Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq)
[2013] QCA 79
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- Unreported Judgment
- Appeal Determined (QCA)
- Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq)[2013] QCA 79
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Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq)[2013] QCA 79
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq)[2013] QCA 79
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Appeal from the Land Appeal Court |
ORIGINATING COURT: | |
DELIVERED ON: | 12 April 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 August 2012 |
JUDGES: | Margaret McMurdo P, Gotterson JA and Fryberg J Separate reasons for judgment of each member of the Court, Margaret McMurdo P and Gotterson JA concurring as to the orders made, Fryberg J dissenting in part |
ORDERS: | 1. Refuse application for leave to appeal.2. Applicant to pay the first respondent’s costs of the application on the standard basis. |
CATCHWORDS: | ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – TITLES, RIGHTS, PERMITS, LICENCES AND LEASES ETC – EXPLORATION TITLES – NATURE AND EXTENT OF INTEREST – where the second respondents entered into two separate contracts for the assignment of an exploration permit with the applicant and the first respondent – where the applicant and first respondent both lodged caveats pursuant to s 152 Mineral Resources Act 1989 (Qld) to prevent ministerial approval being granted for any further assignment – where both the applicant and first respondent sought and were granted Land Court orders that their respective caveats be continued until further order of the Land Court – where both the applicant and first respondent commenced Land Court proceedings seeking the removal of the other's caveat and the specific performance of their respective contracts with the second respondents – whether the Land Appeal Court erred in finding that the first respondent had the better equitable interest CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the first and second respondents entered into a contract for the assignment of an exploration permit – where clause 3.1 of the contract contained a condition precedent to completion – where the Land Appeal Court found that the second respondent sellers were not entitled to terminate and thus, the first respondent buyer had an equitable right to enforce the contract – where the applicant contended that the Land Appeal Court erred in so finding – whether the first respondent had an obligation to notify the second respondents of its acceptance of the s 31 Native Title Act Agreement within a specified time pursuant to clause 3.1 – whether the first respondent's rights depended on the fulfilment of a condition precedent in clause 3.1 – whether the first respondent had an enforceable interest in respect of an exploration permit at 30 March 2010 Land Court Act 2000 (Qld), s 69(2), s 74(1) Mineral Resources Act 1989 (Qld), s 137, s 151, s 152(1), s 156(2) Native Title (Queensland) Act 1993 (Qld), s 31 Chan v Cresdon Pty Ltd (1989) 168 CLR 242; [1989] HCA 63, cited Legione v Hately (1983) 152 CLR 406; [1983] HCA 11, applied Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; [1982] HCA 29, considered Re Henderson’s Caveat [1998] 1 Qd R 632; [1993] QCA 254, cited Stern v McArthur (1988) 165 CLR 489; [1988] HCA 51, cited |
COUNSEL: | T S Hale SC, with H G Trotter, for the applicant M Martin for the first respondent The second respondents, Galway and Kirkby, appeared on their own behalf No appearance from the second respondent, Burt |
SOLICITORS: | Hancocks Solicitors for the applicant ClarkeKann for the first respondent The second respondents, Galway and Kirkby, appeared on their own behalf No appearance from the second respondent, Burt |
[1] MARGARET McMURDO P: This is an application for leave to appeal from the Land Appeal Court's order[1] dismissing the appeal brought by the applicant, Mentech Resources Pty Ltd, from the Land Court's order[2] removing the applicant's caveat on Exploration Permit for Coal number 1044. I agree with Gotterson JA's reasons and wish only to add the following.
[2] The second respondent, Terence Burt, did not appear at the hearing of this application and did not file a written outline of argument. Nor did he appear in the Land Appeal Court hearing or the Land Court hearing. The second respondents, Judy-Anne Galway and Robert William Kirkby, appeared self-represented at the hearing of this application. Only Ms Galway appeared self-represented in the Land Appeal Court hearing. Both Ms Galway and Mr Kirkby appeared, represented by a solicitor, in the Land Court hearing. At the hearing of the present application, Ms Galway made broad allegations of fraud surrounding the entering into the contract between the first respondent and the second respondents on 15 March 2010. In response to those allegations, it is sufficient to note that there is no material before this Court to support those contentions or to undermine the conclusion that the second respondents' signatures on the contract were authorised and regular.
[3] For the reasons given by Gotterson JA, the order of the Land Appeal Court dismissing the applicant's appeal is plainly correct. I do not consider the matter warrants the grant of leave to appeal. I agree with Gotterson JA's proposed orders.
[4] GOTTERSON JA: On 22 March 2012, Mentech Resources Pty Ltd (“Mentech”) filed an application for leave to appeal against orders of the Land Appeal Court made on 10 February 2012 giving effect to reasons for judgment published on that date. Section 74(1) of the Land Court Act 2000 (Qld) permits a party to proceedings in the Land Appeal Court to appeal to this Court on the ground of error or mistake of law, and absence or excess of jurisdiction. The party may appeal only with the leave of the Court of Appeal or a judge of appeal.[3]
[5] The application is supported by an affidavit of Mr G D Skelton, solicitor, to which is exhibited the proposed Notice of Appeal. This document sets out five grounds of appeal, each of them based on an error of law which is claimed to have been made by the Land Appeal Court. The Court heard submissions on the application for leave to appeal and the substantive appeal concurrently.
[6] The first respondent to the application and the appeal is MCG Resources Pty Ltd (In Liquidation). It is not clear from the record when that company was wound up although that appears to have occurred during the currency of the proceedings to which I shall refer. In any event, the rights and liabilities of the company do not appear to have been materially altered by the liquidation in a way that might have relevance to these proceedings. In these circumstances, it is convenient to refer to the company both prior to and after liquidation, as MCG.
The circumstances of the dispute
[7] On 17 September 2008, Exploration Permit for Coal No. EPC1044 (“EPC1044”) was granted pursuant to s 137 of the Mineral Resources Act 1989 (Qld) (“MRA”) to Terence Burt, Judy-Anne Galway and Robert William Kirkby in shares of one-third each. They are the second respondents in the proceedings in this Court. The grant was for a term of five years and was expressed to be subject to the provisions of the MRA, the Mineral Resources Regulation 2003, the terms of the Exploration Permit and the Conditions provided in Annexure A thereto. The single Condition in that Annexure made the grant subject also to the General Conditions detailed in Annexure B and the Special Conditions detailed in Annexure C thereto. The land over which EPC1044 was granted consists of some 12 blocks comprising 132 sub-blocks, in the District of Emerald.
