[2014] WAMW 8
JURISDICTION
: MINING WARDEN
TITLE OF COURT : WARDEN’S COURT
LOCATION
: PERTH
CITATION
: HENRY v HEYMANS [2014] WAMW 8
CORAM
: WILSON M
HEARD
: 11, 12 & 13 MARCH 2013
DELIVERED
: 4 APRIL 2014
FILE NO/S
: PLAINT 398509
TENEMENT NO/S : MINING LEASE 47/363
BETWEEN
: Michael Laurence Henry
(Plaintiff/Applicant)
v
Martin Andre Peter Heymans
(Respondent/Defendant)
Catchwords:
Plaint – Transfer of Share in Mining Lease – Unlawful Transfer – Equitable Interest in
Mining Lease – Instrument in Writing - Accounting of Material Mined – Injunction –
Equitable Estoppel – Adequate Consideration – Adoption of Signature of Witness
Made in Absence of Party
Legislation:
Mining Act 1978 (WA): s. 116(2) & (3), s. 119
Mining Regulations 1981 (WA): r. 75
Result:
The Counterclaim by the Respondent is dismissed
Representation:
Counsel:
Plaintiff
Respondent
Henry v Heymans [2014] WAMW 8
:
:
Mrs CA McKenzie
Mr SA Alteruthemeyer
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[2014] WAMW 8
Solicitors:
Plaintiff
Respondent
:
:
McKenzie & McKenzie
Morgan Alteruthemeyer
Case(s) referred to in judgment(s):
Hunter v Parker (1840) 7 M and W 322: 151 ER 789
Chadwick v Clarke (1845) 1 CB 700: 135 ER 717
Crocker Consolidated Pty Ltd v Willie [1988] WAR 187
Hamilton and Gindalbie Mining NL v Golden Fortune Mining NL (1989) 8 AMPLA
Bull 10
Walton Stores (Interstate) Ltd v Maher (1988) 1964 CLR 387
Case(s) also cited:
Nil
BACKGROUND
1.
On 29 December 2010, Michael Laurence Henry (Mr Henry”) became the
registered owner of 48/96th share (“the Share”) of Mining Lease 47/363 (“the
Lease”). The registered owner of the remaining 48/96th share of the Lease is Martin
Andre Peter Heymans (“Mr Heymans”).
2.
Prior to 29 December 2010, the Share of the Lease was registered to Mrs Michelle
Heymans (“Mrs Heymans”) the former wife of Mr Heymans. Mrs Heymans
transferred the Share in the Lease to Mr Henry pursuant to an instrument of transfer
dated 11 October 2010 (“the Transfer Document”) that being a Form 23 Transfer
Form prescribed under the provisions of the Mining Regulations (“the
Regulations”).
3.
It is not in dispute the Lease contains deposits of Chalcedon which is a decorative
stone used in building, as flooring and as a gemstone (“the Stone”).
4.
Prior to becoming the registered owner of the Share of the Lease, Mr Henry carried
out various work on the Lease at the request of Mr Heymans. Mr Henry says Mr
Heymans owes him about $20,000 for that work.
5.
Upon becoming the registered holder of the Share in the Lease, Mr Henry made
inquiries of the Department of Mines and Petroleum (“DMP”) and ascertained the
Lease was not the subject of an Authority to Mine (“Authority”). It was ascertained
by Mr Henry there was a number of requirements and conditions to be satisfied
before the Authority would be granted by the DMP for the Lease.
6.
Mr Henry obtained the Authority and arranged for an aboriginal heritage inspection
to be conducted on the Lease. Further, Mr Henry said he lodged an Unconditional
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Performance Bond (“the Bond”) with DMP on 14 December 2012 and the
Authority was then granted by DMP for mining to recommence upon the Lease.
7.
During the period from December 2010 to about 1 March 2012, Mr Henry says Mr
Heymans spent a considerable period of time overseas. However, Mr Henry says in
December 2011, Mr Heymans removed the Stone mined from the Lease prior to the
grant of the Authority by the DMP. Further, Mr Henry says Mr Heymans has failed
to account for the Stone mined and then removed from the Lease since Mr Henry
became the holder of the Share in the Lease.
8.
On 28 March 2012, Mr Henry said he attended at the Lease to deliver to Mr
Heymans an invoice for money he has incurred since becoming the registered
holder of the Share in the Lease. The total sum of the invoice amounted to
$13,533.62.
9.
Mr Henry alleges Mr Heymans is mining in an area of the Lease that is not subject
to the Authority from the DMP. Further, Mr Henry alleges money is owed to Mr
Charles Newland for preparation of a mining proposal.
10.
As a result of the attendance at the Lease by Mr Henry an Interim Violence
Restraining Order (“the VRO”) was obtained against him by Mr Heymans that
prevented him from attending upon the Lease.
11.
12.
On 19 June 2012, Mr Henry obtained an Interlocutory Injunction (“Injunction”)
restraining Mr Heymans from continuing to mine or remove the Stone from the
Lease.
By Plaint dated 30 May 2012, Mr Henry seeks orders of the Warden for the
following relief:
a. A declaration Mr Heymans is liable to enter into a conditional
performance bond within 14 days in the sum of $36,500.00 being
one half of the required performance bond required by DMP for the
Lease.
b. An order Mr Heymans pays to Mr Henry the sum of $6,766.81
being one half of the monies paid by Mr Henry in relation to the
Lease from 29 December 2010.
c. A taking of account of any material sold and or disposed of by Mr
Heymans from 29 December 2010.
13.
By an amended Response and Counterclaim dated 11 March 2012, Mr Heymans
says the following:
a. Mr Heymans denies the claim by Mr Henry in its entirety
b. By way of Counterclaim Mr Heymans says that, Mr Henry caused
the Share in the Lease to be registered in his name by an unlawful
means and for no consideration,
Henry v Heymans [2014] WAMW 8
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c. Mr Heymans is entitled to be the registered holder of all shares in
the Lease and was so entitled at the time Mr Henry became the
registered holder of the Share in the Lease,
d. As at December 2010, Mr Henry knew Mr Heymans was entitled to
become the registered holder of all shares in the Lease,
e. Mr Henry by obtaining the unlawful registration of the Share in the
Lease prevented Mr Heymans from obtaining the funds required to
maintain and exploit the Lease,
f. Any monies claimed by Mr Henry as being paid by him, such
payment not being admitted by Mr Heymans, were paid by Mr
Henry in pursuit of an unlawful purpose.
g. Mr Heymans seeks an order directing the amendment of the Register
held by DMP to show Mr Heymans is the registered holder of all
shares in the Lease.
The Evidence
14.
It was agreed between the parties the primary issue for determination was the
Counterclaim by Mr Heymans claiming Mr Henry had obtained the Share in the
Lease by an unlawful means. Accordingly, the issue of the ownership of the Share
in the Lease raised by Mr Heymans should first be heard and determined.
Following the determination of the ownership of the Share of the Lease is
determined, if it is necessary, the claims by Mr Henry including the taking of
accounts need to be determined.
Evidence of Mr Heymans
15.
In summary, Mr Heymans gave evidence in chief he has held an interest in and
lived on the Lease since 1988. Further, Mr Heymans said with the exception of
having cautions from the DMP for late lodgement of some documents he otherwise
has no outstanding matters or issues with the Lease.
16.
In 2005, Mr Heymans said he separated from Mrs Heymans and they divorced in
2012. Mr and Mrs Heymans held equal shares in the Lease and some other mining
tenements.
17.
Shortly prior to travelling to their son's wedding in Thailand, Mr Heymans said Mrs
Heymans attended at the Carnarvon Court on about 16 December 2009 and had
witnessed a letter document intended to show an intent to transfer her interest in the
Share in the Lease to him (“the 2009 Document”). The 2009 Document was
prepared, according to Mr Heymans, because Mrs Heymans was terrified of flying,
the signing of the 2009 Document would tie up all loose ends and she was
concerned if other matters were to arise including bills she would not be
responsible for them. Mr Heymans agreed he would be wholly responsible for
anything likely to occur with the Lease after the 2009 Document was signed.
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18.
Mr Heymans said he understood the 2009 Document would not amount to a proper
transfer of the Share in the Lease held by Mrs Heymans. To achieve a transfer of
the Share in the Lease from Mrs Heymans would require the completion of the
Transfer Document and the assessment of any appropriate stamp duty.
19.
Mr Heymans said he obtained a Form 23 Transfer Form to enable Mrs Heymans to
sign and transfer to him the Share in the Lease. That Form 23 Transfer Form was,
according to Mr Heymans, partially completed by completing those boxes
corresponding to questions (a) to (f). According to Mr Heymans the box marked (h)
being the name of the transferee was left blank. The date was entered on the
Transfer Document and then signed by Mrs Heymans but the Transfer Document
was not witnessed.
20.
According to Mr Heymans, the Transfer Document was given to him by Mrs
Heymans and he placed it in his briefcase. Mr Heymans said he then gave the
briefcase to Mrs Rena Henry (“Mrs Henry”), the wife of Mr Henry, as he was going
overseas to Thailand for six weeks. Mrs Henry had, according to Mr Heymans,
offered to complete the Expenditure Report for the 2009-2010 Expenditure Year for
the Lease (“Form 5”). Mr Heymans said the Transfer Document was not seen by
him again until about 2 months prior to this hearing.
21.
Mr Heymans said he first met Mr Henry in February 2009 through a friend who
referred Mr Henry and his son to him as they were able to carry out excavation
work. As a result of that introduction, Mr Heymans said he contracted with Mr
Henry and his son to remove material and the Stone from the Lease for export to
Thailand. The account for that work was paid by Mr Heymans.
22.
According to Mr Heymans there were no outstanding issues associated with Native
Title on the Lease. However, Mr Heymans said there was a meeting held with Mr
Steven Dhu (“Mr Dhu”) being the legal counsel for the Ngarluma Aboriginal
Corporation (“Ngarluma Corporation”), Mr Henry and him at Roebourne
concerning aboriginal heritage issues. Mr Heymans said Mr Dhu sent him away
from the meeting with a bundle of paperwork which was of no use to him as he had
similar paperwork given to him by lawyers in the past. After the meeting with Mr
Dhu, Mr Heymans said there was no further discussion between him and Mr Henry.
23.
Mr Heymans said Mr Henry first told him verbally that he claimed he owned the
Share in the Lease sometime in 2011 when he came back from China. Mr Heymans
said there was no response on his part to that claim from Mr Henry as there was
nothing in writing and he took what was said by Mr Henry as a comment that had
no substance.
24.
Mr Heymans confirmed he was mining the Stone on the Lease. The value of the
Lease and the Stone on it was estimated by Mr Heymans to be worth $1 to 2
billion. The effect of the Injunction obtained by Mr Henry against Mr Heymans and
the operations on the Lease was said by Mr Heymans to have caused him to run out
of cash, to cancel a contract with overseas buyers and for him to go onto a pension.
Henry v Heymans [2014] WAMW 8
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25.
In summary, Mr Heymans confirmed in cross examination his opinion he had no
issues with the DMP and all his paperwork was in order. He further confirmed his
opinion he had the Authority to mine the Lease from DMP that was issued in 2004.
Mr Heymans denied he was receiving correspondence from DMP in 2008 & 2009
advising him he did not have the Authority to mine and there were problems or
difficulties with the Lease. The Mr Heymans said he had an issue with a “clean up
notice” issued by the DMP. The “clean up notice” was considered by Mr Heymans
to be a usual thing issued if officers from DMP come onto the Lease and see things
they don’t like. Mr Heymans did accept the “clean up notice” was issued to him by
DMP in July 2010 to remove some drums, old motor vehicles and other material
from the Lease. Mr Heymans agreed he had received many environmental notices
from DMP to “clean up” the Lease.
26.
However, Mr Heymans maintained he was still able to mine the Lease because the
paperwork for the “clean up” of the Lease was with a Mr Newland, a private
consultant who prepares environmental reports for consideration by DMP as part of
their approval process (“Mr Newland”). The issue with DMP was, according to Mr
Heymans to do with not removing sufficient topsoil from the Lease so as to store
sufficient seed bank for later rehabilitation of the Lease.
27.
28.
29.
30.
Mr Heymans agreed there were many issues contained within the “clean up notice”
that required him to “clean up” the Lease. However, he said he was attending to the
“clean up.” According to Mr Heymans he did not read the “clean up notice” as a
notice that stopped him from mining on the Lease. In fact just prior to July 2010,
Mr Heymans said he engaged the services of a company, operated by the son of Mr
Henry, called Bobford Pty Ltd to do some mine excavation work to obtain samples
from the Lease. The “clean up notice” was an environmental matter that Mr
Heymans said was being attended to by a Mr Newland.
Mr Heymans agreed on 24 September 2010 he received a visit from the District
Inspector of Mines concerning recent mining activity on the Lease. A notice
prohibiting him from mining on the Lease was issued to him on that day. It was not
agreed by Mr Heymans that he was unable to mine upon the Lease without an
approved management plan.
The “clean up” of the Lease was completed by Mr Henry in about October 2010,
according to Mr Heymans, after the previous contractor he had engaged failed to
complete the work. At that time many items were stock piled ready to be removed
or collected by others but that was not complete until late 2012.
Mr Heymans said he did not know if it was February 2012 when the authorisation
to recommence mining was issued by DMP following the issue of the “clean up
notice” and “stop work notice” were issued in July and September 2010. According
to Mr Heymans he was overseas at that time and did not intend to operate the mine
on the Lease as he had no contracts to supply material to buyers overseas. That was
the reason he was in fact overseas to attempt to find new clients.
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31.
