Supreme Court New South Wales Medium Neutral Citation: Resource Base Limited v Sutton [2024] NSWSC 1424 Hearing dates: 2 October, 6 November 2024 Date of orders: 6 November 2024 Decision date: 08 November 2024 Jurisdiction: Common Law Before: Williams J Decision: See orders at [80]. Catchwords: CONTRACTS – Remedies – Specific performance – Where vendor and purchaser entered into contract for sale of land which failed to complete – Where purchaser claimed specific performance of sale contract, and vendor claimed specific performance of an alleged novated and varied sale contract – Where vendor abandoned claim and consented to orders for specific performance of sale contract relied on by purchaser – Orders made for specific performance of that sale contract in terms consented to by the parties CONTRACTS – Construction and interpretation of sale contract to be specifically performed – Where vendor, after entering into the contract for sale of land, applied and was granted an exploration licence over a large area of land, including the land that is the subject of the sale contract, in respect of Group 5 minerals including clay – Whether the sale contract, properly construed, expressly requires the vendor to transfer its clay exploration licence to the purchaser upon completion or contains an implied term to that effect – Held: no express or implied term requiring transfer of clay exploration licence to purchaser on completion LAND LAW – Non-derogation from grant – Whether the vendor has derogated from the grant of property made to the purchaser under the contract for sale of land by refusing to transfer its clay exploration licence upon completion – Where evidence does not support imputing to the parties a common intention that the purchaser acquired the land for the purpose of gaining access to, and an entitlement to use, clay deposits – Held: no derogation from grant Legislation Cited: Mining Act 1992 (NSW) ss 5, 13, 19, 51, 58 Cases Cited: Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 at 520; [1986] HCA 32 Bankstown Trotting Recreational Club Ltd v Chisholm (2016) 218 LGERA 428; [2016] NSWCA 274 Bocardo SA v Star Energy UK Onshore Ltd [2010] Ch 100; [2009] EWCA Civ 579 Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380; [2010] UKSC 35 Charter Reinsurance Co Ltd v Fagan [1997] AC 313 Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Cuzeno Pty Ltd v The Owners – Strata Plan 65870 [2013] NSWSC 1385 Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679; [2019] NSWCA 185 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200 Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (2023) 276 CLR 500; [2023] HCA 6 McGrath v Sturesteps (2011) 81 NSWLR 690; [2011] NSWCA 315 Metlife Insurance Ltd v RGA Reinsurance Company of Australia Ltd [2017] NSWCA 56 Newey v Westpac Banking Corporation [2014] NSWCA 319 Project Blue Moon Pty Ltd v Fairway Trading Pty Ltd [2000] FCA 127 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115; [2022] HCA 39 Rees v Windsor-Clive [2021] 2 All ER 1013; [2020] EWCA Civ 816 The J & P Marlow (No. 2) Pty Ltd v Hayes and McCabe (2023) 112 NSWLR 29; [2023] NSWCA 117 Wilcox v Richardson (1997) 43 NSWLR 4 XL Insurance Co SE v BNY Trust Company of Australia Ltd [2019] NSWCA 215 Texts Cited: N/A Category: Principal judgment Parties: Resource Base Limited (ACN 113 385 425) (First Plaintiff/First Cross Defendant) Broula King Joint Venture Pty Ltd (Second Plaintiff/Second Cross Defendant) John Barry Sutton (Defendant/Cross Claimant) Representation: Counsel: Ms T Fishburn (Plaintiffs/Cross Defendants) Mr J R Willis with Mr M Bui (Defendant/Cross Claimant) Solicitors: Colin Biggers & Paisley (Plaintiffs/Cross Defendants) Coetsee Legal (Defendant/Cross Claimant) File Number(s): 2022/206943 Publication restriction: N/A Judgment Introduction 1. The plaintiffs' principal claim in these proceedings is a claim for specific performance of a contract for the sale of land between the first plaintiff and the defendant, and a claim for an order requiring the defendant to transfer to the first plaintiff on completion an exploration licence that was issued to the defendant in respect of minerals contained within a large area of land which includes the land that is the subject of the contract for sale. The exploration licence was issued after the first plaintiff and the defendant entered into the contract for sale of land. 2. At the commencement of the hearing, the defendant consented to orders for specific performance of the contract for sale of land, and abandoned his cross-claim for specific performance of a different contract that he contended had been created by the contract for sale of land being novated from the first plaintiff to the second plaintiff as purchaser. However, the defendant continued to oppose the first plaintiff's claim for an order requiring him to transfer the exploration licence on completion of the contract for sale of land that is to be specifically performed. 3. The first plaintiff's claim in respect of the exploration licence raised questions about the proper construction of the contract for sale of land and whether that contract includes an implied term requiring the defendant to transfer the exploration licence to the first plaintiff. In substance, it also raised an issue about whether the defendant has derogated from the grant of property made to the first plaintiff under the contract for sale of land by applying for the exploration licence after entering into that contract and refusing to transfer it to the first plaintiff together with the transfer of the title to the land on completion. The parties addressed that additional issue at my request in supplementary written and oral submissions after I had reserved judgment. 4. At the conclusion of the parties' supplementary oral submissions on 6 November 2024, I determined that there was a proper legal and factual basis to make orders for specific performance of the contract for sale of land in the terms consented to by the parties, but that the first plaintiff's claim for an order requiring the defendant to transfer the exploration licence to it on completion of the contract for sale of land must be dismissed. I informed the parties of that decision and made orders accordingly on 6 November 2024 on the basis that my reasons would be published as soon as possible. These are those reasons. Salient facts and relevant procedural history 1. The defendant in these proceedings, Mr John Sutton, is the registered owner of a property known as "The Mines" in Bumbaldry, west of Cowra in New South Wales, comprising the land in [redacted]. 2. The proceedings concern a claim for specific performance of a contract for sale of land dated 29 August 2014 pursuant to which Mr Sutton agreed to sell the land comprising "The Mines" to Resource Base Limited (RBL) for a price of $300,000. The contract provided for completion three years from the date of the contract – that is, on 29 August 2017. That completion date was subsequently extended by mutual agreement between Mr Sutton and RBL on four occasions. The last day for completion under the fourth extension expired on 28 February 2021. 3. At the time the contract was entered into on 29 August 2014, RBL was the sole shareholder of Broula King Joint Venture Pty Ltd (BKJV). Since March 2008, BKJV had held a mining licence over Crown land adjacent to "The Mines" to mine and prospect for gold (ML1617). The terms of ML1617 expressly provided that the mining lease was subject to subsisting rights and interests in the land. Those subsisting rights and interests included a grazing licence number LI383499 which had been granted by the Crown to Mr Sutton in February 2006 in respect of an area of land that included a small part of "The Mines" and a large part of the land that was the subject of ML1617. Mr Sutton and BKJV had entered into a Memorandum of Understanding in September 2008 pursuant to which Mr Sutton agreed for BKJV to have access to that land for the purpose of establishing and operating an open cut gold mine and tailings storage facility, in consideration for certain payments to be made by BKJV to Mr Sutton. 