D'Aguilar Gold Ltd v Gympie Eldorado Mining Pty Ltd [2006] QLRT 10

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: D’Aguilar Gold Ltd v Gympie Eldorado Mining Pty Ltd [2006] QLRT 10 PARTIES: D’Aguilar Gold Ltd (Applicant) v Gympie Eldorado Mining Pty Ltd (Respondent) FILE NO: CAV23/06 PROCEEDING: Application to continue caveat DELIVERED ON: 1 March 2006 DELIVERED AT: Brisbane HEARING DATE: 28 February 2006 MEMBER: Koppenol P ORDER: 1. Caveat continued until 13 June 2006 or earlier order by the tribunal. (at [16]) 2. No order as to costs. (at [16]) CATCHWORDS: CAVEAT – EXPLORATION PERMIT FOR MINING – Whether caveat should be continued – Factors relevant Mineral Resources Act 1989, ss 126, 152, 154 Land Title Act 1994, s. 126 Land and Resources Tribunal Act 1999, s. 50(2) Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351, applied COUNSEL: Mr. P. Dunning SC for Applicant SOLICITORS: Hopgood Ganim for Applicant Ms. Z. Farmer for Respondent Application [1] This is an application under section 154(2)(c) of the Mineral Resources Act 1989 (MRA) to continue the term of a caveat. -- 1 of 4 -- Background [2] On or about 29 May 2003, the applicant entered into a written agreement (agreement) with Gympie Eldorado Goldmines Pty Ltd (seller), under which the applicant was granted various rights of use and enjoyment with respect to 6 sub- blocks1 on Exploration Permit for Minerals No 6031 (EPM 6031) which was held by the seller. Subsequently, receivers and managers were appointed to the seller and they assigned (assignment) EPM 6031 to the respondent. [3] A dispute later emerged when the applicant proposed to exercise the rights conferred and the respondent maintained that it was still the sole legal and beneficial owner of the 6 sub-blocks and was not bound by the agreement. The respondent then filed an application in the Tribunal seeking orders to that effect. On 28 November 2005, I struck out that application on the basis that the Tribunal did not have jurisdiction to hear it.2 [4] The applicant lodged a caveat over EPM 6031 on 14 December 2005; unless extended it will lapse on 13 March 2006. Submissions [5] The applicant submitted that it holds a caveatable interest because (a) the agreement was recorded in the register under section 158 (Recording of agreements, arrangements, dealings or interests) prior to the assignment and its subsequent recording under that section, thus creating an interest by force of statute, and/or (b) the nature of the agreement itself was sufficient to create a claim of an interest for section 152 (Lodgment of caveat) purposes. It was desirable that the caveat continues as it constitutes notice to the world and prevents further assignments of the EPM. That would also give the respondent the opportunity to apply to the Supreme Court to have determined the question of the ownership of the 6 sub-blocks. However unlike section 126 of the Land Title Act 1994, section 154 of the MRA does not require the caveator, if it does not want the caveat to lapse, to start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat. [6] The respondent argued that no caveatable interest existed because neither section 158 nor the agreement had the effect of creating a caveatable interest. Reference was made to my earlier decision to establish that the applicant did not have an interest in the EPM. The applicant had not applied to the Supreme Court to establish its interest and it should not be for the respondent to apply to court for appropriate relief. Analysis [7] Caveatable interest: In my opinion, the argument about section 158 can be put to one side for present purposes. The caveat here expressed the “nature of right or interest claimed by the caveator” in the following terms: 1 As defined in MRA section 126. 2 [2005] QLRT 156. -- 2 of 4 -- “The nature of the interest claimed by the Caveator is the right under the Agreement entered into between the Caveator and Gympie Eldorado Gold Mines Pty Ltd for the rights of use and enjoyment with respect to sub-lots N, O, S, T, W, X of EPM 6031.” [8] Section 152(1) of the MRA provides that “[a] person who claims a right or interest in or in respect of an exploration permit” may lodge a caveat forbidding the approval of any assignments of the EPM. Thus it is not necessary for the caveator to claim a right or interest in an EPM; a claim to a right or interest in respect of an EPM is sufficient. [9] In Moneywood Pty Ltd v Salamon Nominees Pty Ltd,3 Gummow J said that the phrase “in respect of” has: “… the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer.” [10] The right or interest claimed in the caveat is expressed to be under the agreement for rights of use and enjoyment with respect to the 6 sub-lots of the EPM. So expressed, the claimed right or interest clearly conveys a connection or relation between the agreement and the EPM—and on that basis, constitutes a caveatable interest under section 152(1). It is not necessary for present purposes to consider whether the applicant has an interest in the EPM. [11] Ms Farmer drew attention to my comments in the earlier strike out application that the applicant had only rights of use and enjoyment in the 6 sub-blocks on the EPM— “albeit rights which might later mature into an interest.”4 However, those comments do not relate to whether the applicant had a section 152(1) right or interest in respect of an EPM. [12] Balance of convenience: If the caveat is not continued, the respondent would be free to assign the EPM. Any such assignment could result in detriment to the applicant and, if the applicant’s claimed right or interest is ultimately upheld by the Supreme Court, to an assignee from the respondent. On the other hand, there was no evidence before me that the respondent could suffer prejudice if the caveat were continued. [13] Unlike the Land Title Act, the MRA does not require the caveator, if it does not want the caveat to lapse, to start a proceeding in a court of competent jurisdiction to establish the interest claimed. If the applicant had started such a proceeding, that would undoubtedly have been a factor in favour of continuing the caveat. However I am not satisfied that the non-commencement of a proceeding should be regarded as a factor militating against a continuation. No authorities on the point were cited and in the circumstances, I can see no reason at present for conditioning the continuation of the caveat upon the applicant instituting such a proceeding. Naturally, the respondent is at liberty (if so advised) to start its own Supreme Court proceedings seeking appropriate declaratory and other relief about the agreement and the assignment. That would determine the issue one way or the other. 3 (2001) 202 CLR 351, 380 [96], applying State Government Insurance Office (Q) v Crittenden (1966) 117 CLR 412, 416. 4 [2005] QLRT 156 at [13]. -- 3 of 4 -- Disposition [14] I have concluded that the caveat should be continued in force, without conditions. The applicant sought a continuation until further order by the Tribunal. A period of 3 months was initially claimed in the caveat and that is the default period provided in section 154(2)(d). That period seems appropriate in the present case. There will therefore be an order that the subject caveat be continued until 13 June 2006 or earlier order by the Tribunal. [15] The applicant sought costs but I am not satisfied that special circumstances exist under section 50(2) of the Land and Resources Tribunal Act 1999. There will be no order as to costs. Orders [16] The orders that I make are as follows: 1. Caveat continued until 13 June 2006 or earlier order by the Tribunal. 2. No order as to costs. -- 4 of 4 --