Mr Heymans claimed he was unaware of a notice from DMP in 2009 required him
to obtained approval from DMP before he could carry out any ground disturbing
activity. In summary, Mr Heymans maintained he was authorised by DMP to mine
in 2004 as the notices from other sections of DMP did not impinge on his right to
mine as it related to environmental issues and not mining issues. Mr Heymans said
it was not until he was preparing for these proceedings he became aware of the
DMP notices to stop work.
32.
It was denied by Mr Heymans he mined or moved the Stone from the Lease in
November to December 2011. Mr Heymans said he mined and removed the Stone
from the Lease in March 2012 when he returned from China. He said he left for
China again at the end of May 2012. When he again returned from China, Mr
Henry was mining and crushing the Stone from the Lease.
33.
Mr Heymans said in May 2012 he organised for some 88 drums of the Stone mined
from the top surface of the Lease to be removed from the Lease and onto the
adjoining mining tenement belonging to his brother in law.
34.
Before the Injunction was obtained by Mr Henry, in the period from March to May
of 2012, Mr Heymans said the 88 drums of the Stone were removed from the
Lease. Mr Heymans also said in about May 2012 he sent to China about 18 tonnes
of Stone that were black and about 30 or 40 tonnes of the Stone that were green. All
of Stone was in different shapes, sizes and colours. Further, Mr Heymans said he
was told by Mr Henry he had the Authority to mine the Stone he sent to China
although he said he never observed any documents from the DMP that confirmed
the advice from Mr Henry.
35.
Between October 2010 and March 2012, Mr Heymans said he spent most of his
time travelling overseas to attend various stone exhibition and cities in China trying
to re-establish his business by talking to customers and trying to promote the
product he intended to mine from the Lease.
36.
It was denied by Mr Heymans that in 2010 he had not been paid by his contractor
in Thailand for the Stone he had sent to them. The reason Mr Heymans said he
travelled to Thailand was because 20 Seatainers containing the Stone were held up
in Singapore with some of the Seatainers being damaged. However, despite Mr
Heymans having the papers for the release of the Seatainers with the Stone inside
he said “in that part of the world sometimes people can get things released without
the proper paperwork." Notwithstanding the 20 Seatainers were released without
the appropriate paperwork Mr Heymans claimed his contract with his contract is in
Thailand still remained in place.
37.
It was incorrect, according to Mr Heymans, he had not been paid for the Stone
because it was the case Mr Henry had been paid for the work he carried out mining
on the Lease in 2010 up until the DMP issued a notice to stop mining of the Lease.
Despite Mr Henry being paid for mining the Stone from the Lease, Mr Heymans
said there were still money outstanding because there was a difference between the
Henry v Heymans [2014] WAMW 8
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cost of the mining of the Stone and the actual material that were received by the
people in Thailand.
38.
Mr Heymans denied Mr Henry travelled to Thailand on his behalf to attempt to
recover money for the Stone sent by him in the Seatainers. Mr Heymans claimed he
had no knowledge of why Mr Henry travelled to Thailand or that he had even been
to Thailand. The reason Mr Heymans said he believed Mr Henry knew who the
lawyer was who had been engaged by Mr Heymans in Thailand to recover the
Seatainers was because a man called Sam had been on the Lease in 2010 whilst the
Stone was mined by Mr Henry's sons.
39.
According to Mr Heymans another 40 Seatainers of the Stone were in fact stolen
from the transport yard of Bonnie Transport in Dampier and sent by sea to Asia. As
a consequence, Mr Heymans said he engaged a lawyer named Mr Cocks with the
payment of a $3000 retainer provided to him by Mr Henry to issue legal action for
the recovery of the 40 Seatainers that had gone missing.
40.
It was claimed by Mr Heymans the theft of the 40 Seatainers from the yard of
Bonnie Transport in Dampier in about November of 2010 resulted in him being
owed money by the people in Thailand and he then started to have problems. Mr
Heymans claimed he went to Thailand not to recover any money owed to him at
that time but because he was in transit travelling to Thailand.
41.
In late 2009, Mr Henry said he had entered into an agreement on the payment of
some money for there to be a transfer of an interest in the Lease to people in
Thailand. However, as no money had been paid to Mr Heymans he did not transfer
the interest in the Lease to the people in Thailand.
42.
Mr Heymans said he never gave the Transfer Document to Mr Henry, nor was he in
a position to give the Transfer Document to any person because he had a contract
with 2 people in Thailand, one being a banker and the other a contractor, who were
going to buy the Share in the Lease.
43.
It was denied by Mr Heymans the Transfer Document was ever handed by him to
Mr Henry. Further, it was also denied by Mr Heymans the Transfer Document ever
had the name of Mr Henry written on it by Mrs Heymans whilst it was in his
possession. It was further denied by Mr Heymans the Transfer Document shown to
him was the document he had in his briefcase when he said he left it with Mr and
Mrs Henry.
44.
Mr Heymans denied when he attended the home of Mr and Mrs Henry on 11
October 2010 it was for the purpose of arranging for Mr Henry to have transferred
to him the Share in the Lease and to hand to Mr Henry the Transfer Document for
the Lease. The reason Mr Heymans said he attended the home of Mrs Heymans was
to have another transfer document pertaining to another mining tenement, M
47/548, that was also jointly held with Mrs Heymans. According to Mr Heymans
the transfer document pertaining to M 47/548 was fully completed by Mr and Mrs
Heymans with the exception of having their signatures witnessed.
Henry v Heymans [2014] WAMW 8
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45.
46.
The Transfer Document relating to the Share in the Lease was, according to Mr
Heymans, only partially completed and excluded the name of the transferee but was
signed by Mrs Heymans and not witnessed. Mr Heymans agreed he attended at the
home of Mr and Mrs Henry in Karratha but denies he produced to them the
Transfer Document for the Share in the Lease completed with the name of Mr
Henry written in the transferee box. Mr Heymans said he was in no position to
transfer the Share in the Lease to anybody as he had an ongoing contractual
arrangement with people in Thailand for the purchase of the Share in the Lease.
It was also denied by Mr Heymans that Ms Bonita Anderton (“Ms Anderton”)
attended the home of Mr and Mrs Henry in Karratha or that Ms Anderton was
instructed by him to sign as a witness to the signature of Mrs Heymans on the
Transfer Document. According to Mr Heymans he had only ever met Ms Anderton
once and that was on the Lease where she had attended with Mr Wayne Henry.
47.
On 11 October 2010, Mr Heymans agreed whilst at the home of Mr and Mrs Henry
a cheque in the sum of $13,600 was given to him by Mr and Mrs Henry plus a
further sum of $1000 in cash. He also agreed that money was loaned to him by Mr
and Mrs Henry. According to Mr Heymans the $13,600 was for $10,000 in
travelling expenses as he was leaving for Asia on 16 October 2010 and $3600 was
to pay a water bill that was owed by him to Hanson’s. The $1000 cash was
according to Mr Heymans given to him by Mr and Mrs Henry as food money as he
was short of cash at that time.
48.
It was denied by Mr Heymans that he informed Mr and Mrs Henry the $10,000 was
needed by him to pay royalty to the DMP arising from the sale of the Stone from
the Lease. He agreed the water bill due to Hanson's was actually about $9000 but
claims he reimbursed some $3600 to his son who had paid the whole of the water
account.
49.
Mr Heymans agreed he attended a meeting with Mr Dhu of the Ngarluma
Corporation in the company of Mr Henry but denied the meeting was to discuss any
difficulties he was having with obtaining the Authority to mine the Lease or he was
required to obtain an Aboriginal Heritage Site Clearance (“Heritage Clearance”).
According to Mr Heymans he already had the Authority to mine the Lease and did
not need to obtain any further Heritage Clearance for the Lease. The purpose of his
visit to Mr Dhu was to discuss the need to obtain a Heritage Clearance from the
Ngarluma Corporation for his new M 47/548 so he could mine that mining
tenement. The reason that Mr Henry had attended the same meeting was, according
to Mr Heymans, because he was having some difficulty in obtaining approval from
the Ngarluma Corporation for some sand mining leases he had granted to him.
50.
Mr Heymans agreed the Form 5 for the Lease for the 2009/2010 Expenditure Year
was completed at his request by Mrs Henry when he met with her in her home on or
about 20 September 2010. The information required to complete the Form 5 was
provided by Mr Heymans to Mrs Henry. Further, Mr Heymans maintains that Mrs
Henry also completed an environmental report of the same year from papers he left
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with her in his briefcase. Mr Heymans did not accept that environmental report was
prepared after 11 October 2010 as result of Mr Henry contacting Mr Newlands to
finish off preparing that report and providing Mr Newland with further money.
51.
After he returned from Asia in November of 2010, Mr Heymans said he stopped
dealing with Mrs Henry as he had no more work to do and he had plenty of time to
do all the paperwork himself as the “mine were shut down and it didn't need any
more work to be done.” Mr Heymans said he attended the offices of the DMP and
spoke with some officers and they exempted him from lodging forms with the DMP
“because the Mines Department doesn't want to be bothered with forms if they're
not necessary." Despite that, Mr Heymans agreed the holder of mining tenement
has an ongoing obligation to lodge expenditure reports and apply, if necessary, for
exemptions from expenditure requirements. Mr Heymans claimed he had an
exemption from filing safety forms because no work was occurring on the Lease in
2010.
52.
Mr Heymans agreed Mrs Henry completed the yearly Form 5 for the Lease in the
2009/2010 and the 2010/2011 year and he completed the Form 5 for the Lease for
the 2011/2012 Year.
53.
After 2010 Mr Heymans said he was in disagreement with Mr and Mrs Henry
following his return from Thailand. He said he attempted to talk to Mr Henry in
2011 but all he got was abuse. Despite that dispute, Mr Heymans agreed Mr Henry
funded a lawyer by giving money to Mr Heymans in an attempt to try and recover a
shipment of the Stone that had been sent to Thailand from Dampier. It was further
agreed by Mr Heymans that he and Mr Henry had issues about the terms of trade
Mr Henry had drawn up in about October 2011 as the basis upon which further
dealing should be conducted with potential overseas buyers of the Stone.
54.
It was about October 2011 when Mr Heymans said he became aware Mr Henry
claimed to be the owner of the Share in the Lease. Mr Heymans said Mr Henry
claim to be the owner of the Share in the Lease to keep the contract for mining of
the Stone of the Lease with his son so they could keep working the Lease.
55.
Despite that, Mr Heymans agreed in October of 2011 he introduced Mr and Mrs
Henry to his contacts in Asia, including a person named Carson, as the owners of
the Share in the Lease and also informed Carson and others that he would need to
talk to Mr Henry before he entered into any contract to sell the Stone to them.
56.
Mr Heymans said he never accepted Mr Henry as the owner of the Share in the
Lease as he had never received proof of that from the DMP. He also claimed he
could not do anything about Mr Henry claiming he was the owner of the Share in
the Lease as he had been advised by his lawyers to “sit back and wait and that was
the reason I waited until Mick Henry came forward with the proof that he owned it
and the other accusations..” Mr Heymans said it was in March 2011 that Mrs
Heymans had advised him that she had signed over the Share in the Lease to Mr
Henry. From that time onwards until 2012, Mr Heymans said he paid no rent or
rates on the Lease and the Form 5 reports for the Lease were lodged by Mrs Henry.
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During that period Mr Heymans claims he had an exemption from the DMP from
lodging any paperwork for the Lease.
57.
It was denied by Mr Heymans he had signed a letter dated 21 March 2012 to the
Ngarluma Corporation in response to an objection lodged by the Ngarluma
Corporation to an application for the L made by both Mr Henry and Mr Heymans to
provide an access road to the Lease. In fact, Mr Heymans said he had not signed
that letter and had cut off all communications with Mr Henry in November 2011.
58.
Further, Mr Heymans denied he ever received invoices for the work done by Mr
Henry in obtaining the Authority from DMP to mine the Lease. He claimed he only
received invoices for the “clean-up” of the Lease.
59.
Mr Heymans said he had only some recollection of a meeting with Mr Henry on the
Lease in March 2012. He denied the accuracy of entries in the diary belonging to
Mr Easterbrook regarding issues associated with discussions with Mr Henry in
2011 and 2012.
60.
Mr Heymans said in March 2012 he obtained the VRO from two Justices of the
Peace sitting in the Karratha Magistrates Court against Mr Henry to stop Mr Henry
from bullying and threatening him. The terms of the VRO was agreed by Mr
Heymans to prohibit Mr Henry from entering upon the Lease or approaching within
100 metres of the nearest external boundary of the Lease. Mr Heymans agreed he
objected to an application by Mr Henry for a variation of the VRO that would allow
Mr Henry to attend upon the Lease to continue to conduct mining operations.
Further, it was agreed by Mr Heymans that the VRO was listed for a final order
hearing before the Karratha Magistrate on 30 August 2012. Following the mention
hearing of the VRO and the variation application by Mr Henry about 2 weeks after
the VRO was granted, Mr Heymans said he left Australia for China and did not
return until a few weeks before the scheduled final order hearing of the VRO on 30
August 2012.
61.
On 30 August 2012, Mr Heymans said he attended a mention hearing in this
Wardens Court proceeding at the Karratha Courthouse and appeared before the
Mining Warden sitting in Perth via video link at 9 AM. He also agreed at 9:30 AM
the final order hearing for the VRO was listed before the Karratha Magistrate in the
Karratha Courthouse. However, he said he left the Karratha Courthouse
immediately after the mention hearing in the Wardens Court proceeding and did not
attend the final order hearing of the VRO. Mr Heymans said his failure to attend the
final order hearing of the VRO before the Karratha Magistrate was because Mr
Henry and his lawyer had “got to his witnesses” and the witnesses had not turned
up at the hearing.