4. In March 2013, BKJV had entered into an arrangement with Mr Sutton whereby Mr Sutton permitted BKJV to access part of "The Mines" to extract clay, which BKJV then used for the purposes of its mining operations on the adjacent ML1617 land, free of charge. Mr Alan Fraser, who was then a director of BKJV and the chairman of BKJV's parent company RBL, gave the following evidence about that arrangement in his affidavit sworn on 15 March 2023: "I agree that BKJV had an agreement with Mr Sutton to remove clay from his property for use on ML1617. I negotiated the agreement with Mr Sutton. In or about February 2013, I was on Mr Sutton's property with Mr Sutton. I had a conversation with Mr Sutton and said words to the effect: "I am looking for clay for use on the mine site. It looks like your property has plenty of clay" Mr Sutton accompanied me around the property in his vehicle looking for a suitable clay site. We found a clay site where the clay pit is currently located. I said words to the effect, "Can we take clay from this site for use on the mine site?" John Sutton said words to the effect, "Yes, and I can use the water for my livestock". We did not discuss payment for the clay. On 4 March 2013 I wrote a letter to Mr Sutton confirming the arrangement in writing … Clay was extracted from the clay pit from about March 2013 …" 1. A copy of the letter dated 4 March 2013 referred to in Mr Fraser's affidavit was tendered in evidence. The letter states: "… an excavator will be mobilised to your place to test the clay depth at your selected site to confirm it is suitable. We note alternative nearby sites are available if required. … BKJV will pay the excavation costs and remove all suitable clay material from your property for use/disposal on the mine site. We have progressed to the stage where earthmoving equipment may be entering your property any day now to begin work on extending the water storage capacity on your property. We note you agree to allow BKJV personnel and equipment to access your property to carry out the work described above. It is further noted that all works to rehabilitate the area including the reinstatement of fences, gates and trees/shrubs shall be completed to the satisfaction of the landowner. This summarises my understanding of our agreement and if you agree could you please confirm acceptance by signing below. If you would like to discuss any aspect please don't hesitate to call." 1. Mr Fraser also gave evidence that the clay pit was suitable for BKJV's mining operations and located conveniently to the mining site, and that he had many meetings with Mr Sutton at "The Mines" regarding BKJV's mining operations and clay extraction. During one of those meetings at some time before August 2014, Mr Sutton said to Mr Fraser: "Would you like to buy my property?". Mr Fraser replied that he would "talk to the board about buying your property". 2. As I have already mentioned, the contract for sale of "The Mines" to BKJV's parent entity, RBL, was entered into on 29 August 2014. 3. The contract identified the land being sold as "The Mines", being the whole of the land in certificates of title folio identifiers [redacted]. The certificates of title attached to the contract for those three parcels of land each contained the following notification: "Land excludes minerals and is subject to reservations and conditions in favour of the Crown – see Crown Grant(s)" 1. The contract included clauses 1 to 29 of the 2005 edition of the Law Society of New South Wales contract for sale of land and special conditions 30 to 52 which prevailed over clauses 1 to 29 to the extent of any inconsistency between those clauses and the special conditions. 2. Clause 10.1 relevantly provided that the purchaser was not entitled to make a claim or requisition, or to rescind or terminate the contract, in respect of "the existence of any authority or licence to explore or prospect for gas, minerals or petroleum". 3. Clause 16.3 provided: "Normally, on completion the vendor must cause the legal title to the property (being an estate in fee simple) to pass to the purchaser free of any mortgage or other interest, subject to any necessary registration." 1. Clause 35 of the contract provided (emphasis added): "35. Non-Reliance on Warranties/Representations 35.1 The Purchaser acknowledges that the Purchaser in entering into this contract: (a) does not rely on any warranty or representation made by the Vendor or any person on behalf of the Vendor except those that are expressly provided in this contract; and (b) has relied entirely on the Purchaser's enquiries relating to and in the Purchaser's inspection of the property; and (c) accepts the property and any chattels and things included in this contract in their present condition. 35.2 Without limiting the generality of this clause, the Purchaser acknowledges that neither the Vendor nor anyone on behalf of the Vendor has made any representation or warranty on which the Purchaser relies as to: (a) the state of repair of any improvements on the property; (b) the rights and privileges relating to the property; (c) the fitness or suitability for any particular purpose or otherwise of the property or any part of it; or (d) of any financial return or income to be derived from the property. 35.3 The Purchaser is not entitled to: (a) make any requisition, claim or objection about; or (b) rescind, terminate or delay completion of this contract because of, any of the matters referred to in this clause." 1. Clause 50 of the contract provided: "50. Grazing Licence The Vendor will on or before completion execute all necessary documents to transfer Licence number LI383499 to the Purchaser." 1. The grazing licence that is the subject of clause 50 is the licence referred to at [7] above, the geographical scope of which overlapped with BKJV's mining lease. 2. Clause 52 of the contract provided: "52. Broula King Joint Venture Pty Ltd 52.1 The vendor currently has the following agreements (copies attached) with Broula King Joint Venture Pty Ltd: • Residential lease dated 2 May 2006; • Memorandum of Understanding – Broula King Gold Project dated September 2008; and • Clay excavation agreement dated 4 March 2013. 52.3 Broula King Joint Venture Pty Ltd is a wholly–owned subsidiary of the purchaser. 52.4 In relation to the residential lease dated 2 May 2006 the vendor agrees that no rent will be payable by Broula King Joint Venture Pty Ltd to the vendor from 30 April 2014 until completion, provided however that in the event that this contract is terminated for any reason prior to completion then such rent will become payable as and from 30 April 2014 and will be recoverable by vendor as a debt due and payable by Broula King Joint Venture Pty Ltd. 52.5 In relation to the Memorandum of Understanding and clay excavation agreements it is the intention of the parties that these agreements remain binding on the parties pending completion of this contract. 52.6 On completion it is the intention of the parties that all agreements between the vendor and Broula King Joint Venture Pty Ltd will be terminated and the purchaser warrants that Broula King Joint Venture Pty Ltd consents to the transfer and/or early termination of the agreements listed in clause 52.1 above." 1. The Memorandum of Understanding and clay excavation agreement referred to in clause 52 of the contract are the agreements to which I have referred at [7] and [8] above. 2. At the time the contract was entered into, s 5 of the Mining Act 1992 (NSW) prohibited the prospecting or mining for any mineral except in accordance with an authorisation in force in respect of that mineral and the land where the prospecting or mining is carried on. The Act defined prospecting as carrying out works on land, or removing samples from land, for the purpose of testing the mineral bearing qualities of the land. The Act defined mining as including the extraction of material from land for the purpose of recovering minerals from that extracted material. Mineral was defined as including any substance prescribed by the regulations as a mineral. The substances so prescribed included clay/shale. 