[8] The second respondents and MCG entered into an agreement in writing styled “EPC1044 Acquisition Agreement” (MCG Contract) dated 15 March 2010 whereby the second respondents, as Seller, agreed to assign EPC1044 to MCG, as Buyer, for a purchase price of $100,000. On completion the Buyer was to pay the purchase price and a broker’s fee of $12,500 to Mr J F Manners.[4]
[9] At 4 pm on 31 March 2010, MCG lodged a caveat in Form MRA-22, pursuant to s 152 of the MRA, forbidding ministerial approval of any assignment of EPC1044.[5] The caveat was designated Dealing No. 1018474. The interest claimed in the caveat was expressed as being “in accordance with the Acquisition Agreement”, a copy of which was enclosed with the form. The caveat was entered on the Mining Register on 2 June 2010. On the application of MCG, the Land Court made an order[6] on 23 June 2010 that the caveat continue in force until further ordered by the Court. Had no such order been made, the caveat would have expired on 30 June 2010,[7] it having been lodged without the consent of the second respondents.
[10] Following a sequence of events which is outlined later in these reasons, on or about 30 March 2010, the second respondents and Mentech executed an agreement in writing also styled “EPC1044 Acquisition Agreement” (Mentech Contract) whereby the second respondents, as Seller, agreed to assign EPC1044 to Mentech, as Buyer, for a purchase price of $115,000. Under this contract the Buyer was to pay on completion a broker’s fee of $20,000 to Mr Manners.[8] During the first half of April 2010, the second respondents and Mentech signed an Assignment of an Exploration Permit document in Form MRA-07 by which ministerial approval was sought for an assignment of EPC1044 to Mentech. This document was lodged on 15 April 2010 and was designated Dealing No. 1018811. It was entered on the Mining Register on 16 July 2010.
[11] Mentech also lodged a caveat in Form MRA-22. That occurred on 20 December 2010. The Dealing No. designation given to it was 1020676. It was entered on the Mining Register on the same day. This caveat was also lodged without the consent of the second respondents. The interest claimed in it was expressed to be by “purchase of Sale Agreement signed by the parties on 30 March 2010”. On 18 March 2011, the Land Court ordered that this caveat continue in force until further ordered by the Court.
The Land Court proceedings
[12] MCG initially commenced proceedings (MRA147-10) in the Land Court by filing an originating application on 3 June 2010. The second respondents only were respondents to it. The relief sought included an order that caveat 1018474, its own caveat, “remain in force until further order” and orders of a specific performance type with respect to the MCG Contract. It was in those proceedings that the Land Court made the order on 23 June 2010 to which I have referred.
[13] MCG and the second respondents compromised those proceedings by executing a deed of settlement on or about 18 August 2010. The terms of this settlement made provision for an assignment by the second respondents of EPC1044 to MCG and for payment by the latter of a sum of money, of which $100,000 would be paid to the second respondents and $12,500 to Mr Manners. The deed contained a release which was expressed not to apply in respect of rights and obligations arising under the MCG Contract.[9] In apparent anticipation of the deed, on 22 July 2010, the second respondents submitted to the Department of Mines and Energy a request for a withdrawal of the Assignment of an Exploration Permit document which they had signed in favour of Mentech.
[14] On 28 February 2011, MCG filed an originating application in the Land Court (MRA065-11) invoking the jurisdiction conferred on it by s 156(2) of the MRA. Mentech was named as a respondent to those proceedings and was summonsed to show cause why caveat 1020676 should not be removed. Removal of that caveat was necessary in order for approval to be given to an assignment of EPC1044 to MCG. The second respondents were not named as respondents. Evidently that was thought to be unnecessary in light of the compromise with them.
[15] The jurisdiction conferred by s 156(2) is a broad one. Upon return of the summons or at any later hearing of it, the Land Court may make such orders either ex parte or otherwise, as it deems just,[10] including an order that the caveat be removed.[11] The jurisdiction authorises the Land Court to make binding determinations with respect to contractual and other legal rights of parties and to priorities of such rights as may be necessary for it to make in order to decide whether a caveat should be removed or not.
[16] Mentech filed a reciprocal originating application in the Land Court (LAA027-11) on 2 March 2011 to which MCG and the second respondents were the named respondents. The relief sought in those proceedings included removal of caveat No. 1018474, specific performance of the Mentech agreement, and damages against the second respondents.
[17] These two proceedings were heard together in June 2011. On 15 September 2011, the Land Court published reasons for judgment and made orders in both proceedings that caveat No. 1020676 be removed; that caveat No. 1018474 be removed when sought by MCG; and that Mentech pay MCG’s costs on the standard basis. It is unnecessary for the purposes of this appeal to review the reasoning of the Land Court.
The Land Appeal Court proceedings
[18] On 16 September 2011 Mentech filed a notice of appeal to the Land Appeal Court and an application under s 69(2) of the Land Court Act for a stay of the orders made by the Land Court on the preceding day. A stay was ordered by the Land Appeal Court on the date of filing and was renewed by it on 20 September 2011 to operate until further order of the Court upon the provision by Mentech of an undertaking as to damages for any loss sustained by MCG thereby.
[19] The issues before the Land Appeal Court were influenced to a significant degree by a notice of contention filed by MCG. The appeal as argued centred on the grounds set out in the notice of contention.[12] They were that the MCG Contract at all times remained on foot and that as that contract preceded the Mentech Contract, MCG had a better equity than Mentech.
[20] In summary, the Land Appeal Court held that the MCG Contract remained on foot[13] and that MCG had an equitable right to have its contract enforced;[14] rejected an argument by Mentech that MCG’s equity dated from the execution of the deed of settlement and not from the execution of the MCG Contract;[15] and concluded that, as between MCG and Mentech, the former had the better equity.[16] On 10 February 2012, it ordered that the appeal be dismissed and that the stay[17] be lifted.
[21] The proposed grounds of appeal to this Court substantially relate to certain provisions of the MCG Contract and events which occurred in the period between the date on which that contract was made and the date on which the Assignment of Exploration Permit document was lodged by Mentech for registration, 15 March to 15 April 2010. I now turn to those provisions and events.