62.
Mr Heymans agreed a meeting took place at the Lease on 2 December 2011
between him and Mr and Mrs Henry were in the issue of Mr Heymans paying back
to Mr and Mrs Henry an amount of about $19,000 that had been loaned to him was
raised. It was at that meeting Mr Heymans said he raised the first time with Mr and
Mrs Henry he did not consider Mr Henry was the owner of the Share in the Lease
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and showed to them the 2009 Document. According to Mr Heymans that was the
first opportunity he had to ask Mr Henry “why, how, prove it” that he was the
owner of the Share in the Lease.
63.
64.
It was claimed by Mr Heymans all the work done by Mr Henry on the Lease in the
period between when Mrs Heymans informed him she had transferred the Share in
the Lease to Mr Henry and when he raised the issue in December of 2011 with Mr
Henry was done without his consent, was motivated by Mr Henry wanting to keep
his sons employed on the Lease and to utilise the Lease to store building materials
and machinery rather than pay market rates for the commercial lease of storage
yards in Karratha.
Mr Heymans also claimed Mrs Heymans had “sold half of it illegally” in dealing
with the Share in the Lease.
Evidence of Mrs Michele Heymans
65.
Mrs Heymans gave evidence she signed over, inter alia, the Share in the Lease to
Mr Heymans pursuant to the 2009 Document. The 2009 Document was witnessed
at Carnarvon by a Mr Garry Hardy of the Magistrates Court. Mrs Heymans said she
was happy to sign the 2009 Document because at that time there were people on the
Lease who weren’t supposed to be there and they would not listen to her when she
told them to leave. Further, Mrs Heymans said there was supposed to be a big clean
up happening but people on the Lease were busy just spraying their trucks.
66.
Mrs Heymans confirmed it was her intention to transfer the Share in the Lease to
Mr Heymans when she signed the 2009 Document. Mrs Heymans said after she
signed the 2009 Document Mr Heymans produced the Transfer Document which
she filled out in part and signed it. The Transfer Document was given back to Mr
Heymans by Mrs Heymans.
67.
Mrs Heymans said she next saw the Transfer Document in Roebourne when Mr
and Mrs Henry produced it to her and said that Mr Heymans had given the Transfer
Document to Mr Henry because he was to become partners with Mr Heymans. Mrs
Heymans said she was told by Mr and Mrs Henry that Mr Heymans owed
thousands of dollars. Mrs Heymans did not wish to be responsible for those bills.
68.
Mrs Heymans said she told Mr and Mrs Henry if they were going to take over the
Share in the Lease they had to pay the Bond her daughter had paid DMP for the
Lease on behalf of Mr Heymans. Further, Mrs Heymans said Mr and Mrs Henry
had told her they had money to develop the Lease and if the Lease came good they
would pay some of her bills.
69.
When the Transfer Document was shown in this proceeding to Mrs Heymans she
could not recall precisely how much of the Transfer Document had been completed.
Mrs Heymans identified a number of changes that have been made to the Transfer
Document including the witnessing of her signature by the marks of “BG
Anderton”, the full spelling of her name and a number of initialling’s of changes
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that she does not remember being on the Transfer Document when it was first
presented to her by Mr Henry.
70.
However, in her evidence Mrs Heymans identified a number of initials, the
witnessing of changes to the percentage of the Share in the Lease and the
witnessing of her signature that occurred when Mr and Mrs Henry bought the
Transfer Document to her.
71.
In cross-examination, Mrs Heymans was shown the completed Transfer Document
that was presented for registration with the DMP. Mrs Heymans confirmed the
writing on the Transfer Document for the Lease that she identified as hers as were
the words “mining lease”, “West Pilbara”, “M47/363”, “50 per cent”, “Michele
Heymans, 23 Jager Street, Roebourne, 6718”, “Nil”, “Michael L Henry, PO Box
916, Karratha, 6714”, and “nil”. Mrs Heymans could not recall if the date of 11
October 2010 on the Transfer Document was in her handwriting.
72.
The alterations on the Transfer Document of “48/96 shares”, initials “MH”, initials
“BGA and MLH” and “aurence” appear not to be hers.
73.
Mrs Heymans said she believed Mr and Mrs Henry came to her house twice and
had telephoned her on a number of occasions but she declined to answer the phone.
Further, Mrs Heymans said she could not recall the time of the year that Mr and
Mrs Henry attempted to contact her regarding the Transfer Document.
74.
Mrs Heymans was shown a copy of a further transfer document for P 47/1084 but
does not recall signing that document. She said she does recall agreeing to transfer
her interest in three mining tenements, including the Lease, to Mr Heymans.
75.
Further, Mrs Heymans said she was not instructed by Mr Heymans to transfer the
Share in the Lease to Mr Henry. Rather it was Mr and Mrs Henry who came to her
and advised her they were the owners of the Share in the Lease and for her to sign
the Transfer Document.
76.
A copy of the Transfer Document was shown to Mrs Heymans that contained red
circles placed by her to signify those writings placed on the Transfer Document
after it was initially signed by her.
77.
Mrs Heymans said the Lease was becoming a headache for her in 2009 as Mr
Heymans was travelling regularly to Asia, there were people on the Lease who
shouldn't have been there and would not take any notice of her telling them to
leave, there were queries being raised by DMP regarding the “clean-up” of
materials from the Lease and other environmental issues in particularly regarding
the construction of a road. At that time, Mrs Heymans said no mining was
occurring on the Lease due to the issues described above.
78.
Mrs Heymans confirmed a discussion took place between Mr and Mrs Henry and
herself in the presence of her daughter Johanna regarding the Bond that had been
paid by Johanna to the DMP for the Lease. Mrs Heymans agreed she introduced Mr
and Mrs Henry to her daughter as the “new owners of half share of the Lease” and
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asked Mr and Mrs Henry to put up the money for the Bond so the amount paid to
DMP by Johanna could be refunded to her.
79.
Mrs Heymans also confirmed she informed of Mr and Mrs Henry she was glad to
be out of the Lease as she was concerned she would be responsible for the bills
associated with the Lease. Mrs Heymans did not agree she was more than happy to
sign the Share in the Lease to Mr and Mrs Henry. In fact she said she was angry
because she wanted Mr Heymans to have the Share in the Lease but Mrs Heymans
also said if Mr Heymans didn't want the Share in the Lease then Mr and Mrs Henry
may as well have it. Mrs Heymans said the whole issue surrounding the Share in
the Lease had caused her to be angry.
80.
In re-examination, Mrs Heymans said Mr Heymans did not want to transfer the
Lease to Mr Henry but it was open to Mr Heymans to do as he wished with the
Lease.
81.
Mrs Heymans agreed she wrote in her own handwriting the words “Michael L
Henry” in the Transfer Document as the transferee.
82.
A number of documents were produced into evidence through Mrs Heymans.
83.
That was the evidence called by Mr Heymans in this case.
Evidence of Michelle Anne Baker
84.
Michelle Anne Baker (“Ms Baker”) is the Regional Mining Registrar in Karratha
for the DMP. An affidavit of evidence sworn by Ms Baker on 1 March 2013 was
admitted into evidence.
85.
Ms Baker said the first time she saw the Transfer Document was on 20 December
2010 at her office in Karratha. The Transfer Document was, according to Ms
Baker, accepted by her for provisional lodgement and was assessed and processed.
When the Transfer Document was presented to Ms Baker on 20 December 2010 it
had already been assessed for stamp duty and stamped by the Office of State
Revenue.
86.
Following an assessment of the Transfer Document, Ms Baker said she returned the
Transfer Document under cover of a letter dated 20 December 2010 to Mr Henry as
she had identified a number of alterations that needed to be made to the Transfer
Document before it would be accepted for registration. Those alterations were:
a. In section B of the Transfer Document indicating that a 50% interest
in the lease was being transferred need to be amended to indicate
how many shares were being transferred,
b. In section G of the Transfer Document the description of the
transferee was shown a “Michael L Henry” and that required the full
middle Christian name to be written on the Transfer Document.
87.
The change to section B of the Transfer Document was corrected by Ms Baker by
putting a hand written line through “50% shares” and a change writing next to it
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48/96ths Shares and then marking in pencil where the parties would need to place
initials to the change.
88.
The change to section G of the Transfer Document requiring the insertion of the
full middle Christian name of Mr Henry to be written was amended by Ms Baker
adding the words “aurence” after the letter “L”. Ms Baker then marked in pencil
where the parties would need to place initials to the change.
89.
Ms Baker stated the Transfer Document together with her covering letter was then
handed to Mr and Mrs Henry who took the Transfer Document away to have the
respective parties initial the alteration.
90.
On 29 December 2010, Ms Baker stated the Transfer Document was re-lodged at
her office by Mr and Mrs Henry. The alterations she had indicated needed to be
made to the Transfer Document had been initialled with the letters “MH” and
“BGA”. The Transfer Document was then accepted by Ms Baker for registration
and was registered with DMP on the same day
Evidence of Mr Michael Laurence Henry
91.
In summary, Mr Henry is a business proprietor involved in mining and earthworks
and lives in Karratha.
92.
Mr Henry said he first met Mr Heymans in late 2009 or early 2010 when he was
introduced to him by another contractor in the Karratha area. As result of that
introduction, Mr Henry said he used machinery to remove some 120 tonnes of
Stone from the Lease for Mr Heymans.
93.
Sometime later in 2010, Mr Henry said he was approached by Mr Heymans to
conduct a “clean-up” of the Lease as a result of DMP serving a “stop work notice”
upon Mr Heymans to stop conducting mining on the Lease. Mr Henry said he
agreed to conduct a “clean-up” upon the Lease at the request of Mr Heymans and
went about removing various materials including car bodies, old huts and various
other materials and took those items to the tip.
94.
95.
Further, during the “clean-up” of the Lease, Mr Henry said he was approached by
Mr Heymans who asked him to commence mining of the Stone on the Lease. He
said he was shown a contract by Mr Heymans for the supply of the Stone to a
company in Thailand. Mr Henry said he agreed to conduct the mining at the request
of Mr Heymans and he went about hiring machinery to mine approximately 30,000
tonnes of the Stone on the Lease. Shortly after commencing mining on the Lease
Mr Henry said he was requested by Mr Heymans to extend the amount of the Stone
to be mined to some 250,000 tonnes. According to Mr Henry he was informed by
Mr Heymans that some $5 million was to be spent on mining of the Stone. Mr
Henry said he was aware a person had travelled to the Lease from Thailand and was
supervising the excavation of the Stone by Mr Henry’s son who was operating an
excavator.
During the course of the mining of the Stone upon the Lease, Mr Henry said he
asked Mr Heymans if he had all approvals in place from DMP to conduct mining of
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the Stone on the Lease. Mr Henry said he was assured by Mr Heymans that all
approvals from DMP were in place to mine the Lease including project
management plans. Mr Henry said he was told by Mr Heymans the environmental
requirements were in the hands of Mr Newland. Mr Heymans also reassured Mr
Henry he had paid Mr Newland.
96.
97.
98.
99.
Mr Henry said he made it repeatedly clear to Mr Heymans he needed to be certain
he had approval to mine the Lease from DMP otherwise it would be he that would
be “kicked in the behind".
On 27 July 2010, Mr Henry said his son informed him a “stop work notice” had
been served by a DMP Inspector requiring all mining on the Lease to stop. As a
result of service of the “stop work notice”, Mr Henry said he made enquiries with
the DMP Inspector and ascertained no approval to mine the Lease had been granted
as no project management plans, pit design or other documentation required for
such approval had been attended to or obtained by Mr Heymans.
Mr Henry said he and Mr Heymans met with the DMP Inspector to ascertain what
was needed to have the “stop work notice” lifted and to recommence mining on the
Lease. Mr Henry said he was informed by the DMP Inspector they had to “start
right through again.” Mr Newland was contacted by Mr Henry and it was
ascertained the environmental documents required by the DMP in respect to the
Lease had not been completed nor submitted to DMP by Mr Newland as he had not
been paid for the work he had previously done for Mr Heymans. As a consequence,
Mr Henry said he made an arrangement to partly pay Mr Newland sufficient funds
to enable him to continue work on the environmental documents associated with
the Lease. Mr Henry said at various times while he was conducting work for Mr
Heymans on the Lease he was asked for and gave money to Mr Heymans because
Mr Heymans was always “strapped for cash.”
After the “stop work notice” was served, Mr Henry said he continued to conduct
the “clean-up” work on the Lease on the basis that Mr Heymans promised to pay
him for that work from the proceeds of the sale of the Stone mined from the Lease.
100. Mr
Henry said he made enquiries with DMP regarding the status of the Lease and
ascertained a Heritage Clearance had to be obtained by Mr Heymans as one of the
requirements for mining to recommence on the Lease. To that end, Mr Henry said
he had an existing agreement for his own business dealings with the Ngarluma
Corporation and the Ngarluma Aboriginal People who are the traditional owners of
the land in the area of the Lease. Mr Henry said he suggested to Mr Heymans it
may be possible to bring the Lease under his existing agreement with the Ngarluma
Corporation and suggested they meet with Mr Dhu, the lawyer for Ngarluma
Corporation, based in Roebourne.
101. Mrs
Henry organised for a meeting to occur with Mr Dhu, Mr Henry and Mr
Heymans to discuss arrangements regarding the Lease with the Ngarluma
Corporation. On the day of the meeting with Mr Dhu, Mr Henry said that Mrs
Henry, Mr Heymans and he travelled to Roebourne in Mrs Henry's motor vehicle.
