QGC Pty Limited v Alberts

Federal Court of Australia|2021-04-29|Before: Rares J

Background 23 Ultimately, the native title party nominated BCJWY, under cl 2.1 of annexure 3 of the ILUA, to be the nominated entity after it was incorporated on 6 April 2011. QGC paid BCJWY the initial financial benefit of $2 million under cl 3.1 of annexure 3 and continued making payments of $350,000 per annum thereafter, until the dispute arose leading to the institution of these proceedings. 24 As noted above, by 20 December 2017, one of the signatories of the ILUA, Ms Malone, had died, and another, Ms Holt, suffered from incapacity, so that, within the native title party, there were only 12 signatories capable of acting. 25 In addition, on 4 April 2017, Ms Ott had resigned in writing from being a member of the native title party saying that she was no longer prepared to attend or act in that capacity. She has maintained that position and submitted in this proceeding to any orders the Court might make. 26 Although the ILUA did not provide for the event that a signatory might resign, die or lose capacity, in my opinion, given that QGC had agreed to pay 10 annual instalments of $350,000 each under the ILUA, the parties to it must have understood and intended that such an event was likely to occur during those 10 years. In that event, the native title party would then consist of those signatories who remained capable, alive and attended meetings so as to form a majority, provided that proper notice of such meetings and their agenda was given: Fraser v NRMA Holdings Limited (1995) 55 FCR 452 at 466A-D per Black CJ, von Doussa and Cooper JJ. 27 On 20 December 2017, QGC wrote to the legal representatives for various persons within the native title party, as well as to each of Ms Ott and Ms Jerome, advising that, as a result of the my decision in Conlon (No 2) 359 ALR 460 at the hearing on 13 December 2017, QGC found itself in a position of difficulty (the 20 December QGC letter). It noted that the Court had declared that an amending deed that sought to change the terms of the ILUA had no force or effect. QGC said that it wished to clarify how and in what way it was to pay future financial benefits under cl 3 of annexure 3. Because of the disputes within the native title party at that stage, QGC required "confirmation of the nomination of the Nominated Entity", the names and contact details of the representatives from the native title party on each of the Implementation Committee and the Cultural Heritage Coordinating Committee and the nomination of a service provider. QGC's letter noted that there were only 12 current members of the native title party who were able to act with capacity, and reminded those members that they had authority under the ILUA to act by majority. QGC sought confirmation that BCJWY was the nominated entity and noted that, if it went into administration, receivership or liquidation, it could not continue to act in that capacity. QGC also reminded the parties of various other provisions in the ILUA.

