30 The plaintiff also relied on paragraph 111 of its original submissions that included the statement that it acknowledged "the likely necessity to stand the matter over to a date around 31 October 2006 for submissions as regards the final terms of any orders including injunctions". The reiteration of that submission and the inclusion of the above submissions leads to the unfortunate conclusion that the listing of the matter on 20 September 2006 was less efficient than my original preference to await the outcome of the Department's decision. In any event, the plaintiff seeks declarations that the defendant has breached the Deed in the manner referred to above and seeks to reserve its position to apply to the Court for orders, perhaps including an injunction, at a later time. It submitted that it is not premature to deal with the claim for declarations of breaches and suggested that the present situation and circumstances are akin to those discussed in Spry's Equitable Remedies, 6th ed. (2001) at p. 128 as follows:
But this is not to say that the mere anticipation of possible difficulties leads to a refusal of relief. If, on the materials before the court, performance may or may not be able to be completed, the various probabilities will be taken into account in deciding on the order that is most just in all the circumstances. Thus it may be most appropriate to order specific performance in the ordinary manner, so that if necessary the defendant may later approach the court for a modification or variation by reason of subsequent difficulties or may rely upon them in any subsequent proceedings in relation to the enforcement of the order. Again, if at the time of the original application there is shown to be a substantial risk that performance will not be possible, it may be most appropriate to make a conditional order or else to adjourn the proceedings until the position becomes more clear.
31 The situation in the present case is quite different. The plaintiff eschewed the further adjournment of the proceedings until the position became clearer and so I must consider its applications in the circumstances that the Rail Line SMP has been submitted but its outcome is unknown.
Construction of the Deed
32 The Deed is to be construed in the light of the surrounding circumstances and having regard to the purpose it was intended to serve: Park v Brothers (2005) 222 ALR 421 at 432 [39]. It is an agreement between commercial parties and should be given a construction consistent with commercial common sense. The purpose of the Deed can in part be gleaned from its title, "Deed of Release and Indemnity". The defendant agreed to provide a release and indemnity to the plaintiff in consideration for the plaintiff withdrawing its objection to the defendant's application for approval of the Rail Line.
33 Pursuant to clause 1 of the Deed the plaintiff agreed to withdraw its objection "immediately". Clause 2 was for the purpose of enabling the plaintiff to proceed with its mining plan in the knowledge that, so long as it gave the defendant the 6 months' notice of extraction near the Rail Line, the defendant would not object to the plaintiff's applications for approval for that mining activity. Clause 2 is a fundamental term of this Deed. The plaintiff had the support of the Department in its objection to the Rail Line and appeared to be in a reasonably strong position. The withdrawal of the objection was at the "price" of the defendant promising: (1) not to "object" to the plaintiff's proposed second working applications/SMP applications; (2) to comply with conditions imposed on the use of the Rail Line; (3) to release and indemnify the plaintiff in the manner set out in clause 4 of the Deed; and (4) not to unreasonably withhold consent to the plaintiff's entry to its land for the purposes set out in clause 5 of the Deed.
34 The word "object" is not defined in the Deed. In Maitland Main Collieries Pty Ltd v Hunter Valley Coal Corporation Pty Ltd [2005] NSWSC 1327 Young CJ in Eq said:
38 As to the word "object" the plaintiff says that the defendant has objected to the application and, if it has not already done so, it clearly threatened to do so. Mr Robertson SC says the word "object" must be construed in its wider sense. I think that is right. The etymology in the Oxford English dictionary is that "object" means a barrier from somebody throwing something, and these days one looks at an objection as a barrier from someone establishing a proposition or an application. There are, however, cases where courts have considered the word "object" in other contexts. Merely for a barrister to say "I object" without reasons, or to say, "I don't see the relevancy of that" has been held in Georgia not to be an objection, ( Pylant v State 13 SE (2d) 380, (1941), Supreme Court of Georgia) and whilst that court is not necessarily the mightiest authority, that case seems to be a good illustration of the point that merely using the word "object" is not enough for what one does to be classified as an objection.