MCG Contract
[22] The grounds of appeal relate directly to clause 3.1(b) of the MCG Contract. It is one of the conditions precedent to completion. The conditions precedent provisions are as follows:
“3.Conditions Precedent
3.1Completion under this Agreement is subject and conditional upon the following conditions precedent (‘Condition Precedent’):
(a)The Minister providing indicative approval (on terms satisfactory to the Buyer) in writing pursuant to section 151 of the Mineral Resources Act 1989 (Qld) to the assignment to the Buyer of the Seller's interests in the Exploration Permit.
(b)The Seller providing to the Buyer within 5 Business Days after the date of this Agreement, the agreement reached by the Seller with native title parties under section 31 of the Native Title Act 1993 (Qld) (‘Section 31 Agreement’), and such agreement being acceptable to the Buyer (to be notified to the Seller within 10 Business Days after this Agreement);
(c)the Seller requesting the relevant government body to provide the Buyer all expenditure commitment statements within 5 Business Days after the date of this Agreement, and the Buyer advising the Seller that such expenditure commitments are satisfactory to the Buyer within 5 Business Days after receipt of such statements by the Buyer.
3.2The Seller must use its best endeavours to obtain the fulfilment of the Conditions Precedent, including applying under section 151 of the Mineral Resources Act 1989 (Q) to the chief executive for the Minister’s approval to the assignment of the Exploration Permit The Seller must keep the Buyer informed of any circumstances which may result in any of the Conditions Precedent contained not being satisfied in accordance with its terms.
3.3The Conditions Precedent are for the benefit of the Buyer, and the Buyer may waive any of those conditions.
3.4If the Conditions Precedent are not satisfied, or not waived in accordance with clause 3.3, then the Buyer may terminate this Agreement by written notice to the Seller.”
[23] Completion was to take place on or before 3 pm on the Completion Date.[18] The expression “Completion Date” was defined to be the day five Business Days (in turn defined to be “banking business days in Brisbane”) after the date of receipt of notification of indicative ministerial approval of the assignment.
[24] Other provisions relevant to arguments advanced in the appeal are:
“9.3Amendment
This Agreement can only be altered in writing signed by each party.
…
9.5Entire Agreement
This Agreement constitutes the full and complete understanding between the parties with respect to the subject matter of this Agreement.
…
9.8 Time
Time is of the essence of this Agreement.
9.9 Waiver
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. Any waiver must be in writing and signed by the party giving the waiver.”
Events in the period between 15 March and 15 April 2010
[25] The following outline of events in the period between 15 March and 15 April 2010 draws substantially on a detailed chronology set out in the reasons for judgment of the Land Appeal Court.[19]
[26] On 15 March 2010 the solicitors for MCG emailed[20] a copy of the MCG Contract signed by all parties to the broker, Mr Manners, and requested him to remind the second respondents that they had to provide the information referred to in clauses 3.1(b) and (c) thereof within five business days of that date. March 15 2010 was a Monday. The fifth business day after that date was Monday 22 March and the tenth, Monday 29 March 2010.
[27] On 17 March 2010 MCG’s solicitors sent an email[21] with an attached authority for the second respondents to sign and return to the solicitors. The authority document would inform the Department of Employment, Economic Development and Innovation (“DEEDI”) that the second respondents had entered into an agreement to sell EPC1044 to MCG and that they consented to DEEDI providing to MCG and its solicitors certain information and documents, including the s 31 Native Title Act Agreement (s 31 Agreement) referred to in clause 3.1(b).
[28] The authority document was dated 18 March 2010. A separate version of it was signed by each of the second respondents and returned to the solicitors on different days, all of them being received by 22 March 2010.[22] On that day, at 3.50 pm, the solicitors forwarded the signed authorities by email to DEEDI and sought a copy of the s 31 Agreement from it.[23]
[29] At 3.58 pm that day, Mr Burt, one of the second respondents, advised MCG’s solicitors by telephone that they “never had” a s 31 Agreement for EPC1044, and had not negotiated one. The solicitor who participated in the telephone call, Mr Nathan Yuen, recorded that he advised Mr Burt that his searches had shown that one did exist.[24]
[30] On 24 March 2010, Mr Burt’s daughter advised Mr Yuen that her father did not hold a s 31 Agreement.[25]
[31] Some time in late March 2010, Mr K Dunnell, a director of Mentech, learnt from Mr Manners that the second respondents had placed EPC1044 on the market but that they had already entered into a contract to assign it. Some days later, Mr Manners advised Mr Dunnell that that contract had terminated.[26]
[32] By an email[27] shown as received by Mr Burt at 2.41 am on 29 March 2010, Mr Manners advised “[o]n the basis that you have informed me of your withdrawal from the agreement with MCG Resources I attach a proposed sale agreement for EPC1044 to Mentech resources”. Mr Manners requested Mr Burt to have all the sellers fill in their details, sign it, and then to send it together with other supporting documentation to Mentech. (I note that neither Mr Burt nor Mr Manners gave evidence in the proceedings before the Land Court.)[28]
[33] On 29 March 2010 at 12.04 pm,[29] Mr Yuen spoke by telephone with Mr Burt and advised him that MCG required an extension of time for notification of acceptability by MCG of the s 31 Agreement.[30] His file note records that Mr Burt stated that he had another of the second respondents, Mr Kirkby, sitting right next to him and that they both agreed to an extension to 12 April 2010.
[34] On 29 March 2010 at 10.08 am, Mr Yuen contacted the remaining seller, Ms Galway, by telephone with the same request and was advised that she, too, agreed to the extension. His file note records that he was to arrange for the sellers to provide written confirmation. Mr Yuen followed up with a request for written confirmation of an extension to 12 April which was emailed to her at 10.40 am.[31] At 11.59 am, Ms Galway sent an email confirming the extension.[32]
[35] At 12.10 pm on 29 March 2010, Mr Burt telephoned Mr Yuen for MCG and advised, amongst other things, that he and Mr Kirkby were agreeable to an extension for five days and that “if the Buyer can’t agree by then the deal is off”.[33] Mr Yuen’s file notes record that at 12.47 pm Mr Kirkby confirmed by telephone that he was agreeable to a five day extension, that is, to close of business on 6 April. Mr Yuen advised Mr Kirkby that he would need to take instructions.[34]
[36] As events happened, at 3.08 pm on 29 March 2010, Mr Yuen received from DEEDI the s 31 Agreement by way of attachment to an email.[35] A copy of this agreement[36] was tendered in the Land Court proceedings. It is unnecessary to refer to its terms for the purposes of this appeal.