The events in 2018 28 The 20 December QGC letter led to a meeting of the native title party being called on 18 January 2018. The minutes of that meeting, which continued on 19 January 2019, appear to confirm that all of the members of the native title party then living with capacity had been contacted and notified of the holding of the meeting, and that, while six had attended, namely, Ms Booth, Mr Bone, Ms Colonel, Ms Conlon, Ms Alberts and Ms Johnston, others had not replied to emails calling the meeting or accepted phone calls from Ms Alberts or Ms Conlon. 29 Having regard to the contents of the minutes of the meeting on 18 January 2018 in evidence, I am satisfied that each of the persons who was a member of the native title party received due notice of the calling of the meeting, and that those who did not attend either chose not to do so or were incapacitated. The meeting was told that Mr Daylight had appointed Mr Hauff's firm to act on his behalf and that an email addressed to him had been returned with a mail delivery error notation. Ms Alberts had contacted Mr Daylight's sister, who had advised her that he was ill and could not attend the meeting. 30 During the course of the meeting, those present approved the appointment of Mr Hauff's firm to act on their behalf. They discussed creating a new proprietary limited company to be the trustee for the beneficiaries under the ILUA, with only members of the native title party implementation committee capable of being its directors and shareholders. The meeting resolved to establish a replacement for BCJWY and discussed a name. Those present at that meeting suggested that the thirteenth respondent, Murra Downs, be established as the new nominated entity. The meeting also resolved to elect some replacement members to the implementation committee so that it comprised Ms Booth, Mr Davies, Ms Colonel, Ms Conlon and Ms Alberts. 31 On 19 January 2018, the meeting resumed and resolved that the implementation committee members should be directed to do all things required to establish "the Nominated Entity, 'Murra Downs Pty Ltd'". 32 On 1 February 2018, a subsequent urgent meeting of the signatories to the ILUA occurred. Five of the six people who attended the 18 and 19 January 2018 meetings were present, other than Mr Bone. They discussed the position of Murra Downs and noted that the Australian Securities and Investments Commission (ASIC) had registered another company, Boonyi Downs, on 31 January 2018, but that no constitution of Boonyi Downs was available at the meeting. The minutes noted a number of proposed actions that had to occur in respect of each of Murra Downs and Boonyi Downs, including: "Review/Amend Boonji Pty Ltd [sic] re Implementation Committee". 33 The business arising section of the minutes noted, under Boonyi Downs' name, that: 5. Purpose of Boonji [sic] Pty Ltd 'to act as Trustee of the funds' 6. 2 representatives to attend Murra Downs Pty Ltd meetings. 34 After 1 February 2018 and before 10 April 2018, Mr Daylight passed away, as is recorded in the minutes of the meeting held on 10 April 2018. 35 The 10 April 2018 meeting was attended by the same six people as had attended the 18 and 19 January 2018 meetings (although Mr Bone attended by telephone) and Mr Hauff, together with Ms Jerome. The 10 April 2018 meeting resolved to confirm the resolutions of the meetings of 18 and 19 January 2018 and 1 February 2018. The attendees signed a statutory declaration on the same day that attached the minutes of the 18 and 19 January 2018 and 1 February 2018 meetings and confirmed the resolutions that they recorded. The statutory declaration also recorded that Mr Hauff's firm had been appointed to represent the native title party under the ILUA. Those present at the 10 April 2018 meeting resolved to appoint Ms Jerome, on her own nomination, as the representative of the Jarowair family group on the implementation committee. 36 On 17 April 2018, Mr Hauff wrote to QGC attaching the minutes of the meetings of 18 and 19 January 2018, 1 February 2018 and 10 April 2018, together with the statutory declaration. The letter promised that Mr Bone would also make a statutory declaration in the same terms as the 10 April 2018 one. Mr Hauff's letter noted that, without including Mr Bone's vote, six of the 11 signatories to the ILUA with capacity or who were still alive had voted for the resolutions. 37 In the letter, Mr Hauff also stated that: one of the resolutions that had been passed was that the nominated entity would be Boonyi Downs, Boonyi Downs would have a constitution so that it would be a charitable trust, Boonyi Downs' directors would be made up of the implementation committee members and its shareholders would be limited to those directors or their family group replacements in accordance with its constitution, Boonyi Downs would have objects enabling it to hold a bank account and make payments as directed by the implementation committee. 38 No such resolutions appear in or are evident from the minutes of any of the three meetings in 2018. However, as I have noted, the minutes of the meeting of 1 February 2018 provide what I infer was the basis for Mr Hauff's assertions about the characterisation of such a resolution, namely the "Purpose of Boonji [sic] Pty Ltd 'to act as Trustee of the funds'", which I infer referred to moneys received from, or payable by, QGC as financial benefits under the ILUA. 39 The parties disagreed as to whether or not that was a resolution that the meeting made. I am inclined to the view that the statement in the minutes of 1 February 2018 recorded a discussion item as part of the business arising at the meeting and not a formal resolution. However, it may be that the persons present at that, or the 10 April 2018, meeting came to the view that what that statement recorded was, in fact, a resolution, as appears to have been Mr Hauff's understanding as communicated in his the letter of 17 April 2018. 40 On 1 May 2018, Ms Jerome signed a document entitled "Confirmation of voting in relation to the motion passed at the meeting of the BCJWY Native Title Party meeting held at Toowoomba on 18 January 2018", in which she: stated that she had been unable to attend that meeting, confirmed and endorsed the motions passed at it, endorsed and confirmed, first, Mr Hauff's firm's appointment as the lawyers for the native title party and, secondly, the membership of the implementation committee and cultural heritage coordinating committee, and endorsed and confirmed: 3 The Nominated Entity to be Boonji [sic] Downs Pty Ltd… 4 The Service Provider to be Maranoa JV 41 Ms Jerome gave evidence that she signed that document without reading it and felt she had been pressured to do so by the person or persons who had presented it to her. Subsequently, she sought to retract the effect of her signature of the 1 May 2018 memorandum in a document headed "Affidavit" that she affirmed before a justice of the peace on 20 June 2018. Since then, she has not wished to have Mr Hauff or his firm act in relation to anything concerning her and has not supported Boonyi Downs being propounded as the nominated entity. 42 Mr Bone made an affidavit on 17 August 2018 in which he asserted that he had supported and voted for all of the four resolutions that he said were made at the meetings of 18 and 19 January 2018, including a resolution that approved the nomination of Boonyi Downs as the nominated entity. The resolutions, as recorded in the affidavit, matched the terms of Mr Hauff's letter to QGC dated 17 April 2018. Mr Bone must have been mistaken in his recollection, as recorded in his affidavit, because, until 31 January 2018, Boonyi Downs was not incorporated and did not have any ACN number. He also confirmed in his affidavit that he had attended the meeting on 10 April 2018 by telephone and agreed with the resolutions that are recorded in the minutes of that meeting as having been passed there. 43 There was some contention raised about the execution of Mr Bone's affidavit of 17 August 2018. It appears to have been initialled by him on each page, above the entry "Deponent", with what appears to be the same form of his signature as appears on the ILUA. But, in the jurat of the affidavit, above the statement "Signature of deponent", there is printed "KWB" in a much firmer handwriting. The affidavit was sworn before a justice of peace whose stamp and signature are on each page of the document and who subsequently confirmed that Mr Bone had attended before him to make the affidavit. I think the inference to be drawn from the initials "KWB" is that the person who prepared the affidavit, being Mr Hauff or someone in his office, wrote those initials there to indicate where Mr Bone should sign the jurat and that step was omitted. But, it is clear that Mr Bone did acknowledge the contents of the affidavit by signing, at the foot of each of its four pages, above the line "Deponent". 44 On 28 November 2018, following the outcome of the mediation, I made the following order: 1. In relation to the Indigenous Land Use Agreement entered into by the applicant and the first to eleventh respondents, registered on the Register of Indigenous Land Use Agreements on 22 December 2010 ("the ILUA"): a. for the purposes of clause 8 of the ILUA, the letter from Trevor Hauff Lawyers dated 17 April 2018 ("the Letter") is effective notice of the appointment to the Implementation Committee, on behalf of the Native Title Party, of the following people, namely: i. Mona Booth (Barrungum); ii. William Davis (Cobble Cobble); iii. Kylie Jerome (Jarowair); iv. Patricia Conlon (Western Wakka Wakka); v. Natalie Alberts (Yiman); b. for the purposes of clause 6.3 of Annexure 2 to the ILUA, the Letter is effective notice of the appointment to the Cultural Heritage Co-ordinating Committee on behalf of the Native Title Party of the following people with respective contact details, namely: i. Mona Booth (Barrungum); ii. William Davis (Cobble Cobble); iii. Pansy Colonel (Jarowair); iv. Patricia Conlon (Western Wakka Wakka); v. Natalie Alberts (Yiman). c. For the purposes of the definition of "Service Provider" in clause 1.1 of Annexure 2 to the ILUA, the Letter is effective notice of the nomination by the Native Title Party of Maranoa Civil JV ABN 70 906 600 892 as a third party service provider.

