Bjelivuk & Uzarevic v Gemstone Exploration Pty Ltd [2001] QLRT 90

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Bjelivuk & Uzarevic v. Gemstone Exploration Pty Ltd [2001] QLRT 90 PARTIES: Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic v. Gemstone Exploration Pty Ltd FILE NO: MRAA00048/2001 PROCEEDING: Application for declaration and injunction DELIVERED ON: 5 December 2001 DELIVERED AT: Brisbane HEARING DATE: 16 November 2001 PRESIDING MEMBER: Koppenol P ORDER/S: 1. I declare that the Applicants are entitled, at law and in equity to exercise all of the rights and enjoy all of the benefits conferred upon them by the instruments set out hereunder to the exclusion of the Respondents, namely: (i) mining lease number ML7271, Mining District of Winton in the name of Ivan Uzarevic; (ii) mining lease number ML95104 in the Mining District of Winton in the name of Ivan Uzarevic; (iii) mining lease number ML95198 in the Mining District of Winton in the name of Ivan Uzarevic; (iv) mining lease application number MLA95269, Mining District of Winton in the name of Milos Bjelivuk and Sedina Bjelivuk; (v) application for exploration permit EPM11392 in the name of Milos Bjelivuk; (vi) application for exploration permit EPM11542 in the name of Milos Bjelivuk. (“the tenements”). (at [38]) 2. I grant a permanent injunction restraining the Respondents from entering upon the tenements -- 1 of 15 -- or carrying out thereon any mining or mining related activity without the prior written consent of the Applicants and each of them. (at [38]) 3. I dismiss the Respondent’s counter claim. (at [38]) CATCHWORDS: MINING – MINING LEASES – PARTNERSHIP – TERMINATION OF – WHETHER NOTICE EFFECTIVE – WHETHER BREACH OF AGREEMENT – DECLARATION – INJUNCTION Mineral Resources Act 1989, ss. 303(2)(b), 363 Partnership Act 1891, ss. 5(1), 35(1) United Dominions Corp Ltd v. Brian Pty Ltd (1985) 157 CLR 1, applied Canny Gabriel Castle Jackson Advertising Pty Ltd v. Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321, applied Codelfa Construction Pty Ltd v. State Rail Authority of New South Wales (1982) 149 CLR 337, applied Dare v. Pulham (1982) 148 CLR 658, applied Kelly v. Kelly (1990) 64 ALJR 234, applied Re M. & S. Bjelivuk & I. Uzarevic and Gemstone Exploration Pty Ltd [2001] QLRT 78, referred to Bilioara Pty Ltd v. Leisure Investments Pty Ltd [2001] NTCA 8, followed Walters v. Bingham [1998] 1 FTLR 260, followed Peyton v. Mindham [1972] 1 WLR 8, followed Neilson v. Mossend Iron Co (1886) 11 App Cas 298, referred to Leisure Investments Pty Ltd v. Bilioara Pty Ltd [2000] NTSC 94, referred to COUNSEL: Mr M.W. Jarrett, for the Applicants SOLICITORS: P.W. Skewes & Dempster (Longreach), for the Applicants AGENTS: Mr G.E. Dasborough, for the Respondent Applications -- 2 of 15 -- [1] This is an application under section 363 of the Mineral Resources Act 1989 (MRA). The Applicants seek the following relief:1 “(a) a declaration that they are entitled, in [sic] law and in equity to exercise all of the rights and enjoy all of the benefits conferred upon them by the instruments set out hereunder to the exclusion of the respondents, namely: (i) mining lease number ML7271, Mining District of Winton in the name of Ivan Uzarevic; (ii) mining lease number ML95104 in the Mining District of Winton in the name of Ivan Uzarevic; (iii) mining lease number ML95198 in the Mining District of Winton in the name of Ivan Uzarevic; (iv) mining lease application number MLA95269, Mining District of Winton in the name of Milos Bjelivuk and Sedina Bjelivuk; (v) application for exploration permit EPM11392 in the name of Milos Bjelivuk. (vi) application for exploration permit EPM11542 in the name of Milos Bjelivuk. (“the tenements”) (b) a permanent injunction restraining the respondents from entering upon the tenements or carrying out thereon any mining or mining related activity without the prior written consent of the respondents and each of them; (c) An order that caveat bearing dealing number 995586 registered over mining leases ML7271, ML9514, ML95198 and ML95269 be removed. (d) an account of profits in respect of any opal taken by the respondents from the tenements or any of them since 23 April 2001; (e) damages in such sum as to this tribunal may seem appropriate; (f) such further or other order as to this tribunal may seem appropriate.” [2] I assume that the reference in paragraph (b) line 3 above to “respondents” should have been to “applicants”. Otherwise that part of the claim does not make sense. The damages claim in paragraph (e) was abandoned by the Applicants on 21 June 2001, and the account of profits claim in paragraph (d) was abandoned in the Applicants’ written submissions filed on 10 August 2001. [3] There is a “counter claim” by the Respondent, as follows:2 “1. The Respondent seeks a declaration that the Applicant’s termination of the agreement between the parties was a breach of the agreement. 