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Mr Henry said in the course of that meeting Mr Dhu said to those present it would
be easier if Mr Henry was “on the paperwork” in respect to the Lease. At that
meeting Mr Dhu gave to Mr Heymans a copy of the draft Ngarluma Native Title
and Heritage Agreement for his consideration.
102. Mr
Henry said he discussed with Mr Heymans that he would anticipate Mr
Heymans would not get much change out of expending $100,000 in meeting the
requirements contained within the draft Ngarluma Native Title and Heritage
Agreement.
103. A
short time later, Mr Henry said Mr Heymans came to his house in Karratha. Mr
Henry said he assumed Mr Heymans must have considered the meeting with Mr
Dhu and what Mr Henry had to say about the content and cost associated with the
draft Ngarluma Native Title and Heritage Agreement.
104. Mr
Henry said the events and discussions that then unfolded with Mr Heymans at
Mr Henry's home were as follows:
“Anyhow, Peter must have thought about it and I don't know, he was a little while
later, he came to my place with a document, a transfer document, signed by Michele
Heymans. I said, “What’s this?” He said, “Well, Michelle wants out and you take
her 50 per cent,” he says, “It might make things a lot better with the Mulla Mulla
people”, as he calls them. I said, “Well, definitely, I'm interested.” He says, “We can
be partners.” I said, “Okay.” He says, “I do realise I owe you money, but there is
still 40 sea containers of stone at BRT’s yard. Once we get this through,” he says,
“you'll get your money.” “All right, Peter, that’s good.” So we shook hands on that.
Anyhow, while he was there, Rena, my wife, rang my son's partner, Wayne's partner,
Bonita Anderson, and said, “Bon, can you come across and witness Mick’s
signature.” She said, “All right.” So she comes across and she witnessed my
signature on that document, that's BG Anderson who witnessed my signature. I said,
“Peter, you're going to have to take this back to Roebourne and get Michele’s
signature witnessed in front of Michele.” He said, “I don't want to go back to
Roebourne again, drive all the way back up to Roebourne,” I suppose from my place
it was the best part of 50 K’s. He said, “She can sign that.” I said, “No, she can’t.”
He says “I've been married to Michele for thirty something years," or whatever it
was, he said, “I know my wife's signature.” He said, “Bonnie, you sign that," and
she did. She says, “You’re sure this is your wife?” He was adamant, “This is my
wife's signature, I've been married to her." Although should have done was copied to
initial alongside; my mistake.”
105. Mr
Henry said the Transfer Document was then signed and witnessed by Ms
Anderton and she left his house. According to Mr Henry, after the Transfer
Document was signed by him, Mr Heymans then informed him and his wife he had
issues with the payment of royalty to the DMP for the mining of the Stone from the
Lease and the payment of a water account. As a result of that discussion with Mr
Heymans, Mr Henry said he and his wife wrote out a cheque for $13,600 to Mr
Heymans for payment of the royalty of $10,000 to DMP and $3600 for payment of
a water account. Upon receipt of the cheque Mr Henry said Mr Heymans left his
home.
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106. A
short time later, Mr Henry said his wife telephoned the DMP and spoke to a
person in the royalty section and ascertained royalty was only payable to DMP
upon the sale of the Stone mined from the Lease. Mr Henry said his wife then
contacted Mr Heymans by telephone and advised him of what she had been
informed by the DMP regarding the royalty. According to Mr Henry, his wife
requested Mr Heymans return the $10,000 to them. However, Mr Henry said Mr
Heymans advised his wife he was going overseas and needed the money for
travelling.
107. After
the Transfer Document was received by Mr Henry, he and his wife sent it to
the Stamps Office in Perth to have stamp duty assessed. To the best of his
knowledge, Mr Henry said he received a bill for stamp duty from the Stamps
Office. Mr Henry said he was aware of a letter from the Stamps Office to do with
the stamp duty on the Lease but he understood that was handled by Mrs Henry.
108. After
the Transfer Document was returned from the Stamps Office, Mr Henry said
he and his wife attended at the Mining Registrar's Office in Karratha and presented
the Transfer Document to Ms Baker, for registration. Mr Henry said Ms Baker
identified a few alterations that were needed to the Transfer Document including
inserting his full middle christian name, changes to the way in which the Share was
expressed in the Transfer Document and a number of other smaller alterations all of
which required to be initialled by the signatories.
109. Mr
Henry said he and his wife then travelled to Roebourne and caught up with Mrs
Heymans at her house. According to Mr Henry both he and his wife stayed at the
home of Mrs Heymans for a period of about an hour talking about various issues
and having a cup of tea. During that time Mr Henry said Mrs Heymans initialled
the alterations on the Transfer Document. Mrs Heymans did not make any
complaint or raised any issue with him about transferring to him the Share in the
Lease. In fact, Mr Henry said Mrs Heymans expressed how happy she was to be
getting out of the Lease as Mr Heymans was always overseas and was never there
to help her. Mr Henry said as he was leaving the home of Mrs Heymans she said to
him he should take the whole of the Lease off Mr Heymans. Mr Henry said he
responded to Mrs Heymans by saying he was content with a 50% interest in the
Lease.
110. Mr
Henry confirmed in his evidence the Transfer Document was finally registered
with the DMP and the Share in the Lease transferred to him in late December 2010.
111.
Sometime after the transfer of the Share in the Lease was complete Mr Henry said
he and his wife attended at the old museum in Roebourne to look at some old
books. To his surprise Mrs Heymans was there and she introduced her daughter,
Johanna, to them by describing them as “the people that got my 50% share of the
Lease.” Mr Henry said Johanna replied by saying “is that so, I would like my
$20,000 back.” Mr Henry said he asked Johanna what the $20,000 was for and she
replied that it was “what we put as surety for a bond for Peter.” Mr Henry said he
advised Johanna he would speak to Mr Heymans and if he or she was entitled to
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have her $20,000 back as her mother was no longer the part owner of the Lease
then he would make sure it was returned to her.
112.
After the registration of the Transfer Document was completed in late December
2010, Mr Henry said he went about arranging for Mr Newland to finish off
documentation for the necessary environmental reports for the DMP, arranged a
survey to assist with the pit design, prepared a project management plan and
arranged for a Heritage Clearance of the Lease to be conducted through the
Ngarluma Corporation. Further, Mr Henry said he arranged for an application for
Miscellaneous Licence 47/410 (“the L”) for a roadway to be made in February
2011 in both his name and that of Mr Heymans to provide appropriate access to the
Lease. The L was subject to an objection by Rio Tinto but Mr Henry said that was
eventually resolved and Heritage Clearances were complete. To achieve the
Heritage Clearance for the L a joint letter was written to the Ngarluma Corporation
dated 21 March 2012 and signed by Mr Henry and Mr Heymans seeking a
variation of the current agreement held by Mr Henry.
113.
After the registration of the Transfer Document, Mr Henry said Mr Heymans
would come and go from overseas and each time he did so he wanted to gather
more of the Stone from the Lease. Mr Henry said he explained to Mr Heymans
they weren't entitled to remove the Stone from the Lease as if he was caught doing
so by the DMP all the work that had been done to lift the “stop work notice” would
be undone. Mr Henry said he was concerned because Mr Heyman’s attitude and
comments to him regarding removal of the Stone from the Lease was stated as
being “what the DMP does not know won't hurt them.”
114. Further,
Mr Henry said during the various visits by Mr Heymans back to Australia
he discussed with him the progress of the Heritage Clearance, that was going on
with the Lease and other matters in regard to the Lease. Mr Henry said in respect to
expenses he had paid for the Lease he was assured by Mr Heymans he would be
paid when some of the Stone from the Lease was sold and all the bills were “50/50
and everything was 50/50 after costs”.
115. In
or about October 2011, Mr Henry said his son Wayne received a telephone call
from Mr Heymans informing him there had to be a meeting at Mr Henry's house.
Mr Henry said he, his wife and his sons attended the meeting with Mr Heymans. At
the meeting Mr Henry said Mr Heymans informed them he had a big contract with
the Chinese. Mr Henry said he informed Mr Heymans they didn't have the
Authority from the DMP to mine the Stone from the Lease. According to Mr
Henry, Mr Heymans said to him that he would receive some telephone calls from a
person named Carson, who was related to the woman he intended to marry,
regarding quarrying of the Stone from the Lease. Mr Henry said he continued to
inform Mr Heymans they had no Authority to mine the Lease but he continued to
"waffle on about different things” resulting in his son's leaving the meeting.
116. Mr
Henry said he had further discussions with Mr Heymans regarding the manner
in which he was dealing with the Chinese. It always seemed to be the case, Mr
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Henry said, that Mr Heymans was getting into trouble with money because he was
sending the Stone to Asia and then returning to Australia without having been paid.
Mr Henry said he and his wife drew up a terms of trade document that would
require potential buyers to pay up front 50% of the value of the Stone and after
looking at the Stone in Australia if the potential buyer was satisfied with the Stone
the balance of 50% would be paid and the Stone moved at their own cost.
117. According
to Mr Henry, he discussed the terms of trade with Mr Heymans who
agreed it was a good idea. Shortly after that a man named Carson contacted Mr
Henry twice and discussed with him the terms of trade. The nature of those
telephone calls were, according to Mr Henry, being told by Carson he wanted to see
the Stone first before he paid for it and then being told by Carson how much he
would pay for the Stone. Mr Henry said he laughed at Carson and without reaching
any agreement hung up the telephone. Later, Mr Henry said cheeky e-mails were
sent to his wife by Carson. Mr Henry said he advised Mr Heymans to deal with
Carson and ensure he was not cheeky to Mrs Henry.
118. On
24 February 2012, Mr Henry said he received a letter from the DMP advising
him he had approval to mine the Lease subject to the payment of the Bond of
$73,000. Mr Henry said Mr Heymans was overseas and he was unable to contact
him to obtain half of the Bond. Mr Henry said he made arrangements through the
DMP to allow him to lodge the whole of the Bond with DMP.
119. Following
the deposit of the Bond with the DMP, Mr Henry said he made an
arrangement, after discussing it with Mr Heymans, with a company called
Kimberley Quarries to crush some of the Stone to try it as aggregate in exposed
concrete. Whilst that activity was occurring, a person called Mr Michael
Easterbrook (“Mr Easterbrook”) attended at the Lease and made some claims about
holding an interest in the Lease that he had obtained from Mr Heymans.
120. Mr
Henry said he arranged a meeting with Mr Heymans to discuss the Lease. Mr
Heymans attended at the Lease at a time when Mr Henry’s son, Wayne, was
breaking up some rocks to take to Kimberley Quarries. According to Mr Henry, Mr
Heymans inquired what he was doing and after he was told by Mr Henry as to what
he was doing Mr Heymans told him that he needed to get an order of the Stone
ready to send China. Mr Henry responded to Mr Heymans by advising him that he
never gets paid for orders of the Stone he send to China and he is not interested in
the dealing with the Chinese unless they put 50% upfront in accordance with the
terms of trade. Mr Heymans became “shirty” with Mr Henry. Mr Henry said he
then informed Mr Heymans he owed him for half the Bond plus other money he
had lent him. Mr Henry said the response he received from Mr Heymans to be told
“You can go and get fucked.”
121. On
about 16 March 2012, Mr Henry said he attended at the Lease with a number of
other people and delivered to Mr Heymans an invoice for work done and money
owed to him in relation to the “clean-up”, bills paid and arrangements made to
remove the “stop work notice” to enable mining to recommence on the Lease. The
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invoice also included money due for various expenses in relation to the grant of the
L.
122. According
to Mr Henry, at the same time he handed to Mr Heymans his invoice,
Mr Heymans handed to Mr Henry a copy of the 2009 Document and claimed Mr
Henry was not the owner of the Share in the Lease. That was the first time Mr
Henry said he had seen the 2009 Document. Mr Henry denied he had ever badgered
or stood over Mrs Heymans or there was anything untoward in the manner in which
the Transfer Document came to be signed and the Share in the Lease was registered
in his name.
123. In
summary, Mr Henry did not waiver in cross-examination from his evidence in
chief as to the circumstances in which the Share in the Lease came to be registered
in his name.
124. Mr
Henry said the Lease could be worth as much as $2 to $3 million but it was
worth nothing whilst the Stone remained in the ground. Mr Henry denied the
suggestion he picked up the Share in the Lease for nothing. He said he put in a lot
of work and paid a lot of money so the mine was capable of being worked.
125. Further,
Mr Henry said by him obtaining the Share in the Lease the cost of the
Heritage Clearance was significantly reduced to an amount of some $3425 because
Mr Heymans did not have to enter into the Ngarluma Native Title and Heritage
Agreement that would have cost Mr Heymans in the vicinity of $100,000 to comply
with.
126. Mr
Henry also denied Mr Heymans ever gave to him for safe keeping a briefcase or
a box of papers pertaining to environmental issues that contained the Transfer
Document. Further, Mr Henry denied he obtained the signed Transfer Document
for the Lease from a briefcase or box belonging to Mr Heymans and then presented
it to Mrs Heymans to sign in his favour.
127. It
was also maintained by Mr Henry the Transfer Document was presented to him
for the first time by Mr Heymans with his name endorsed as the transferee in the
hand writing of Mrs Heymans. He denied strenuously there was anything
underhanded or unlawful in the manner in which he became the holder of the Share
in the Lease.
Evidence of Mrs Rena Henry
128. Mrs
Henry is the wife of Mr Henry and lives in Karratha.
129. In
summary, Mrs Henry said she has known Mr Heymans since early 2010 and Mrs
Heymans since about 2000.