3. The Act provided for different types of authorisation that might be granted for prospecting or mining, including an exploration licence (Part 3 of the Act), and a mining lease (Part 5 of the Act). 4. Relevantly for present purposes, the Act provided that any person may apply for an exploration licence or a mining lease. However, an exploration licence or mining lease may not be granted over land that is already the subject of an exploration licence including the same minerals, or over land that is already the subject of a mining lease, without the written consent of the holder of the existing exploration licence or mining lease. [1] 5. Division 2 of Part 7 of the Act provided for the holder of an exploration licence or mining lease to transfer that authority to another person, with the approval of the Director-General. 6. Division 2 of Part 8 of the Act provided that the holder of an exploration licence must not carry out prospecting operations on any particular area of land except in accordance with access arrangements agreed with the landholder or determined by arbitration in accordance with Division 2 of Part 8. 7. As I have already mentioned, the contract provided for completion to occur on 29 August 2017, being three years from the date of the contract. 8. On 24 August 2017, Mr Sutton and RBL agreed in writing to extend the completion date to 29 August 2018, or such earlier date as may be fixed by mutual agreement. 9. On 21 August 2018, Mr Sutton and RBL agreed in writing to extend the completion date to 29 August 2019, or such earlier date as may be fixed by mutual agreement. 10. On 3 July 2019, Mr Sutton and RBL agreed in writing to extend the completion date to 29 August 2020, or such earlier date as may be fixed by mutual agreement. 11. On 29 July 2020, Mr Sutton and RBL agreed in writing to extend the completion date to 28 February 2021, or such earlier date as may be fixed by mutual agreement. 12. Each of those extension agreements included a term that, from the date of the extension agreement until completion of the contract for sale of land, RBL "has the right to conduct exploration drilling on the property except upon that part of the property designated as excluded from drilling upon the plan annexed to this agreement". The plans annexed to the extension agreements were not tendered in evidence. 13. Each extension agreement also included a term that the terms and conditions of the contract for sale of land, including clause 52, continued to bind the parties pending completion, except to the extent that they were varied by the extension agreement. The variations related to the completion date, and certain other matters such as the payment of interest by RBL to Mr Sutton which are not relevant to the issues raised by the plaintiffs' claim in prayer 8 of the amended statement of claim. 14. On 18 December 2020, RBL sold its shares in BKJV to Broula King Enterprises Pty Ltd (BKE). On the same date, Sunshine Reclamation Pty Ltd (SRP), which is the major shareholder in BKE, entered into a Deed of Undertaking in favour of RBL in which SRP undertook to provide reasonable assistance and support to RBL to ensure that the contract for sale of "The Mines" would be novated from RBL to BKJV as purchaser or, alternatively, SRP would put RBL in funds to complete the contract and to then transfer "The Mines" to BKJV or its nominee at no cost to RBL. 15. Following its acquisition of the shares in BKJV on 18 December 2020, BKE opened negotiations with Mr Sutton for the novation of the contract for sale of "The Mines" to BKJV as purchaser. Mr Daryl Young conducted those negotiations on behalf of BKE and BKJV. Mr Young was, and remains, a director of SRP, the sole director of BKE, and a director of BKJV. It is now common ground that those negotiations did not result in the novation of the contract to BKJV. As will become apparent below, that was conceded by Mr Sutton only on the eve of the hearing of these proceedings. 16. According to Mr Young's unchallenged evidence in these proceedings, Mr Sutton declined to complete the contract for sale of land, citing various reasons, throughout February and March 2021. A stalemate ensued for the following fourteen months, during which there appears to have been an ongoing dispute between the parties about the calculation of the amount payable on settlement, in addition to disputes about various other matters associated with BKJV's mining lease and Mr Sutton's grazing licence. 17. On 10 December 2021, RBL granted a power of attorney to Mr Young and SRP appointing them jointly and severally as RBL's attorney to do all things reasonably necessary to complete the contract for sale of land dated 29 August 2014, and to commence legal proceedings in this Court for specific performance of the contract, or such other remedies as may be advised. On 27 May 2022, RBL issued a notice to Mr Sutton requiring him to complete the contract for sale of land on 14 June 2022, time being of the essence. 18. Mr Sutton failed to comply with that notice, and RBL commenced these proceedings on 15 July 2022, seeking orders for specific performance of the contract. In his defence filed on 21 August 2022, Mr Sutton pleaded that the contract had been novated on 17 March 2021 so that BKJV became the purchaser of "The Mines" for the sum of $464,826.50. Mr Sutton filed a cross-claim on 8 February 2023 against RBL and BKJV seeking orders for specific performance of the alleged novated contract, together with damages for alleged breaches of an agreement said to have been made between Mr Sutton and BKJV in 2006 to rent part of the "The Mines" to BKJV, and damages against BKJV for alleged trespass. 19. RBL and BKJV denied the claims made by Mr Sutton in his cross-claim, but RBL amended its claim on 15 February 2024 by joining BKJV as a second plaintiff to the proceedings. RBL maintained its claim for specific performance of the contract entered into on 29 August 2014, contending that no binding agreement had been entered into for the novation of that contract to BKJV. In the event that the contract was found to have been novated to BKJV, the plaintiffs pleaded an alternative claim for specific performance of the novated contract and contended that the terms of the novation agreement had not increased the purchase price for the land. 20. The amended statement of claim filed on 15 February 2024 also sought the following relief in prayer 8: "The Defendant to take all steps to cause the transfer of the Clay Licence to the Plaintiff or the Plaintiff's nominee forthwith." 1. In relation to that claim for relief, the amended statement of claim pleaded that: "33. In or about early 2023, the Defendant took steps to apply for a clay exploration licence in respect of the Land despite the First Plaintiff and or the Second Plaintiff having incumbent rights to the Land (Application). 34. On or about 9 February 2023, the First Plaintiff and or the Second Plaintiff requested the Defendant to withdraw the Application. Particulars Email from Michael McHugh to Patrick Coetsee dated 9 February 2023. 35. The Defendant knew, or ought to have known, that an application for a clay exploration licence in respect of the Land negatively impacted the interest in the Land of the First Plaintiff and or the Second Plaintiff. Particulars Conversations between the Defendant and representatives of the Plaintiffs. 36. The Defendant declined to withdraw the Application. 37. On or about 13 April 2023, the Defendant obtained a clay exploration licence in respect of the Land (Clay Licence). Particulars Clay Licence 9553 38. The granting of the Clay Licence undermines the interest in the Land of the First Plaintiff and or the Second Plaintiff." 1. The evidence discloses that Mr Sutton in fact applied for the exploration licence in respect of Group 5 minerals (which include clay) on 25 November 2022. The plaintiffs' solicitor wrote to Mr Sutton on 9 February 2023 demanding that he withdraw the application, asserting that Mr Sutton was acting in breach of clause 16.3 of the contract by "adversely encumber[ing]" the land by making the application. Mr Sutton's solicitor replied on 17 February 2023 asking the plaintiffs' solicitor to set out their understanding of how an exploration licence could be said to be an encumbrance, which Mr Sutton's solicitor disputed. There is no evidence that the plaintiffs' solicitor ever replied to that letter. 