2. In the alternate, the Respondent seeks an application [sic] that the Applicant was estopped from terminating the contract. 3. That the caveat dealing number 995586 be extended until such further order of this Tribunal or Court. 4. That the Applicant’s claim before the Tribunal be stayed until further order of the Tribunal. 5. That the Applicant commence proceedings in the Supreme Court for breach of contract. 6. Any such further Order as the Court sees fit.” Background 1 The Applicants’ claim is set out on pages 3 (Nature of Claim) and 4 (Orders sought) of their Amended Application to Start Proceedings filed on 5 July 2001. 2 The “counter claim” is set out in Annexure C (Orders sought) of the Respondent’s Response filed on 21 June 2001. -- 3 of 15 -- [4] This matter had been heard by Smith DP of this Tribunal. However after reserving his decision and whilst preparing his judgment, he read part of an offer to settle which had erroneously made its way into the material which he had been considering. He subsequently disqualified himself from further involvement in the matter.3 [5] In the circumstances, and after hearing the parties on 16 November 2001 as to how I should deal with this case, I decided that I would proceed on the basis of my reading the transcript and all other evidence and material which was before Smith DP, and then delivering judgment. I regarded that as the most appropriate course, having regard to the interests of justice and all other considerations which were put before me on that occasion. The Applicants’ claim [6] It is common ground that the circumstances leading to this claim relevantly commenced in December 2000 when the Respondent’s representative Mr Max Reid and Mr Bjelivuk (the firstnamed Applicant) discussed the possibility of conducting an opal mining operation in Queensland, with the Respondent providing the necessary machinery. After further discussions between the parties and an inspection of the Applicants’ mining tenements near Winton, the parties signed a formal written agreement in February 2001. Differing views were expressed at the trial as to what occurred at the inspection and also as to the date in February on which the agreement was signed. But for present purposes, nothing turns upon these points. [7] It is convenient that I set out that agreement in full: “THESE HEADS OF AGREEMENT ARE MADE ON THE EIGHTH DAY OF FEBRUARY IN THE YEAR TWO THOUSAND AND ONE BETWEEN: GEMSTONE EXPLORATIONS PTY LTD, ABN 98 094 364 897 Of Wright Rd Coober Pedy, South Australia 5723 (hereinafter “GE”) AND: MILOS & SEDINA BJELIVUK Trading As REGENT OPAL, ABN 73 898 156 525 Of 11 Shefield Place Regent Gardens, South Australia 5086 (hereinafter “RO”) 3 [2001] QLRT 78. -- 4 of 15 -- AND: IVAN UZAREVIC Of PO Box 317 Winton, Queensland 4735 (hereinafter “IU”) RECITALS: A RO and IU as partners are the registered and beneficial owners of the mining leases numbers 7271, 9514, 95198 and 95269 application mining lease, also EP No 11392 43 block and EP No 11542 2 block project 95104, accepted 21/10/1996 which may contain boulder or seam opal near Middleton in Queensland. B GE is based in Coober Pedy and wishes to conduct a joint venture partnership with RO and IU. C It is the wish of RO and IU as partners to enter into a joint venture partnership with GE, enumerated in Recital A on the following terms and conditions. NOW THESE HEADS OF AGREEMENT WITNESS: 1. RO and IU as partners agree to conduct a joint venture with GE, or to GE nominees, from the leases and EP’s enumerated in Recital A, boulder or seam opal in any volume to the volume available from the said leases and EP’s. 2. The joint venture partnership for boulder and seam opal shall be sixty five (65%) percent to GE and thirty five (35%) percent to RO and IU as a partnership. 