Morris v Hutchison [2019] NSWLEC 164

Land and Environment Court New South Wales

Medium Neutral Citation: Morris v Hutchison [2019] NSWLEC 164 Hearing dates: 18, 19, 20, 22 March 2019 Date of orders: 31 October 2019 Decision date: 31 October 2019 Jurisdiction: Class 8 Before: Moore J Decision: See orders at [309] Catchwords: MINERAL CLAIMS - dispute concerning opal mining on three Mineral Claims in the Lightning Ridge region - arrangement between Applicant and First Respondent to undertake mining activities - arrangement based on profit share of opal won - Applicant to contribute mining equipment and labour whilst First Respondent contributed Mineral Claims - First Respondent unilaterally terminates arrangement - characterisation of the arrangement - arrangement was not a partnership - dispute as to terms under which the arrangement operated - First Respondent's version of terms for the arrangement not accepted - First Respondent's termination of the arrangement unlawful - not practical to reinstate arrangement - appropriate remedy to transfer one Mineral Claim to the Applicant - First Respondent ordered to transfer Mineral Claim to the Applicant MINERAL CLAIMS - First Respondent holder of two Mineral Claims - issue of whether arrangement between Applicant and First Respondent extended to mining both claims or merely the first claim upon which mining had commenced - purported sale of one Mineral Claim to Second Respondent - sale a sham - arrangement between Applicant and First Respondent encompassed mining of both Mineral Claims - appropriate to resolve the dispute between the Applicant and First Respondent on the basis that the First Respondent retained ownership of one Mineral Claim and beneficial ownership of the second Mineral Claim. MINERAL CLAIMS - First Respondent blockades Applicant's mining equipment in underground workings - equipment detained for ~ 327 days - detention arose as part of dispute over unlawful termination of mining arrangement - claim for damages for detention of equipment - Applicant's equipment detained unlawfully by actions of the First Respondent - opal mining inherently speculative and no proper basis available to calculate compensation for unlawful detention of mining equipment - compensation claim dismissed MINING EQUIPMENT - specialist equipment known as a Super Digger used for underground opal mining - Super Digger owned by the Applicant - desire of the First Respondent to have similar equipment constructed for his own purposes - necessity to have Applicant's Super Digger measured for those purposes - dispute between the Applicant and First Respondent over costs of works undertaken to the Super Digger - Applicant's evidence preferred - First Respondent ordered to pay $10,000 to Applicant EVIDENCE - evidentiary conflict between Applicant and First Respondent - limited corroborative evidence - First Respondent's evidence untruthful or unreliable in a number of respects - evidence of Applicant to be preferred over that of the First Respondent unless First Respondent's evidence independently satisfactorily corroborated COSTS - although Applicant not entirely successful, no basis warranting apportionment of costs - Second Respondent (nominal owner of one transferred Mineral Claim) played no active part in proceedings - appropriate to order that First Respondent pay the Applicant's costs as agreed or assessed unless some alternative costs order is sought within 14 days Legislation Cited: Partnership Act 1892, ss 1, 32 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 67 Fox v Percy (2003) 214 CLR 118 Seven Network Limited v News Limited [2007] FCA 1062 State of NSW v Hunt (2014) 86 NSWLR 226 Category: Principal judgment Parties: Shane Leslie Morris (Applicant) Owen Hutchison (First Respondent) Justin Hawkins (Second Respondent) Representation: Counsel: Ms F Ashworth, barrister (Applicant) Mr D Stretton, barrister (Respondents)