Mentech Resources Pty Ltd v MCG Resources Pty Ltd
[2011] QLAC 8
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- Unreported Judgment
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- Mentech Resources Pty Ltd v MCG Resources Pty Ltd[2011] QLAC 8
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Mentech Resources Pty Ltd v MCG Resources Pty Ltd[2011] QLAC 8
Mentech Resources Pty Ltd v MCG Resources Pty Ltd[2011] QLAC 8
LAND APPEAL COURT OF QUEENSLAND
CITATION: | Mentech Resources Pty Ltd v MCG Resources Pty Ltd & Ors [2011] QLAC 0008 |
PARTIES: | Mentech Resources Pty Ltd (appellant) v. MCG Resources Pty Ltd (in liquidation) (first respondent) Terrence Burt, Judy-Anne Galway and Robert William Kirkby (second respondents) |
FILE NO: | LAC006-11 |
DIVISION: | Land Appeal Court of Queensland |
PROCEEDING: | Hearing of an application |
ORIGINATING COURT: | Land Court of Queensland |
DELIVERED ON: | 20 September 2011 [Ex Tempore] |
DELIVERED AT: | Rockhampton |
HEARD AT: | Rockhampton |
THE COURT | McMeekin J CAC MacDonald, President PA Smith, Member |
ORDER: | 1. The Orders below be stayed until further Order of this Court and on the appellant providing an undertaking as to damages in respect of any loss suffered by the first respondent as a result of the grant of the stay. The undertaking is to be in a form to be settled by the Registrar of the Land Appeal Court. 2. The respondents file and serve a Notice of Contention by 4.00pm on 27 September 2011. 3. The appellant serve a draft index of the appeal record book on the respondents by 4.00pm on 4.00pm October 2011. 4. The respondents provide a response to the draft index of the appeal record book by 4.00pm on 11 October 2011. 5. Upon receipt of the respondents’ response to the draft index of the appeal record book, the appellant provide the agreed draft index to the Court forthwith. If there is no agreement, the contents of the draft index will be determined by the Registrar of the Land Appeal Court. 6. The appellant file and serve its outline of submissions by 4.00pm on 29 October 2011. 7. The respondents file and serve their outline of submissions by 4.00pm on 25 November 2011. 8. The appellant file and serve its outline of submissions in reply (if any) by 4.00pm on 2 December 2011. 9. The parties file and serve their list of authorities and cases by 4.00pm on 5 December 2011. 10. The appeal be listed for hearing at 10.00am on 16 December 2011 in Court 40, Level 8, Brisbane Magistrates Court, 363 George Street, Brisbane. 11. Costs reserved. |
CATCHWORDS: | Stay of proceedings – Land Court Act 2000, s 69 – application of relevant principles – whether appeal will prove abortive if the appellant succeeds – whether arguable ground of appeal – conditions of stay |
COUNSEL: | T Hale, SC and H Trotter for the appellant MD Martin for the first respondent |
SOLICITORS: | Macdonald & Michel Lawyers for the appellant ClarkeKann Lawyers for the first respondent No appearance on behalf of the second respondents |
McMEEKIN J.
- [1]This is an application by the appellant, Mentech Pty Limited, for a stay of orders made in the Land Court, published on 15 September 2011. The stay is sought pursuant to s. 69 of the Land Court Act 2000, which provides the power to grant the stay. The only guidance given to the Court is that the Court may stay a decision appealed against to secure the effectiveness of the appeal. Section 69(3) permits the Court to impose appropriate conditions of the stay.
- [2]The principles upon which such an application should be considered have been discussed in a number of cases and the parties have drawn to our attention the judgment of Keane J in Cook's Construction Pty Limited v Stork Food Systems Australasia Pty Limited,[1] and the comments of Chesterman J in Attorney-General Queensland v Fardon.[2]
- [3]Generally speaking there are two matters to consider. One is whether there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, and Chesterman J pointed out that in those circumstances the Courts would normally exercise their discretion in favour of a stay. And secondly, whilst the Court will not speculate about the appellant’s prospects of success, some preliminary assessment about those prospects can be undertaken in order to determine whether there is an arguable case on appeal.
- [4]As Keane J pointed out in Cook's Constructions, where it appears obvious that there are no or very poor prospects of success on appeal that can weigh heavily against the granting of the application for a stay.
- [5]In this case I am satisfied that there is an arguable ground of appeal and that there is a risk, at least, that the appeal will prove abortive if the appellant succeeds and a stay is not granted. As to the arguable ground of appeal, whilst I would not say that Mr Martin, who appears for the first respondent, has abandoned the reasoning of the member below, he felt unable to support it significantly and it seems to me that there is a very strong case that the reasoning behind the decision is flawed.