2. EL9553 was granted to Mr Sutton on 13 April 2023. That licence entitles Mr Sutton to prospect for Group 5 minerals, which include clay/shale, over a large area of land adjacent to ML1617 that includes, but is significantly larger than the area of "The Mines", for a term of six years expiring on 13 April 2029. 3. Mr Young gave the following evidence: "9. The SRP group of companies is in the business of reclaiming abandoned mine sites currently polluting the environment, recycling abandoned mine waste using advanced technology and remediating hazardous toxic sites to the most natural environment possible. … 73. When BKE purchased the share capital of BKJV, access to the clay on The Mines Property was critical to the acquisition of the shares for the extraction of clay by BKJV to remediate the tailings storage facility within ML1617 and to deal with environmental contamination issues. 74. The mining site operated by BKJV on ML1617 includes an on-site crushing circuit, and an acid leaching facility. Originally the site was used to process gold but in the last 8 years it has been on care and maintenance. The site is subject to a number of Notices by the NSW Resource Regulator relating to environmental contamination issues. 75. The Mines Property is critical to the mining operations of BKJV, as it contains sustainable quantities of clay, a commodity with essential sealing qualities. Clay enables the sealing of leaching from the front wall of the tailings storage facility within ML1617. Rock contained in the wall face generates acid with rain events resulting in leaching of acid and heavy metals into the water system from BKJV's mine which is the subject of one of the notices issues by the NSW Resource Regulator. 76. Clay is thus an essential commodity in the remediation of the mine site to remove the NSW Resource Regulator notice. Nevertheless, the availability of clay is an economic consideration to the viability of the mining operation. In BKJV's research it has found that the cost implications of obtaining suitable clay vary with the distance of its source to the mine..." 1. RBL will acquire the legal title to "The Mines" on completion of the contract for sale of land dated 29 August 2014 in accordance with the orders for specific performance that are to be made by consent of the parties. I infer from the provisions of the Deed of Undertaking referred to at [33] above that RBL will then transfer that title to SRP, or its nominee. That title will not confer any rights on RBL, or on any transferee of the land from RBL, to prospect for or mine the clay, which is expressly excluded from the title to the land. RBL, or the subsequent transferee, will be entitled to apply for an exploration licence or mining lease in respect of the clay pursuant to s 13 or s 51 of the Mining Act. However, by reason of ss 19 and 58 of the Mining Act, no exploration licence or mining lease will be granted to it in respect of clay without the consent of Mr Sutton as the holder of EL9553. 2. During the period in which these proceedings have been on foot, Mr Sutton's grazing licence referred to in clause 50 of the contract for sale of land was terminated by the Crown in October 2022 in the context of ongoing disputes between Mr Sutton and BKJV arising from conflicts between BKJV's activities under ML1617 and Mr Sutton's activities under the grazing licence. 3. The proceedings were listed for hearing commencing on 2 October 2024. 4. On 30 September 2024, Mr Sutton abandoned his contention that the contract to be performed was a novated contract that he had previously alleged had been entered into on 17 March 2021. Mr Sutton accepted that the contract dated 29 August 2014 should be performed, and submitted that he was ready, willing, and able to do so. Mr Sutton contended that, in circumstances where all parties were ready, willing and able to perform, the Court should not make any order for specific performance. Mr Sutton opposed the plaintiffs' claim in prayer 8 of the Amended Statement of Claim, and submitted that the pleading of that claim did not disclose any cause of action. Mr Sutton abandoned the monetary claims in his cross-claim, save for a claim for interest in the sum of $2,205 allegedly owing by RBL under the extension agreements referred to at [27]-[32] above. RBL settled that interest claim with Mr Sutton prior to the commencement of the hearing. 5. On the morning of the first day of the hearing, the issues were narrowed further when Mr Sutton consented to orders for specific performance of the contract for sale of land dated 29 August 2014. The terms of the orders to which Mr Sutton consents are the orders sought by RBL for specific performance of the contract in prayers 1 to 6 of the amended statement of claim filed on 15 February 2024, incorporating minor changes to which all parties consented during the course of the hearing: "1. A declaration that the First Plaintiff is entitled to the specific performance of a contract for the sale of land being [redacted] (Land) between First Plaintiff as purchaser and the Defendant as Vendor dated 29 August 2014 (Contract). 2. An order that the Defendant specifically perform the Contract within 28 days of the date of these orders, with the exception of clause 50 which the parties agree can no longer be performed due to the cancellation by the Crown of grazing licence 383499. 3. In default of the Defendant complying with the order referred to in paragraph 2 above, an order that the Registrar or a Deputy Registrar of this Honourable Court be empowered to execute all such instruments and do all such things in the name and on behalf of the Defendant, as may be necessary in order to specifically perform the Contract and directions appointing the Registrar to so act. 4 An order that the Defendant vacate the Land upon completion. 5. The Defendant do all acts and things and sign all documents to transfer the title to the Land to enable registration of the title to the Land to the First Plaintiff as registered proprietor. 6. In default of the Defendant doing all acts and things and signing all documents to enable the First Plaintiff to register the Transfer of the Land to the First Plaintiff, the Registrar of [sic] a Deputy Registrar of this Honourable Court be empowered to do all acts and things and sign all documents on the First Plaintiff's behalf." 1. Subject to the question of costs, the only issue remaining to be determined by the Court is the plaintiffs' claim in prayer 8 of the amended statement of claim for an order that Mr Sutton transfer EL9553 to "the Plaintiff" forthwith. 2. At the conclusion of the hearing on 2 October 2024, RBL submitted, and Mr Sutton accepted, that the Court should make the orders for specific performance set out at [48] above, amended to require Mr Sutton to transfer EL9553 to RBL in the event that the Court determines the claim in prayer 8 in favour of RBL, reserving the question of costs and also reserving to RBL the right to apply for an order permitting it to set off against the purchase price payable to Mr Sutton under the contract to be specifically performed any sum that Mr Sutton may be liable to pay to RBL pursuant to any costs order made in these proceedings. Consideration and determination The nature of the claim in prayer 8 and the issues for determination 1. The plaintiffs' claim for an order requiring Mr Sutton to transfer EL9553 to "the Plaintiff" was pleaded as an independent claim for relief, and did not identify which of the two plaintiffs the claim related to. 2. On 1 October 2024, the plaintiffs re-cast that claim as part of the terms of the orders sought by RBL for specific performance of the contract for sale of land dated 29 August 2014. As discussed in more detail below, the plaintiffs submit that the contract for sale of land, properly construed requires Mr Sutton to transfer EL9553 to the purchaser expressly or by implication. Thus, an order for specific performance of the contract would include a specific order requiring the transfer