relies upon the registration of MGMF’s mortgage as taking priority over any of the Crosslands’ interests so that MGMF is not bound by any sublease and entitled to vacant possession. That reliance is unsustainable for reasons explained below in dealing with whether an order for specific performance should be made. It follows the claim to vacant possession must fail. The second aspect is that the Counterclaim arguably founds a lingering basis for me to order the Crosslands to pay MGMF some amount for damages in connection with outstanding rates. 45 See s 199A Land Act 1994 (Qld). -- 45 of 65 -- 46 [250] This prospect arguably lingers because, as earlier mentioned, MGMF’s Counterclaim pleaded at [11(c)] that the Crosslands ‘failed or alternatively refused to pay outgoings, at least to the extent of council rates in the sum of $286,509.91’. That pleaded fact was relied upon in support of an allegation of breach at [12((a)] and entitlement to unquantified indemnification at [12(c)]. [251] The pleaded reliance upon indemnification at [12(c)] is based upon cl 3.1 of the sublease which requires the sublessees to ‘comply with all the obligations (other than the payment of rent) of the Sub-Lessor under the Lease’ and ‘to indemnify and hold harmless the Sub-Lessor in respect of any loss, damage, action or liability suffered by, brought against or incurred by the Sub-Lessor as a result of any failure or omission by the Sub-Lessees to comply with such obligations’. That clause’s express exclusion of reference to rent seemingly explains why the failure is pleaded as ‘at least’ the non- payment of ‘council rates in the sum of $286,509.91’. I accordingly deal with the damages claim as relating to Council rates and water charges, although my reasoning would be no different were the Counterclaim to be treated as also relating to rent payable to the Department. [252] The claim for damages in the Counterclaim’s prayer for relief is for ‘Damages pursuant to the indemnity contained in clause 3.1 of the Sub Lease and clause 22.5 of the New Sub Lease’. Clause 22.5 of the new sublease is also an indemnification clause but is irrelevant because, for reasons already explained the new sublease has not commenced. [253] In any event, in either case the pleaded right of indemnity appears to be premised upon proof of loss, damage or liability suffered by the sublessee in connection with rates and water charges not paid to Council. [254] MGMF did not prove it has suffered any loss or damage deriving from a failure or omission by the Crosslands to comply with their obligations, which leaves ‘liability’. The highpoint seems the suffering of a liability, in that as mortgagee in possession MGMF has, by virtue of the Crosslands’ non-payment of Council’s rates and water bill, incurred a liability to pay Council’s rates and water bill. That bill consists not only of unpaid amounts for rates and water but also of interest for overdue amounts that were overdue because of the failure of Auctus and MGMF to inform the Crosslands of what and when amounts for rates and water were payable to Council. No attempt was made to delineate any distinction in responsibility for actual amounts of rates and water as distinct from interest for overdue amounts. [255] It is apparent from the above reasons why, in my conclusion, no component of the amounts alleged to have been payable by the Crosslands should include any penalty or interest arising from late or non-payments to the Council, or the Department for that matter. That is because the evidence shows the Crosslands did all they reasonably could to ascertain what was payable in order to pay it on time. The fault for the incurring of penalties and interest, to the extent any component thereof arose from late payment by the Crosslands, was the responsibility of the sublessors and derives from their failure to provide the Crosslands with the information they needed to make payments when due. [256] I should say something further to remove any doubt about the significance to that conclusion of the fact the amount of $106,480.96 paid by the Crosslands to Council on 13 March 2024, related to a Notice to Remedy Breach which quantified that -- 46 of 65 -- 47 amount as including $24,629.44 for ‘Interest and debt recovery fees payable by Lessee’. It will be recalled the Crosslands proceeded to pay the full amount of $106, 480.96 to Council. It was not submitted, and I would have declined to find, that act of payment should be construed as supporting an inference the Crosslands are generally liable to pay penalties and interest incurred because of late payments to Council, or the Department for that matter. Indeed, such a submission would have been undermined by the fact that MGMF’s agent did not seek other earlier incurred interest and penalty fees,46 in seeking the $106,480.96 payment, presumably because they formed part of the rates dispute settled under the settlement deed. [257] MGMF’s fallback position was to contend that objectively there must be amounts of rates and water charges outstanding which the Crosslands are obliged to pay the Council. That argument had relevance (albeit unpersuasively so) to MGMF’s argument that the Crosslands must not be ready, willing and able to perform their obligations under the lease. However, my finding that at least $34,000 was payable by the Crosslands to the Council for rates and water charges, does not mean MGMF has proved its liability to Council to pay such an amount was caused by a breach of the Crosslands obligations as sublessees. [258] To the contrary, as I have already found, the non-payment by the Crosslands of rates and water to Council is not a result of a breach of their obligations as sublessees. It is a result of the failure of Auctus and MGMF to inform the Crosslands in a timely way of the amounts payable to Council. To remove doubt, the same reasoning applies to the cause of the non-payment of rent to the Department. [259] The Counterclaim should therefore be dismissed. Should an order for specific performance be made? The Crosslands should be relieved from forfeiture [260] The foregoing findings either found that the breaches alleged were not breaches or that, if they were, this court should grant relief from forfeiture in respect of them. I will accordingly order that the Crosslands are relieved from forfeiture in respect of the alleged breaches raised in this proceeding. The lingering uncertainty about what may be owing should not preclude relief [261] In reaching that conclusion I do so conscious of the point made in Tannous v Cipola,47 that a ‘reasonable expectation’ a tenant may become unable to pay could ground a finding it is not just and equitable to grant relief from forfeiture. However, the provisional nature of my above finding does not reflect such an expectation. It is merely an exercise of caution before taking the further step of ordering specific performance. [262] It was at one point submitted for the Crosslands that one method of dealing with the uncertainty as what remains owing would be for the court to order specific performance but exercise an ongoing supervisory jurisdiction with the capacity to 46 Listed in Exhibit 13. 