The events in 2019 45 On 4 March 2019, administrators were appointed to BCJWY and, at a meeting of creditors held on 5 July 2019, the creditors voted under s 439C of the Corporations Act 2001 (Cth) to put the company into liquidation. 46 On 22 July 2019, Ms Holt passed away. 47 On 25 October 2019, the Registrar conduction a mediation. Mr Davis and Mr Bone did not attend, but Ms McLeod and Ms Ott did by telephone. On the day of the mediation, Ms Conlon, Ms Alberts, Ms Booth, Ms Johnston signed a notice and direction that stated it was made under cl 2.2 of annexure 3 to the ILUa. It recorded that the signatories had agreed to the appointment of Boonyi Downs as the new nominated entity and gave notice and a direction to QGC to transfer the financial benefits that had been paid into Court, and all future amounts due under the ILUA, to Boonyi Downs or to Mr Hauff's firm's trust account until the formation and establishment of the Boonyi Downs bank account. On the evidence, Boonyi Downs still does not have a bank account. 48 The notice and direction also recorded the signature of Ms Rabbitt. Mr Hauff did not tender that signature as part of the cross claimant's case because there was some controversy about it. But, at Ms Munro's prompting, which I had allowed before I was satisfied that Ms Rabbitt lacked capacity, Ms Rabbitt asked Mr Hauff in cross examination whether he had seen her sign the notice and direction on the day of the mediation, and he said he had. I accept that evidence. However, I do not rely on Ms Rabbit's signature on the document as evidencing her approval of its contents. That is because I am not sure, based on her current state, what intellectual or mental capacity she then had to act as member of the native title party and Mr Hauff had not sought to rely on her signature for that purpose. 49 By 13 November 2019, it became apparent that Mr Bone had become incapacitated by reason of Alzheimer's disease and was no longer sufficiently able to act. On 26 January 2020, Mr Bone's brother, Arnold Murray, made an affidavit that Mr Bone had been diagnosed in 2019 with Alzheimer's disease and no longer capable had capacity. 50 Also on 13 November 2019, Mr Davis signed the notice and direction. Thus, by then, Mr Bone does not appear to have had capacity, Ms Ott had resigned and was not willing to participate in the business of the native title party, Ms McLeod was also not participating and Ms Jerome did not agree with the notice and direction. As a result, five of the nine native title party members who were still living and had capacity (from whom I have excluded Ms Rabbitt), had agreed to the nomination of Boonyi Downs.