of EL9553 to RBL. During the hearing on 2 October 2024, the plaintiffs submitted in the alternative that, even if Mr Sutton was not contractually obliged to transfer EL9553 together with the title to "The Mines" on completion of the sale contract, he was creating an "untenable" situation by consenting to an order for specific performance of the sale contract, yet resisting the transfer of EL9553, because EL9553 "goes to the heart of what is being conveyed" by the sale contract, and it would "play a mockery on" the equitable remedy of specific performance if the parties were ordered to perform the sale contract without Mr Sutton also being required to transfer EL9553 to RBL. It was submitted that the Court therefore has power to order the transfer of EL9553 as an "equitable overlay" of its jurisdiction to order specific performance of the sale contract, even if the contract itself does not oblige Mr Sutton to transfer EL9553. However, by the conclusion of the hearing on 2 October 2024, counsel for the plaintiffs accepted that the issue raised by prayer 8, cast as part of the plaintiffs' claim for specific performance was simply whether the contract, properly construed, requires Mr Sutton to transfer EL9553 to RBL on completion of the contract. 3. After the conclusion of the hearing on 2 October 2024, it occurred to me that the substance of the plaintiffs' submissions seeking to invoke an "equitable overlay" of the specific performance jurisdiction to require parties to do things not required by the contract might be akin to reliance on the common law doctrine of non-derogation from grant, although the submissions had not been framed in that way. I therefore called for submissions from the parties in relation to the question whether the common law doctrine of non-derogation from grant has any application to the plaintiffs' claim for relief in prayer 8 of the amended statement of claim. As I have mentioned earlier in these reasons, the parties then provided further written submissions, which they had the opportunity to supplement orally at a short further hearing on 6 November 2024. Applicable legal principles 1. As the High Court stated in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd, [2] and reaffirmed in Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd: [3] "It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it." 1. The commercial purpose or object of the contract is to be ascertained by reference to the genesis of the transaction, the background, the context and market in which the parties are operating, and the terms of the contract itself. [4] 2. The Court is entitled to approach the task of construing a clause in a commercial contract on the basis that the parties intended to produce a commercial result, meaning one which makes commercial sense. This requires that the clause be construed in a manner that is consistent with the commercial object of the contract, objectively ascertained. [5] At the same time, the commercial object attributed to the contract cannot be used to give the words of the contract a meaning that they cannot reasonably bear, [6] and caution is required when resort is had to assertions of commercial sense (or, conversely, commercial inconvenience) as a reason for construing a commercial contract in a manner that departs from the ordinary meaning of the language that the parties have in fact used. [7] There is "no licence for 'judicial rewriting' of an agreement". [8] The Court is not permitted to depart from the ordinary meaning of the words used by the parties merely because it regards the result as inconvenient or unjust. [9] 3. As the submissions made on behalf of the plaintiffs acknowledged, post-contractual conduct is not admissible to construe the words of a written contract. [10] 4. The conditions necessary to imply a term in a contract are well-established. The term must be reasonable and equitable, necessary to give business efficacy to the contract (so that no term will be implied if the contract is effective without it), and so obvious that it goes without saying. It must also be capable of clear expression, and it must not contradict any express term of the contract. The term must be assessed against those criteria as at the time the contract was entered into. [11] 5. It is a principle of general application that a grantor must not derogate from his or her grant. Thus, relevantly for present purposes, a person who sells land in circumstances where it is within the reasonable contemplation of both parties to the transaction that the purchaser will use the land for a particular purpose, the vendor must not hamper the use of the land for that purpose by the purchaser. As counsel for the plaintiffs submitted, the intention on which the doctrine of non-derogation of grant operates is the common intention which is presumed or imputed to the parties, rather than their actual subjective intentions. To the extent that the judgments of the Court of Appeal and the Supreme Court in Bocardo v Star Energy might be read as suggesting otherwise, that is not the law in New South Wales. [12] In ascertaining the presumed intention of the parties, it is permissible to have regard to the circumstances surrounding the grant. The doctrine of non-derogation from grant generally operates by implying in the primary grant of property a right that is necessary for the reasonable enjoyment of the property that is the subject of the primary grant. Thus, the ambit of the primary grant is central to the scope of the grantor's obligation not to derogate from the grant. [13] In Bankstown Trotting Recreational Club Ltd v Chisholm, Beazley P (as her Excellency then was), with whom the other members of the Court of Appeal agreed, referred with approval to the following statement of Younger LJ in Harmer v Jumbil (Nigeria) Tin Areas Ltd: [14] "The rule is clear but the difficulty is, as always, in its application. For the obligation laid upon the grantor is not unqualified. If it were, that which was imposed in the interest of fair dealing might, in unscrupulous hands, become a justification for oppression, or an instrument of extortion. The obligation therefore must in every case be construed fairly, even strictly, if not narrowly. It must be such as, in view of the surrounding circumstances, was within the reasonable contemplation of the parties at the time when the transaction was entered into, and was at that time within the grantor's power to fulfil. But so limited, the obligation imposed may, I think, be infinitely varied in kind, regard being had to the paramount purpose to serve which it is imposed." Construction of the contract for sale of land 1. Counsel for the plaintiffs submitted that the Court should incorporate in orders for specific performance of the contract for sale of land an order requiring Mr Sutton to take the steps to cause EL9553 to be transferred to RBL because the contract was a contract for the sale of land that was not subject to an exploration licence. It was submitted that RBL had contracted for "the benefit of the land" which, at the time the contract was entered into on 29 August 2014, was not affected by any exploration licence. It was submitted that an order for specific performance should therefore be made in terms which ensured that the land would be transferred to RBL "as it was when [RBL] bargained for it". 2. Counsel for the plaintiffs relied on the circumstances surrounding the entry into the contract for sale of land, referring to the evidence which I have summarised at [7]-[10] above. Counsel for the plaintiffs acknowledged that the relevant surrounding circumstances also included the statutory regime for the prospecting and mining of clay referred to at [21]-[25] above. 