47 [2001] NSWSC 236, [38]. -- 47 of 65 -- 48 vacate the specific performance order.48 However, it is unnecessary to maintain some supervisory role in respect of amounts payable. [263] To do so would be at odds with me having made findings about the matters in dispute before me (save for the provisional character of my finding that the Crosslands are ready, willing and able and the order I will make to determinatively resolve that aspect in the near future). Further, while it remains to decide the form of order for specific performance, that decision has no connection with the monetary matters about which findings have been made. Those findings may inform the parties’ future decision making as to what is properly payable by the Crosslands but that does not bring such future decision making within the reach of the present proceeding. Would an order for specific performance lack utility? [264] The pre-requisites for specific performance having been established it remains to decide whether specific performance should be ordered. The only considerations potentially telling against such an order are whether it would lack utility because Auctus is in liquidation or because the approval of the Minister is required for registration of a new sublease, or because MGMF has a registered mortgage and has entered possession. Auctus being in liquidation should not preclude an order for specific performance [265] The obligation to grant the sublease is, on the terms of the registered sublease, that of the sublessor. The sublessor is Auctus, which remains the registered lessee of the rolling term lease. It is therefore Auctus which should be ordered to specifically perform the obligation. [266] That Auctus is in liquidation did not preclude the continuation of this proceeding against it, the requisite leave having been given. Not does it preclude Auctus from being the subject of an order in this proceeding which requires it perform some act(s), the liquidator having power to act in the name of and on behalf of the company.49 [267] Auctus’s liquidator took no active role in the hearing. It will be necessary to give the liquidator, additionally to the active parties, an opportunity to be heard about the form of order for specific performance. In the circumstances the proper course, assuming the Crosslands have filed the abovementioned evidence within six weeks of publication of these reasons, is to then give the parties, including the liquidator, that opportunity to be heard. [268] In preparing for that hearing the parties should bear in mind the order will need to be drafted with relevant provisions of the Land Act 1994 (Qld) in mind. For instance, s 335(1) provides if a lease issued under the Act is subleased, the sublease must be registered. It appears the rolling term lease is a lease issued under the Act and therefore follows the order will likely not only require the execution but also the taking of steps to seek registration. In a similar vein, because s 332 of the Act provides a lease issued under the Act may only be subleased if the Minister has given written 48 Citing Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245. 49 Eg. s 477 Corporations Act 2001 (Cth). -- 48 of 65 -- 49 approval, the order will need to direct that the proper steps be taken for the purpose of obtaining the Minister’s consent.50 The need for Ministerial approval should not preclude an order for specific performance [269] Whether Ministerial approval of a sublease is given pursuant to s 332 is of course a matter for the Minister. The variable that such approval will need to occur means there exists the possibility that the object of the order for specific performance could be thwarted. In circumstances where there is no evidence making it likely that approval would not be forthcoming the presence of that variable does not weigh against me exercising my discretion to grant the order. The fact MGMF has a registered mortgage and has entered possession should not preclude an order for specific performance [270] The fact that MGMF holds a registered mortgage and has entered into possession of the rolling term lease does not alter the fact that Auctus is the registered lessee and thus remains the party who carries the obligation to grant the new sublease. It therefore does not preclude an order for specific performance by Auctus. Nor, for the reasons which follow, should I refrain from exercising my discretion because of MGMF’s registered interest. [271] Specific performance of the right within the registered sublease to the grant of a sublease on similar terms would require, as the act of grant of the new sublease, the execution of the new sublease. As mentioned above, s 335 of the Act requires such a sublease must be registered. The new sublease will be registered at a time after MGMF’s mortgage was registered. This raises the potential relevance of ss 301 and 338 Land Act 1994 (Qld), which provide: 301 Interest in land not transferred or created until registration A document does not transfer a lease or licence or create a legal interest in a lease until it is registered. 338 Validity of sublease or amendment of sublease against mortgagee A sublease or amendment of a sublease executed after the registration of a mortgage is valid against the mortgagee only if the mortgagee agreed to the sublease or amendment before its registration. [272] On the face of it, ss 301 and 338 would appear to have the effect that a sublease executed pursuant to an order for specific performance, and thus after the registration of MGMF’s mortgage, would not be valid as against MGMF. No reliance was placed on s 338 by MGMF in arguing against the making of an order for specific performance.51 That is unsurprising in that reliance upon it would not avoid the historical fact that the obligation to grant a new sublease is contained in the sublease, 50 Adopting the language of the plurality on this point in Brown v Heffer (1967) 116 CLR 344, 350. 51 The only reference to s 338 was a passing reference to it by the Crosslands’ counsel but in a different context – T4-54 L34. -- 49 of 65 -- 50 which was registered many years before MGMF came on the scene and registered its mortgage. [273] In Mercantile Credits Ltd v Shell Company of Australia,52 the High Court held that a right of renewal within a registered lease is so intimately connected with the leasehold interest as to be regarded as part of the registered interest and it therefore carries the same priority as the registered lease. It was explained in Re Eastdoro Pty Ltd (No 2),53 that ‘covenants for renewal must be specifically enforceable (as in the usual case they will be) before they can be said to confer interests in land in the necessary sense’. In the present case the right of grant to a new sublease, is here of a character which is specifically enforceable. [274] As to the effects of registration, s 302 Land Act 1994 (Qld) provides: 302 Effect of registration on interest (1) On registration of a document expressed to transfer or create an interest in land, the interest— (a) is transferred or created in accordance with the document; and (b) is registered; and (c) vests in the person identified in the document as the person entitled to the interest. (2) The person holds the interest subject to— (a) all other interests in the land previously registered; and (b) all rights and interests of the State in the land, other than interests subsequently registered. [275] Section 302’s effect here is informed by s 301, quoted earlier. To adopt the language of s 301, the Crosslands’ right to the grant of a new sublease in cl 18.2 of the sublease is a ‘legal interest in a lease’, namely in the rolling term lease; an interest which was ‘created’ when the document in which it was included, the sublease, when it was registered. To adopt the language of s 302 the Crosslands’ right is a legal interest in the land, namely the leased land the subject of the rolling term lease. Accordingly, applying the principle in Mercantile Credits, the Crosslands’ right in its registered sublease to the grant of a new sublease formed part of its registered interest in the land that was registered when the sublease was registered many years ago. [276] In Mercantile Credits Gibbs J distinguished reasoning to the contrary,54 in which his Honour had engaged, in a Queensland Full Court decision of Friedman v Barrett, ex parte Friedman.55 The distinction was that the word ‘tenancy’, under consideration as the purported source of protection in Friedman, was narrower in meaning than 52 (1976) 136 CLR 326. 