The replacement issue 51 The evidence about Boonyi Downs' constitution is somewhat imperfect. Mr Hauff asserted that the constitution of Boonyi Downs, as amended, had been adopted by the families "as represented by the Implementation Committee", but did not give any evidence of any meeting or special resolution by which that occurred. 52 For reasons which do not appear to have any apparent basis, the Parliament has decided that it is not necessary register with ASIC, under s 136 of the Corporations Act, constitutions or, as in the past, memoranda and articles of association, of private companies that have not applied to become public companies. Despite the byzantine complexity and overly prescriptive drafting of the Corporations Act, simple concepts like the public availability of what every company's constitution is have either been overlooked or considered unnecessary. One wonders what the policy reason is for why a public company, or a private one that intends to go public, needs to lodge its constitution with ASIC so that it is searchable, yet no one can have public access to the constitution of other private companies, including those with only one director or shareholder. Because the Act does not require lodgement with ASIC of constitutions for companies that are not, or have not applied to be, public companies, there is no transparent or statutory process to identify what those constitutions are. That situation, as in this matter, is a cause of uncertainty as to what, at any point in time, a private company's powers are and the basis on which one can deal with them (I have not overlooked the presumptions in s 129 of the Corporations Act which apply to all corporations). 53 There is no suggestion that anything untoward has happened with the numerous documents that the cross-claimants sought to put in evidence reflecting various asserted versions of Boonyi Downs' constitution. The only evidence of that constitution is what I understood to be its latest version. It provides, in cl 2.1, that the company would have legal capacity and power to hold a bank account and distribute funds in accordance with the instructions of the implementation committee under the ILUA. The constitution referred to the company having purposes to act as the recipient of funds received from QGC, to hold a bank account and distribute the funds in accordance with the directions of the implementation committee who were said to represent the families and family groups and for no other purpose. The constitution required the company to comply with directions of the implementation committee representing the families and family groups (cl 2.3) and also provided: 2.4. Shareholders (a) The shareholders of the Company shall be limited to members of the Families. (d) The Shareholders of the Company shall be restricted to members of the Families who are Implementation Committee members or their successors. … 4.1. Issue of shares (a) Shares shall only be issued to members of the Families who are members of the Implementation Committee and shall be of one class only.