[37] By letter dated 29 March 2010 emailed to each of the second respondents at 4.29 pm that day, MCG’s solicitors advised that MCG was willing to agree to Mr Burt’s and Mr Kirkby’s proposal of an extension to 5 pm on 6 April 2010.[37]
[38] On 29 March 2010 Mr Manners contacted Mr Dunnell by telephone (the time of this call is not identified) and told him that the second respondents had terminated the MCG Contract because its solicitors were taking too long to complete their due diligence and that MCG had not made payment to the second respondents within “the agreed period of 14 days”. (I note here that there was no provision in the MCG Contract, a contract for which Mr Manners had been the intermediary broker, for payment of any monies within 14 days of the date of contract.)
[39] By email sent at 5.34 pm on 29 March 2010, Mr Manners advised Mr Dunnell that Mr Burt had “confirmed to [him] verbally that he has withdrawn from the sale of EPC 1044 to the previous buyer” and attached a sale agreement.[38] This document was in substantially the same standard form as had been adopted for the MCG Contract.
[40] In an affidavit read in the Land Court proceedings, Mr Dunnell stated that at about 10 am on 30 March 2010, he received a telephone call from Mr Burt who told him that EPC1044 was available for sale. Later that day, and prior to signing any agreement, Mr Dunnell caused a search to be conducted to see if there were any caveats lodged over EPC1044. The search revealed that no such caveat or caveats had been lodged. Upon that basis, Mr Dunnell advised his other directors to purchase EPC1044.[39]
[41] At 1.33 pm on 30 March 2010, Mr Manners advised MCG’s solicitors by email that he had been “informed by [Mr Burt] that the sellers have withdrawn from the arrangement for MCG to buy EPC1044 due to failure regarding settlement time”. Mr Manners asked the solicitors for confirmation of that information.[40]
[42] According to Mr Dunnell’s evidence, he and a fellow director of Mentech signed a contract on behalf of that company on 30 March 2010 for the purchase of EPC1044 from the second respondents. The documentation exhibited to his affidavit shows that he provided a copy of the “execution page” of the agreement to Mr Burt and Mr Manners by email sent at 10.21 pm on 31 March 2010.[41] Presumably that was a reference to the page which he and his co-director had signed.[42] Mr Dunnell also stated that on the following day he received a version of the sale agreement which had been executed by each of the second respondents.[43]
[43] On 1 April 2010, MCG’s solicitors notified the second respondents that the s 31 Agreement was acceptable to MCG for the purposes of satisfying clause 3.1(b) of the MCG Contract.[44]
[44] Mentech made payments of the purchase price by way of three instalments on 8, 12 and 15 April 2010 and also paid $20,000 to Mr Manners as a brokerage fee.[45] These payments appear to have been made notwithstanding non-fulfilment of condition precedent 3.1(a) in the Mentech Contract which required provision of indicative ministerial approval of the assignment to Mentech. Mentech was called upon to pay to DEEDI, and at some unspecified date did pay it, arrears of rent on EPC1044 of approximately $17,000. None of the purchase price or the arrears of rent has been returned or reimbursed to Mentech by the second respondents.[46]
The reasoning of the Land Appeal Court
[45] The grounds of appeal are focused upon findings made and conclusions reached by the Land Appeal Court on what it termed “the contractual issue”.[47] It will assist the discussion of the grounds of appeal to summarise the reasoning of the Land Appeal Court with respect to that issue.
[46] In outlining the issue, the Court observed:-
“The first issue to determine turns on the question of contractual rights. If the MCG [C]ontract was a valid and enforceable contract at the suit of MCG as at 30 March 2010 then MCG has a good equity. If not it has no rights at all. The appellant’s contentions depend on acceptance of the proposition that the second respondents were entitled to terminate the MCG [C]ontract on 30 March 2010 because of non fulfilment of the condition precedent set out in clause 3.1(b) of the MCG [C]ontract.”[48]
[47] The Court further observed that whether the second respondents had the right to terminate the MCG Contract on 30 March 2010 was an issue that “turns on whether they had breached their own obligations under clause 3.1(b) and whether that had any causative influence on MCG’s failure to notify its acceptance of the [s 31 Agreement] to the second respondents by 29 March 2010”.[49]
[48] As to the first of these two matters, the Court considered that the second respondents had plainly breached an obligation on their part under clause 3.1(b) to provide MCG with a copy of the s 31 Agreement by 22 March.[50] As to the second of them, the Court considered that it was impossible to regard that breach as having had no causative effect on MCG’s failure to notify its acceptance of the agreement by 29 March.[51] Relying on those two considerations, the Court concluded that, at 30 March, the second respondents were precluded from terminating the MCG Contract for failure on MCG’s part to give notification with respect to the acceptability of the s 31 Agreement by 29 March.[52]
[49] Finally, the Court held that even if the second respondents had had a right to terminate on that account on 30 March, they failed to do so clearly and to communicate the termination to MCG at any time prior to notification by the latter on 1 April 2010 that the s 31 Agreement was acceptable. [53]
[50] For these several reasons, the Land Appeal Court held that the MCG Contract had continued on foot during and after 30 March 2010 and that MCG had a continuing equitable right to have its contract enforced.[54]
Grounds of appeal
[51] The five grounds of appeal set out in the proposed notice of appeal are as follows:-
1. The Court erred in law in holding that after 30 March 2010, the first respondent, MCG, had an equitable right to have the MCG Contract 15 March 2010 specifically enforced against the second respondents so as to have them complete the contract in circumstances in which the condition precedent to completion in clause 3.1(b) of the MCG Contract had not been met by the first respondent.
2. The Court erred in law:
(a) In failing to consider and determine the submission of the appellant, Mentech, that in circumstances in which the first respondent as purchaser under the MCG Contract neither complied with nor waived compliance with condition precedent clause 3.1(b), the first respondent had no enforceable right to have the second respondents complete the MCG Contract and therefore it had no interest in respect of EPC1044 pursuant to Part 5 of the MRA, and as such no caveatable interest in it.
(b) To the extent that the Court did consider and determine the appellant’s submissions referred to in (a) the Court erred as a matter of law in failing to give reasons for sufficient reasons for so doing.
3. The Court erred in law in construing the MCG Contract and, in particular the condition precedent in clause 3.1(b), as meaning that the first respondent had no obligation to notify its acceptance of the s 31 Agreement if the second respondents breached their obligations under clause 3.1(b).
