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New Emerald Coal Pty Ltd v Manlam Pty Ltd[2019] QLC 43

New Emerald Coal Pty Ltd v Manlam Pty Ltd[2019] QLC 43

LAND COURT OF QUEENSLAND

CITATION:

New Emerald Coal Pty Ltd v Manlam Pty Ltd [2019] QLC 43

PARTIES:

New Emerald Coal Pty Ltd

ACN 148 891 865

(applicant)

v

Manlam Pty Ltd

ACN 126 008 955

(respondent)

FILE NO:

MER695-19

DIVISION:

General Division

PROCEEDING:

Application for removal of caveat and for other orders

DELIVERED ON:

15 November 2019

DELIVERED AT:

Brisbane

HEARD ON:

18 October 2019

HEARD AT:

Brisbane

MEMBER:

WA Isdale

ORDER:

The respondent must pay the applicant’s costs of and incidental to the Originating Application in the amount to be agreed. Agreement must be reached within 14 days of the publication of these reasons. Failing such agreement, costs will be assessed on the standard basis. The costs must be paid within 14 days of the agreement. If costs are assessed they must be paid within 14 days of assessment.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – Land Court Act 2000 – s 34 – Court’s discretion to be exercised for reasons

Land Court Act 2000 s 34

Mineral and Energy Resources (Common Provisions) Act 2014 s 28

Uniform Civil Procedure Rules 1999 r 681

ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) (2016) 37 QLCR 186; [2016] QLAC 3, applied

APPEARANCES:

BW Wacker (instructed by Christensen Legal) for the applicant

D Chesterman, with MR Wilkinson (instructed by Corrs Chambers Westgarth) for the respondent

Background

  1. [1]
    On 3 October 2019, the applicant filed an Originating Application in the Court seeking orders for removal of caveat no. 284283 and for other orders, including costs. The matter was listed for hearing on 18 October 2019.
  1. [2]
    The applicant pointed to s 28(3) of the Mineral and Energy Resources (Common Provisions) Act 2014 as relevant to its application.
  1. [3]
    The Court was informed at the commencement of the hearing that the caveat had been withdrawn. Submissions were then heard on the matter of costs.
  1. [4]
    Counsel for the applicant sought an order for costs, and counsel for the respondent submitted that the parties ought to bear their own costs.
  1. [5]
    No authorities were referred to on behalf of either party in support of their submissions.
  1. [6]
    The submissions for the applicant were that:
  • The caveat was always hopeless as there was no caveatable interest to support it.
  • The applicant had to bring the proceedings.
  • The caveat had been maintained until a very late stage.
  1. [7]
    The submissions for the respondent were that:
  • The application was unnecessary.
  • It was premature.
  1. [8]
    It is only necessary to consider the caveat briefly. The caveat was lodged on 29 July 2019 and, in the absence of anything else, would expire after 3 months. This was pointed to on behalf of the respondent.
  1. [9]
    The exhibits put before the Court were:
  1. Email sent at 4.57 pm on 17 October 2019 from Corrs Chambers Westgarth with a letter to the Mining Registrar, Coal Assessment Hub, from a Director of the respondent. The letter was a notification to, inter alia, withdraw the caveat.
  1. E-mail sent at 10.13 am on 18 October 2019 from the “Coal Hub”, the relevant Queensland Government area, confirming receipt of Exhibit 1. As Exhibit 1 and Exhibit 2 were tendered before 10.13 am on 18 October 2019, it seems that the time indicated on them would be daylight saving time.
  1. Affidavit of Philip John Christensen, sworn on 18 October 2019.
  1. Affidavit of Gary Alexander Williams, a director of the applicant, sworn on 2 October 2019 and filed with the Originating Application on 3 October 2019.
  1. [10]
    The outline of the applicant’s argument, comprising 8 pages, was also provided. This addressed the merits of the application to remove the caveat.
  1. [11]
    Reference was made to r 681 of the Uniform Civil Procedure Rules 1999 (UCPR) to the effect that costs are in the discretion of the Court, but follow the event, unless the Court orders otherwise.
  1. [12]
    It was submitted for the applicant that the merits of the caveat were relevant. On behalf of the respondent, it was submitted that this was not so and that the matter was not suitable for a determination on that point.
  1. [13]
    The respondent’s submission that the applicant ought to have simply waited for the caveat to expire in 3 months from when it was lodged on 29 July 2019 was met with a submission that it was entitled to have a blot on its title removed.
  1. [14]
    For the respondent, it was submitted that the claim in Exhibit 4, at paragraphs [29] and [30], that fundraising that “may” occur “may” be prevented or hindered by the caveat was not supported since the caveat specifically excluded the transaction which was referable to such a potential event.
  1. [15]
    It was submitted on behalf of the applicant, and not contradicted, that the lawyers for the applicant had only been informed that the caveat was withdrawn at the last moment, several minutes before the hearing was to commence.
  1. [16]
    The Court notes that the applicant has been fully successful in its claim for removal of the caveat.
  1. [17]
    In Exhibit 4, pages 179–180 of the accompanying material shows that the applicant’s solicitors wrote to the respondent’s solicitors on 19 September 2019 advising that if the caveat was not withdrawn by 4.00 pm on 25 September 2019, the present proceedings would be commenced.
  1. [18]
    Pages 181–182 of Exhibit 4 comprise a letter dated 25 September 2019, from the respondent’s solicitors stating that the legitimacy of the caveat was maintained and they were not instructed to withdraw it.
  1. [19]
    The Originating Application was filed on 3 October 2019.
  1. [20]
    Exhibit 3 contains an e-mail from the applicant’s solicitor to the respondent’s solicitor at Corrs Chambers Westgarth, Mr Catchpoole, a partner. The e-mail, sent at 9.31 am daylight saving time on 17 October 2019 requests that the respondent consent to orders that the caveat be removed. Failing consent by midday, Queensland time, on 17 October 2019 “…we will proceed with this matter in the Land Court tomorrow. In addition, we shall seek costs to be awarded in our client’s favour.”
  1. [21]
    This brought a response, on 17 October 2019 at 9.34 am daylight time, that “Unfortunately the material filed by your client is materially incomplete and this will be relevant if nothing else as to costs. We will be in touch.”
  1. [22]
    At 5.53 pm daylight saving time, on 17 October 2019, the respondent’s solicitors sent an e-mail to the applicant’s solicitor which, inter alia, proposed that the caveats be withdrawn with each party bearing its own costs.[1]
  1. [23]
    Counsel agreed that there was no other statutory provision relevant to the present matter of costs apart from rule 681 of the UCPR and s 34 of the Land Court Act 2000. Section 34 provides that:

