McKelvey v Chant

[2016] QLC 81

LAND COURT OF QUEENSLAND

CITATION:

McKelvey v Chant & Anor [2016] QLC 81

PARTIES:

Rosemary Therese McKelvey

(applicant)

v

David James Chant & Chants Geo Services Pty Ltd

(respondents)

FILE NO/s:

MRA1099-16

DIVISION:

General Division

PROCEEDING:

Application pursuant to s 363 Mineral Resources Act1989

DELIVERED ON:

23 December 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 19 December 2016

HEARD AT:

Heard on the papers

PRESIDENT

FY Kingham

ORDER/S:

1.     Rosemary Therese McKelvey is declared to be the sole applicant and holder for ML 30234.

2.     David James Chant is removed as Authorised Holder Representative.

CATCHWORDS:

ENVIRONMENT AND RESOURCES – MINING APPLICATION FOR MINING LEASE – DECLARATION OF RIGHTS – where there were multiple holders of an application for a mining lease – where one of the holders was the authorised representative – where the authorised representative was not progressing the application – where the application was at risk of being refused for lack of progress – where the respondents did not participate in the proceedings or oppose the orders

Land Court Act 2000 s 7(2)(a)
Mineral Resources Act 1989 s 363(2)(a)(e), s 18AAN(2)(b), s 318AAR(1)(c)

APPEARANCES:

Not applicable

1. Ms McKelvey is one of three applicants for a mining lease situated 13 km southeast of Croydon (ML 30234). She holds a 50% interest. The Respondents are the other holders: Mr Chant as to 1% and Chants Geo Services Pty Ltd as to 49%. Ms McKelvey seeks orders which would result in a declaration that she is the sole holder of the application and would remove Mr Chant as the Authorized Holder Representative.

1. I am satisfied this Court has the jurisdiction and power to make those orders. The Court may hear and determine proceedings with respect to the right to possession of or interest in a mining lease[1] and any matter arising between applicants in relation to mining.[2] The Court has the power to declare the rights of parties to a proceeding.[3]

   [1]Mineral Resources Act 1989 s 363(2)(a).

   [2]Mineral Resources Act 1989 s 363(2)(e).

   [3]Land Court Act 2000 s 7(2)(a).

1. This proceeding was listed for mediation before the Judicial Registrar at the Mareeba Magistrates Court on 17 November 2016 at 11am. Only Ms McKelvey appeared, although the Court file records the Respondents were notified by mail, email to [e-mail] and phone message.

1. On 29 November 2016, the Court made further orders requiring the parties to file any material they intended to rely upon by specified dates and providing for determination without an oral hearing, unless a party objected to that course by the date stated. No party objected to that course and the Court received no request for an oral hearing.

1. Ms McKelvey filed a statement dated 6 December 2016. The Respondents did not file any material.

1. In summary, Ms McKelvey’s statement was as follows:

   (i)In 2012 she agreed with the respondents that they would receive a 50% interest in ML 30234 if they met all the costs in getting the application to granted status and attended to the initial set up of the mining operation.

   (ii)The application progressed normally at first, with Mr Chant as Authorized Holder Representative.

   (iii)Mid-way through 2015, Ms McKelvey became aware Mr Chant was no longer progressing the tenement. He told her he was unable to progress the application but would not transfer the Authorised Holder Representative function to her.  He did, however, permit Ms McKelvey to continue native title negotiations.  She reached an agreement with the native title party for the area. It is yet to be signed by the respondents. Ms McKelvey has made numerous attempts to contact Mr Chant about this agreement by email, text and phone. He has not replied to any of her communications.

   (iv)On 17 October 2016, Ms McKelvey was notified by the Department of Natural Resources and Mines (DNRM) that:

   (a)Mr Chant had not been fulfilling his duties as Authorised Holder Representative;

   (b)certain actions were required to progress the application or it could be rejected; and

   (c)the application will not be decided until this matter is resolved.

1. Ms McKelvey also provided a copy of an email from [e-mail] to [e-mail] dated 28 October 2016 which is in the following form:

Hi Melanie,

Could you please delete my name and Chant’s Geo Services from this application as I am unable to remedy this outstanding debt currently.  I will pay the outstanding amount ASAP.  Could you also arrange for Rosemary McKelvey to become the Authorised Holder Representative?  Thanking you in anticipation.

David Chant
Manager and Senior Geologist
Chant’s Geo Services Pty Ltd

1. Ms McKelvey was informed by an officer of the DNRM that documents sent to Mr Chant to effect the transfer have not been returned.

1. In the absence of evidence or submissions to the contradict Ms McKelvey’s statement, her application is effectively unopposed and is consistent with the Mr Chant’s email.

1. In those circumstances, it is appropriate to declare Ms McKelvey the sole applicant and holder for the mining lease and to remove Mr Chant as the Authorised Holder Representative. The effect of the orders is to effect a transfer of the respondent’s interest in ML 30234, which may be registered as a transfer by operation of law.[4] 

   [4]Mineral Resources Act 1989 ss 318AAN(2)(b), 318AAR(1)(c).

ORDERS:

Rosemary Therese McKelvey is declared to be the sole applicant and holder for ML 30234.1.   

David James Chant is removed as Authorised Holder Representative.2.   

FY KINGHAM
PRESIDENT OF THE LAND COURT