The replacement issue - the parties' submissions 54 As is apparent, the ILUA has no express clause that dealt with the situation that has arisen, namely, where the previous nominated entity, BCJWY, ceases to be able to carry on its functions and is in liquidation. Under cl 1.2(a)(ii) of annexure 3, a company in administration or liquidation is not capable of being a nominated entity. The parties debated at the hearing how any replacement for a nominated entity could be constituted and by what mechanism that would occur. 55 The cross-claimants contended that a majority of the native title party can simply vote to replace one nominated entity with another, and that they had done so. Effectively, they argued that Boonyi Downs is capable of being the nominated entity and that I should declare that it has been appointed, so that it can then receive the moneys held in the Court. They submitted that the persons comprising the native title party who were alive and had capacity were able to vote to do so because they had been appointed, under the ILUA, to make decisions on behalf of the families and family groups. They argued that it followed that the native title party could establish for and on behalf of the families, but without any consultation or authorisation, a new nominated entity. They asserted that this is what had happened with the appointment of Boonyi Downs. 56 The cross-claimants contended that, whatever might have been the strict requirements of the ILUA, the parties to it, being the native title party and QGC, had proceeded their own way in 2010 and 2011, dispensing with formalities, and that it was possible to do the same now. They submitted that it was not necessary that all of the signatories to the ILUA who were living and capable of signing give QGC a written notice and direction under cl 2.2 of annexure 3 and that they could do so as a majority in accordance with cl 3(a) of the ILUA (see [18] above). They argued that, likewise, the two named parties to the ILUA had waived compliance with cl 2.3 of annexure 3 and could appoint, and indeed had appointed, BCJWY as the nominated entity after what the cross-claimants suggested was the deadline of 31 December 2010 imposed by that clause. The cross-claimants contended that such a waiver was the only explanation for why BCJWY could have become the nominated entity, because it had only been incorporated on 6 April 2011. 57 During the course of argument, the parties debated whether an implication should be found in cl 2.1 of annexure 3 to allow appointment of another nominated entity. The cross-claimants argued that the words "from time to time" should be inserted between "must notify QGC in writing" and "of the name and address of the Nominated Entity", so as to allow the substitution of a new nominated entity as and when the native title party saw fit. 58 Ms Jerome argued that the words "or at any time thereafter" should be inserted after "Authorisation Date" in cl 2.1(b). 59 I raised with the parties a formulation to be added at the end of cl 2.1(b), namely: …or, if at any time thereafter, the nominated entity for any reason has ceased to be capable of acting in accordance with clause 1.2. 60 Neither Ms Jerome nor QGC argued against that implication. It was not clear exactly what the cross-claimants' position about my suggestion was. They contended that their version should be adopted because that would effect a construction of the ILUA that gave it business efficacy.