3. GE is to provide the machinery and diesel required for this joint venture. a. GE will provide a working overseer to be based at the mining site as its representative at all times and to run the day today operations. b. RO and IU or approved nominees by GE agree to work on the picking conveyors as checkers. c. GE agrees to take every precaution available to stop drugs being used at the mining site. d. It is agreed that GE will provide the accommodation, transport and meals for its own staff and the RO and IU partnership will provide its own. e. All potential opal or boulder is to be locked in an approved container daily with two (2) locks. f. A representative of GE will at least once a week visit the mining site and together with RO and IU check and sort all potential opal. All parties agree that there is to be no breaking or sorting of potential opal unless a representative of all parties is present. g. All parties agree that once the potential opal has been sorted then it will be transported to Coober Pedy and held in a safe place. h. All parties agree to class the opal to an agreed grade and then to sell off the lower grade in its raw state at an agreed valuation. i. All parties agree that the remaining opal be cut and polished at Coober Pedy and then sold off at an agreed valuation or stored in the safe to be sold at an agreed time. j. GE will provide a cutter and pay the costs and the partnership between RO and IU is to provide a cutter and pay the costs. k. All parties must be given the opportunity to purchase a parcel of opal at an agreed valuation. -- 5 of 15 -- l. Insurance on opal will be shared equally between the parties. m. All opal sales will be on GE paper and GE agrees to pay to the RO and IU partnership all funds due from opal sales on the same working day if possible or on the next working day and payment will be made by way of either cash or bank cheque. n. The governing law shall be that of the State of Queensland. Remarks: IN WITNESS WHEREOF the Parties hereto have hereunto affixed their signatures on the day and the year first hereinbefore written. GEMSTONE EXPLORATIONS PTY LIMITED }……….(signed)………………………………… ABN 98 094 364 897, was hereunto } Duly affixed in the presence of: }……….(signed)……..….……………………… MILOS & SEDINA BJELIVUK }……….(signed)……….………..……………… Trading As REGENT OPAL, ABN 73 898 156 525 was hereunto } Duly affixed in the presence of: }……….(signed)…………..……………………. IVAN UZAREVIC }……….(signed)……..……………….………… was hereunto } Duly affixed in the presence of: }……….(signed)……….………………………” [8] As I understand it, it is also common ground that at all material times, the 6 mining tenements set out in paragraph [1] were held as indicated there4 – but there is a dispute between the parties as to when the Respondent first became aware of at least some of those details. The Respondent commenced mining operations in March 2001. Some of the operations occurred on the MLA and the EPMs. The parties differ about whether the Respondent’s representatives knew at the time that they were operating on those areas – where mining is not permitted until a mining lease is granted. Again, for present purposes, nothing turns upon those issues. The mining registrar subsequently directed the work on the MLA to cease and certain equipment there to be moved. [9] Relations between the parties became strained over that and other matters during March and April 2001. On 18 April 2001, the Respondent registered a caveat over 4 If however it were not common ground, then based upon the evidence from the male Applicants and the Department of Natural Resources and Mines, I would find that those 6 mining tenements were held as indicated in paragraph [1]. -- 6 of 15 -- ML7271, ML95104, ML95198 and MLA95269. And on 19 April 2001, the Applicants’ solicitors faxed to the Respondent a letter purporting to terminate the February 2001 agreement. That letter was in the following terms: “IGD:ACT: 19 April, 2001 The Directors Gemstone Explorations Pty Ltd Wright Road COOBER PEDY SA 5723 Via Facsimile: (07) 4657 3890 (08) 8672 3000 Original by post Dear Sirs RE: MILOS & SEDINA BJELIVUK AND IVAN UZAREVIC RE: JOINT VENTURE AGREEMENT DATED 8th FEBRUARY, 2001 – RE MINING LEASE 7271, 9514, 95198 AND 95269 AND EXPLORATION PERMIT No’s 1139243 AND 115422 BLOCK PROJECT 95104, MIDDLETON – WINTON MINING DISTRICT We act for the abovenamed. We are instructed that over the past two months, your company and