130. Mrs
Henry said Mr Heymans came to her home in Karratha a number of times to
speak with her husband regarding some mining and sampling he required to be
conducted on the Lease. Mr Heymans wanted the work on the Lease to be
conducted by their son, Wayne Henry, through his earthmoving company called
Bobford Services Pty Ltd. According to Mrs Henry, work was carried out by
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Bobford Services Pty Ltd and invoices were sent to Mr Heymans with some being
paid and others not being paid.
131. Mrs
Henry said in about July 2010 the DMP shut down mining operations being
conducted at the Lease. Mr Henry showed to Mrs Henry some documents from
DMP regarding the shutdown. Shortly after that, Mrs Henry said Mr Heymans
came and spoke to her and insisted all approvals were in order and Mr Newland had
the environmental requirements in order for the mine on the Lease to re-open.
132. Mrs
Henry said the paperwork being referred to involve environmental reports,
aboriginal heritage surveys and issues associated with how waste products were to
be treated and dealt with on the Lease. Mr Heymans asked Mrs Henry and Mr
Henry if he was able to assist. As a consequence Mrs Henry said her husband
telephoned Mr Newland and had a discussion with him.
133. Mr
Newland then e-mailed a copy of documents from DMP which was then
forwarded to Mr Heymans to consider. As a consequence of that email a number of
items were needed to be attended to by Mr Heymans. Mrs Henry said she and her
husband had a conversation with Mr Heymans concerning issues to do with
management of topsoil and general rehabilitation of the Lease. The other matter
that was the only real issue was obtaining an aboriginal heritage survey or
agreement. As a consequence, Mrs Henry she said her husband suggested to Mr
Heymans he should see the lawyer at Ngarluma Corporation in Roebourne, Mr
Dhu.
134. Mrs
Henry said she and her husband had an agreement with the Ngarluma
Corporation so she rang Mr Dhu to make an appointment for Mr Heymans, her
husband and her to meet with him.
135. A
meeting was conducted at the offices of Ngarluma Corporation in Roebourne and
that meeting was attended by Mr Dhu, Mr Heymans, and Mr & Mrs Henry.
According to Mrs Henry a discussion took place with Mr Dhu about the need to
obtain various heritage clearances and put in place an aboriginal heritage agreement
with Mr Heymans. At the end of the day it was suggested by Mr Dhu the simplest
way in which the difficulties faced by Mr Heymans could be overcome was for Mr
Henry to have his name put on the Lease and all of the paperwork could be
avoided. Mr Dhu agreed to send paperwork to do with the aboriginal heritage
agreement. Copies of that paperwork was received by Mrs Henry on about 5
October 2010.
136. On
the way home from Roebourne, Mrs Henry said Mr Heymans advised Mr
Henry he would go and see his former wife and see if she would sign over the
Share in the Lease to Mr Henry rather than go through all the paperwork and the
cost of the aboriginal heritage survey.
137. On
11 October 2010, Mrs Henry said Mr Heymans attended at her home in
Karratha. There, Mrs Henry said Mr Heymans produced the Transfer Document.
According to Mrs Henry, Mr Heymans said to her this document was Michele's
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(Mrs Heymans) transfer of the Share in the Lease and they would need to find a
witness. As a result, Mrs Henry said she telephoned Ms Anderton, her son’s
partner, and asked if she could come over and witness Mr Henry signature on some
paperwork.
138. According
to Mrs Henry, Ms Anderton attended at the home of Mr & Mrs Henry in
Karratha. Mrs Henry said present was Mr Henry, Mrs Henry and Mr Heymans and
all were sitting at the kitchen table. Mrs Henry said her husband put the Transfer
Document on the table and said to Ms Anderton there was no witness to Mrs
Heymans signature and queried whether it should be witnessed. According to Mrs
Henry, Mr Heymans said to Ms Anderton for her to sign as a witness as he
recognised his wife's signature and he didn't want to go back to Roebourne. Mr
Henry said to Mr Heymans he should go back and have the Transfer Document
witnessed. According to Mrs Henry, Mr Heymans said it was his wife’s signature
and that Ms Anderton should just sign it. Accordingly, Ms Anderton signed the
Transfer Document as witness to the signature of Mrs Heymans as instructed by Mr
Heymans.
139. On
the same day Mr Henry signed the Transfer Document, Mrs Henry said Mr
Heymans informed Mr Henry and her that he was in trouble with payment of
royalties for the Stone with DMP and he also had a problem with Hanson's
regarding a water bill. Mr Heymans asked Mr Henry to lend him $10,000 to pay the
DMP the royalties and $3600 to pay Hanson’s water bill. Mrs Henry said she asked
Mr Heymans if he had an invoice for the water bill to which Mr Heymans
responded it was back at the Lease. A cheque for $13,600 was drawn by Mr and
Mrs Henry and given to Mr Heymans by Mr Henry. Mrs Henry said a further sum
of $1000 in cash was given to Mr Heymans by Mr Henry on the same day because
Mr Heymans told Mr Henry he was short of money and he would pay him back.
140. Mrs
Henry said she followed up with the DMP regarding any royalty payable from
the Stone mined on the Lease. She said she spoke to Mr Chris Parker at DMP who
said $10,000 in royalties were owed by Mr Heymans but payment would only
become due when the Stone had been sold. Mrs Henry said she had been told by Mr
Heymans he had never been paid for the Stone and as such no royalties were due to
DMP.
141. Having
received that information from DMP, Mrs Henry said she telephoned Mr
Heymans and informed him of the information she had received regarding the
royalties. She said she told Mr Heymans he needed to pay the water bill but she
wanted back the $10,000. Mrs Henry said Mr Heymans said he could not pay back
the $10,000 as he needed the money to go to Thailand to chase up the Stone. No
further contact was had by Mrs Henry with Mr Heymans and he left for Thailand.
142. Mrs
Henry said the Transfer Document was sent by her to the Office of State
Revenue for stamping but was returned with a document requesting further
information before assessment of stamp duty could occur. Eventually a stamped
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copy of the Transfer Document was returned to her from the Office of State
Revenue.
143. Upon
receipt of the stamped Transfer Document, Mrs Henry said she and her
husband went to the Mining Registrar's Office in Karratha and met with Ms Baker.
They presented the Transfer Document to Ms Baker who filled out the official
office portion of that document and they went home. A short while later she
received a telephone call from Ms Baker apologising to her and advising her she
had overlooked errors on the Transfer Document and they needed to be amended
and requested they come back to her office to get the Transfer Document back.
144. Mrs
Henry said when they arrived at the Mining Registrar's Office in Karratha Ms
Baker presented to them the Transfer Document indicating the changes needed to
be made to the Transfer Document in pencil and where each of the signatories and
witnesses needed to re-sign. Those changes included the need for Mr Henry's
middle christian name to be spelt in full and clarification as to the percentage of
shares being transferred.
145. Ms
Baker informed Mr and Mrs Henry they would need to see Mrs Heymans and
Ms Anderton and have them both initial the changes to the Transfer Document. Mrs
Henry said she did not have contact details for Mrs Heymans but knew she lived in
Roebourne and obtained Mrs Heymans telephone number from a person at the
Roebourne Visitors Centre.
146. Mrs
Henry said she telephoned Mrs Heymans at some time between Christmas and
New Year in 2010. She negotiated a time to attend at the home of Mrs Heymans
and then attended with Mr Henry. At Mrs Heymans home, Mrs Henry said she
showed the Transfer Document to Mrs Heymans and explain to her the reason for
the visit.
147. After
some discussion about the initials that were required to be placed on the
Transfer Document, Mrs Henry said Mrs Heymans initialled at the place noted as
requiring her initials by Ms Baker. Mrs Henry said Mrs Heymans said she was
relieved that her Share in the Lease was being transferred to Mr Henry as it had
caused her a lot of stress and heartache over the years. Mrs Henry said she took the
Transfer Document to Mrs Heymans on only one occasion and that was for the
initials to the alteration to occur.
148. Further,
Mrs Henry said Mrs Heymans said she did not want to discuss the matter
further once the Transfer Document was initialled. However, Mrs Henry said she
and Mr Henry did see Mrs Heymans on one other occasion after the Transfer
Document had been initialled.
149. That
meeting occurred, according to Mrs Henry, when she and Mr Henry attended
at the Roebourne Visitors Centre to buy some books. To their surprise, Mrs Henry
said Mrs Heymans appeared from behind a screen and after exchanging greeting
with one another Mrs Heymans informed she worked part time at the Roebourne
Visitors Centre.
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150. Mrs
Henry said Mrs Heymans then introduced her and Mr Henry to her daughter,
Johanna, as the “new owners of my 50% of the quarry.” Mrs Henry said Johanna
immediately “started on” Mr Henry by saying words the effect “if you're the 50%
owner we want our bond back.” According to Mrs Heymans that comment by
Johanna left both Mr and Mrs Henry stunned as they didn't know what she was
talking about.
151. Johanna
then explained to Mr and Mrs Henry she had put up the Bond to the DMP
for the Lease on behalf of Mr Heymans and as they were now the 50% owners of
the Lease they owed her 50% of the Bond. According to Mrs Henry, Johanna was
advised by Mr Henry they would sort out the Bond and its paperwork with the
DMP.
152. After
the Transfer Document was given to Mr and Mrs Henry by Mr Heymans, Mrs
Henry said she did not see Mr Heymans for a period of time until some Sea
Containers containing some of the Stone from the Lease were taken from the
Dampier Port. That occurred in about November of 2010. As a result of the Sea
Containers being removed, Mrs Henry said Mr Henry contacted Mr Heymans who
put him in contact with a lawyer in Bangkok and eventually another lawyer in Perth
to try and recover the Sea Containers.
153. Mrs
Henry said after a period of time Mr Henry travelled to Bangkok to meet with
a lawyer who wanted more money to try and find the Stone. Mrs Henry said Mr
Henry returned to Perth and then met up with Mr Heymans. At that time Mrs Henry
said Mr Henry loaned to Mr Heymans a sum of $3000 to pay to the Perth-based
lawyer to commence some action to attempt to recover the Stone that had left
Dampier Port in the Sea Containers.
2011, Mrs Henry said the “clean-up” work continued upon the Lease under
instructions from officers of the Environment Department of the DMP. During the
“clean-up”, Mrs Henry said both she and Mr Henry had communications with Mr
Heymans who enquired whether the “clean-up” was continuing. Mrs Henry said Mr
Heymans came and went from Australia to Asia on a number of occasions in the
early part of 2011.
154. During
155. In
May of 2011, Mrs Henry said she became aware Mr Heymans had returned from
overseas as he attended at her home and advised Mr Henry and her he was going to
ask Mrs Heymans for a divorce as he intended to marry a Chinese lady.
156. According
to Mrs Henry, further discussions were conducted by Mr Henry and her
with Mr Heymans concerning the “clean-up” at the Lease and the need to have a
Heritage Clearance conducted upon the Lease. Mrs Henry said she expected an
Heritage Clearance to cost approximately $90,000 but if the Ngarluma Corporation
were asked to conduct a heritage inspection rather than a survey the cost may be
significantly reduced if nothing of significance was found. Consequently, Mrs
Henry said a heritage inspection was conducted upon the Lease by the Ngarluma
Corporation who found nothing of significance. An account of approximately
$3000 was rendered to Mr Henry by the Ngarluma Corporation for the heritage
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inspection and was paid by him. According to Mrs Henry, Mr Heymans said he
would meet the cost of that account on a 50/50 basis.
157. In
October 2011, Mrs Henry said she again saw Mr Heymans after he had returned
from overseas where he had been travelling. She said Mr Heymans advised he had
he had a huge contract with a Chinese company for the sale of the Stone from the
Lease. As a consequence, Mrs Henry said Mr Heymans advised her she would
receive telephone calls from a man named Carson from China. Mrs Henry said she
received a number of telephone calls that were followed by a number of e-mails
from Carson regarding the sale of the Stone from the Lease. The content of the emails from Carson indicated he wanted to set a price for the Stone and he required
20 tonnes of the Stone to be forwarded to him in Asia.
158. Mrs
Henry said she was aware Mr Heymans had sent tonnes of the Stone to
customers in Asia and had not been paid. In those circumstances, Mrs Henry said
she and Mr Henry proposed to meet with Mr Heymans to discuss changes to the
manner they traded with clients in Asia including ensuring they were paid before
any of the Stone from the Lease left Australia.
159. Mrs
Henry said Mr Heymans called her son to inform her and Mr Henry that he
proposed to call a meeting concerning the Stone being mined from the Lease. At
that meeting Mrs Henry said it was discussed with Mr Heymans how the business
was to be run, new proposed terms of trade and changes to the company name
before any of the Stone would be mined from the Lease. That course of action was
agreed, according to Mrs Henry, with all those present at the meeting including Mr
Heymans.
160. Despite
having that discussion at the meeting no deal was entered into with the
Chinese company as the terms of trade were not settled with them and there was
still no Authority to mine the Lease issued by the DMP.
161. After
October 2011, Mrs Henry said both she and Mr Henry spent time dealing
with the DMP to obtain clearance to recommence mining on the Lease.
162. Mrs
Henry said during one trip to the Lease she and Mr Henry found Mr Heymans
loading some drums with the Stone and they were being taken from the Lease.
Despite attempts by Mr Henry to persuade Mr Heymans to stop removing the Stone
from the Lease, Mrs Henry said Mr Heymans continued to fill the drums with the
Stone. The actions of Mr Heymans in removing the Stone from the Lease when
there was no Authority to mine issued by the DMP annoyed Mr and Mrs Henry as
they had expended a considerable amount of time, money and effort on seeking
permission from the DMP to recommence mining on the Lease and such actions
could jeopardise such approvals. Mrs Henry said the Authority to recommence
mining on the Lease was issued by the DMP in February 2012.