Consideration 61 The test for the implication of a term, in fact, is well settled. In BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266 at 283, the majority, Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel said: for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract. 62 French CJ, Bell and Keane JJ said in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 185-186 [21] (and see too at 201 [62] and 209-210 [90] per Kiefel J), that courts have implied terms "in fact or ad hoc to give business efficacy to a contract" pursuant to that test (which the High Court adopted in Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605-606 per Mason J, with whom Gibbs, Stephen and Aickin JJ agreed). 63 In Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640 at 656-657 [35], French CJ, Hayne, Crennan and Kiefel JJ said: … The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean (McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 at 589 [22] per Gleeson CJ; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 462 [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at 160 [8] per Gleeson CJ; see further Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 at 188 [11] per Gleeson CJ, Gummow and Hayne JJ, citing Investors Compensation Scheme Ltd v West Bromwich Building Society [No 1] [1998] 1 WLR 896 at 912; [1998] 1 All ER 98 at 114. See also Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715 at 737 [10] per Lord Bingham of Cornhill). That approach is not unfamiliar (See, eg, Hydarnes Steamship Co v Indemnity Mutual Marine Assurance Co [1895] 1 QB 500 at 504 per Lord Esher MR; Bergl (Australia) Ltd v Moxon Lighterage Co Ltd (1920) 28 CLR 194 at 199 per Knox CJ, Isaacs and Gavan Duffy JJ; see generally Lord Bingham of Cornhill, "A New Thing Under the Sun? The Interpretation of Contract and the ICS Decision", Edinburgh Law Review, vol 12 (2008) 374). As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract (Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at 160 [8] per Gleeson CJ; at 174 [53] per Gummow, Hayne, Heydon, Crennan and Kiefel JJ; Byrnes v Kendle (2011) 243 CLR 253 at 284 [98] per Heydon and Crennan JJ. See also Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 326, 350; Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 at 2906-2907 [14]; [2012] 1 All ER 1137 at 114). Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating" (Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350 per Mason J, citing Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574. See also Zhu v Treasurer (NSW) (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ; International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at 160 [8] per Gleeson CJ). As Arden LJ observed in Re Golden Key Ltd ([2009] EWCA Civ 636 at [28]), unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties … intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience" (Zhu v Treasurer (NSW) (2004) 218 CLR 530 at 559 [82] per Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ. See also Gollin & Co Ltd v Karenlee Nominees Pty Ltd (1983) 153 CLR 455 at 464). (emphasis added) 64 The ILUA is not, strictly speaking, a commercial contract. Rather, it is a statutory contract created by force of its registration and the requirements of s 24EA of the Act. It binds not only QGC and the native title party, but also all persons holding native title in relation to any of the land and waters it covers. However, much of what their Honours said is applicable to the construction of such an agreement. Accordingly, in construing a contract, a court should seek to give it an interpretation that the parties intended, that produces a commercial result and avoid it "making commercial nonsense or working commercial inconvenience": see too Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104 at 117 [51] per French CJ, Nettle and Gordon JJ, and at 132 [108]-[109] per Kiefel and Keane JJ. 65 Here, the parties could not have intended a construction of the ILUA that resulted in it being impossible to replace an existing corporate or trustee nominated entity where it ceased to have the attributes prescribed for it in cl 1.2 of annexure 3. Rather, the intention of the parties was that there be at all times a nominated entity, being either a corporation or trust, that would be able to distribute the financial benefits, that QGC had agreed to pay over the term of 10 years, to, or for the benefit of, the families, because that is what cl 1.1 of annexure 3 provides. 66 In my opinion an implied term should be added at the end of cl 2.1(b) of annexure 3 in the form that I suggested. Such a term is reasonable and equitable, necessary to give business efficacy to the contract, so obvious that it goes without saying, clearly expressed, and does not contradict any express term of the ILUA. Unless it were possible to appoint a new nominated entity when the existing one is incapable of acting, as has happened with the administration and subsequent liquidation of BCJWY, there would not be a mechanism to distribute to, or for the benefit of, the families moneys that QGC had yet to pay pursuant to express terms of the ILUA. 67 For those reasons, I find that the proper construction of cl 2.1(b) of annexure 3 requires the implication of the additional words that I formulated, because they were part of the ILUA as originally made. An implied term is one which the parties are taken to have agreed to at the time that they made the contract, without expressly stating it, because it is conveyed by the language of the contract and in the circumstances that obtained. 68 I am not satisfied that, however well-intentioned those attending and recording the minutes of the meetings on 18 and 19 January 2018, 1 February 2018, and 10 April 2018, were, they agreed to or voted on a resolution that Boonyi Downs be appointed as the nominated entity. Nor, as I have noted, was there any express resolution in those terms in evidence, although it does appear that Mr Hauff and others may have had that understanding at the time and continue to have it. 69 In any event, I am not satisfied that Boonyi Downs, as currently constituted, is an entity that could be a nominated entity within the meaning of cl 1.2(a) of annexure 3. That is because, first, while its membership is restricted by the constitution in evidence to members of the family groups, as defined in the ILUA, the restriction is so narrow that only the members of the implementation committee from time to time can be members of the company. Secondly, there is no evidence that Boonyi Downs meets the criterion in cl 1.2(a)(iv), namely, that it "is established by the families for the purposes of" the ILUA. In my opinion, it is essential that the families decide to establish a nominated entity, not representatives, however well-intentioned or otherwise, of families who were authorised to sign the ILUA in 2010 or subsequently may have come to replace those persons. That is because both cl 1.2(a)(iv) and (b)(iv) required that the nominated entity exist at, or be established by the families (not by family groups, nor native title party) after, the date the ILUA was made. Relevantly, cl 1.2(a)(iii) and (b)(iii) required that the native party agree to the incorporated body or trust (scil: trustee and terms of the trust) existing as at the date of the ILUA, or later established by the families, being the nominated entity and thereafter put it forward to QGC in writing on behalf of the families under cl 2.1. 70 In addition, as QGC suggested, because the singular can include the plural throughout the terms of the ILUA as provided in the interpretation provisions of the ILUA in cl 1.2(b), it is possible for there to be more than one nominated entity for one or more families. The establishment of a plurality of nominated entities, if that is what the families choose to do, may possibly avoid disputes as to the distribution of funds or the appropriateness of actions in a nominated entity deciding who will be entitled to or should be given part or parts of the financial benefits. 71 I reject the cross-claimants' argument that only the persons who were original signatories to the ILUA or the native title party or their successors can determine what should be the nominated entity or what its constitution should provide. In my opinion, the ILUA does not allow such a construction. It intended to create a distinct role for the families to play in the identification of the nominated entity that is to hold money for their benefit. 72 Nor do I accept the cross-claimants' argument that cl 3 of the ILUA gave authority to a majority of the native title party to make decisions, on behalf of the families, relating to the establishment of the nominated entity under cl 1.2(a)(iv) of annexure 3. Reading the ILUA as a whole, it gives distinct roles to the native title party as to when it can make decisions by majority and convey to QGC any decisions by a family group such as may be required, for example, under annexure 2, that deals with cultural heritage officer positions for the five family groups as provided in cl 7.1(a). However, those decisions are different in nature to the identification, or the establishment by one or more of the families, of a company intended to be the, or their, nominated entity, or other decisions that the ILUA requires be made by the "families" or native title group as a whole, being, by force of ss 24CD(3) and 24EA(1) of the Act, all persons who do or claim to hold native title in the ILUA area, including those who are parties to the ILUA: cf Conlon (No 2) 359 ALR at 463 [8]. 73 The importance of allowing all of the persons within the definition of "families" to participate in the process for establishment of the nominated entity, as evinced in annexure 3 of the ILUA, cannot be understated. It prevents particular persons who have other powers under the ILUA dominating that process or constituting a company that will be used ultimately to cause money paid by QGC for the benefit of the families to be paid to a narrower class. It is well-known in the area of native title that, not infrequently, persons obtain positions of power in a claim group, through ILUAs or prescribed bodies corporate, and then misuse that power to siphon off for their own benefit large amounts of money intended for, or to benefit, members of claim groups as a whole. Indeed, one of the issues with the demise of BCJWY was whether such impropriety, in fact, happened in its case. There is some suggestion that there may have been individuals, including ones with no apparent connection to the families or the claim groups, acting in that way, but it is not necessary to make any findings about that possibility in these reasons. 74 However well-intentioned those seeking to bring coherence to the decision-making of the native title party may have been, where there appeared to be a lack of co-operation and substantial differences between the living signatories to the ILUA with capacity, I am not satisfied that Boonyi Downs has been established by the families for the purposes of the ILUA. 75 In my opinion, for the reasons I have given, Boonyi Downs, first, has not replaced BCJWY as the nominated entity, and, secondly, is not presently capable of doing so.