“34Costs

  1. (1)
    Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
  2. (2)
    If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.”
  1. [24]
    The UCPR provision is as follows:

681General rule about costs

  1. (1)
    Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.”
  1. [25]
    The general rule is modified by the rule in s 34 of the Land Court Act 2000. The result is that the Court has a discretion, to be exercised judicially for reasons that are stated. In the event that it makes no order, each party will bear their own costs.
  1. [26]
    In ERO Georgetown Gold Operations Pty Ltd v Henry (No 2)[2] the Land Appeal Court considered s 34 at pages 189-192.
  1. [27]
    The Court pointed out that the rule often followed, that costs follow the event, does not govern the exercise of the discretion, which is unfettered, but does inform it.[3] A successful party has a reasonable expectation of obtaining an order for costs. Costs are not a punishment but are to compensate a successful party for the expenses to which they have been put.
  1. [28]
    The Court is required to determine what order, if any, is appropriate,[4] having regard to established principles to the extent that they are relevant. One such principle is the rule often followed, that costs follow the event.[5] Section 34 confers an unfettered discretion to award costs.[6]

Exercising the discretion

  1. [29]
    The applicant had a right to come to the Court in the manner that it did to seek to have the caveat, a blot on the title, removed. It gave notice that it would do so and the solicitors for the respondent advised on 25 September 2019 that the caveat was maintained.
  1. [30]
    The applicant’s conduct in not waiting for the caveat to expire, in the hope that it would not be sought to be continued, does not count against it. The caveat was, at all relevant times, a fact, and the applicant was within its rights to seek to have it removed. It is not necessary to consider the merits of the caveat for present purposes as it was withdrawn, very late, demonstrating that the respondent did not seek, for present purposes, to rely on it.
  1. [31]
    In view of the history which has been set out, it is apparent that the respondent did not actually withdraw the caveat until, in practical terms, late on the day before the hearing, and the material indicates that the applicant was not informed of this until just before the hearing was to commence.
  1. [32]
    The parties disagree on the meaning of a part of the e-mail sent at 9.31 am daylight saving time, on 17 October 2019 by the applicant’s solicitor. Whether it contains an offer that the parties bear their own costs, if the caveat is withdrawn, is disputed. This is not relevant, as the proposal was not accepted. It was open until midday and was not accepted by the 9.34 am e-mail. If it were necessary to decide whether it contained such an offer, the Court would, on the basis of its clear words and implying nothing, be firmly satisfied that it did not.
  1. [33]
    On the basis of all the material, the Court considers that an order for costs ought to be made. As the applicant was fully successful and was not notified of the caveat being withdrawn until a very late time close to the hearing, and as it has not acted unreasonably in bringing and proceeding with its application, an order for costs should be made in its favour. The order should be for costs of and incidental to the Originating Application to be agreed within 14 days of the publication of these reasons, and if not agreed, to be assessed on the standard basis.

Order

The respondent must pay the applicant’s costs of and incidental to the Originating Application in the amount to be agreed. Agreement must be reached within 14 days of the publication of these reasons. Failing such agreement, costs will be assessed on the standard basis. The costs must be paid within 14 days of the agreement. If costs are assessed they must be paid within 14 days of assessment.

WA ISDALE

MEMBER OF THE LAND COURT

Footnotes

[1] Ex 3, pages 12-13, para 3-3.2.

[2] (2016) 37 QLCR 186; [2016] QLAC 3.

[3] ERO Georgetown Gold Operations Pty Ltd v Henry (No 2) (2016) 37 QLCR 186 [16]-[17].

[4] Ibid [24].

[5] Ibid.

[6] Ibid [35].

Close

Editorial Notes

  • Published Case Name:

    New Emerald Coal Pty Ltd v Manlam Pty Ltd

  • Shortened Case Name:

    New Emerald Coal Pty Ltd v Manlam Pty Ltd

  • MNC:

    [2019] QLC 43

  • Court:

    QLC

  • Judge(s):

    Member Isdale

  • Date:

    15 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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