163. Mrs
Henry said it was necessary for there to be the payment of the Bond by Mr
Henry and Mr Heymans before mining could take place on the Lease. Over a period
of time, Mrs Henry said she and Mr Henry negotiated with offices at DMP to
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permit the Bond to be paid by Mr Henry as Mr Heymans was overseas and unable
to sign documents. Eventually that approval was given and Mr Henry paid the
whole amount of the Bond required by DMP. Further, Mrs Henry said Mr Henry
also paid an outstanding account to Mr Newland for preparation of an
environmental report required by DMP to assist in the approval process to
recommence mining on the Lease.
164. In
March 2012, Mrs Henry said she and Mr Henry attended upon the Lease and saw
Mr Heymans. They delivered to Mr Heymans an invoice outlining the amount of
expenditure incurred on the Lease since Mr Henry became the owner of the Share.
The amount of the invoice is the amount claimed in these proceedings against Mr
Heymans.
165. Over
a period of some two years Mrs Henry said she was present on a number of
occasions when discussions were had with Mr Heymans and he said that words the
effect “it was just as well Mr Henry was a half owner of the Lease as it was too
much for him to handle.”
166. Mrs
Henry said she assisted Mr Heymans, at his request in about July 2010, when
the mining operations on the Lease was shut down by the DMP. That assistance
included the preparation of various paperwork required to be lodged with the DMP.
The paperwork Mrs Henry said she completed for Mr Heymans that related to the
Lease was the Form 5. Mrs Henry said the completion of the Form 5 consisted of
Mr Heymans advising Mrs Henry of the amounts to be put into the respective
sections of the Form 5. Mrs Henry said she did not see any supporting
documentation for the Form 5 from Mr Heymans.
167. Mrs
Henry denied any suggestion she was ever handed a briefcase by Mr Heymans
with the request she keep it safely while he was overseas. Mrs Henry also denied
she was ever given or took the Transfer Document before it was signed by Mr
Henry in October 2010.
168. Various
documents were produced into evidence through Mrs Henry.
Evidence of Steven Wayne Dhu
169. Mr
Dhu was in October 2010 working for the Ngarluma Corporation in Roebourne.
Mr Dhu is a legal practitioner.
170. In
October 2010, Mr Dhu said he had a meeting at the offices of the Ngarluma
Corporation in Roebourne with both Mr Henry and Mr Heymans. Mr Dhu said he
could not recall the exact details of the meeting but it pertained to some activity or
works proposed to be conducted upon mining tenements in which both Mr
Heymans and Mr Henry had an interest near the Mt Regal area.
171. Mr
Dhu said his recollection was he advised both Mr Heymans and Mr Henry he
was not their lawyer but they should look towards doing a deed of variation to
allow the Lease to be covered by Mr Henry’s pre-existing aboriginal heritage
agreement. Mr Dhu explained there are two components to the aboriginal heritage
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clearance and completing one part may not be sufficient for the purposes of an
aboriginal heritage clearance.
Evidence of Ms Bonita Gaye Anderton
172. Ms
Anderton lives in Karratha and is the de-facto partner of Mr Wayne Henry the
son of Mr and Mrs Henry.
173. In
summary, Ms Anderton gave evidence Mrs Henry called her in October 2010
and asked her to come around to her house in Karratha to witness paperwork for Mr
Henry. When she arrived at their home, Mr Heymans and Mr and Mrs Henry were
present and she was asked to witness some signatures on what she described as a
piece of paper.
174. Mr
Heymans was known to Ms Anderton as she had met him out on what she
described as the “greenstone” lease at Mt Regal. Ms Anderton said what she was
asked to do was to sign as witness of the transfer of 50% of the Lease from Mr
Heymans wife, Michele, to Mr Henry.
175. Ms
Anderton said she was present when Mr Henry wrote his signature on the form
and she signed as witness. She signed as witness to the signature of Mrs Heymans
that was already on the form. According to Ms Anderton, Mr Heymans told her
that Mrs Heymans had signed it but she had forgotten to have it witnessed and it
was all right for her to just sign as witness. Mr Heymans told Ms Anderton that Mrs
Heymans was his wife.
176. At
a later time Ms Anderton said she saw the form again and was asked by Mrs
Henry to put her signature on to some changes that had been made to the form. Ms
Anderton said she did that by putting in the initials “BGA”. The form was not seen
again by Ms Anderton.
177. That
is the oral evidence called by Mr Henry in this matter. A number of
documents were produced into evidence in support of the oral evidence from the
various witnesses.
The Law
178. Relevant
to this proceeding is the provisions of s. 119 of the Act that provides for
the means by which an interest in a mining tenement may be transferred between
persons. Section 119 of the Act provides as follows:
“119. Mining tenement may be sold etc.
(1) Subject to this Act a mining tenement may be sold, encumbered, transmitted, seized and sold
to satisfy a judgment, or otherwise disposed of.
(2) A legal or equitable interest in or affecting a mining tenement is not capable of being created,
assigned, affected or dealt with, whether directly or indirectly, except by an instrument in
writing signed by the person creating, assigning or otherwise dealing with the interest.”
179. The
term “instrument in writing” is not defined in the Act, Regulations or in the
Interpretation Act (WA) 1935. An instrument in writing includes a deed, an
instrument under hand and any other document intended to produce a result
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recognised in law. (see: Hunter v Parker (1840) 7 M and W 322: 151 ER 789 and
Chadwick v Clarke (1845) 1 CB 700: 135 ER 717)
180. Regulation
75 of the Regulations provides the means by which the holder of an
interest in a mining tenement may apply to the Hon. Minister to transfer that
interest in the mining tenement to another person. The holder of an interest in a
mining tenement may apply to transfer their interest to another person by lodging a
transfer in the form of a Form 23 accompanied with the prescribed fee. In my
opinion, if the holder of an interest in a mining tenement orally agrees to transfer
either the whole of the interest in the mining tenement or part of the interest in the
mining tenement to another party the provisions of s. 119 of the Act are met by the
parties executing a Form 23
181. An
instrument under hand does not require to be possessed of the same formality as
a Deed and has been described in Halsbury’s Laws of Australia as “..any document
in writing which creates or affects legal or equitable rights and/or liabilities and is
authenticated by the signature of the maker of the document. Instruments under
hand are distinct from deeds in that instruments under hand are not sealed.”
Form 23 can be regarded, in my opinion, as “any other document intended to
produce a result recognised in law” because when the Form 23 is signed by the
holder of the mining tenement and the person to whom the interest is to be
transferred it will be recognised as a document capable of bringing about the
transfer of the interest in the mining tenement reflected in the Form 23 as agreed by
the parties. Therefore a result is achieved, the application for the registration of a
transfer of an interest in a mining tenement and the registration of the transfer of an
interest in a mining tenement, that is recognised by the provisions of the Act.
182. A
183. Sections
116(2) and (3) of the Act provides as follows:
“(2) “Except in the case of fraud, a mining tenement granted or renewed under this Act
shall not be impeached or defeasible by reason or on account of any informality or
irregularity in the application or in the proceedings previous to the grant or renewal
of that tenement and no person dealing with a registered holder of a mining
tenement shall be required or in any way concerned to inquire into or ascertain the
circumstances under which the registered holder or any previous holder was
registered, or to see to the application of any purchase or consideration money, or
be affected by notice, actual or constructive, of any unregistered trust or interest any
rule of law or equity to the contrary notwithstanding, and the knowledge that any
such unregistered trust or interest is in existence shall not of itself be imputed as
fraud.
(3)
In subsection (2) —
registered, in relation to a holder or previous holder of a mining tenement, means
that the name of the holder or previous holder is or was entered in the register as the
holder of the mining tenement.”
184. The
effect of the provisions of s. 116(2) of the Act is that all irregularities or
informality in the application process for the grant and renewal of a mining
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tenement are cured by grant of such application and, except in the case of fraud, the
grant of the mining tenement cannot be impeached. (see: Crocker Consolidated Pty
Ltd v Willie [1988] WAR 187 at 191)
185. However,
that is not the case in respect of a transaction that gives rise to the
subsequent taking of an interest in a mining tenement. Registration of an interest in
a mining tenement that arises by way of a transfer or other instrument is no more
than acknowledgement that the rights and obligations in the mining tenement are
vested in the registered holder. No indefeasibility of title is created by registration
of the interest in a mining tenement by transfer or other instrument. What is created
is a form of limited indefeasibility of title that is based on the question of notice as
provided by s. 116(2) of the Act.
186. The
definition of fraud, pursuant to s. 116(2) of the Act, has been held to be
construed liberally to the extend it should include fraud both before registration of
the interest in the mining tenement as well as fraudulent conduct that enables the
registration of title in a mining tenement n by a person. (see: Hamilton and
Gindalbie Mining NL v Golden Fortune Mining NL (1989)).
Findings of Credibility and Fact
187. I
do not accept the evidence of Mr Heymans in respect to how he alleges the
Transfer Document came to be signed by Mrs Heymans and later in the hands of
Mr Henry. As a whole I find the evidence of Mr Heymans to be verbose so as to
avoid answering many of the questions put to him, obstructive in answering many
of the questions put to him, inaccurate or vague as to many dates, at times generally
vague and in parts totally beyond belief and reality.
188. I
simply do not accept his evidence and version of the events he alleges gave rise to
the Transfer Document being unlawfully taken from a brief case, he claims, he left
with Mrs Henry when he went to China in 2010 for the purposes of completing a
Form 5 for the 2009/2010 Expenditure Year and an environmental report. I also do
not accept the evidence of Mr Heymans his attendance at the home of Mr & Mrs
Henry on 11 October 2010 was for the purposes relating to another mining
tenement.
189. The
evidence of Mr Heymans that he was aware from March 2011 that Mr Henry
claimed to be the registered holder of the Share in the Lease but did not accept it to
be the case as he had not received anything confirming the change in ownership
from DMP, did not check or a conduct a search of the Register with the DMP and
did not say anything to Mr Henry because he had legal advice not to do so is as
fanciful as it is deceitful. The documentary and oral evidence produced in this case
amply demonstrates that Mr Heymans was well aware from October 2010 that Mr
Henry was to make arrangements to become the registered holder of the Share in
the Lease and in fact did so. For Mr Heymans to say he did nothing to challenge the
manner in which Mr Henry was said to have taken the Share in the Lease and then
for some 2 years allow Mr Henry to expend substantial amounts of time and money
in advancing the Lease back to a stage it could be again mined before raising the
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issue is on the part of Mr Heymans dishonest, deceitful and demonstrable of a lack
of credibility. Apart from that, I do not accept Mr Heymans had any issue with the
manner in which Mr Henry took the Share in the Lease from Mrs Heymans until
after demands were made upon him in early 2012 for the repayment of money
previously loaned to him by Mr Henry.
190. The
claims by Mr Heymans he had, inter alia, approval to mine the Lease in the
face of the service of stop work notices by officers from the DMP and that he had
exemptions from lodging any reports or exemptions under the Act on oral
conversations with officers of the DMP is beyond the truth and demonstrates a
complete lack of reality on his part.
191. I
do not propose to say any more about the content of and manner in which Mr
Heymans gave his evidence except to say it was wholly unacceptable and I do not
accept it.
192. Similarly,
I do not accept the evidence of Mrs Heymans as being credible or
believable as to how the Transfer Document came to be completed by her in a
manner that the name of Mr Henry was written by hand by Mrs Heymans in the
box designated as the transferee. I find the evidence of Mrs Heymans to be lacking
in detail and vague as to dates and visits by Mr & Mrs Henry. I also find the
evidence of Mrs Heymans that she was angry because she wanted Mr Heymans to
have the Share in the Lease when Mr & Mrs Henry attended at her house to have
her sign the Transfer Document and to sign the Transfer Document without first
checking with Mr Heymans to be unbelievable and not credible. In that regard I do
not accept her evidence.
193. I
accept the evidence of Mrs Heymans she did speak to Mr & Mrs Henry in
company with her daughter sometime after the Transfer Document was signed
about the return to her daughter of the Bond pertaining to the Lease. I also accept
her evidence she introduced her daughter to Mr & Mrs Henry as the new owners of
the half share of the Lease.
194. I
was impressed by the evidence given by both Mr & Mrs Henry and accept their
evidence as credible and accurate of the events that gave rise to the manner in
which the Transfer Document was signed and the events that unfolded in the years
after. Both Mr & Mrs Henry were, with but few exceptions mainly due to the
passage of time, accurate as to times and dates, logical in sequences of events,
demonstrably methodical in record keeping and compliance with obligation under
the Act, commercially honest and hardworking and, in the events before me
helpful, forgiving and charitable to their detriment. Accordingly, I accept the
evidence of Mr & Mrs Henry as being the true version of what unfolded and gave
rise to Mr Henry becoming the registered holder of the Share in the Lease and the
events that thereafter unfolded.
195. I
accept the evidence of Ms Anderton as being credible and accurate. The written
evidence of Ms Baker is entirely consistent with the oral evidence of Mr & Mrs
Henry and I accept it as being credible.