3. Counsel for the plaintiffs also relied on clause 16.3 of the contract as supporting the construction of the contract as a contract for sale of the land unaffected by any exploration licence. As referred to at [15] above, clause 16.3 requires Mr Sutton to transfer title to the land to RBL on completion "free of any mortgage or other interest". Counsel for the plaintiffs initially submitted that the words "other interest" were sufficiently wide to include "something as significant as the encroachment which comes with the granting of an exploration licence over the land". Counsel then acknowledged that the words "other interest" in clause 16.3 refer to an interest in the land, and that the land that is the subject of the contract expressly excludes the minerals, as stated in the notifications on the certificates of title annexed to the contract. It was then submitted that the interest in land to be transferred to RBL on completion would be "compromised" or "impacted" by the existence of an exploration licence in respect of the land, because the interest of the incoming purchaser in obtaining a mining lease in respect of the land would be thwarted by the granting of an exploration licence to the vendor or another person, whose consent would be required before a mining lease could be granted to the purchaser. 4. Counsel for the plaintiffs also relied on the express provision in clause 50 of the contract for the transfer of Mr Sutton's grazing licence to RBL on completion. It was submitted that "the effect of this particular provision is to speak the universe of licences which Mr Sutton held in respect of that property at the time that the contract was entered into" and that "it follows that the contract did not include Mr Sutton holding any other licence, including an exploration licence". It was submitted that, understood in that way, clause 50 provides further support for interpreting the contract as a contract for sale of the land affected by the grazing licence, but unaffected by any other licence. 5. Alternatively, it was submitted that the construction of clause 50 propounded by the plaintiffs supported the implication of a term in the contract that, if any licence other than the grazing licence was granted to the vendor before completion in respect of the land, that licence would be transferred to the purchaser on completion. 6. Counsel for the plaintiff also relied on clause 52 of the contract, submitting that this clause was intended to capture "the universe of … dealings with the parties". It was submitted that the clay excavation agreement, which RBL and Mr Sutton intended would remain on foot pending completion of the sale contract, as recorded in clause 52 of the sale contract, was "essentially in contradiction to the granting of an exploration licence because there is already extraction taking place on a contractual basis" and that it "plays [a] mockery" on clause 52 for Mr Sutton to obtain an exploration licence over land which included the area that was subject to the clay excavation agreement. It was submitted that these matters provided further support for the plaintiffs' construction of the contract as a contract for the sale of land unaffected by any exploration licence or, alternatively, for the implication of a term that any exploration licence obtained by Mr Sutton pending completion of the contract would be transferred to the purchaser on completion. 7. Counsel for the plaintiffs submitted that if the contract were not construed in the manner for which RBL contends, or if it did not include the implied term referred to above, then it would be contrary to commercial common sense because both parties would be "effectively stymied", in that RBL would be precluded from obtaining its own exploration licence or a mining lease to extract clay from the land without Mr Sutton's consent, and Mr Sutton would be precluded from exercising his rights under the exploration licence after completion of the sale contract without negotiating an access arrangement with RBL. It was submitted that, having regard to the history of protracted disputes between Mr Sutton, RBL and BKJV, this would be "an untenable position" and contrary to "the purpose of the Mining Act, which is for mining activities to be carried out". 8. I reject the plaintiffs' submission that the contract which RBL entered into with Mr Sutton on 29 August 2014 is a contract for the sale of land that is not subject to an exploration licence. 9. As counsel for the defendant submitted, the plain and unambiguous terms of the description of the property on the first page of the contract and the attached certificates of title identify the subject matter of the contract as the land excluding the minerals. 10. Clause 10.1 expressly contemplates that the land may become the subject of an exploration licence, for which any person has a statutory right to apply. 11. The vendor's obligation under clause 16.3 to transfer title to the property to the purchaser on completion free of any mortgage or other interest has no bearing on any exploration licence in existence at the time of completion. The concession made by counsel for the plaintiffs that the words "other interest" in clause 16.3 refer to an interest in the land, is plainly correct. An exploration licence is not an interest in land, but a statutory licence that permits the carrying out of certain activities on the land only if the holder has secured access arrangements by agreement with the landowner or through the statutory arbitration process. The plaintiffs' description of EL9553 as compromising the interest in land that is to be transferred to RBL on completion of the sale contract does not bring the exploration licence within the plain meaning of the words "other interest" in clause 16.3. In any event, I reject the plaintiffs' submission that the fee simple estate to be transferred to RBL is compromised or negatively impacted by the existence of an exploration licence. As things presently stand, any potential negative impact is limited to the need for RBL (or the successor in title to whom RBL transfers the land after completion as contemplated by the Deed of Undertaking referred to at [33] above), or any subsidiary of RBL that wishes to extract clay from the land, to negotiate Mr Sutton's consent to the grant of the mining lease that it must obtain in order to lawfully extract from the land the clay that BKJV (under the ownership of BKE and SRP) now wishes to extract, according to Mr Young's evidence. [15] The evidence does not support the plaintiffs' submission that this has thwarted RBL's interest as purchaser in obtaining a mining lease to extract clay from the land, or that RBL or its successor in title will be precluded from obtaining a mining lease. There is no evidence that RBL has taken any step to seek Mr Sutton's consent to a mining lease. To date, RBL has merely demanded that Mr Sutton withdraw his application for the exploration licence, and the sole premise of that demand was RBL's erroneous interpretation of clause 16.3 of the sale contract. RBL's purchase of the fee simple estate in the land (excluding the minerals) under the contract dated 29 August 2014 was not capable of circumventing the statutory requirement for a mining lease in order for RBL or BKJV to lawfully extract clay from the land. Thus, the fee simple estate itself is not compromised or negatively impacted by the grant of EL9553 in favour of Mr Sutton. 12. Clause 35 of the contract expressly excludes reliance by the purchaser on any representation or warranty by the vendor not expressly recorded in the contract, including any warranty as to the rights and privileges relating to the property. Contrary to the plaintiffs' submissions, clause 50 does not amount to an express representation or warranty by the vendor that the grazing licence is the only licence held by the vendor in respect of the land being sold. Any implied representation or warranty to that effect is effectively excluded by clause 35. 13. BKJV is not a party to the contract for sale of land, but is a party to the arrangements with Mr Sutton referred to in clause 52 of the contract. Clause 52.5 records the intention of Mr Sutton and RBL that the Memorandum of Understanding and clay excavation agreement will remain binding on the parties – that is, Mr Sutton and BKJV, as the parties to those agreements – pending completion of the sale contract. Neither the recording of that intention, nor RBL's warranty that BKJV consents to the termination of the Memorandum of Understanding and clay excavation agreement on completion of the sale contract, supports a construction of the sale contract as one for the sale of the land unaffected by any exploration licence, contrary to the express terms to which I have referred above. As I have already said, any person has a right to apply for an exploration licence, and Mr Sutton had neither the power nor the ability to quarantine the land from the statutory regime governing exploration licences. 