its representatives have breached the terms of the said agreement. Our clients have recently informed you of the particulars of said breaches and have, in the past week, directed that your company cease work on each of the above mining tenures. Further, we are instructed that despite our client’s directions, your employees have carried out work on some of the mining tenures and have performed illegal mining operations. We understand that both the Department of Natural Resources and Mines and Queensland Police Service are presently investigating these operations. In the circumstances, our clients are left with no alternative but to hereby give notice of their termination of the said joint venture agreement and/or any subsisting partnership agreement (if any) effective immediately. Our clients require you to forthwith cease all mining work on each of the above tenures and to remove all machinery and equipment from these areas. We are instructed by Mr Milos Bjelivuk that during his last telephone conversation with “Max” of your company, he was informed that your company intended to recommence mining operations on Friday, the 20th April, 2001. Should any mining recommence, we are instructed to forthwith commence proceedings against your company, its representatives and employees to restrain all mining activity. In that event, we will also be seeking an order that your company pay our client’s costs of and incidental to that application. We otherwise reserve our client’s rights to recover damages against your company for breach of the said joint venture agreement and to commence an action for an account of profits. We further note that your company has registered a caveat over our client’s said mining leases. As instructed, it is clear that your company has no caveatable or other interest in these leases. -- 7 of 15 -- We are instructed that the registration of said caveat has and is likely to cause our client financial hardship. We are instructed to request your immediate withdrawal of the said caveat. If you fail to do so, our clients shall have no alternative but to commence proceedings to obtain orders directing the removal of the caveat, the payment by your company of damages sustained by our client as a consequence of the registration of the said caveat and, finally, an order that your company pay our client’s costs of those proceedings. We await your response. Yours faithfully P.W. SKEWES & DEMPSTER (LONGREACH)” [10] The Respondent’s solicitors sought particulars of the matters alleged and, on 24 April 2001, advised the Applicants’ solicitors that the Respondent had resumed the mining operations. These proceedings were commenced by the Applicants on 3 May 2001. The Agreement of February 2001 [11] For present purposes, it is important to determine the nature of this agreement. As will have been seen from Recital C, it is said that the parties wish to enter into a “joint venture partnership” on the stated terms and conditions. [12] A joint venture connotes an association of persons for the purpose of a particular trading, commercial, mining or other financial undertaking or endeavour with a view to mutual profit, with each participant usually (but not necessarily) contributing money, property or skill.5 A partnership is statutorily defined as the relation which subsists between persons carrying on a business in common with a view of profit.6 However a joint venture may take the form of a partnership, or it may not.7 [13] In United Dominions Corp Ltd v. Brian Pty Ltd,8 Dawson J said that: “Perhaps in this country, the important distinction between a partnership and a joint venture is, for practical purposes, the distinction between an association of persons who engage in a common undertaking for profit and an association of those who do so in order to generate a product to be shared among the participants. Enterprises of the latter kind are common enough in 5 United Dominions Corp. Ltd. v. Brian Pty Ltd (1985) 157 CLR 1, 10. 6 Partnership Act 1891, s.5(1). 7 United Dominions Corp Ltd v. Brian Pty Ltd (1985) 157 CLR 1, 10, 16. 