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196. It
is against those findings of credibility I make the following findings of fact:
a. On or about 16 December 2009, Mrs Heymans transferred to Mr
Heymans the Share in the Lease by way of the 2009 Document. The
transfer of the Share in the Lease by the 2009 Document from Mrs
Heymans to Mr Heymans did not occur in accordance with the Act and
Regulations because the transfer did not occur in accordance with r. 75
of the Regulations.
b. On or about 16 December 2009, upon the transfer of the Share in the
Lease by Mrs Heymans to Mr Heymans pursuant to the 2009
Document, Mr Heymans became the equitable owner of the Share in
the Lease although Mrs Heymans remained the registered owner of the
Share in the Lease.
c. Sometime in 2009 or early 2010, Mr Heymans and Mr Henry were
introduced to each other by another contractor in the Karratha area.
d. At about the same time Mr Heymans contracted with a company
named Bobford Services Pty Ltd, a company in which Mr Henry’s
family has an interest, to conduct excavation work on the Lease. As a
consequence Bobford Services Pty Ltd conducted excavation services
upon the Lease in 2009 and 2010 at the direction of Mr Heymans.
e. For some years prior to Bobford Services Pty Ltd being engaged by Mr
Heymans to conduct excavation services upon the Lease, Mr Heymans
had been instructed by environmental officers of the DMP to “clean
up” the Lease by removing various items including car bodies, used
materials, various buildings and to fill in holes and old diggings.
f. Shortly after being directed by DMP to “stop work” on the Lease, Mr
Heymans engaged Bobford Services Pty Ltd to conduct a “clean up” of
the Lease. The “clean-up” of the Lease was directed by Mr Henry on
behalf of Bobford Services Pty Ltd.
g. During the “clean up” of the Lease, Mr Heymans produced to Mr
Henry a contract with a company in Thailand for the supply of Stone
from the Lease and requested Mr Henry to conduct mining operations
for him. Mr Henry agreed to conduct the mining operations at the
request of Mr Heymans and went about hiring machinery to mine
approximately 30,000 tonnes of the Stone from the Lease. During the
course of mining the Stone from the Lease Mr Heymans requested Mr
Henry to increase the Stone mined to approximately 250,000 tonnes.
h. In the course of conducting mining operations on the Lease for Mr
Heymans, Mr Henry inquired if all necessary approvals from DMP
were in place. Mr Heymans assured Mr Henry all approvals required
from DMP were in place and matters associated with environmental
requirements were in the hands of Mr Newland. Mr Henry repeatedly
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made it clear to Mr Heymans of the need to ensure all approvals to
mine the Lease from DMP were in place otherwise he would be in
trouble with DMP.
i. On 27 July 2010 a “stop work notice” was served upon Mr Heymans
by DMP Inspectors requiring all mining on the Lease to stop as Mr
Heymans had no approval or authority to mine the Lease from DMP.
j. After being served with a “stop work notice” by DMP, Mr Heymans
discussed with Mr Henry why he had been directed to stop work on the
Lease. Mr Henry and Mr Heymans approached the DMP Inspector to
ascertain what was required to be able to recommence work on the
Lease. The DMP Inspector advised Mr Henry and Mr Heymans there
were no approvals to mine on the Lease, there was no mining plan for
the Lease, there was no Heritage Clearance for the Lease and there was
no environmental plan for the Lease.
k. During July 2010, Mrs Henry assisted Mr Heymans to prepare and
lodge the Form 5 for the Lease but did not retain any documents from
Mr Heymans.
l. Despite being served with the “stop work notice” upon the Lease by
the DMP Inspector, Mr Heymans maintained he had both the Authority
to mine the Lease and did not need to lodge a mining plan for the
Lease, he had no issue with DMP as the preparation of the
environmental plan for the Lease as it was in the hands of Mr Newland
who had submitted it to DMP and he did not need a Heritage
Clearance.
m. Mr Henry offered to assist Mr Heymans by enquiring with various
parties as to the requirements to be met to place the Lease back into
operation. Mr Heymans accepted the offer by Mr Henry.
n. Mr Henry contacted Mr Newland who informed him he had stopped
work on environmental plans as he had not been paid by Mr Heymans.
Mr Henry discussed the matter with Mr Heymans and on the basis that
such funds would be loaned to Mr Heymans by Mr Henry and later
repaid by Mr Heymans to Mr Henry funds were paid to Mr Newland
by Mr Henry sufficient he would recommence work on the
environmental plans.
o. Mr Henry ascertained no Heritage Clearance had been obtained by Mr
Heymans from the Ngarlume Corporation it being the local native title
holders of the land upon which the Lease is situated.
p. Mr Henry ascertained no mining plan had been prepared, lodged or
approved by DMP for the Lease before Mr Heymans commenced
mining on the Lease.
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q. Mr Henry offered to assist Mr Heymans to rectify the outstanding
issues with the DMP so the necessary approvals could be obtained
from DMP to enable Mr Heymans to recommence mining on the
Lease. That offer was accepted by Mr Heymans.
r. Mr Henry prepared for Mr Heymans a mining plan for the Lease that
was both lodged and approved by the DMP.
s. Mr Henry communicated with Mr Newland until the appropriate
environmental plan was obtained from Mr Newland and then lodged
and approved by DMP. Mr Henry also continued to supervise work by
Bobford Services Pty Ltd for the “clean-up” of the Lease as required
by DMP. The “clean-up” of the Lease was eventually completed to the
satisfaction of officer of DMP.
t. Mr Henry discussed with Mr Heymans what he believed needed to be
achieved to obtain a Heritage Clearance from the local native title
holder of the land through their representative body the Ngarluma
Corporation. Mr Henry advised Mr Heymans he believed the process
would require Mr Heymans to expend about $100,000. Alternatively,
Mr Henry suggested to Mr Heymans if the Lease was made part of his
group of mining tenements then the need to expend such a large sum of
money on the Heritage Clearance may be avoided. Mr Henry offered
to arrange a meeting with the lawyer in Roebourne for the Ngarluma
Corporation, Mr Dhu, to discuss the matter. Mr Heymans agreed to do
so and Mrs Henry arranged the meeting with Mr Dhu in Roebourne.
u. On 5 October 2010, Mr Heymans, Mr and Mrs Henry attended upon
Mr Dhu in Roebourne and advised Mr Heymans he would need to
enter into a Native Title and Heritage Agreement with the Ngarluma
People and provided him with a copy of the draft agreement used by
the Ngarluma Corporation for that purpose. Mr Dhu also suggested to
Mr Heymans he may be able to avoid the need to go down the path of
the Native Title and Heritage Agreement with the Ngarluma People if
the Lease was brought under the existing agreement the Ngarluma
People had with Mr Henry.
v. On the way back from the meeting with Mr Dhu, Mr Heymans and Mr
Henry discussed the cost of obtaining Native Title and Heritage
Agreement with the Ngarluma People and Mr Henry advised Mr
Heymans he did not expect he would get much change from $100,000.
w. On or about 11 October 2010, Mr Heymans, as a result having
discussions with Mr Henry had a full understanding of what was
required of him to obtain the necessary Authority to mine the Lease
from the DMP in circumstances of him not having the financial
resources, administrative skill or access to machinery to mine the
Stone from the Lease to meet orders from his clients in Asia, reached a
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conclusion in his mind to offer Mr Henry an opportunity to join him in
an equal partnership in conducting mining operations to mine the
Stone from the Lease in exchange for the interest Mr Heymans had in
the Share in the Lease.
x. On 11 October 2010, Mr Heymans attended upon Mrs Heymans and
discussed with her the transfer and his reasons for the transfer of his
equitable interest in the Share in the Lease to Mr Henry that remained
registered with Mrs Heymans.
y. On 11 October 2010, Mrs Heymans, at the request of Mr Heymans and
in the full knowledge of what she was doing, completed the Transfer
Document in her hand writing including entering the name of Mr
Henry in the box designated as the “Transferee” and then handed the
Transfer Document to Mr Heymans.
z. On 11 October 2010, Mr Henry attended the residence of Mr Henry in
Karratha and, in the presence of Mrs Henry, produced the Transfer
Document signed by Mrs Heymans, completed with Mr Henry’s name
as the “Transferee” offered to Mr Henry the Share in the Lease and the
opportunity to become an equal partner in the cost of and proceeds
from mining the Stone on the Lease.
aa. On 11 October 2010, Mr Henry accepted the offer made by Mr
Heymans and shook hands on that agreement. Mr and Mrs Henry
observed the Transfer Document needed to be signed by Mr Henry and
witnessed by another person. Mr and Mrs Henry also noted the
signature of Mrs Heymans had not been witnessed by another person.
bb.Mrs Henry telephoned Ms Anderton who lived nearby to her home in
Karratha and requested she attend her home to witness the signature of
Mr Henry on the Transfer Document. Ms Anderton attended the home
of Mr and Mrs Henry and there witnessed Mr Henry sign the Transfer
Document.
cc. Mr and Mrs Henry noted the signature of Mrs Heymans was required
to be witnessed and advised Mr Heymans to take the Transfer
Document to Mrs Heymans to have her signature witnessed. Mr
Heymans declined to take the Transfer Document back to Mrs
Heymans who was in the Roebourne area and advised Ms Anderton he
identified the signature of Mrs Heymans as she had been his wife for
some 35 years and Ms Anderton should sign the Transfer Document.
dd.As a result of the request by Mr Heymans, the signature of Mrs
Heymans was signed on the Transfer Document as being witnessed by
Ms Anderton. The signature of Mr Henry was witnessed and the
Transfer Document signed by Ms Anderton in her presence. Ms
Anderton then left the home of Mr and Mrs Henry in Karratha.
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ee. After the Transfer Document was signed by Mr Henry the Transfer
Document was given to Mr Henry by Mr Heymans in the full
knowledge by Mr Heymans that he was transferring to Mr Henry his
interest in the Share of the Lease in return for the assistance by Mr
Henry to obtain the necessary approvals for the Lease to be mined and
for the administrative resources and access to machinery to mine the
Stone on the Lease.
ff. Following Mr Heymans handing to Mr Henry the Transfer Document,
Mr Heymans requested of Mr and Mrs Henry loan to him the sum of
$13,600 being $10,000 to pay royalty for the Stone mined from the
Lease and $3,600 for payment of a water account due to Hanson’s.
Further and at the same time, Mr Heymans also requested and received
by way of a loan from Mr and Mrs Henry the sum of $1000.00 in cash
to assist with expenses for an upcoming business trip to Asia. Mr
Heymans left Australia for the business trip to Asia a few days after
receipt of the money loaned to him by Mr and Mrs Henry.
gg.Between shortly after 11 October 2010 and before Christmas Day
2010, Mr and Mrs Henry forwarded to the Office of State Revenue the
Transfer Document for the purposes of assessment of stamp duty.
During the same period Mrs Henry answered a requisition from the
Office of State Revenue concerning the Transfer Document. The
Transfer Document was returned to Mr Henry from the Office of State
Revenue duly stamped during the same period.
hh.On 20 December 2010, Mr and Mrs Henry attended at the office of the
Mining Registrar in Karratha, Ms Baker, and there presented to Ms
Baker the Transfer Document for registration. Ms Baker identified a
number of changes required to the Transfer Document including
changes to the description of the number of shares in the Lease being
transferred and the inclusion of the full middle name of Mr Henry. The
changes required to the Transfer Document before it could be
registered by Ms Baker were marked by her in pencil on the Transfer
Document and that document then returned to Mr and Mrs Henry with
instructions to have the parties to the Transfer Document and the
witness to initial the changes.
ii. After Christmas Day but before New Year in 2010, Mr and Mrs Henry
contacted Mrs Heymans and made arrangements to attend upon Mrs
Heymans residence in Roebourne for the purposes of initialling the
changes to the Transfer Document. Mr and Mrs Henry and Mrs
Heymans stayed together for about an hour, had a cup of tea and
discussion concerning the transfer of the Share in the Lease. During
that time, Mrs Heymans initialled the changes to the Transfer
Document and made it known to Mr and Mrs Henry she understood
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she was transferring, at the request of Mr Heymans, the Share in the
Lease she held on behalf of Mr Heymans. Mrs Heymans expressed to
Mr and Mrs Henry she was happy to no longer be the registered holder
of the Share in the Lease.
jj. On 29 December 2010, Mr and Mrs Henry attended at the office of Ms
Baker in Karratha with the Transfer Document, duly signed and
alterations initialled. The Transfer Document was lodged with Ms
Baker and then registered in the Register held by DMP to show Mr
Henry was the registered owner of the Share in the Lease.
kk.After Mr Henry became registered as the holder of the Share in the
Lease on 29 December 2010, Mr and Mrs Henry attended the
Roebourne Visitors Centre to purchase some books. They saw Mrs
Heymans at the Roebourne Visitors Centre. Mrs Heymans introduced
her daughter to Mr and Mrs Henry as the “new owners of my 50% of
the quarry.” Mrs Heymans daughter demanded of Mr and Mrs Henry
they pay to her $20,000 being her half share of the Bond for the Lease
she had paid DMP on behalf of Mr Heymans. Mr Henry advised Mrs
Heymans daughter if the Bond was to be refunded he would attend to
it.
ll. After the Transfer Document was given to Mr and Mrs Henry by Mr
Heymans on 11 October 2010, Mr Heymans left Australia and
travelled overseas. Mr Heymans next spoke to Mr Henry in about
November 2010 regarding some Sea Containers containing the Stone
that went missing from Dampier. Mr Henry, in consultation with Mr
Heymans, attempted to recover the Sea Containers by speaking with a
lawyer in Bangkok, engaging a lawyer in Western Australia and
eventually travelling to Thailand. Mr Henry provided funding to the
lawyer in Western Australia to take steps to recover the Sea Containers
containing the Stone.
mm. During the whole of the year 2010, both Mr and Mrs Henry went about
ensuring the “clean-up” of the Lease continued, arranged the Heritage
Clearance by arranging for an inspection rather than a survey of the
Lease to be conducted by the Ngarluma Corporation. Mr Heymans
was advised by Mr and Mrs Henry the cost of the Heritage Clearance
by way of an inspection was about $3,000 and Mr Heymans agreed to
pay the account on a 50/50 basis. Further, Mr and Mrs Henry also dealt
with attempts by a person named Carson in China, who was known to
Mr Heymans, to have quantities of the Stone forwarded to him in Asia,
prepared a terms of trade document, proposed a change of name of the
business, dealt with Mr Newland and ensured the environmental
reports were prepared for DMP, dealt and liaised with DMP to meet
their requirements to obtained the Authority to mine the Lease and
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lodged an application for the L, including dealing with Objections to
that application.
nn. During 2011, Mr Heymans made a number of trips to Asia and return.