4. In holding that it was impossible to characterise the breach of clause 3.1(b) of the MCG Contract by the second respondents in failing to provide the s 31 Agreement to the first respondent in the stipulated time as having no causative effect on the failure to satisfy its notification obligations of satisfaction under the same clause and that therefore the second respondents were not permitted to rely upon the first respondent’s breach of the clause as a ground for terminating the agreement (or otherwise) the Court erred in law in that:
(a) The onus was upon the first respondent to establish that the breach by the second respondents caused or brought about the first respondent’s failure to fulfil the condition precedent in clause 3.1(b) and not just to establish that there was a causative effect however remote.
(b) There was no evidence or probative evidence that the breach by the second respondents caused or brought about the first respondent’s failure to fulfil condition 3.1(b).
5. The Court erred in law in holding that the second respondents by themselves or by their agent Mr Manners, had not purported to terminate the MCG Contract prior to 1 April 2010 in circumstances in which:
(a) No such submission had been made by the first or second respondents to this effect; and
(b) The first respondent had conceded that the second respondents had purported to terminate the MCG Contract.
The hearing
[52] Mentech and MCG both filed written outlines of argument as required by the practice direction. At the hearing in this Court, oral submissions were made by counsel on behalf of both of those parties. The second respondents, Ms Galway and Mr Kirkby, were present for the hearing. They were not legally represented. They each made brief oral submissions on their behalf. Mr Burt was neither present, nor represented, at the hearing. At the conclusion of the hearing, the Court gave leave to Mentech to make further written submissions on an issue that had arisen during the course of the hearing with liberty to MCG to respond thereto. Further written submissions were received by the Court from those parties on 30 August and 4 September 2012 respectively.
Grounds 1 and 2 – enforceability of MCG Contract and caveatable interest
[53] Mentech’s outline of argument deals with grounds 1 and 2 together. It is convenient to consider them together in these reasons because they are to a large degree reciprocal with each other. Ground 1 contends that the Land Appeal Court erred in holding MCG had an equitable right to have its contract enforced after 30 March 2010 and Ground 2 contends that the Court failed to consider and determine its submission that in the circumstances MCG had no such right and hence no caveatable interest in EPC1044 at that time.
[54] In both its outline of argument and in oral submissions, Mentech drew a distinction between the question of whether the condition precedent to completion in clause 3.1(b) had been fulfilled and the question whether a right to terminate had arisen and, if so, had been exercised.[55] In oral submissions, the criticism was made that the Land Appeal Court did not determine the former question, only the latter.[56]
[55] As to the first of those questions, Mentech’s outline of argument cites a passage from the judgment of Brennan J, with whom Stephen J agreed, in Perri v Coolangatta Investments Pty Ltd.[57] This court was taken to the passage in the course of oral submissions. Counsel for Mentech identified it as the foundation of Mentech’s case in the following terms:-
“Justice Brennan says though a stipulation specifies the event upon the occurrence of which the obligations to complete cease to be contingent, the stipulation contains no promise that the event will occur. Until the event occurs or the purchasers waive the benefit of the stipulation, neither party is entitled to a decree of specific performance of their respective obligations to complete and refers to Brown v Heffer and the purchasers have no equitable interest in the property which is the subject of the contract. That's the central proposition which we propound.”[58]
[56] With respect to the criticism made, it is true that the Land Appeal Court’s consideration of the contractual issue proceeded upon the footing that whether MCG had a valid and enforceable contract at 30 March 2010 was dependent upon whether or not the second respondents were entitled to terminate it at that date. The Court did state that MCG had an equitable right to have the contract enforced.[59] That statement appears to be an expression of a conclusion it reached from its findings that the second respondents were not entitled to terminate the MCG Contract on 30 March or that, if they were, they failed to do so prior to notification by MCG on 1 April 2010.
[57] It is implicit in the alternative limb of this conclusion that the Court was of the view that it was open to MCG to give an effective notice under clause 3.1(b) at that date. However, there was no discussion, independently of termination, of whether MCG had enforceable rights in respect of EPC1044 at 30 March 2010 notwithstanding that notification under clause 3.1(b) had not been given by the previous day. To my mind, that is an important issue. If MCG did have enforceable rights at the commencement of 30 March 2010, they were rights which it had acquired prior to the acquisition by Mentech of any rights in respect of EPC1044 under its contract which was made later that day or on the following day. Furthermore, they were the only rights upon which MCG could have relied to justify the lodgement of its caveat on 31 March 2010.
[58] I turn now to consider the significant issue of what enforceable rights MCG may have had at 30 March 2010 and, if it did have such rights, whether they constituted an interest in respect of EPC1044 within the meaning of s 152(1) MRA.
[59] In doing so, I propose not to confine the analysis to whether MCG was then entitled to a decree of specific performance of respective obligations to complete the contract, as Mentech’s submissions suggest is the relevant question. The MCG Contract was subject to the three conditions precedent in clause 3.1. As noted, the first of them related to the provision of indicative ministerial approval of the assignment. That had not occurred by 30 March 2010. For that reason alone, specific performance requiring unconditional completion of the contract by the parties would not have been decreed at that point. The same outcome would have pertained for the Mentech contract.
[60] A no less cogent reason for a broader approach to the analysis beyond a right to specific performance lies in the prevailing view that a purchaser’s equitable interest under a contract of sale is not commensurate only with its ability to obtain specific performance. In Legione v Hateley[60] which was decided after Perri, Mason and Deane JJ observed:-
“A competing view – one which has much to commend it – is that the purchaser’s equitable interest under a contract for sale is commensurate, not with her ability to obtain specific performance in the strict or primary sense, but with her ability to protect her interest under the contract by injunction or otherwise. …”[61]
[61] This observation was approved by Deane and Dawson JJ in Stern v McArthur[62] and by Mason CJ, Brennan, Deane and McHugh JJ in Chan v Cresdon Pty Ltd.[63]In both Stern and Chan, their Honours quoted the view of Sir Frederick Jordan to which Mason and Deane JJ had referred in Legione that:-
“Specific performance in this sense means not merely specific performance in the primary sense of the enforcing of an executory contract by compelling the execution of an assurance to complete it, but also the protection by injunction or otherwise of rights acquired under a contract which defines the rights of the parties.”[64]
[62] That line of authority has been accepted by this Court in Re Henderson’s Caveat.[65] In that case, Macrossan CJ and Demack J observed that “[t]here 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”.[66]
[63] A further reason for this approach is that the terms of s 152(1) MRA itself are sufficiently broad to encompass an equitable interest in this sense. Under that section, a person who claims a right or interest in respect of an exploration permit may lodge a caveat. The word “interest” in this section takes the meaning given to it by s 36 of the Acts Interpretation Act 1954 (Qld). With that meaning, an interest in respect of an exploration permit connotes a legal or equitable interest in it or a right, power or privilege over, or in relation to it.
