Arkaroola Resources Pty Ltd v Niugini Mining (Australia) Pty Ltd [2001] QLRT 12

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Arkaroola Resources Pty Ltd v. Niugini Mining (Australia) Pty Ltd [2001] QLRT 12 PARTIES: In the Matter of Arkaroola Resources Pty Ltd (Applicant) v. Niugini Mining (Australia) Pty Ltd (Respondent) FILE NO: LXX40014/2001 PROCEEDING: Application to extend caveat DELIVERED ON: 20 March 2001 DELIVERED AT: Brisbane HEARING DATE: 16 March 2001 PRESIDING MEMBER: Kingham DP ORDER/S: 1. The term of the caveat lodged on 21 December 2000 with respect to Mining Leases No’s 4910, 4911, 4921, 4928, 4977, 5176 and 5319 be extended until the conclusion of Supreme Court of Queensland Claim No S11323 of 2000 or until further order of the Tribunal. (at [19]) CATCHWORDS: CAVEAT – MINING LEASE – CAVEATABLE INTEREST – EQUITABLE INTEREST – EXTENSION OF CAVEAT – TERM OF CAVEAT Mineral Resources Act 1989, ss. 300(6), 301, 303(2)(c) Real Property Act 1861, s. 98 Land Title Act 1994, s. 121 Re Jorss Caveat (1982) Qd R 458 applied Burman v. AGC (Advances) Ltd (1993) Q Conv R 54 – 449 applied Re Oil Tool Sales (1966) QWN 11 applied Ridge v. Incentive Programmes (1985) Q Conv R 54 – 172 considered Re Henderson, Ex parte Harburg (unreported decision of the Queensland Court of Appeal on 12 July 1993) applied Re Bosca Land Pty Ltd’s Caveat (1976) Qd R 119 considered Re Dimbury Pty Ltd’s Caveat (1986) 2 Qd R 348 considered -- 1 of 7 -- Chan v. Cresdon Pty Ltd (1989) 168 CLR. 242 considered Stern v. Mc Arthur (1988) 165 CLR. 498 considered Jessica Holdings Pty Ltd v. Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 followed Kuper v. Keywest Constructions Pty Ltd (1990) 3 WAR 419 followed COUNSEL: Paul Freeburn for the Applicant Peter Ambrose SC for Respondent SOLICITORS: Corrs Chambers Westgarth for the Applicant Blake Dawson and Waldron for the Respondent REASONS FOR JUDGMENT Background [1] Kingham DP: Pursuant to an Asset Transfer Deed dated 20 January 2000 (the Deed) the Respondent undertook to sell to the Applicant its interest in seven mining leases (MLs 4910, 4911, 4921, 4928, 4977, 5176 & 5319 - the Red Dome mine). Following payment to the Respondent of $330,000.00 in purchase price and cash security, the Applicant entered into possession of the Red Dome mine. Subsequently, a dispute emerged between the parties regarding compliance with the terms of the Deed and the Respondent purported to terminate the Deed. The Applicant commenced Supreme Court proceedings seeking specific performance of the Deed and lodged a caveat over the mining leases. That caveat expires on 20 March 2001. The Applicant seeks an order from this Tribunal that the caveat be extended until the Supreme Court proceedings have been decided or until further order of the Tribunal. Power to extend caveat [2] The Applicant relies on s. 303(2)(c) of the Mineral Resources Act 1989 (the Act) which provides that “a caveat continues in force – (c) in a case where the Tribunal orders – for so long as that order remains in force”. The Respondent submitted that this section does not confer a power of extension on the Tribunal. It argued that it only allowed a proposed caveator to apply to the Tribunal prior to the caveat being lodged, for an order that the caveat be lodged for a term exceeding 3 months. -- 2 of 7 -- [3] S 303(2)(c) clearly contemplates an application to the Tribunal for an order regarding the term of a caveat. It does not prescribe the circumstances in which or the period during which such an application can be made. I can see no basis for construing the sub-section in the manner contended by the Respondent. The plain and ordinary meaning of the words of s. 303(2)(c) confers power on the Tribunal to make the order sought by the Applicant. The test for maintenance of a caveat [4] In Queensland the courts have accepted the analogy between interlocutory injunctions and caveats.1 The test for maintenance of a caveat is whether there is a serious question to be tried and whether the balance of convenience favours the caveat remaining whilst that question is determined. [5] The Applicant has commenced proceedings in the Supreme Court and they are now in the interlocutory stage. If the caveat is extended in the terms sought by