53 (1990) 1 Qd R 424, 426. 54 (1976) 136 CLR 326, 347. 55 [1962] Qd R 222. -- 50 of 65 -- 51 words referring to the ‘interest’ of the tenant in the land. As in Mercantile Credits so too here, it is the priority of registered interest in the land which is protected. [277] Section 302(2) has the consequence that MGMF holds its registered interest in the leased land, i.e. its mortgage, ‘subject to’ the Crosslands’ ‘previously registered’ interest in the land, i.e. its right of grant of a new sublease. [278] Self-evidently the Crossland’s priority of right to the grant, and thus the execution, of a new sublease, over MGMF’s interest as mortgagee conferred by s 302, would be worthless if s 338 operated to allow MGMF to avoid the effective validity against it of that sublease by not agreeing to it. [279] In Mercantile Credits, s 154 of the South Australian Act there under consideration was of similar effect to s 338 in requiring the mortgagee’s consent in order for the mortgagee to be bound. Barwick CJ reasoned the exercise of the right of renewal did not, by virtue of s 154, require the consent of the appellant.56 Gibbs J considered s 154 did not apply to the valid exercise of the right to renewal.57 [280] Applying the reasoning in Mercantile Credits here, s 338 will not have the effect of allowing MGMF to avoid the validity against it of the new sublease when executed because that execution is an incident of the exercise of a right contained in a sublease which was executed before the registration of the mortgage. [281] Macrossan CJ observed in Re Eastdoro Pty Ltd (No 2), of adopting the approach in Mercantile Credits: No real practical disadvantage flows from the adoption of this approach since anyone who searches the register in such a case will note the fact of registration of the lease and will be led to examine that document and so be put on notice of the possible existence of leases for subsequent terms resulting from the exercise of the option or options contained in that instrument. (emphasis added)58 [282] If it matters, as will be explained in Part B of these reasons, MGMF must in any event be taken to have had constructive notice, before securing its loan by mortgage, that the Crosslands were entitled to the grant of a new sublease. [283] It follows from applying the reasoning in Mercantile Credits that the fact MGMF has a registered mortgage and has entered possession would not undermine the utility of an order for specific performance and therefore does not weigh against the exercise of my discretion to grant specific performance. [284] It is conceivable that, as an incident of MGMF being mortgagee in possession, there may arise a need for it to perform some positive act to facilitate the ordered specific performance. On one view, an order requiring MGMF to perform an act to facilitate the ordered specific performance might be characterised as an enforcing mandatory injunction as distinct from part of the order for specific performance. However, the distinction would be one in name only in the context of this case. In any event such a need has not been identified but the potential for its emergence is a topic to which 56 (1976) 136 CLR 326, 336-337. 57 (1976) 136 CLR 326, 347. 58 [1990] 1 Qd R 424, 426. -- 51 of 65 -- 52 the parties should turn their minds in preparing to be heard as the form of order for specific performance. In a similar vein, consideration should be given to whether a declaration is required to enhance the effectiveness for the order for specific performance. [285] In my conclusion (in the event the Crosslands meet my order to provide evidence of payment and subject to them not electing in the alternative) the Crosslands should be granted an order for specific performance of their right to grant of a new sublease conferred by cl 18.2 of the old sublease. I will hear the parties as to the form which that order should take. PART B: DETERMINATION OF THE CASE BASED UPON ENFORCEMENT OF THE SETTLEMENT AGREEMENT [286] The Crosslands argue the settlement deed continues to be enforceable as against Auctus and they are entitled to specific performance of it, even as against MGMF. It is necessary to determine that argument, despite the Crosslands’ success in Part A of the case, because if successful in Part B they wish to elect between the two potentially available orders for specific performance. [287] MGMF argues the settlement deed is not enforceable, even as against Auctus, because of a failure to register the new sublease within six months, because such registration became impossible and because the deed has been validly terminated. [288] The Crosslands argue Auctus failed to use all reasonable endeavours to register the sublease, that it is registerable and that there should be an order for specific performance of the deed. They argue their right to specific performance of the settlement deed is enforceable as against MGMF, notwithstanding that MGMF was not a party to that agreement. [289] Consideration of these issues may be informed along the way by the deed’s requirements, the reasons why the deed has not resulted in settlement and the extent of MGMF’s knowledge of the deed. [290] Part B of the case thus falls for determination by reference to the following issues: (a) What did the deed require? (b) Why did settlement not occur? (c) Is the settlement deed unenforceable because of a failure to register the new sublease within six months? (d) Is the settlement deed unenforceable because it was terminated? (e) What did MGMF know of the deed and new sublease? (f) Is the Crosslands’ right to specific performance of the Deed by Auctus enforceable as against MGMF, notwithstanding that MGMF was not a party to the Deed? -- 52 of 65 -- 53 What did the deed require? [291] The Crosslands and Auctus executed a settlement deed on 20 August 2019. On the same date they executed a new sublease and a concurrent land use agreement, under which the parties agreed to co-operate in allowing pastoral and mining activities to occur on part of the property. Clause 3.1 of the deed required the parties to discontinue the proceeding on settlement and cl 3.3 provided that on settlement ‘the parties release each other from any Claim’. [292] The deed defined ‘settlement’ as being the registration of the new sublease which the Crosslands and Auctus executed when they executed the deed.59 Hence, the critical condition for the settlement to be effective, was the registration of the new sublease. [293] Settlement, that is, registration, was supposed to occur within six months, cl 4 of the deed providing: 4 TERMINATION 4.1 Subject to clause 4.2, if Settlement does not occur within six months of the date of execution of this deed (or such later date as agreed by the parties in writing), either party may terminate this deed by notice in writing to the other party. 