[64] An analysis of MCG’s enforceable rights as they may depend upon the operation of clause 3.1(b) properly begins by reflecting upon the structure of it and the nature and content of the obligations of the parties under it. As to structure, the condition precedent requires the sequential occurrence of one act and one circumstance. The act is “[t]he Seller providing to the Buyer within 5 Business Days after the date of the Agreement, [the s 31 Agreement]”. The circumstance is “such agreement being acceptable to the Buyer”, which is followed by the words in parenthesis “to be notified to the Seller within 10 Business Days of this Agreement”.
[65] The act that the Seller must perform is to provide the s 31 Agreement to the Buyer within the five Business Days. Clause 9.8 of the MCG Contract affords essentiality to the time limit. Thus the Seller must provide that document within the five Business Days. During the hearing of the appeal, there was debate as to whether or not the “best endeavours” provision in clause 3.2 of the contract had the effect of modifying the Seller’s obligation to a lessened one of using its best endeavours only to provide the s 31 Agreement within that time. I am of the view that it did not.
[66] To my mind, the function of clause 3.2 is to impose upon the Seller an express obligation with respect to the standard of conduct required of it having a bearing upon the fulfilment of a condition precedent where the condition precedent itself does not impose any such obligation of the Seller in express terms. The condition precedent in clause 3.1(a), which is referred to in clause 3.2, illustrates the function of the latter. That condition precedent is fulfilled by the provision of indicative ministerial approval of the assignment. There is no express obligation within the condition precedent on the part of the Seller to do anything towards obtaining the approval. Clause 3.2 is complementary to that condition precedent in obliging the Seller to use best endeavours to secure the ministerial approval; for example, by executing and submitting the necessary forms and by providing information that might be requested in a timely way. Specifically, the clause is not intended to modify and lessen the express obligations that the Seller does have under other condition precedents which do require it to act within specified times, for example, by providing the Buyer with the s 31 Agreement under clause 3.1(b) and requesting the relevant government body to provide the Buyer with all expenditure commitment statements under clause 3.1(c).
[67] Unlike the act of the Seller, the circumstance to which the condition precedent is referenced is not expressed to be one that if it is to occur, must occur within a fixed time. There is no requirement expressed in clause 3.1(b) that the Buyer must have decided whether or not the s 31 Agreement is acceptable to it within a stipulated time.
[68] The words in parenthesis do, of course, state that the Seller is to be notified whether the s 31 Agreement is acceptable within 10 Business Days after the Agreement. However, the clause itself does not state clearly whether the circumstance that it requires be fulfilled is one simply of the s 31 Agreement being acceptable to the Buyer, or whether it is more complex requiring not only that the s 31 Agreement be acceptable to the Buyer but also that the Seller be notified of that fact within the 10 Business Days. Were it the latter, then a consequence that might well flow is that unless the Buyer notifies the Seller that the s 31 Agreement is acceptable within the 10 Business Days of the Agreement, then that condition precedent is thereafter incapable of fulfilment, and, absent waiver of it by the Buyer pursuant to clause 3.3, completion of the Agreement is, at that point and thereafter, unenforceable by the Buyer or, for that matter, by the Seller.
[69] The task for this Court is to ascertain objectively what function the parties intended the words in parenthesis in clause 3.1(b) to serve. Little guidance is given by other provisions of clause 3.1. The wording of clause 3.1(c) is materially different. There, the Buyer is expressly required to advise the Seller that the expenditure commitments are satisfactory within five Business Days after receipt of the statements. The device of including words in parenthesis is not used. Moreover, the time within which the advice must be given is wholly dependent upon the statements having first been given by the Seller to the Buyer. There is no similar arrangement for giving notification to the Seller in clause 3.1(b). The time for that is not dependent upon the Seller first having provided the s 31 Agreement to the Buyer. The period set in the words in parenthesis could expire notwithstanding that the Seller had not, at any time within that period, provided the agreement to the Buyer.
[70] The possibility that the event to which I have just referred might occur, the adoption of the device of parenthesis, the absence of an express “provision of notice or advice” requirement of the kind found in clause 3.1(c) and the discretion the Buyer has under clause 3.3 to waive any of the conditions precedent together suggest to me that the parties did not intend that fulfilment of this condition precedent was necessarily dependent upon notification by the Buyer of acceptability of the s 31 Agreement within the 10 Business Day period.
[71] On the other hand, I am not persuaded that the parties intended the words in parenthesis to do no more than set an aspirational goal. It was not their intention that those words be devoid of any legal effect. In my view, the following considerations shed light on the meaning the parties intended them to have.
[72] The words in parenthesis concern notification to the Seller. Although the conditions precedent in clause 3 are for the benefit of the Buyer,[67] the Seller has an abiding interest in knowing whether the Acquisition Agreement continues to bind it. That interest is advanced by knowing, as early as possible, that any of the conditions precedent has not been, and cannot be, fulfilled. Once the Seller knows that, then it knows that it cannot be required to complete. Armed with that knowledge, the Seller knows that it is free to enter into an agreement with a third party to assign the exploration permit. These considerations suggest that the parties intended that the only circumstance of which the Buyer must give notice to the Seller within the 10 Business Days period is when the s 31 Agreement is not acceptable to it. By contrast, their intention did not extend to requiring the Buyer to give notice within that period that the agreement was acceptable to it.
[73] So interpreted, clause 3.1(b) applies to the facts here in the following way. Fulfilment of the condition precedent was dependent upon the s 31 Agreement being acceptable to MCG. There was no time stipulated within which MCG was required to decide that the agreement was acceptable to it; nor was there any requirement that it notify the second respondents that the agreement was acceptable within any stipulated period, or at all. The only notification required was notification that the agreement was not acceptable, that to occur by 29 March 2010.