Mr and Mrs Henry communicated and met with Mr Heymans whilst he
was both overseas and in Australia and kept him informed of the
progress of work they were undertaking to advance the goal of
obtaining the Authority to mine the Stone from the Lease. During one
of Mr Heymans trips to the Lease in 2011 he was observed by Mr and
Mrs Henry to be filling drums with the Stone from the Lease and could
not be persuaded by Mr and Mrs Henry to desist despite Mr Heymans
being aware there was no Authority, at that time, to mine the Stone
from the Lease.
oo. On 24 February 2012, Mr Henry was informed by DMP the Authority
to mine the Lease had been granted subject to the lodgement of the
Bond in the sum of $73,000. Mr Heymans was, at that time, overseas
and unable to be contacted by Mr Henry. Mr Henry persuaded DMP to
allow him to lodge the whole amount of the bond on behalf of both Mr
Heymans and himself.
pp. Shortly after obtaining the Authority to mine the Lease Mr Henry
arranged for some of the Stone from the Lease to be crushed by a
company to see if it could be used as an aggregate in exposed concrete.
Mr Heymans and Mr Henry had a disagreement at the Lease over a
desire by Mr Heymans to again send the Stone to China contrary to the
agreed terms of trade. Mr Henry advised Mr Heymans he owed him for
the various amounts of money expended by him to obtain the
Authority to mine the Lease. Mr Heymans responded to Mr Henry
claim he owed him money by saying “You can go and get fucked.”
qq. On 16 March 2012, Mr Henry attended at the Lease and delivered to
Mr Heymans an invoice for the amounts of money he said was owed to
him by Mr Heymans. At that time Mr Heymans handed to Mr Henry a
copy of the 2009 Document. Mr Heymans then claimed Mr Henry was
not the owner of the Share in the Lease. That was the first time Mr
Heymans had made any suggestion to Mr Henry that he did not regard
Mr Henry was the registered holder of the Share in the Lease.
197. It
is not necessary, in my opinion, for the purposes of determining the preliminary
matter contained within the counterclaim by Mr Heymans to deal with the events
and court actions that transpired after the meeting between Mr Henry and Mr
Heymans on or about 16 March 2012.
Conclusions
198. I
do not accept the Respondent has, on the balance of probabilities, made out his
counterclaim, that Mr Henry obtained the transfer of the Share in the Lease from
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[2014] WAMW 8
Mrs Heymans to him by way of an unlawful means or for that matter by fraud or
there was any defect in the manner in which the transfer of the Share in the Lease
occurred.
199. I
have no doubt Mr Heymans requested Mrs Heymans to execute the Transfer
Document on or about 11 October 2010 to enable the Share in the Lease held by
her on behalf of Mr Heymans be transferred to Mr Henry. I have no doubt Mr
Heymans was at that time desirous to have the Lease in the position that it was
capable of being mined for the Stone on the Lease for export to Asia. At that time,
Mr Heymans did not have the finances, administrative capabilities, or other
resources, including the machinery to mine the Stone on the Lease, necessary to
meet the requirements of the DMP such that the requirements of the “clean-up”
notice for the Lease could be met, the Authority to mine from the DMP could be
obtained and the Lease eventually mined without the assistance and resources that
Mr Henry had or were available to him.
200. I
have no doubt after the meeting between Mr Heymans, Mr Henry and Mr Dhu on
5 October 2010, Mr Heymans formed the view he would be best served if he had
any hope of placing the Lease back into a position it could be mined for the Stone
for export to Asia that he should offer to Mr Henry the Share in the Lease in return
for Mr Henry entering into a partnership with him to mine the Lease. I also have no
doubt Mr Heymans knew and observed through his dealing with Mr Henry that Mr
Henry had the financial capacity, the administrative skills or at least the capacity to
access the administrative skills of Mrs Henry to attend to all the requirements of
DMP and others needed to maintain the Lease and also access to other resources,
including the machinery to mine the Lease for the Stone.
201. I
have no doubt Mr and Mrs Heymans met in the Roebourne area on 11 October
2010, before Mr Heymans visited the home of Mr and Mrs Henry. I have no doubt
Mr Heymans arranged with Mrs Heymans to have the Transfer Document written
up in the hand writing of Mrs Heymans. I have no doubt Mr Heymans instructed
Mrs Heymans to write in the Transfer Document the name of Mr Henry as the
transferee and signed and dated the Transfer Document but did not have Mrs
Heymans signature witnessed. I have no doubt Mr Heymans advised Mrs Heymans
he wanted the Share in the Lease, held by Mrs Heymans on his behalf, transferred
to Mr Henry to enable Mr Heymans to enter into a partnership with Mr Henry to
enable to Lease to be ultimately mined of the Stone contained thereon and then
exported to Asia. I have no doubt these events occurred on 11 October 2010 as Mr
Heymans said to Ms Anderton, Mr and Mrs Henry on that same day he did not
want to travel back to Roebourne to have Mrs Heymans have her signature
witnessed and the date entered on the Transfer Document in the hand writing of
Mrs Heymans was 11 October 2010.
202. I
do not accept any suggestion by Mr Heymans the Transfer Document was drawn
up under the hand of Mrs Heymans in 2009 at or about the same time the 2009
Document was signed. I do not accept the evidence of Mr Heymans he had the
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[2014] WAMW 8
Transfer Document, duly signed by Mrs Heymans but without the name of a
transferee, in his briefcase for almost a year prior to approaching Mr Henry with the
offer to join him in a 50/50 partnership to mine the Lease in exchange for the Share
in the Lease. I reject the suggestion by Mr Heymans that Ms Anderton was not an
independent witness to the execution of the Transfer Document by Mr Henry. Ms
Anderton was not a party to the Transfer Document. Ms Anderton knew Mr and
Mrs Henry through her relationship with their son. I do not accept the relationship
that that existed between Ms Anderton and Mr and Mrs Henry renders Ms
Anderton to be lacking in independence and ineligible to witness the signature of
Mr Henry or any other party to the Transfer Document. It is noted the issue of the
independence of Ms Anderton in the witnessing of the signature of Mr Henry was
not challenged in the cross examination of Ms Anderton.
203. I
have no doubt Mr Heymans was present in the home of Mr and Mrs Henry in
Karratha on 11 October 2010 when Mr Henry signed the Transfer Document in the
presence of, and witnessed by, Ms Anderton. I have no doubt Mr Heymans knew
when he approached Mrs Heymans to draw up the Transfer Document, in her own
handwriting and enter the name of Mr Henry as the transferee of the Share in the
Lease, it would if accepted by Mr Henry result in the Share in the Lease being
transferred to Mr Henry. I also have no doubt Mr Heymans knew he was required
to arrange for Mrs Heymans to transfer the Share in the Lease held by Mrs
Heymans on his behalf because of the term of the 2009 Document. I have no doubt
from the evidence Mr Heymans sought from Mr Henry in return for the Share in the
Lease his financial and administrative assistance to meet the requirements of the
DMP and the resources of Mr Henry of finances and machinery to ultimately mine
the Stone contained on the Lease.
204. I
have no doubt Mr Heymans was present when Mr Henry noted the signature of
Mrs Heymans on the Transfer Document had not been witnessed. I have no doubt
Mr Heymans encouraged and caused Ms Anderton to witness the signature of Mrs
Heymans on the Transfer Document despite the fact Mrs Heymans was not present
at the home of Mr and Mrs Henry in Karratha because Mr Heymans did not wish to
travel back to Roebourne from Karratha to have the signature of Mrs Heymans
witnessed.
205. I
have no doubt the contract between Mr Heymans and Mr Henry that gave rise to
the signing of the Transfer Document was an oral contract the terms of which were
that Mr Heymans would transfer to Mr Henry the Share in the Lease in return for
Mr Henry working with Mr Heymans on a 50/50 basis to bring the Lease back into
production by dealing with the requirements of the DMP, and in doing so use the
heritage agreement Mr Henry had with the Ngarluma Corporation, attend to all
necessary administrative matters pertaining to the Lease and to utilise the ability of
Mr Henry to the access the machinery necessary to mine the Lease. I have no doubt
the agreement by Mr Henry to carry out his obligations under the oral contract and
the agreement of Mr Heymans to work the Lease with Mr Henry in return for the
Henry v Heymans [2014] WAMW 8
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[2014] WAMW 8
transfer of the Share in the Lease to Mr Henry amounts to adequate consideration
by both parties.
206. I
have no doubt Mr and Mrs Henry loaned money totalling $14,600 to Mr Heymans
on the same day the Transfer Document was signed by Mr Henry.
207. I
do not accept the argument of the Mr Heymans that Mr Henry is attempting to
perfect an imperfect gift. I do not accept there was any evidence of an agreement or
arrangement between Mr Henry, Mrs Heymans or Mr Heymans that the Share in
the Lease was a gift. Quite to the contrary, the only credible evidence concerning
the circumstances of the transfer of the Share in the Lease was the obligations of
Mr Henry to perform as previously found. It is regrettable the Transfer Document
misdescribes the consideration orally agreed between Mr Henry and Mr Heymans
as previously found.
208. I
have no doubt Mr and Mrs Henry attended upon Mrs Heymans at her home in
Roebourne between after Christmas Day 2010 and 29 December 2010 for the
purposes of having the changes suggested by Ms Baker be made to the Transfer
Document initialled. I have no doubt Mrs Heymans was wholly aware her signature
on the Transfer Document had been “witnessed” by Ms Anderton. I accept Mrs
Heymans adopted the “witnessing” of her signature by Ms Anderton on the
Transfer Document and the “initialling” of the changes made to the Transfer
Document as suggested by Ms Baker and raised no issue with either Mr or Mrs
Henry or Mr Heymans.
209. The
changes made to the Transfer Document in accordance with the suggestions of
Ms Baker did not, materially or otherwise, affect the terms of the oral contract
between Mr Heymans and Mr Henry pertaining to the transfer of the Share in the
Lease. The intention of both Mr Henry and Mr Heymans in respect to the terms of
their oral contract remained unchanged at all times.
210. There
can be no doubt upon the evidence the transfer of the Share in the Lease to
Mr Henry following the registration of the Transfer Document by Mr Henry was
the intended outcome contemplated and agreed by both Mr Henry and Mr Heymans
in their oral contract for the sale of the Share in the Lease. I have no doubt on the
evidence the transfer of the Share in the Lease to Mr Henry was the intention of
both Mr Heymans and Mrs Heymans when the Transfer Document was signed by
Mrs Heymans on the instructions of Mr Heymans. Any suggestion to the contrary
by Mr Heymans or Mrs Heymans is simply unsupported when the evidence is
considered as a whole.
211. I
have no doubt the evidence in this claim makes it clear that Mr Heymans was
wholly aware from the time the Transfer Document was signed until he produced to
Mr Henry a copy of the 2009 Document in 2012 that Mr Henry had, inter alia, in
accordance with their oral agreement, gone about attending to all outstanding
administrative matters with DMP including the issues associated with the Heritage
Clearance and environmental clearances, payment of all rents, rates and taxes for
the Lease, lodged all necessary reports with DMP and had been expending money
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on some mining on the Lease. The evidence of Mr Heymans was clear that he
knew Mr Henry was claiming to be the registered owner of the Share in the Lease
from early 2011 but did absolutely nothing to ascertain the truth or otherwise of
those claims by Mr Henry or to stop Mr Henry from spending further time or
money on the Lease as was previously found to have occurred. In fact, to the
contrary and in the full knowledge of the claim by Mr Henry he was the owner of
the Share in the Lease, Mr Heymans continued to meet and deal with Mr Henry and
allow Mr Henry to continue to work and expend money on the Lease for over a
year before he raised the issue that he regarded Mr Henry was not the registered
owner of the Share in the Lease because of the 2009 Document. I have no doubt
that conduct by Mr Heymans towards Mr Henry in respect to the Lease creates an
estoppel that prevents Mr Heymans from denying Mr Henry is the registered owner
of the Share in the Lease. (see: Walton Stores (Interstate) Ltd v Maher (1988)
1964 CLR 387)
212. For
those reasons, I reject the entire argument and submissions on the counterclaim
by Mr Heymans and, in particular, that the Transfer Document is invalid because
the signature of Mrs Heymans was not correctly witnessed or attested, or there was
on the part of either Mr and/or Mrs Heymans no intention to transfer the Share in
the Lease to Mr Henry, that Mr Henry or any other person, including Mrs Henry,
acted in an unlawful or fraudulent manner in regards in obtaining the Transfer
Document and the contract for the sale of the Share in the Lease was devoid of any
or adequate consideration.
213. Accordingly,
the
Henry v Heymans [2014] WAMW 8
Counterclaim
by
Mr
Heymans
is
dismissed.
Page 42
[2014] WAMW 8
43