4.2 A party must not terminate this deed under clause 4.1 unless it has complied with its obligations under clause 2. (emphasis added) Note that cl 4.2 precluded a party from terminating because registration did not occur within 6 months unless the party had complied with cl 2’s requirement of it. [294] Clause 2 of the deed required Auctus to use all reasonable endeavours to procure registration and the Crosslands to provide all assistance reasonably necessary to do so. It provided: 2 PRE-SETTLEMENT New Sub-Lease 2.1 On execution of this deed, the parties must execute the New Sub- Lease. 2.2 Auctus must use all reasonable endeavours to procure the registration of the New Sub-Lease as soon as reasonably practicable following execution of the New Sub-Lease (including conducting any required survey and seeking Ministerial approval). 2.3 The Crosslands must provide all assistance reasonably requested by Auctus to enable Auctus to comply with its obligations under clause 2.2 (including executing or submitting to any government department or authority any documents required to be executed or submitted by the Crosslands in their capacity as sub-lessee of the Sub-Lease). (emphasis added) 59 They also executed a concurrent land use agreement, under which the parties agreed to co-operate in allowing pastoral and mining activities to occur on part of the property. -- 53 of 65 -- 54 [295] Auctus did not procure registration. Why did settlement not occur? [296] There is little evidence of any endeavours undertaken by Auctus to procure registration and none that it endeavoured to do so as soon as reasonably practicable. It will be recalled of the ensuing era that Austus’s problems in managing its corporate responsibilities included its failure to inform the Crosslands of rent, rates and outgoings owing. The inference is irresistible that its failure to procure the registration of the sublease over a prolonged period, in which extensions were repeatedly granted, is another iteration of its managerial malaise. [297] On 28 October 2019, the month after the execution of the settlement deed, the Crosslands’ solicitor requested the solicitors to Auctus to provide an update on obtaining Ministerial consent in respect of the lease’s registration. On 7 November 2019 solicitors for Auctus emailed the Crosslands’ solicitor, indicating Auctus had engaged a registered surveyor to survey the new boundary line in order to append an updated survey plan to the sublease prior to submitting the application for consent to the Minister. The email asserted: We have commenced preparing the application for Ministerial consent, and will share that with you for your comment before submitting to the DNRME once the survey is complete. [298] On 25 November 2019 Auctus’s solicitors emailed the Crosslands’ solicitors, attaching a draft letter to the Department of Natural Resources and Mines, applying for Ministerial approval to the sublease. [299] By 12 February 2020 Auctus and the Crosslands executed an agreement to extend the six-month timeframe for termination in cl 4.1 of the settlement deed due to incompletion. The extension, which was authored by Auctus, noted its surveyor had recently finalised and issued a survey plan ‘however further time will be needed to obtain the Minister’s written approval to the new sublease and procure the registration of the new sublease’. Auctus was placed into voluntary administration the following month. [300] After that point there were more extensions but there is no evidence of any material ongoing endeavours by Auctus to procure registration. It is to be appreciated that with each extension there was thus an extension afresh of Auctus’s obligation to use all reasonable endeavours to procure the registration of the new sublease as soon as reasonably practicable. [301] In February 2021 the administrators of Auctus and the Crosslands executed a further variation to the timeframe for termination of the settlement deed for lack of completion. Auctus ceased being under administration in June 2021, and in July 2021 Auctus and the Crosslands executed yet a further variation to the timeframe for termination under the settlement deed. A further variation by extension occurred on 21 January 2022. The following month, Mr Ralph De Lacey, who was a director of Auctus (and identified as the managing director of Aurora Metals Pty Ltd – Auctus’s parent company – in the variation of 27 July 2021), tried and failed to reach an agreement with the Crosslands different than that in the settlement deed. -- 54 of 65 -- 55 [302] On 19 August 2022 Auctus and the Crosslands executed a further 12 months extension of the timeframe in the settlement deed. [303] On 22 March 2023 solictors to Auctus emailed the Crosslands’ solicitors, indicating Auctus wished to implement the settlement and noting the process of surveyors surveying a new boundary for Auctus had only been completed shortly before Auctus had been placed into voluntary administration. Its author indicated he would shortly revert to them again ‘in respect of the steps required to procure registration of the new sublease’. [304] On 14 April 2023 the Crosslands’ solicitor emailed Auctus’s solicitors, requesting details of the timeline to implement the settlement agreement. The solicitors to Auctus responded, asserting they were ‘currently working on finalising’ the required documents. They asserted, without explanation, that would include ‘a deed of amendment required to replace the plan in the new sublease agreement with the survey plans of the pastoral boundaries’. They also asserted they expected to be able to share those documents with the Crosslands ‘within the next week’. No copies of those documents were provided to the Crosslands. [305] On 1 June 2023 the Crosslands’ solicitor spoke with Auctus’s solicitor who advised that Departmental requirements for a sublease of Crown land had changed since the sublease had been signed and that it may be necessary for a new sublease document to be signed ‘in essentially the same terms but reflecting the updated Departmental requirements’. Auctus’s solicitor indicated he would revert as soon as possible with an update. None was forthcoming despite a follow-up request by the Crosslands’ solicitor on 26 June 2023. Auctus was placed under administration on 3 July 2023. [306] MGMF submitted the communications of 14 April and 1 June 2023 were evidence that settlement, and thus specific performance of settlement, was no longer possible because it had become impossible for the new sublease to be registered. I accept that equity will not specifically enforce what cannot be done, 60 but I reject the submission those communications showed registration had become impossible. The communications merely foreshadowed a perceived potential need to meet Departmental requirements by varying the terms of the agreed new sublease. They are not evidence of what those requirements were or that varying the new sublease was the only means of accommodating them. They are not evidence that the registration of the agreed new sublease was no longer possible. Nor do they exclude the possibility that if some variation of terms was required it could be implemented simply by the parties meeting their obligation to act reasonably per cl 2 of the deed, by consensually varying the new sublease, rather than having to enter afresh into a new sublease agreement. [307] It is apparent from those findings that I reject the assumption, implicit in MGMF’s submissions, that it was the precise content of the new sublease executed as part of the settlement agreement – nothing more, less or different – which had to be registered in order to effect settlement. I readily infer the terms of the deed, which included the terms of the new sublease, allowed of the possibility