[74] It was open to MCG to decide that the s 31 Agreement was acceptable at the time that it did so decide. That occurred either on 29 March 2010 after it had received the s 31 Agreement or within a day or so after that date. Once that circumstance had occurred, the condition precedent was fulfilled. That the agreement was acceptable to MCG was evidenced by the written notification given by its solicitors to the second respondents on 1 April 2010. However, notification of that kind was not a necessary requirement for fulfilment of the condition precedent.
[75] At 30 March 2010, the MCG Contract was binding upon the parties to it. Completion remained conditional upon fulfilment of the conditions precedent in both clauses 3.1(a) and 3.1(b). Significantly for the arguments on appeal, the fact that MCG had not by 29 March 2010 notified the second respondents that the s 31 Agreement was acceptable to it, did not have the consequence that the condition precedent in clause 3.1(b) could never be fulfilled and that completion of the contract could never be enforced.
[76] For these reasons, at 30 March 2010, MCG had enforceable rights in respect of EPC1044. Those rights would have been protectable by declaration that the MCG Contract was legally binding on the parties to it and by injunction to restrain the second respondents from assigning the exploration permit to any third party who did not have comparable enforceable rights in priority to those of MCG. In accordance with prevailing authority, that was sufficient for MCG to have at that date an equitable interest in EPC1044. The interest was one that would support a caveat under s 152(1) MRA and was one that was on foot when MCG lodged its caveat. Accordingly, in my view, Grounds 1 and 2 could not succeed.
Other grounds of appeal
[77] As to Ground 3, on the construction of clause 3.1(b) which I have adopted, MCG had no obligation to notify the second respondents at any time that the s 31 Agreement was acceptable to it. That there was no obligation to notify by 29 March 2010 that the agreement was acceptable was not a consequence of a breach by the second respondents of their obligation under the clause to provide the agreement to MCG.
[78] It is unnecessary to form a conclusion as to whether or not the second respondents did breach that obligation. However, I note that, as I have construed it, the second respondents did breach the clause. They failed to provide the s 31 Agreement to MCG by 22 March 2010. Even if a “best endeavours” standard had prevailed, it would seem that the second respondents had breached it. They failed to act proactively and promptly to provide the s 31 Agreement. They did nothing in that regard until MCG’s solicitors provided undertakings for them to sign several days later.
[79] It is also unnecessary to decide arguments advanced in the appeal as to whether or not the parties agreed to an extension of time beyond 29 March 2010 for MCG to notify acceptance of the agreement. Those arguments would have had a relevance only if, in the first place, MCG had been required to give such a notification in order to fulfil the condition precedent.
[80] Ground 4 could avail Mentech only if breach by the second respondents was determinative of whether MCG had an obligation to notify them that the s 31 Agreement was acceptable by 29 March 2010. In my view, it never had such an obligation.
[81] Ground 5 relates to termination or purported termination of the MCG Contract by the second respondents prior to 1 April 2010. For the reasons given, I am of the view that the second respondents did not at any time prior to 1 April 2010 have a right to terminate the MCG Contract for non-fulfilment of the clause 3.1(b) condition precedent. Absent such a right, no question can arise as to the legal efficacy of the exercise or purported exercise of it.
[82] For these reasons, Grounds 3, 4 and 5 also could not succeed.
Disposition
[83] That none of the proposed grounds of appeal could succeed weighs significantly in favour of refusing leave to appeal. That is the order which, in my view, ought to be made here.
Orders
[84] I would propose the following orders:
1. Refuse application for leave to appeal.
2. Applicant to pay the first respondent’s costs of the application on the standard basis.
[85] FRYBERG J: Anyone with experience in appellate litigation will be familiar with the process by which cases change their complexion (to put it mildly) as they progress up the hierarchy of courts. This application for leave to appeal is a case in point.
[86] Gotterson JA has described the reciprocal applications for caveat removal giving rise to the present application.[68] The caveat of MCG Resources Pty Ltd (“MCG”) claimed an interest “in accordance with the acquisition agreement dated 15 March 2010 between each holder of EPC 1044 and the caveator”. The caveat of Mentech Resources Pty Ltd (“Mentech”) claimed an interest being “The whole OF TENAMENT EPC 1044 PURCHASE by SALE AgREEMENT signed by the parties on the 30t March 2010 [sic]”. According to the latter caveat, the nature of the interest being claimed was the whole of the interest of one “TERRENCE BURT”.
[87] By the time the applications were heard in the Land Court, the reliefs sought by the applications had diverged. MCG sought to remove Mentech’s caveat. Insofar as it was relevant to the agreement dated 15 March 2010 between MCG and the permit holders, Mentech’s application sought:
“1.A declaration that, in the events that have happened, the Agreement dated 15 March 2010, between MCG Resources Pty Ltd and the 2nd, 3rd and 4th Respondents (Burt, Galway and Kirkby), was avoided on or about 30 March 2010, and is no longer of any force or effect.
2.A declaration that, subject to the approval of the Minister under section 151 Mineral Resources Act 1989, pursuant to the Assignment of the Exploration Permit, received by DEEDI, as dealing number 1018811 (exhibit 5) the 2nd, 3rd and 4th Respondents (Burt, Kirkby, and Galway) have assigned Exploration Permit 1044 to Mentech Resources Pty Ltd.
3.An order, pursuant to section 156 Mineral Resources Act 1989, that the caveat over Exploration Permit 1044 lodged by MCG Resources Pty Ltd, dated 31 March 2010, and registered as dealing number 1018474 (Exhibit 3), be removed.”
[88] In this Court, Mentech abandoned any suggestion that cl 3.1 of the MCG contract was promissory (thus tacitly abandoning the argument that the permit holders avoided the contract on 30 March 2010 or at all) and contended that that was the role of cl 3.2. It further contended that cl 3.1 nonetheless had to be complied with before a court would grant specific performance of the contract. No equitable interest in land was acquired until MCG was in a position to obtain specific performance. That did not happen until after Mentech acquired its interest.
[89] Mentech submitted that both issues (namely termination for breach and the availability of specific performance) had been before the Land Appeal Court, but that court had decided only the former. I am far from persuaded that what is now said to be the central issue was at all clearly articulated in the Land Appeal Court, but it is unnecessary to pursue that question. On all relevant issues this Court is in as good a position as the court below to draw inferences of fact, since all the relevant evidence was contained in affidavits and the deponents were not cross-examined. MCG did not contend that Mentech was not entitled to argue as it did.
