Buchanan Borehole Collieries Pty Ltd v NSW Coal Compensation Review Tribunal
9 BPR 16253
Judges:
Handley JA
Stein JA
Grove AJA
Judgment date: 5 August 1997
Order
The appellant was entitled under the Coal Acquisition (Compensation) Arrangements 1995 to compensation of $334,932.21 for loss of coal previously owned by it. The Coal Compensation Board deducted $94,925.70 under cl 17 C of the Arrangements to reflect the benefit to the company from the discharge of its obligation to pay wayleave royalties under a private coal lease of other property held by it. The company also held the freehold subject to the reversionary interest of an unrelated party, Mrs Nichols. The appellant argued that it had not received any benefit within cl 17 C as there had been no obligation to pay royalties following its interest in the coal lease merging with the freehold on its acquisition. It also argued that the wayleave formed by the extraction of the coal was part of the general freehold and was not part of the coal freehold, that cl 17 C was beyond power, and must be read down to avoid injustice from multiple deductions of the same benefit.
HELD , dismissing the appeal: (1) There had been no merger in equity because none had been intended. Conveyancing Act 1919 s 10 applied. (2) There had been no merger at law of the lease and the freehold, because the appellant remained registered as proprietor of both. Shell Company of Australia Ltd v Zanelli (1973) 1 NSWLR 216 followed. (3) The wayleave was part of the coal freehold. (4) There was a benefit to the appellant within cl 17 C. Its liability to pay wayleave royalties under the coal lease subsisted until the determination of that lease on 30 April 1982 by the Coal Acquisition (Transitional Provisions) Regulation 1982. NSW Coal Compensation Board v NSW Coal Compensation Tribunal (40035/96, 29/7/97, Court of Appeal) applied. (5) Double deductions could not be made under cl 17 C because they were not authorised by that clause and would be contrary to the duty of the Board to act in accordance with equity, good conscience and the substantial merits of the case. (6) Clause 17 C was a valid provision within the power conferred by s 6 of the Coal Acquisition Act 1981 .
Appeal dismissed with costs.