The payment and distribution issues 76 Based on my finding that Boonyi Downs has not replaced BCJWY as the nominated entity, the payment issue does not arise. That leaves the distribution issue to be determined. 77 There is currently a significant sum of money that QGC has paid into Court, and it has today informed me that it holds another $766,865.43, including interest on two payments due on 25 February 2020 and 2021, which it is prepared to pay into Court to abide the outcome of whatever process needs to be undertaken to ensure that one or more new nominated entities is or are established by the families for the purposes of the ILUA within the meaning of cl 1.2(a)(iv) or (b)(iv) of annexure 3. 78 Ms Jerome proposed that the Public Trustee of Queensland be appointed under the provisions of ss 80 or 82 of the Trusts Act 1973 (Qld). Initially, QGC supported that proposal. The cross-claimants argued that they should have "some control" over the moneys and suggested that, somehow, the appointment of the Public Trustee would take away the rights of the families. It was also suggested that this Court did not have jurisdiction or power to make an appointment under the Trusts Act. I am not clear that this suggestion is consistent with the application of s 79 of the Judiciary Act 1903 (Cth) that "picks up" the laws of the State or Territory in matters such as this, that arise under the Native Title Act and necessarily are in federal jurisdiction, and the principles in In re Wakim; Ex parte McNally (1999) 198 CLR 511 and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 584-589 [50]-[60] per Gleeson CJ, Gaudron and Gummow J, 609-612 [129]-[137] per McHugh J, 637-639 [213]-[220] per Hayne and Callinan JJ.