8 Ibid, 15-16. -- 8 of 15 -- the exploration for and exploitation of mineral resources and the feature which is most likely to distinguish them from partnerships is the sharing of product rather than profit.” [14] In the present case, although the agreement gave the parties the opportunity to purchase a parcel of opal at an agreed valuation,9 clause m makes it clear, in my opinion, that it is the profit, rather than the product, which is to be shared. That clause provides as follows: [emphasis added] “m. All opal sales will be on GE paper and GE agrees to pay to the RO and IU partnership all funds due from opal sales on the same working day if possible or on the next working day and payment will be made by way of either cash or bank cheque.” [15] With respect to the balance of the statutory definition of partnership, it is clear on the evidence (and I do not understand it to be disputed) that there was a “relation which subsisted between” the Applicants and the Respondent. The parties had agreed to engage in opal mining on certain areas of land, in circumstances where the Applicants would provide the land and the Respondents would provide the machinery and fuel, as well as certain labour. The final criterion, which is directed to carrying on a business in common, has been interpreted by the High Court as being applicable to a commercial enterprise10  which in my view was the case here. In any event, I do not understand there to be any issue between the parties with respect to this aspect of the case. [16] I therefore conclude and find that the agreement which was termed a joint venture partnership was in reality a partnership. The effect of the letter of 19 April 2001 [17] This letter from the Applicants’ solicitors to the Respondent purported to terminate the agreement. [18] A perusal of the partnership agreement reveals that no reference was made to the time that that relationship was to continue. Although there are some references in the evidence to (a) the time that mining on some of the mining leases was anticipated to take, (b) that the Respondent’s representatives thought that the agreement would end when the mining had been completed, and (c) that the Respondent would not have entered into the agreement if it could have been 9 Page 2 cl.k. -- 9 of 15 -- terminated by the Applicants at will, the Respondent’s representative Mr Reid accepted that no termination clause had been included in the agreement and that it was the Respondent that had prepared the agreement. Mr Reid also said that he did not have any discussion with the male Applicants about when the agreement was to end.11 [19] In the circumstances, and given that a party’s actual intentions cannot generally be used to interpret an agreement,12 I am satisfied that as the partnership was not entered into for a fixed term or for a single adventure or undertaking, it can only have been entered into for an undefined time – the only other partnership term provided for in the Partnership Act.13 [20] The Partnership Act provides that subject to any agreement between the partners, a partnership is dissolved, if entered into for an undefined time, by any partner giving notice to the other or others of the partner’s intention to dissolve the partnership.14 However it has been held that there is a qualification upon the apparently unrestricted power of one partner to dissolve this type of partnership  namely that it must be exercised bona fide and not for the purpose of deriving an undue advantage from the state of the firm’s engagements,15 and not fraudulently.16 [21] In Lindley & Banks on Partnership,17 the learned author says that: “Although there is no duty on a partner to act reasonably in deciding whether to serve a dissolution notice, a notice served with fraudulent intent or, in the current editor’s view, mala fide and for an improper purpose will not be upheld.” [22] But fraud or bad faith/improper purpose in the giving of the notice must be pleaded (or alleged) and proved.18 Alternatively a defendant must at least raise the issue of whether the notice was given bona fide and not for an improper purpose.19 Those 10 Canny Gabriel Castle Jackson Advertising Pty Ltd v. Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321, 326. 11 Ts 30 July 2001, p. 46 L10. 12 Codelfa Construction Pty Ltd v. State Rail Authority of New South Wales (1982) 149 CLR 337, 352. 13 See s. 35(1). 14 Section 35(1)(c). 15 Bilioara Pty Ltd v. Leisure Investments Pty Ltd [2001] NTCA 8, at [34], applying Neilson v. Mossend Iron Co (1886) 11 App Cas 298, 309. 16 Walters v. Bingham [1988] 1 FTLR 260, 267E-F. 17 17th ed (1995), para. 24-13. 