the Applicant, the Respondent will be prevented from assigning, subleasing or mortgaging the mining leases pending the outcome of the proceedings. Does the Applicant have sufficient interest to support a caveat? [6] The Applicant asserts an equitable interest as the assignee of the mining leases under the Deed. It submits that this is a classic equitable interest.2 The Respondent argued that the Applicant does not have a sufficient interest to support a caveat because its interest is not proprietary in nature, but merely a contractual or personal right. The Deed was conditional, inter alia, upon the Minister approving the assignment of the mining leases (cl. 3.1(1)(a)). 1 Re Jorss Caveat (1982) Qd R 458; Burman v. AGC (Advances) Ltd (1993) Q Conv R 54-449 2 Re Oil Tool Sales (1966) QWN 11, Ridge v. Incentive Programmes (1985) Q Conv R 54-172; CCH Queensland Conveyancing Law & Practice at 9-420 -- 3 of 7 -- [7] The Respondent submitted that the nature of the Applicant’s interest was determined by the requirement for the condition to be fulfilled by a stranger to the contract, the Minister. Pursuant to s. 300(6) of the Act, the Minister has the discretion to either reject the application for assignment or to approve it subject to conditions that must be fulfilled within a designated time. The Respondent submitted that, once the Minister gave “indicative approval” under that section, the Applicant would have a caveatable interest, but not before. It contended that all the Applicant can now assert is a contractual right to require the Respondent to comply with cl. 3.1(2) of the Deed and to apply to the Minister for approval of the assignment. [8] With respect to cl. 3.1(2), there was a dispute between the parties as to whether the Respondent was in breach of its obligation under that clause, because no application has been made to the Minister. In relation to that issue, the Respondent tendered a letter from the Applicant to the Respondent (Exhibit 1) that raised more questions than it answered. The Respondent also submitted that it was not required to apply to the Minister as it had terminated the Deed for the Applicant’s breach. It is not necessary for me to make any finding as to the status of either party’s compliance with the Deed. The dispute does, however, serve to emphasise that there is a serious question to be tried as to the parties’ rights and obligations under the Deed. [9] S 301 of the Act authorises a person who “claims a right or interest in or in respect of a mining lease” to lodge a caveat to forbid certain dealings with that mining lease. The Applicant noted that this section immediately follows the section dealing with applications for the assignment of mining leases and argued that this is precisely the situation contemplated by s. 301. [10] Counsel for neither party was able to refer me to authorities dealing with caveats in analogous circumstances. Whilst there is a dearth of authority dealing with caveats over mining leases, there has been considerable judicial consideration of this issue in relation to freehold land. Most significantly, the Queensland Court of Appeal considered a similar argument in relation to a contract for the sale of land, subject to a statutory requirement for approval by a local authority of the subdivision.3 3 Re Henderson, Ex parte Harburg unreported decision of the Queensland Court of Appeal handed down on 12 July 1993. -- 4 of 7 -- [11] In that case, the vendor sought to remove the purchaser’s caveat on a number of grounds, including that the purchaser could not have a caveatable interest until the local authority approved the sub-division. On appeal from the chamber Judge’s dismissal of the application to remove the caveat, it was revealed that the statutory provision relied upon by the vendor had since been repealed. The comments of the Court of Appeal are, therefore, obiter. [12] The Court was referred to a line of Queensland decisions to the effect that an interest in a conditional contract of this nature could not support a caveat.4 The majority (Macrossan CJ and Demack J) stated: “There is now weighty opinion in the High Court suggesting that an equitable interest in land can exist when a claimant is entitled to something less than a full decree of