14. The circumstances known to both parties at the time they entered into the contract for sale of land do not support the construction of the contract propounded by the plaintiffs. BKJV was extracting clay from the land – without any exploration licence or mining lease, but with Mr Sutton's consent – for use for the purposes of its mining operations on the adjacent land the subject of ML1617. Mr Sutton had dealt with Mr Fraser as a representative of BKJV. When Mr Sutton asked Mr Fraser if he wanted to buy the land, Mr Fraser told him that would "talk to the board". There is no evidence that Mr Sutton knew the details of the relationship between BKJV and RBL which subsequently entered into the contract to purchase the land, but I infer that Mr Sutton knew that there was some relationship between the two entities. The evidence does not provide a sufficient basis to infer that RBL decided to acquire "The Mines" for the purpose of securing long-term access to the clay deposits that BKJV was using for its mining operations on ML1617, let alone that Mr Sutton knew of any such purpose or intention on the part of RBL. According to Mr Fraser's evidence, BKJV did not even seek access to the clay on "The Mines" until five years after it obtained ML1617. Mr Fraser describes BKJV's use of the clay at that time in 2013, and at the time when RBL entered into the sale contract in August 2014, as a matter of convenience rather than as something of material importance to BKJV's mining operations under ML1617. BKJV had rights to access part of "The Mines" pursuant to the Memorandum of Understanding that it had entered into with Mr Sutton in September 2008 for the purpose of its ML1617 mining operations. The evidence casts no light on the importance to RBL and BKJV of securing those access rights for the long-term, and any role that this played in RBL's decision to enter into the sale contract in August 2014. Mr Young's evidence is directed to the present purpose and subjective intention of BKJV under the ownership of BKE and SRP. Mr Young's evidence does not speak to the purpose and subjective intention of RBL in entering into the sale contract in August 2014, let alone the knowledge and intention of Mr Sutton at that time. In any event, a right to lawfully extract clay from "The Mines" is not something that RBL could acquire by purchasing from Mr Sutton the fee simple estate in the land excluding the minerals. That right could only be obtained by RBL applying for a mining lease. Under the Mining Act, RBL had a statutory right to make such an application, irrespective of whether it entered into any contract to purchase the land from Mr Sutton. A reasonable businessperson with knowledge of the circumstances to which I have referred, and with knowledge of the statutory regime which forms part of those surrounding circumstances, would not have understood the language used by the parties in the contract, including the specific clauses to which I have referred above, to mean that Mr Sutton was obliged to transfer the land to RBL free of any exploration licence on completion. 15. I reject the plaintiffs' submission that this construction of the contract – as a contract for the sale of the land, irrespective of whether the land was subject to an exploration licence on completion – is contrary to commercial sense. There is nothing uncommercial about RBL having to apply for the right to extract the clay through the statutory regime. It is telling that, notwithstanding the three-year period provided for completion, the contract did not contain any provision making completion conditional on RBL obtaining any exploration licence or mining lease in respect of the clay. In my opinion, the reasonable businessperson with knowledge of the surrounding circumstances referred to above would have understood that RBL was contracting to purchase the land irrespective of whether an exploration licence or mining lease would ultimately be granted to RBL permitting extraction of the clay. 16. I reject the plaintiffs' submission that the sale contract included an implied term that if any licence other than the grazing licence was granted to the vendor before completion in respect of the land, that licence would be transferred to the purchaser on completion. The proposed term does not meet the five conditions required for the implication of a term. In particular, it contradicts the express terms of the contract which provide for the sale of the land excluding the minerals, and which expressly exclude a right for the purchaser to make any claim or requisition, or to rescind or terminate the contract, on the grounds of the existence of any licence to explore or prospect for minerals. Moreover, it is neither reasonable nor equitable to imply the proposed term that would require Mr Sutton to transfer EL9553 in addition to transferring the fee simple estate in the land excluding the minerals, at no additional cost to the purchaser. That is all the more so having regard to the fact that the geographical scope of EL9553 far exceeds the area of "The Mines" property that Mr Sutton is obliged by the sale contract to transfer to RBL on completion. Finally, the proposed implied term is not necessary to give business efficacy to the sale contract because, at the time the contract was entered into, it was open to RBL to apply for and obtain rights to extract clay from the land in accordance with the Mining Act. Indeed, that remained the case for eight years after RBL entered into the sale contract, until Mr Sutton applied for the exploration licence in November 2022. It remains the case today, save that RBL (or any other applicant for a mining lease for the extraction of clay) will need to negotiate Mr Sutton's consent to the grant of the mining lease in order to fulfill the statutory requirements under the Mining Act. Derogation from grant? 1. For the reasons explained at [60]-[75] above, the evidence of the circumstances surrounding Mr Sutton and RBL's entry into the contract for sale of land on 29 August 2014 does not support imputing to the parties a common intention that RBL would gain access to, and an entitlement to use, clay deposits on "The Mines" by purchasing the land. I reject the plaintiffs' submissions to the contrary. 2. On the proper construction of the contract for sale of land, Mr Sutton granted RBL an interest in the land excluding the minerals. Mr Sutton has not derogated from that grant by applying for and obtaining EL9553 in respect of a large area of land that includes, but is not limited to, "The Mines". To put it another way, the doctrine of non-derogation from grant does not require the implication in the sale contract of a right for RBL to receive a transfer of Mr Sutton's rights under EL9553. The doctrine would operate as an instrument of extortion in this case if Mr Sutton were obliged to transfer those rights, the geographical scope of which extends far beyond "The Mines", to RBL for no consideration. 