18 Peyton v. Mindham [1972] 1 WLR 8, 14E; Walters v. Bingham [1988] 1 FTLR 260, 267H. 19 See Leisure Investments Pty Ltd v. Bilioara Pty Ltd [2000] NTSC 94, at [82], [87], [93], [101], [107], [122], [123], [127]. -- 10 of 15 -- propositions are consistent with the following statement of principle by the High Court: “Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings”.20 [23] In the present case, the Respondent did not plead (in its Response which was filed by its then solicitors) that the Applicants’ notice of dissolution was given fraudulently or in bad faith and for an improper purpose. Although the Respondent pleaded that the Applicants’ termination of the agreement was in breach of the agreement, the “particulars” of that breach which were given by the Respondent’s representative Mr Reid do not allege fraud or bad faith/improper motive in the giving of the notice.21 Mr Reid did allege that the Applicants had terminated the contract when there had been no breach by the Respondent. However that is quite a different matter – and in any event misconceived because (absent agreement to the contrary)22 a partnership at will can be terminated by one partner without cause. There is no necessity for an antecedent breach by the other partner. [24] In addition, as far as I can see, there was no issue during the trial as to whether the subject notice was given (a) fraudulently or in bad faith and for an improper purpose or (b) not bona fide and for an improper purpose.23 Numerous other issues were raised during the trial, sometimes in considerable detail. But none of those issues was directed to that which I regard as the central point – namely that unless the dissolution notice was given fraudulently or in bad faith and for an improper purpose (and thus not bona fide and for an improper purpose), the partnership will be dissolved. Accordingly, it has not been necessary for me to address those other issues in any detail or to make any related findings – including as to credibility. [25] In the circumstances, I therefore conclude and find that the letter of 19 April 2001 dissolved the subject partnership. I reject the Respondent’s claim that that termination was a breach of the partnership agreement. 20 Dare v. Pulham (1982) 148 CLR 658, 664. 21 See affidavit of Maxwell John Reid filed 29 June 2001, para. 71. 22 For example, an agreement that the Applicants could not terminate the agreement within a particular time or despite particular conduct by the Respondent. In the present case, there was no evidence of any such agreement. 23 Indeed having read the various affidavits which were filed in this matter and the evidence at the trial, I am not satisfied that the notice was given other than bona fide and not for the purpose of deriving an undue advantage. -- 11 of 15 -- [26] The Respondent also claimed that the Applicant was estopped from terminating the contract (agreement). No elaboration of or submissions concerning this claim were ultimately advanced and I am not aware of any evidence which might be thought to support it. For example, it was not submitted by the Respondent that there was some agreement or representation on the part of the Applicants, which was supported by the evidence, which could ground it. Accordingly that claim is also rejected. Partnership property [27] In the present case, the property of each partner was used for the purposes of the partnership business. The Applicants’ mining tenements enabled the mining for opals to occur on that land. The Respondent’s machinery and fuel was used for the excavation and related purposes. [28] However whether the separate property of one partner used in a partnership becomes part of the assets of the partnership or remains the separate property of the partner ultimately depends upon the agreement between the partners. In the present case, the partnership agreement does not address the point. In Kelly v. Kelly,24 the High Court said, relevantly, that to conclude as a matter of inference that the parties intended that the separate property of one partner was to become part of the assets of the partnership, “their conduct must plainly lead to that result”. [29] The Respondent did not submit that there was any such conduct and I am not aware of any evidence which would support such an inference. It may be the case, as in Kelly v. Kelly, that the parties had not turned their minds to this question. [30] In the circumstances, I conclude and find that the separate property of each partner which was used in the partnership has remained the separate property of that partner. Therefore the Applicants’ mining tenements referred to in paragraph [1] remained the Applicants’ property after the partnership was terminated. 