specific performance ordering conveyance, that is it can exist provided that a claimant is entitled to equitable relief by way of injunction or other remedy to maintain and protect his interest……With an expanded view of what can constitute an equitable interest in land, a correspondingly wider view of a caveatable interest under s. 98 of the Real Property Act can apply.”5 Davies J was in the minority but agreed with the majority on this point: “ …before fulfilment of that condition, the purchaser has an interest capable of protection in equity against forfeiture. The difference between that interest and that of a purchaser who has paid the purchase price under an unconditional contract is one only of degree…..The words of s. 98 are wide enough to encompass the interest of a purchaser under such a conditional contract and, in my view, should be so construed.” [13] It is worth noting that, some time after that decision, the Land Title Act 1994 was enacted. Section 121 uses the word “interest” rather than the phrase “estate or interest in land” used in s. 98 of the now repealed Real Property Act 1861. Similarly, s. 301 of the Act uses the phrase “right or interest” rather than “estate or interest”. [14] Davies J cited with approval decisions by a single judge of the Supreme Court of NSW6 and the Full Court of the Supreme Court of WA7. The majority also referred to the 4 Re Bosca Land Pty Ltd’s Caveat (1976) Qd R 119 and Re Dimbury Pty Ltd’s Caveat (1986) 2 Qd R 348 5 Re Henderson, ex parte Harburg op cit p 4-5; The High Court cases cited were Chan v. Cresdon Pty Ltd (1989) 168 CLR 242 and Stern v. Mc Arthur (1988) 165 CLR 498. The Court also referred to the judgment of Brownie J in Jessica Holdings Pty Ltd v. Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 at 144-152, which contains an analysis of other relevant High Court cases. 6 Jessica Holdings Pty Ltd v. Anglican Property Trust Diocese of Sydney op cit 7 Kuper v. Keywest Constructions Pty Ltd (1990) 3 WAR 419 -- 5 of 7 -- NSW decision. In both cases, purchasers under contracts, which were conditional upon local authority approvals, were able to maintain their caveats. [15] There is no relevant distinction between those cases and the circumstances of this case. I find that the interest asserted by the Applicant is sufficient to support a caveat over the mining leases. Does the Applicant’s material establish a serious question to be tried? [16] The Respondent did not submit that there was not a serious question to be tried. It is not appropriate, and neither party requested me, to evaluate the interest claimed.8 I have satisfied myself, on the basis of the affidavit material filed in support of and the other documents annexed to the Application, that there is sufficient material to establish the nature of the Applicant’s claim and the dispute about that interest. Does the balance of convenience favour extending the term of the caveat? [17] The Respondent did not assert any particular prejudice if the caveat is extended. The Respondent holds a significant sum by way of purchase price and cash security. The Applicant has taken timely action to determine its claim. In the circumstances, I consider the balance of convenience favours the extension of the term of the caveat. The order [18] The Applicant seeks an order that the caveat be extended until the conclusion of Supreme Court of Queensland Claim No S11323 of 2000 or until further order of the Tribunal. The Respondent submitted that the scheme of the Act indicates that an indefinite time is only permissible with the consent of the holder, otherwise a fixed time is to be set. S. 303(2)(c) is not so limited by its terms and I do not consider there is anything in the scheme of the Act that would oblige me to depart from applying the plain and ordinary meaning of the words of that sub-section. 8 Re Oil Tool Sales op cit -- 6 of 7 -- [19] I order that the term of the caveat lodged on 21 December 2000 with respect to Mining Leases numbers 4910, 4911, 4921, 4928, 4977, 5176 and 5319 be extended until the conclusion of Supreme Court of Queensland Claim No S11323 of 2000 or until further order of the Tribunal. [20] I was not requested to and make no order with respect to costs of this Application. -- 7 of 7 --