- [6]Mr Martin has pointed out a number of other grounds that he would wish to argue to support the decision and it may be that those grounds are strong ones, but at this stage no notice of contention has been filed, not that I’m being critical, of course, of Mr Martin at this point, and it is only fair that the appellant has full notice of the argument it has to meet and is given the chance to meet those arguments. But for the present purposes there is at least an arguable ground of appeal shown.
- [7]As to the effect on the appellant if the stay is not granted, it seems to me that there is at least the possibility here of the appeal proving abortive. If the stay is not granted then a caveat will be removed and the first respondent will be at liberty to deal with its entitlement as it sees fit. Mr Martin has pointed out that ministerial approval would seem unlikely to be obtained in the period between now and at the hearing of any appeal, but that isn’t the only way in which the first respondent could deal with its entitlement.
- [8]Indeed, as Mr Martin said in the course of his submissions, when I made an inquiry as to whether his side would offer an undertaking, he pointed out that one never knows what might occur and there might be some good reason why the first respondent might wish to take some action in relation to the entitlement. So in my view both grounds are made out.
- [9]There remains the issue of whether there should be some conditions imposed. Mr Hale of senior counsel, who appears for the appellant/applicant, has indicated, after inquiry from the Court, that his client is prepared to offer an undertaking as to damages as a condition of any stay. I would require that undertaking to be entered into. The undertaking would be directed to protecting MCG Resources Pty Ltd from suffering any damage. If it later transpires that the stay should not have been granted, what I propose is that the undertaking be in a form to be settled with the registrar and if there is any difficulty with that, the matter can come back before the Court.
- [10]The remaining matter that I wish to deal with are the directions in order to get the appeal underway expeditiously as it is not our intention that the stay be in place for any inordinate length of time.
- [11]The directions that I propose are that the respondentS file and serve a notice of contention on or before 4 p.m. on 27 September 2011; that the appellant serve on the respondents a draft index of the record book on or before 4 p.m. on 4 October 2011; that the respondents provide their response to that draft index to the appellant on or before 4 p.m. on 11 October 2011; and immediately thereafter the appellant provide to the registrar the draft index as settled by the parties, and if necessary the registrar will thereafter settle the index.
- [12]The appellant is to file and serve an outline of argument on or before 4 p.m. on 29 October 2011. The respondents are to file and serve their outline of argument on or before the 4 p.m. on 25 November. The appellant is to file any reply that it might be minded to, on or before 4 p.m. on 2 December 2011.
- [13]The parties are each to file a list of authorities with the registrar on or before 4 p.m. on 5 December 2011 and the appeal itself will be listed for hearing in the week commencing the 12 December on a date to be determined.
- [14]So the orders that I propose are that the stay be granted, staying the effect of the orders of the Court below until further order of the Court and upon the undertaking being provided by the appellant in a form to be settled with the registrar protecting MCG Resources Pty Ltd from any damages suffered by the imposition of this stay and the directions be as I have indicated.
CAC MacDONALD P
- [15]I agree.
PA SMITH
- [16]I agree.
ORDERS
- The Orders below be stayed until further Order of this Court and on the appellant providing an undertaking as to damages in respect of any loss suffered by the first respondent as a result of the grant of the stay. The undertaking is to be in a form to be settled by the Registrar of the Land Appeal Court.
- The first respondent file and serve a Notice of Contention by 4.00pm on 27 September 2011.
- The appellant serve a draft index of the appeal record book on the respondents by 4.00pm on 4 October 2011.
- The respondents provide a response to the draft index of the appeal record book by 4.00pm on 11 October 2011.
- Upon receipt of the respondents’ response to the draft index of the appeal record book, the appellant provide the agreed draft index to the Court forthwith. If there is no agreement, the contents of the draft index will be determined by the Registrar of the Land Appeal Court.
- The appellant file and serve its outline of submissions by 4.00pm on 29 October 2011.
- The respondents file and serve their outline of submissions by 4.00pm on 25 November 2011.
- The appellant file and serve its outline of submissions in reply (if any) by 4.00pm on 2 December 2011.
- The parties file and serve their list of authorities and cases by 4.00pm on 5 December 2011.
- The appeal be listed for hearing at 10.00am on 16 December 2011 in Court 40, Level 8, Brisbane Magistrates Court, 363 George Street, Brisbane.
- Costs reserved.
McMEEKIN J
CAC MacDONALD
PRESIDENT OF THE LAND COURT
PA SMITH
MEMBER OF THE LAND COURT