24 (1990) 64 ALJR 234, 237 (col 2B-C). -- 12 of 15 -- [31] It follows that as between the Applicants and the Respondent, the declaration sought in paragraph 1(a) in paragraph [1] should be made.25 Injunction [32] I have found that the partnership agreement has been dissolved and the subject mining tenements remain the Applicants’ property. As previously noted (see paragraph [10]), even after the letter terminating the partnership was given on 19 April 2001, the Respondent apparently continued mining on the Applicants’ tenements. Absent the provisions of the partnership agreement, the Respondent does not suggest that it has any other entitlement to be upon that land. Given my conclusions and findings, and in all the circumstances, it is appropriate in my opinion for an injunction to be granted in the terms sought by the Applicants.26 In this regard, the Respondent drew attention to what was said to be a “normal road” that passes through the Applicants’ tenements. If that is a public road, it can, of course, be traversed by the Respondents. Caveat [33] The Applicants originally sought an order that the Respondent’s caveat be removed. That caveat was specified to continue in force from 12 April 2001 to 11 July 2001. Pursuant to section 303(2)(b) of the MRA,27 it has now lapsed. The Applicants therefore do not now seek that relief. [34] The Respondent seeks an order that the caveat be extended. However as that caveat is no longer in force, an order for its “extension” is not available. I should add that even if the caveat were still on foot, I would not be prepared to order its extension, having regard to my findings (as above) about the partnership. The Respondent’s stay application [35] No basis was advanced by the Respondent upon which this relief could be considered. Accordingly, that claim is refused. 25 The Respondent did not submit that if a declaration were to be made, the wording sought by the Applicants was not appropriate. 26 The Respondent did not submit that if an injunction were to be granted, the wording sought by the Applicants was not appropriate. -- 13 of 15 -- The Respondent’s claim that the Applicants commence Supreme Court proceedings for breach of contract [36] The question of whether the Applicants should commence such an action is naturally a matter for them. Again, no basis was advanced by the Respondent upon which an order of this nature could be made. That claim is also refused. [37] I should also mention that although there purported to be some evidence from the Respondent about damages, no claim for damages was made in the Respondent’s Response. Accordingly that issue need not be considered. Orders [38] For the foregoing reasons: 1. I declare that the Applicants are entitled, at law and in equity to exercise all of the rights and enjoy all of the benefits conferred upon them by the instruments set out hereunder to the exclusion of the Respondents, namely: (i) mining lease number ML7271, Mining District of Winton in the name of Ivan Uzarevic; (ii) mining lease number ML95104 in the Mining District of Winton in the name of Ivan Uzarevic; (iii) mining lease number ML95198 in the Mining District of Winton in the name of Ivan Uzarevic; (iv) mining lease application number MLA95269, Mining District of Winton in the name of Milos Bjelivuk and Sedina Bjelivuk; (v) application for exploration permit EPM11392 in the name of Milos Bjelivuk. (vi) Application for exploration permit EPM11542 in the name of Milos Bjelivuk. (“the tenements”). 2. I grant a permanent injunction restraining the Respondents from entering upon the tenements or carrying out thereon any mining or mining related activity without the prior written consent of the Applicants and each of them. 3. I dismiss the Respondent’s counter claim. 27 Section 303(2)(b) provides, relevantly, that in a case where the caveat specifies a period of not more than 3 months -- 14 of 15 -- Costs [39] I will hear the parties as to the costs of this matter. during which it is to continue in force, it continues in force “until the expiration of that period”. -- 15 of 15 --