3. At the hearing on 6 November 2024, the plaintiffs relied on the terms of the extension agreements that the parties entered into between 2017 and 2020, which granted RBL a right to conduct "exploration drilling" on part of "The Mines" pending completion of the contract for sale of land. [16] Counsel for the plaintiffs submitted that these terms of the extension agreements support imputing to the parties a common intention at the time they entered into the contract for sale of land – between three and six years prior to the extension agreements – that RBL would gain access to, and an entitlement to use, clay deposits on "The Mines" by purchasing the land. I reject that submission. Applying the principles referred to at [54] above, I do not consider that a reasonable businessperson in the position of the parties at the time the extension agreements were made would have understood the words "exploration drilling" to refer to excavation of clay, or exploratory activities preliminary to the excavation of clay from "The Mines". The reasonable businessperson is to be imputed with the knowledge that BKJV and Mr Sutton had identified clay excavation sites in 2013 based on a visual inspection of the surface of the land conducted by Mr Fraser driving around the property with Mr Sutton, followed by excavation to test the clay depth, without any exploratory drilling. [17] The reasonable businessperson is also to be imputed with the knowledge that BKJV held ML1617 over Crown land adjacent to "The Mines" which entitled it to mine and prospect for gold. [18] In my opinion, the reasonable businessperson in the position of the parties, including knowledge of those circumstances, would have most likely understood the reference to "exploration drilling" in the extension agreements as a reference to exploration activities directed to RBL investigating the possibility of BKJV applying for an exploration licence or mining lease to expand its existing gold mining operations to "The Mines". Conclusion and orders 1. I am satisfied on the basis of the evidence summarised above that there is a proper basis in fact and law for the Court to make the declaration sought by the plaintiffs, which was opposed by Mr Sutton until the first day of the hearing but which he consented to on that day, and that RBL is entitled to specific performance of the sale contract. For all of the foregoing reasons, the orders for specific performance will be made in the terms consented to by the parties and will not include an order in the terms of prayer 8 of the amended statement of claim. The doctrine of non-derogation from grant does not entitle the plaintiffs to an order in terms of prayer 8 of the amended statement of claim. For completeness, the defendant's abandoned cross-claim, and the plaintiffs' alternative claims for relief in the amended statement of claim which were essentially responsive to that cross-claim, will be dismissed. 2. The declaration and orders made on 6 November 2024 were in the following terms: 1. By consent: 1. DECLARE that the First Plaintiff is entitled to the specific performance of a contract for the sale of land being [redacted] (Land) between First Plaintiff as purchaser and the Defendant as vendor dated 29 August 2014 (Contract). 2. ORDER that the Defendant specifically perform the Contract within 28 days of the date of these orders, with the exception of clause 50 which the parties agree can no longer be performed due to the cancellation by the Crown of grazing licence 383499. 3. In default of the Defendant complying with the order referred to in (b) above, ORDER that the Registrar or a Deputy Registrar of this Court be empowered to execute all such instruments and do all such things in the name and on behalf of the Defendant, as may be necessary in order to specifically perform the Contract, and DIRECT that the Registrar and Deputy Registrars are appointed to so act. 4. ORDER that the Defendant deliver up vacant possession of the Land to the First Plaintiff upon completion of the Contract. 5. ORDER that the Defendant do all acts and things and sign all documents to transfer the title to the Land to the First Plaintiff and to enable registration of the First Plaintiff as registered proprietor of the Land. 6. In default of the Defendant doing all acts and things and signing all documents to enable the First Plaintiff to register the Transfer of the Land to the First Plaintiff, ORDER that the Registrar or a Deputy Registrar of this Court be empowered to do all acts and things and sign all documents on the First Plaintiff's behalf. 1. ORDER that the Amended Statement of Claim is otherwise dismissed. 2. ORDER that the Cross-Claim is dismissed. 3. Reserve the question of the costs of the proceedings. 4. Reserve liberty to the First Plaintiff to apply for an order for equitable set off of the amount of any costs that the Defendant may be ordered to pay to the First Plaintiff in these proceedings against the amount of the purchase price payable by the First Plaintiff to the Defendant on completion of the Contract. 1. I will hear the parties in relation to costs. As I indicated at the hearing on 6 November 2024, my preliminary view is that costs should follow the event of the plaintiffs' claim for specific performance, save that the plaintiffs should pay the defendant's costs of the proceedings on and from 2 October 2024. The costs from that date were incurred solely in relation to the plaintiffs' unsuccessful claim for an order in terms of prayer 8 of the amended statement of claim. ********** Endnotes 1. Mining Act 1992 (NSW), ss 13, 19, 51, 58. 2. (2017) 261 CLR 544; [2017] HCA 12 at [16] (Kiefel, Bell and Gordon JJ). 3. (2023) 276 CLR 500; [2023] HCA 6 at [27] (Kiefel CJ, Gageler , Gordon , Gleeson and Jagot JJ). 4. Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd at [17]-[18] (Kiefel, Bell and Gordon JJ); Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35] (French CJ, Hayne, Crennan and Kiefel JJ). 5. Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd at [17]-[18] (Kiefel, Bell and Gordon JJ); Electricity Generation Corporation v Woodside Energy Ltd at [35] (French CJ, Hayne, Crennan and Kiefel JJ). 6. The J & P Marlow (No. 2) Pty Ltd v Hayes and McCabe (2023) 112 NSWLR 29; [2023] NSWCA 117 at [79] (Bell CJ), citing Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 at 520; [1986] HCA 32 (Gibbs CJ) and Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 388 (Mustill LJ). 7. Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679; [2019] NSWCA 185 at [58] (Bell P, as the Chief Justice then was); XL Insurance Co SE v BNY Trust Company of Australia Ltd [2019] NSWCA 215 at [78]-[79] (Gleeson JA, Bell P and Emmett AJA agreeing). 8. Newey v Westpac Banking Corporation [2014] NSWCA 319 at [91] (Gleeson JA, Basten and Meagher JJA agreeing); Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 at [72]-[73] (Leeming JA, Gleeson and White JJA agreeing). 9. McGrath v Sturesteps (2011) 81 NSWLR 690; [2011] NSWCA 315 at [17] (Bathurst CJ, Macfarlan JA and Sackville AJA agreeing), referred to with approval in Cherry v Steele-Park at [74]. 10. Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; [2008] HCA 57 at [35] (Gummow, Hayne and Kiefel JJ); Metlife Insurance Ltd v RGA Reinsurance Company of Australia Ltd [2017] NSWCA 56 at [98] (Leeming JA, McColl JA and Emmett AJA agreeing). 11. Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347; [1982] HCA 24 (Mason J); see also Realestate.com.au Pty Ltd v Hardingham (2022) 277 CLR 115; [2022] HCA 39 at [18]-[20] (Kiefel CJ and Gageler J). 12. Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380; [2010] UKSC 35; Bocardo SA v Star Energy UK Onshore Ltd [2010] Ch 100; [2009] EWCA Civ 579. 13. Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 at 646 per Lord Parker; Wilcox v Richardson (1997) 43 NSWLR 4 at 14-15 (Handley JA ,Meagher and Powell JJA agreeing); Project Blue Moon Pty Ltd v Fairway Trading Pty Ltd [2000] FCA 127 at [9]-[11] (Gallop, Mathews and Sundberg JJ); McGrath v Campbell at [64]-[82] (Tobias JA, Giles and Hodgson JJA agreeing); Bocardo SA v Star Energy UK Onshore Ltd [2010] Ch 100; [2009] EWCA Civ 579 at [74] (Aikens LJ) and [2011] 1 AC 380; [2010] UKSC 35 at [32] (Lord Hope, with whom the other members of the Supreme Court agreed); Cuzeno Pty Ltd v The Owners – Strata Plan 65870 [2013] NSWSC 1385 at [88] (Darke J); Bankstown Trotting Recreational Club Ltd v Chisholm (2016) 218 LGERA 428; [2016] NSWCA 274 at [82]-[89] (Beazley P, as Her Excellency then was, Bathurst CJ and Sackville AJA agreeing); Rees v Windsor-Clive [2021] 2 All ER 1013; [2020] EWCA Civ 816 at [19]-[28] (Lewison LJ, Popplewell and Carr LLJ agreeing). 14. [1921] 1 Ch 200 at 226, referred to with approval in Bankstown Trotting Recreational Club Ltd v Chisholm at [89] (Beazley P, Bathurst CJ and Sackville AJA agreeing). 15. Mining Act, s 58. 16. See [31] above. 17. See [8]-[9] above. 18. See [7] above. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2024