that the parties may need to co- operate in amending the terms of the new sublease in order to procure its registration. The new sublease itself contemplated at cl 30.1 that the parties may vary it, providing such variation must be in writing and signed by the parties. Further the deed’s 60 Parwan Investments Pty Ltd v Hooper [2024] VSCA 86, [59]-[60]. -- 55 of 65 -- 56 language supports the inference its references to the new sublease would include the new sublease with amendments necessary to effect its registration. As much is apparent from the contractual expectation in cls 2.2 and 2.3 of the deed of ‘all reasonable endeavours’ and ‘all assistance reasonably requested’ expected of the parties by cls 2.2 and 2.3 of the deed. Indeed cl 2.2 specifically alluded to the conduct of ‘any required survey’, which implicitly contemplates the possibility there could be a need to vary or supplement the plan referred to and included within the new sublease. [308] None of this is to suggest that a party to the deed was obliged to consent to an amendment of the new sublease which would deprive it of a benefit of substance under the new sublease. Refusing to forego a material component of the settled bargain cannot be regarded as a breach of the deed’s cl 2’s obligation. In contrast, preventing the effecting of registration by refusing amendments of form, without material variation to the substance of the benefits bargained for, would be a breach of that obligation. [309] The evidence does not suggest that registration of the new sublease in its existing form was in fact impossible or that, if it was, the extent of the amendments of the new sublease necessary to effect its registration would deprive a party of the substance of the benefits bargained for. To the contrary, the evidence was that it would contain ‘essentially the same terms’. [310] There of course remains a hypothetical risk with the remedy of specific performance in cases like the present, that the outcome sought may become impossible because of the position taken by a third party. An assessment of the degree of that risk may tell against the ordering of such discretionary relief if there is evidence that the third party will likely act to render specific performance impossible. However, there is no evidence to that effect here. [311] The last of the extensions of the deed’s timeframe for termination under its cl 4.1 occurred on 21 August 2023, when KordaMentha as administrators, receivers and managers of Auctus, agreed to a 12 month extension to 20 August 2024. Still the sublease was not registered. [312] MGMF correctly submits it is for the Crosslands to prove that Auctus did not act as cl 2.2 of the deed required. The evidence the Crosslands adduced of repeated extensions is of itself probative of a failure to so act. Auctus had ample time to procure registration. I have rejected the allegation that registration became impossible. The only rational inference is that Auctus did not use all reasonable endeavours to procure registration. That this occurred in an era of corporate disruption may explain but does not alter that absence of reasonable endeavour. [313] Further, it to be borne in mind that MGMF subsequently purported to terminate the deed in its capacity as Auctus’s attorney. It is therefore reasonable to infer that, acting in that capacity, MGMF would, before terminating, have informed itself of whether Auctus had used all reasonable endeavours to procure the registration of the new sublease as soon as reasonably practicable, and be able to adduce evidence of such endeavours if they had occurred. The absence of any substantial evidence of such endeavours fortifies the confidence with which I infer from the prolonged failure to procure registration that Auctus did not use all reasonable endeavours to procure the -- 56 of 65 -- 57 registration of the new sublease as soon as reasonably practicable. That is why settlement did not occur. Is the settlement deed unenforceable because of a failure to register the new sublease within six months? [314] The deed allowed of termination in the event settlement did not occur within six months, but, in the absence of a valid act of termination, it continued to be apt to attract an order for specific performance. Such a remedy would invariably be calculated at the taking of the steps necessary to register the new sublease. This heralds a temporal issue with the terms of the new sublease which MGMF argues is fatal to the Crosslands’ position. [315] The deed defines the new sublease as ‘the sublease in Schedule 1’. That document is the new sublease which was executed on the same date as the deed. The new sublease has its own sunset provision at cl 4, which provides: 4. MINISTERIAL APPROVAL 4.1 This Sublease is subject to and conditional on: (a) the Minister’s written Approval to the Sublease under section 332(1) of the Act, unless the Sublessor holds an authority to sublease the Lease under section 333 of the Act; (b) compliance with any conditions of an approval of the Minister that must be complied with before the Sublessor may lease the Premises to the Sublessee under this Sublease, unless the Sublessor holds an authority to sublease the Lease under section 333 of the Act; and (c) registration under the Act, as required by section 335(1) of the Act, of this Sublease in the land registry. Until paragraphs 4.1(a), 4.1(b) and 4.1(c) are satisfied and despite the definitions of “Commencement Date” and “Term” in clause 2.1, the (purported) Sublease does not take effect as a sublease of the Premises and the Sublessee has no right to the possession, occupation or use of the Premises under this Sublease. 4.2 The Sublessee must provide all assistance reasonably requested by the Sublessor to obtain the Minister’s written Approval to the Sublease under clause 4.1(a) (including in their capacity as Sublessee of the Existing Sublease). 4.3 Within five Business Days of the satisfaction of the last of the conditions in clause 4.1, the Sublessor must notify the Sublessee that the conditions have been satisfied and that notice must specify the Commencement Date. 4.4 If any of the conditions in clause 4.1 have not been satisfied within six months of execution of this Sublease, then this Sublease will automatically terminate on that date. (emphasis added) -- 57 of 65 -- 58 [316] This clause differs from the deed in its reference to a six-month timeframe. Unlike the deed’s cl 4, the sublease’s cl 4 does not merely provide a potential basis for a party to elect to terminate. Rather, it has the purported effect of automatically terminating the sublease if its requirements of Ministerial approval, compliance and registration have not been satisfied within six months of execution of the sublease. Those requirements were not satisfied within that time. [317] As discussed above, there were repeated extensions of the deed’s timeframe for termination, but those extensions were not worded as including a postponement of operation of cl 4 of the new sublease and in any event the last of those extensions lapsed without further extension. On the face of its cl 4.4, the new sublease terminated automatically some time ago by operation of its own terms. [318] MGMF submits specific performance should be refused because its only purpose would be to try to achieve registration of the new sublease and that would be futile because the new sublease has already terminated. [319] That submission is supported by the express words, ‘will automatically terminate’, in cl 4.4. It also finds support in the fact that, while the deed’s cl 4 speaks