[90] Gotterson JA has set out the relevant clauses of the MCG contract in his Honour’s reasons for judgment. I acknowledge the force of the reasoning which leads his Honour to a construction of cl 3.1 of that contract which imposes obligations on the parties. In my judgment, however, Mentech was, with one exception, correct in submitting that any obligations in relation to that clause arose from the operation of cl 3.2. The latter is expressed in promissory terms. The former is not.
[91] The exception is found in the words in parenthesis at the end of cl 3.1(b). Those words cannot be construed as imposing a condition precedent to completion. Such a condition could only have been for the benefit of the sellers (that is, the permit holders), and no part of cl 3.1 does that. That is abundantly clear from the terms of cl 3.3. It follows that non-notification of acceptability on or before 29 March 2010 did not produce non-fulfilment of a condition precedent.
[92] That does not mean that the words in parenthesis were meaningless. Read with cl 3.2 they were apt to impose a duty on MCG to use its best endeavours to procure notification within the specified time. Sensibly, Mentech did not attempt in this Court to argue even that MCG had breached that duty, let alone that such a breach would have justified termination of the contract.
[93] That leaves the question of whether the contract required acceptability of the s 31 agreement, referred to in cl 3.1(b), to exist within the 10 day period if the condition precedent were to be fulfilled. It is arguable that such a condition should be implied. I find it unnecessary to resolve that question. Let it be assumed that there was such a condition. There would have to be implied from the same clause a condition that the sellers provide the s 31 agreement to MCG within five business days. To my mind it is impossible to construe the clause without giving primacy to the obvious interconnectedness of the two time periods. Both plainly must have run from the same commencement point, 15 March 2010. A decision by MCG on whether the s 31 agreement was acceptable obviously depended upon its having access to that agreement. It seems to me that as a matter of construction, any time limit for the determination of acceptability had to be dependent on performance of the first condition (namely the provision of the s 31 agreement) within the time limit specified for such provision. Since that did not occur, there was no time limit for the determination of acceptability (except, perhaps, a reasonable time).
[94] It follows that in my judgment the MCG contract was very much on foot on 30 or 31 March 2010 when the agreement between the permit holders and Mentech was executed in remarkably similar terms. If necessary, equity would have intervened to ensure that the MCG contract progressed to a point where it could have been completed. That might have happened, for example, in relation to the sellers’ obligation to use their best endeavours to provide the s 31 agreement to MCG. I agree with what Gotterson JA has written in relation to the acquisition of equitable rights sufficient to create or amount to an interest in the exploration permit.[69] That interest was sufficient to support MCG’s caveat.
[95] It follows that even if the Land Appeal Court failed to deal with an argument addressed to it, its conclusion was correct.
[96] The main points raised by the application for leave to appeal involved the interpretation of terms of a particular contract and the application to the case of settled principles of equity. No point of law of general importance was identified. Mentech submitted that leave ought to be granted on the basis that:
(a)there was a reasonable argument that there was an error to be corrected; and
(b)it was necessary to correct a substantial injustice.
Mentech suffered no injustice. The errors for which Mentech contended were, it is true, of some complexity, and this Court is not unanimous in its reasons for rejecting Mentech’s submissions. On the other hand those submissions were not clearly advanced at first instance, and if they were advanced before the Land Appeal Court, they took rather a different shape from what they took before this Court. On balance I would refuse leave to appeal.
[97] The order should be: Application for leave to appeal dismissed with costs.
Footnotes
[1] Mentech Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors [2012] QLAC 001.
[2] Mentech Pty Ltd v MCG Resources Pty Ltd (In Liq), Terence Burt, Judy-Anne Galway and Robert Kirkby and MCG Resources Pty Ltd (In Liq) v Mentech Resources Pty Ltd [2011] QLC 0059.
[3] Land Court Act 2000, s 74(2).
[4] Clause 5.2.
[5] It is a condition of each exploration permit that the holder shall not assign it without the consent in writing of the Minister: MRA s 141(1)(e).
[6] Pursuant to MRA s 154(2)(c).
[7] MRA s 154(2)(d).
[8] Clause 5.2.
[9] Clause 3 thereof.
[10] MRA s 156(3).
[11] MRA s 156(4).
[12] Reasons [8].
[13] Reasons [33].
[14] Reasons [33].
[15] Reasons [36]-[38].
[16] Reasons [58].
[17] Referred to in the orders made on 10 February 2012 erroneously as the stay imposed by order of 29 September 2011.
[18] Clause 4.1.
[19] Reasons [18].
[20] AB 244-254.
[21] AB 255-6.
[22] AB 258-260.
[23] AB 261-264.
[24] AB 265.
[25] AB 268.
[26] Affidavit K Dunnell, paras 3, 4 AB 121.
[27] AB 421.
[28] Land Court reasons [18].
[29] Having earlier left a telephone message for him at 10.05 am.
[30] AB 422.
[31] AB 425.
[32] AB 425.
[33] AB 428.
[34] AB 429.
[35] AB 430.
[36] AB 445-461.
[37] AB 462-464.
[38] AB 465.
[39] Affidavit K Dunnell paras 6, 7 AB 122.
[40] AB 487.
[41] AB 488.
[42] AB 490.
[43] Affidavit K Dunnell para 8 AB 122.
[44] AB 314.
[45] Affidavit K Dunnell para 9 AB 122.
[46] Affidavit K Dunnell para 9 AB 122.
[47] Reasons [19]-[33].
[48] Reasons [19].
[49] Reasons [20].
[50] Reasons [26].
[51] Reasons [26].
[52] Reasons [29].
[53] Reasons [31]-[33].
[54] Reasons [33].
[55] At para 17.
[56] T1-8 LL19-20.
[57] (1982) 149 CLR 537 at 565-6.
[58] T1-13 LL2-13.
[59] Reasons [33].
[60] (1983) 152 CLR 406.
[61] At 446.
[62] (1988) 165 CLR 489 at 522.
[63] (1989) 168 CLR 242 at 253.
[64] “Chapters on Equity in New South Wales”, Select Legal Papers, 6th ed. (1947) p52, n.(e).
[65] [1998] 1 Qd R 632 at 637.
[66] See also per Davies JA at p 641 who considered that several earlier Queensland first instance authorities which required that there be an entitlement to specific performance were wrongly decided.
[67] Clause 3.3.
[68] Paras [4] - [17].
[69] Paras [60] – [63].