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- Unreported Judgment
Kirk v Hart QLC 12
LAND COURT OF QUEENSLAND
Kirk v Hart  QLC 12
Peter John Kirk
Application to extend caveat
7 February 2019 [ex tempore]
Reasons delivered 5 March 2019
7 February 2019
REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – EXTENSION – where caveat would have lapsed but for order of the Land Court – where applicant claims a right or interest in a mining claim – where applicant claims right or interest as a beneficiary of an undisclosed trust – where applicant has commenced proceedings in the District Court to determine whether a right or interest exists – where applicant gave an undertaking as to damages
BW Wacker (instructed by Woods Prince Lawyers) for the applicant
ST Lane (instructed by Ellem Warren Lawyers) for the respondent
- In this matter, the applicant, Peter Kirk, filed a caveat over Mining Claim 71530 which would otherwise have lapsed were it not for an order made by this Court late last year preserving the caveat in place until today, 7 February 2019. Since the making of that earlier order, material has been filed today by both sides, and today, Mr Wacker of counsel for the applicant filed and read an originating application, an affidavit of Mr Kirk filed on 17 January 2019, an affidavit of Megan Anne Elizabeth Ray sworn 6 February 2019, which was filed by leave, an amended originating application dated 7 February 2019, again, filed by leave and an outline of argument which became Exhibit 1 before me.
- I queried Mr Wacker as to the worth of the undertaking referred to in his outline of argument which he informed the Court he had instructions to offer on behalf of the applicant.
- The hearing of this matter was adjourned briefly to enable Mr Wacker to produce, as he did, a further affidavit of Peter John Kirk, sworn 7 February, which he was given leave to file and read.
- Mr Lane, for the respondent, acknowledged that the affidavit material before the Court clearly established a triable issue which ought be allowed to be resolved. Mr Lane also sensibly made no objection to the second affidavit of Mr Kirk which satisfied me that the undertaking offered on his behalf, which are repeated by himself under oath in the affidavit, is one provided with substantial backing of assets said to be unencumbered and owned by him.
- Accordingly, the parties handed up some draft orders to which, as I understand it, Mr Lane, on behalf of the respondent, Denise Hart, does not consent, but neither does he object, to the orders proposed to be made by me.
- Accordingly, I make the following orders:
- Pursuant to section 27(1) of the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), the caveat lodged by the applicant over Mining Claim 71530 (bearing number 255736) shall not lapse until the final determination of the proceedings commenced by the applicant against the respondent in the District Court of Queensland bearing no. 114 of 2019 and any appeal therefrom or earlier order of this Court.
- Liberty to apply on three (3) business days’ notice in writing.
- No order as to costs.
MEMBER OF THE LAND COURT
- Published Case Name:
Kirk v Hart
- Shortened Case Name:
Kirk v Hart
 QLC 12
05 Mar 2019