respectively of Auctus using reasonable endeavours and the Crosslands giving reasonable assistance, the lease’s cl 4 only speaks of the Crosslands giving reasonable assistance and has no like clause regarding Auctus. [320] Nonetheless, MGMF’s submission must be rejected because of the operation of a well-established principle, explained by Lord Atkinson in New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France.61 The effect of that principle is that where parties to a contract stipulate by a clause in it that the contract shall be void on the happening of an event which one of them can bring about by their own act or omission, then, if such act or omission occurs, the defaulting party cannot insist upon the stipulation or compel the blameless party to insist upon it. [321] In elaborating upon the operation of the above principle the High Court explained in Suttor v Gundowa Pty Ltd,62 that where the event in question may occur because of default by a party to the contract and if the event occurs because of such default then the contract is to be construed as making the contract ‘not void but voidable’ so that ‘only the party who is not in default may avoid it’. [322] Properly understood, the principle does not operate to vary the clear meaning of the words of the relevant contract in identifying automatic termination as a stipulated consequence of an event. Rather, it operates to prevent a party whose own wrong caused the event from taking advantage of that stipulated consequence.63 [323] Applying that principle here, if a failure to satisfy the requirements of cl 4.1 of the new sublease was a result of the defaulting omission of one of the parties, then cl 4.4 should be construed as making the new sublease terminable, not terminated, and only terminable by the non-defaulting party. 61 (1919) AC 1, 9. 62 (1950) 81 CLR 418, 441. 63 Bluepoint Properties Pty Ltd v Zuri Properties Pty Ltd [2022] QSC 26 [84]-[92]. -- 58 of 65 -- 59 [324] I have found Auctus was in default of its obligation to use all reasonable endeavours to procure registration of the new sublease as soon as reasonably practicable. The events required in cl 4.1 of the new sublease, none of which appear to have occurred, were all part of the process of procuring registration of the new sublease. Having regard to the evidence already canvassed, the non-satisfaction of those requirements was, on the balance of probabilities, a result of Auctus not using the reasonable endeavours it was obliged to use in procuring registration. It follows Auctus is precluded from relying upon non-compliance with cl 4.1 as entitling it to terminate. [325] If I am wrong in concluding that the non-compliance with cl 4.1 was a result of Auctus failing to use the reasonable endeavours it was obliged to use in procuring registration, then in any event, I find it must at least have been materially contributed to by that failure. A finding of material contribution is in this context sufficient to preclude Auctus from relying upon non-compliance with cl 4.1 as entitling it to terminate.64 [326] Accordingly, the expiration of the six-month period in the new sublease’s cl 4.4, did not have the result that the sublease automatically terminated and that the settlement deed became unenforceable. Rather the new sublease became terminable at the election of the Crosslands and the settlement deed in the meantime remained enforceable. Is the settlement deed unenforceable because it was terminated? [327] MGMF purported to terminate the deed in paragraph [12B(ia)] of its Amended Defence, filed 9 June 2025, doing so as Auctus’s attorney, having been appointed to that role pursuant to the terms of cl 21 of the mortgage to which it and Auctus were parties. It will be recalled cl 4.2 of the deed only permitted Auctus to terminate if it has complied with its obligations under cl 2 to use all reasonable endeavours to procure the registration of the new sublease as soon as reasonably practicable. I have found it did not do so. [328] It follows the deed precluded Auctus, or MGMF as its agent, from terminating the deed, the purported termination was of no effect and the deed remains enforceable. What did MGMF know of the deed and new sublease? [329] The foregoing conclusions have the result that the settlement deed is enforceable by the Crosslands as against Auctus. What consequence does that have for MGMF? The starting point is consider what MGMF relevantly knew of the deed and the new sublease on which its operation turned. [330] MGMF pleaded it did not have notice of the new sublease or any agreement to enter into the sublease. The facts show otherwise. [331] MGMF’s mortgage over the rolling term lease was part of an array of security for a loan to Aurora Metals Ltd, which Auctus was a subsidiary of. Aurora at first sought a loan facility from OUF Commercial Pty Ltd, a commercial loan business. OUF incorporated MGMF on 17 March 2022, specifically to provide the loan facility to 64 See Sentinel Orange Homemaker Pty Ltd v Davis Investment Group Holdings Pty Ltd (in liq) [2021] NSWSC 550 [67]. -- 59 of 65 -- 60 Aurora Metals Ltd’s so-called Aurora Group of Companies. OUF initially installed its employee, Ms Zhang, as MGMF’s director, replacing her with OUF’s director Ms Yang, a year later. It was Ms Yang who gave evidence for MGMF in the present proceeding. [332] Before the incorporation of MGMF and the making of and securing of the loan through it, Ms Yang, OUF’s director, and Mr Zheng, the Chief Executive Officer of OUF, had been on an investment committee considering the potential provision of the finance sought. On 9 March 2022 while the committee was in its due diligence phase, Ms Yin, of Corporate Finance at Aurora Metals Ltd, sent Mr Zheng a list of Aurora’s freehold and leasehold property, which Mr Zheng, in turn, forwarded to Ms Yang. The list was styled as a ‘legal red flags report’ by PwC. It revealed the existence of the new sublease to the reader in two ways. [333] First, in its real property section, referring to leasehold property, the report referred to the Crosslands’ interest with the following entries being made under the following headings: Premises: Chillagoe Station sublease Details: Lot 3 on SP150971 and Lot 11 on SP104550 Landlord: Auctus Resources Pty Ltd Tenant: Stephen John Crossland and Dane (sic) Albert Crossland Expiry: March 2048 Consent to change of control required?: No [334] Second, in the report’s reference to ‘other agreements’, it referred to the Chillagoe Station concurrent land use agreement in respect of ‘land that is subject to the Sublease between the parties dated 20 August 2019 (being Lot 3 on SP150971 and Lot 11 on SP104550)’. It will be recalled 20 August 2019 was the date on which the settlement deed and new sublease were executed. [335] That the people behind the decision to incorporate MGMF as the vehicle for provision of the loan had notice of the existence of an apparently current sublease prior to MGMF’s incorporation compels the inference MGMF had corporate notice of that information before it gained its registered secured interest by mortgage in the rolling term lease. MGMF’s counsel accepted the evidence supported the inference MGMF had at least constructive notice of the deed.65 It does. It follows that MGMF must be taken to have had constructive notice that the Crosslands were entitled to the grant of a new sublease by Auctus, whether via the terms of the old sublease which was registered and was referred to in the new sublease executed in conjunction with the settlement deed, or via that deed of settlement and the new sublease to which it referred. [336] Notably, there was a period after MGMF became mortgagee in possession during which MGMF’s agent, a prospective purchaser of the rolling term lease, acknowledged the Crosslands’ interest in the land. [337] It will be recalled that when MGMF entered possession of the rolling term lease on 21 December 2023, it also signed heads of agreement to sell all assets of the Aurora 65 T4-19 LL22-28. -- 60 of 65 -- 61 Group to Taler Resources Pty Ltd and appointed Taler Resources to act as MGMF’s agent in respect of the Crown lease and the leased land. [338] Solicitors Hamilton Locke acted for Taler Resources. On 14 December 2023 the Crosslands’ solicitors conferred with Mr Heading of Hamilton Locke, who acknowledged the existence of the Crosslands’ Supreme Court proceedings, the settlement agreement and sublease. [339] On 17 January 2024 the Crosslands’ solicitors wrote to Hamilton Locke seeking their acknowledgment of the Crosslands’ interest in the land and the existence of the settlement agreement. [340] On 23 January 2024 Mr Heading of Hamilton Locke for Taler Resources emailed the Crosslands’ solicitors, confirming their client acknowledged the sublease and the Crosslands’ right pursuant to it, and on that basis suggesting the Crosslands should be comfortable with the adjournment of the Supreme Court proceeding for a further six months. The ‘client’ there referred to was, inferentially, Taler Resources. While the email falls short of constituting an acknowledgement on behalf of MGMF of the actual legal position as between the parties, it does support the inference, given Taler Resources then role as MGMF’s attorney, that MGMF was aware of the facts which led to the acknowledgement. [341] It will also be recalled in the events which followed that MGMF sought to positively rely upon the operation of the new sublease. I infer from these events that MGMF had by this point gained actual knowledge, not just constructive knowledge, of the specific terms of the new sublease. [342] As canvassed in Part A, on 15 February 2024 Hamilton Locke, emailed the Crosslands’ solicitors, advising they had ‘received instructions to issue’ two notices to remedy breach to the Crosslands ‘on behalf of the mortgagee in possession, Mt Garnet Mineral Finance Pty Ltd’. Attached were two notices to remedy breach of covenant per s 124 Property Law Act 1974. The notice requiring remedy of an alleged breach of the obligation to pay contributions to rates did so in express reliance upon cl 6.2 of the ‘lease of the Premises, dated 20 th day of August 2019’, i.e. the new sublease. The amount required to be paid was $106, 480.96, consisting of a total of $81, 851.52 for four rates invoices ‘payable by Lessee’ and $24,629.44 ‘Interest and debt recovery fees payable by Lessee’. It will be recalled the Crosslands proceeded to pay the full amount of $106, 480.96 to Council on 13 March 2024. [343] The facts thus amply support the inference that, before gaining its secured registered interest in Auctus’s rolling term lease, MGMF knew the Crosslands were in occupation under the sublease. The facts also show MGMF recognised the Crosslands either had or were entitled to a sublease and took steps to enforce the Crosslands’ compliance with it by subsequently successfully seeking the Crosslands’ payment of rates and interest and debt recovery fees pursuant to it. Is the Crosslands’ right to specific performance of the Deed enforceable as against MGMF, notwithstanding that MGMF was not a party to that agreement? [344] The Crosslands’ right of specific performance of the grant of a new sublease by reason of the right to such a grant contained in the registered sublease is unaffected by -- 61 of 65 -- 62 MGMF having entered into possession. That is because, as explained in Part A above, that right takes priority over MGMF’s interest as mortgagee in possession. [345] However, the deed of settlement was not a registered interest in the land and MGMF was not a party to it. Why should its registered interest in the lease, as mortgagee in possession, be secondary to enforcement of a deed to which it was not a party? The Crosslands argue MGMF had notice of the deed and that its interest should be subservient to the deed because of s 349 Land Act 1994 (Qld) or the operation of a so-called Ocean Island equity or the operation of the approbate and reprobate doctrine. Does s 349 Land Act 1984 (Qld) mean MGMF as mortgagee entering into possession under the lease, assumed the same liability as Auctus to comply with the settlement deed? [346] Section 349 Land Act 1994 (Qld) provides: 349 Liability of mortgagee in possession A mortgagee who enters into possession under a lease or sublease (whether by taking the rents or profits or in another way) is liable under the lease or sublease to the same extent as the lessee or sublessee was liable under the lease or sublease before the mortgagee entered into possession. [347] Section 349 is not apt to Part B of the present case. MGMF entered into possession under the lease, not the sublease. It follows that under the terms of s 349 it is ‘liable under the lease … to the same extent as the lessee’, that is, Auctus, ‘was liable under the lease’. On the face of the section’s operation, its relevance in a case like the present would be to protect the Crown as lessor in the event of MGMF taking possession from the lessee, Auctus.66 [348] The Crosslands argue, emphasising s 349’s words in parentheses, that s 349’s references to ‘lease or sublease’ should be read as operating interchangeably so that a mortgagee entering into possession under a lease would become liable not only under the lease but also under any sublease thereof. But this ignores that the liability which a mortgagee entering into possession assumes is the liability of the ‘lessee or sublessee’ as the case may be. The lessee of the lease was Auctus but the sublessee of the sublease was not Auctus, it was the Crosslands. This tells determinatively against s 349 having any relevance in the present case. [349] Moreover, s 349 cannot logically assist in the Part B aspect of the case because s 349 is concerned with liability under a lease or sublease, not liability under a deed. [350] Finally, in the present context these obstacles to s 349’s relevance are not removed by applying s 349, as urged by the Crosslands, in combination with s 118 Property Law Act 1974 (Qld) or its successor, s 140 Property Law Act 2023 (Qld), which became effective from 1 August 2025. Those provisions deal with obligations that run with the reversionary estate, however, there is no vesting of the reversionary 66 By parity of reasoning see Re Stockland (Macquarie) Pty Ltd [1995] 1 Qd R 65, 83. -- 62 of 65 -- 63 interest with the present form of mortgage.67 The registered mortgage to the rolling term lease operated ‘only as a charge’ upon that lease, per s 341 Land Act 1994 (Qld). There was no vesting of the reversionary interest in MGMF. That interest under the lease remains with Auctus. Does the operation of a so-called Ocean Island equity or the approbate and reprobate doctrine mean MGMF as mortgagee entering into possession under the lease, assumed the same liability as Auctus to comply with the settlement deed? [351] The so-called Ocean Island equity, deriving from the English case of Tito v Waddell (No 2),68 has the effect that if a person takes the benefit of a transaction, then the burden of the transaction is enforceable against that person. Thus, as Megarry J put it in Tito v Waddell:69 If a person is named as a party to a deed, but does not execute it, the deed will nevertheless be held to bind him if he knowingly takes the benefit of it. [352] Doubt attends the parameters of this principle of benefit and burden and its application in Australia,70 but that need not be resolved here. That is because the principle would derive relevance here in a similar way to the approbate and reprobate principle, which does have application in Australia, at least as a form of election, in the way explained by Morrison JA in Allied Rural Pty Ltd v Stimpson.71 [353] The approbation and reprobation principle works as a form of equitable election or estoppel to prevent a person who derives an advantage by asserting a transaction is valid, from in turn seeking some other advantage by asserting the transaction is void.72 [354] The principle is inherent in the principles applicable to election between inconsistent rights or courses of action. As Morrison JA explained in Allied Rural, it is: …a form of election, applicable where a party asserts that a transaction is valid in order to obtain some advantage, which would only be obtainable if the transaction was valid, and then later asserts the same transaction is invalid in order to obtain some other advantage.73 [355] These reasons found at [123] above that by the issue at MGMF’s instruction of the Notice to Remedy Breach regarding rates of 15 February 2024 MGMF was relying upon the new sublease and state of the parties’ obligations as resolved by the settlement deed. By that reliance it was successful in obtaining the payment by the Crosslands of the $106,480.96 sought for rates, interest and debt recovery fees. 67 A distinction discussed by McMurdo J in Elsafty Enterprises Pty Ltd v Mermaids Café & Bar Pty Ltd [2007] QSC 394 [63]-[66]. 68 [1977] Ch 106, 289. 69 [1977] Ch 106, 289. 70 See for example Clifford v Dove [2003] NSWSC 938, [67]; Henderson v Miles (No 2) [2005] NSWSC 867; Rural View Developments Pty Ltd v Eastfort Pty Ltd [2011] 1 Qd R 35, 44 [30]; Aust-One Investment Pty Ltd v New World Investments Pty Ltd (2023) 111 NSWLR 39, 42 [4], 49 [32]. 71 QCA 77 [84]-[94]. 72 See for example Allied Rural Pty Ltd v Stimpson [2023] QCA 77 [84]-[94]. 73 [2023] QCA 17 [89]. -- 63 of 65 -- 64 [356] It is an essential requirement of an election between inconsistent rights that there must be an unequivocal act with knowledge of the material facts.74 [357] I have already found MGMF knew of the deed and the new sublease to which it referred. [358] Moreover, it is apparent that MGMF, in asserting the Crosslands’ liability to pay the $106,480.96 sought in the Notice to Remedy Breach of 15 February 2024, was electing to pursue the amount owing consistently with the Crosslands’ obligation pursuant to the terms of deed of settlement and the new sublease to which it referred. [359] This was a choice between inconsistent rights. It was a choice by MGMF to adopt the operative effect of the deed of settlement and the new sublease, as regulating the parties’ rights and obligations. It was inconsistent with MGMF’s subsequent denial of that operative effect by its conduct, continued in this proceeding, of relying in its Notice to Remedy Breach dated 19 September upon substantial amounts allegedly owing which would no longer be owing under the settlement deed with which MGMF’s Notice to Remedy Breach of 15 February 2024 was consistent. [360] Importantly, the difference in Auctus’s and thus MGMF’s rights, worked by the deed of settlement, was not merely a one-way foregoing of the pursuit of allegedly earlier outstanding amounts. It was also a gain of the benefit of the concurrent land use agreement which was executed as part of the settlement. [361] I acknowledge there also exists a further element of inconsistency because of the possibility the area of land intended to be subleased under the new sublease is smaller than the land the subject of the original sublease. The closing submissions of Crosslands’ counsel invited the inference that was so, in the context of submitting this enhanced the value of MGMF’s security interest. However, the evidence is unclear on the point. In any event there is clear inconsistency even without that element. [362] In my conclusion, having involved itself, acting in Auctus’s place, in electing to choose enforcement of its rights as determined by the deed of settlement, MGMF became bound to exercise its rights as mortgagee in possession of Auctus’s rolling term lease consistently with the continued operation of the deed of settlement. Is the Crosslands’ right to specific performance of the Deed enforceable as against MGMF? [363] It follows from the above reasons that the Crosslands have a right of specific performance of the deed as against the other party to it, namely Auctus, and that it is a right which binds MGMF. [364] The various reasons, given in Part A, why MGMF’s interest would not defeat the utility of an order for specific performance of the obligation in the old sublease to grant a new sublease, apply in the same way to an order for specific performance of the settlement deed under Part B. [365] Once again, it is Auctus as the relevant party to the deed which should be the active subject of any order to specifically perform the deed. However, once again, in the 74 Sargent v ASL Developments Ltd (1974) 131 CLR 634, 642. -- 64 of 65 -- 65 event a need arises for MGMF to perform some positive act to facilitate specific performance then, MGMF, having bound itself to accept the deed’s operation may properly be ordered to perform such an act. The parties should turn their mind to that prospect, and the potential need for injunctive or declaratory relief, in preparing to be heard as to the terms of the order for specific performance. [366] The Crosslands success in each Part raises the need, assuming they provide the ordered evidence of payment, for them to elect between the two successful bases for specific performance before the order for specific performance is made. [367] I intend in the first instance to hear further from the parties at a mention of the matter. I will at that mention confirm the Crosslands’ compliance with my order about evidence of payment. Assuming it is so confirmed, the Crosslands will inform the Court of their election and I will allocate a future listing for the parties to be heard as to costs and the form of order for specific performance. ORDERS [368] My orders are: 1. The applicants are relieved from forfeiture in respect of the breaches alleged in this proceeding. 2. The second respondent’s Counterclaim is dismissed. 3. The applicants will, by 4pm 1 June 2026, file and serve evidence showing that, since the trial hearing, they have paid: (a) an amount totalling at least $34,000 to the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development towards rent in respect of the subleased property; and (b) an amount totalling at least $68,000 to Mareeba Shire Council towards rates and water charges in respect of the subleased property. 4. I will hear the parties, including the liquidator of the first respondent, at a mention at 10am 5 June 2026, out of town parties having leave to appear by videolink, the purpose of the mention being: (a) to confirm compliance with order 3; (b) for the Crosslands to inform the Court of their election; (c) and for the Court to list the matter at a later date, to hear the parties as to: (i) the form of order for specific performance; (ii) and as to costs. 5. The Registrar will forthwith notify KordaMentha (as liquidator of the first respondent) of these orders and my reasons and of its right to be heard, as contemplated in order 4. -- 65 of 65 --