A possible solution 79 During the course of final submissions, QGC suggested that it may be possible for orders to be made to enable the Tribunal, pursuant to s 108(1B)(b) of the Act, to enter an agreement in accordance with s 203BK(3) on the request of the representative body, Queensland South Native Title Services Limited under s 203BF(1)(ii), to formulate a process through which the families could meet, either individually or collectively, to see if they could establish one or more nominated entities to replace BCJWY. QGC has also informed the parties and the Court that it is prepared to contribute $75,000 to assist in the holding of such meetings, and to pay that sum as appropriate to enable the Court, the Tribunal or the representative body to have control of it. 80 In my opinion, the money currently held in the Court is held on trust for the person or persons that the Court finds beneficially entitled to receive it based on the outcome of the proceeding (cf Harmer v Federal Commissioner of Taxation 173 CLR 264 at 272-273, per Mason CJ, Deane, Dawson, Toohey and McHugh JJ). Once that occurs, the money will need to be paid ultimately to, or at the direction of, the persons beneficially entitled, which are likely to be the families as provided in cl 1.1 of the ILUA. QGC's senior counsel said from the bar table that both the Registrar of the Tribunal and principal legal officer of the representative body have indicated that they are prepared to take up such a role to facilitate the holding of meetings. 81 In my opinion, given the significant dysfunction and disruption in the claim group and the fact that those who are currently the surviving original signatories of the ILUA have not had their positions re-authorised, been re-elected or otherwise brought under the control of the claim group for over 10 years, it is in the interests of all persons who, by force of s 24EA(1) of the Act, are parties to determine what the claim group and the families want to establish as one or more nominated entities that can be used to enable the purposes of the ILUA to be fulfilled. 82 That does not mean that the native title party has ceased to have its ordinary role under the ILUA. If and when a lawful process has occurred to propose that one or more body corporate or trustee of a trust, as established by the families, be a nominated entity, the native title party will still need to agree, under cl 2.1 of annexure 3, that that entity is properly constituted for the purposes of the ILUA, and it then must notify QGC in writing of the name of each such entity's name and address.

Conclusion 83 Rather than trying to formulate today orders for the process of arranging and holding any meetings and the payment of money into Court, I will leave it to the parties to bring in draft orders to reflect the proposal once they have had the benefit of consultations with the Registrar of the Tribunal and the representative body so that, if need be, there can be further argument, or I can make those orders in chambers. 84 It will suffice to make a declaration that the ILUA contained an implied term, so that cl 2.1 of annexure 3 reads (with the italicised implication) as follows: 2.1 As soon as practicable after the later of: (a) the Authorisation Date; or (b) the establishment of the Nominated Entity, if there is no Nominated Entity at the Authorisation Date or, if at any time thereafter, the nominated entity for any reason has ceased to be capable of acting in accordance with clause 1.2; the Native Title Party, on behalf of the Families, must notify QGC in writing of the name and address of the Nominated Entity. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

SCHEDULE OF PARTIES QUD 334 of 2018 Respondents Fourth Respondent: LILLIAN COLONEL Fifth Respondent: PATRICIA CONLON Sixth Respondent: WILLIAM DAVIS Seventh Respondent: ELIZABETH DOYLE JOHNSTON Eighth Respondent: KYLIE JEROME Ninth Respondent: MARGARET MCLEOD Tenth Respondent: KATHLEEN OTT Eleventh Respondent: ISOBEL RABBITT Twelfth Respondent: BCJWY ABORIGINAL SOCIETY LIMITED Thirteenth Respondent: MURRA DOWNS LTD Fourteenth Respondent: BOONYI DOWNS PTY LTD Cross-Claimants Second Cross-Claimant: KENNETH BONE Third Cross-Claimant MONA BOOTH Fourth Cross-Claimant LILLIAN COLONEL Fifth Cross-Claimant PATRICIA CONLON Seventh Cross-Claimant ELIZABETH DOYLE JOHNSTON Thirteenth Cross-Claimant MURRA DOWNS LTD. Fourteenth Cross-Claimant BOONYI DOWNS PTY LTD Cross Respondents Second Cross Respondent WILLIAM DAVIS Third Cross Respondent KYLIE JEROME Fourth Cross Respondent MARGARET MCLEOD Fifth Cross Respondent KATHLEEN OTT Sixth Cross Respondent ISOBEL RABBITT Seventh Cross Respondent BCJWY ABORIGINAL SOCIETY LIMITED

Native Title Act 1993(Cth)s 24CD, 24CG, 24CL, 24EA, 108(1B)(b), 199B, 203BK(3), 203BF(1)(ii), 251A, Trusts

Corporations Act 2001(Cth)ss 129, 136, 439C

Trusts Act 1973(Qld)ss 80, 82

Conlon v QGC Pty Limited (No 2) (2017) 359 ALR 460 Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640 Fraser v NRMA Holdings Limited (1995) 55 FCR 452 Harmer v Federal Commissioner of Taxation 173 CLR 264 In re Wakim; Ex parte McNally (1999) 198 CLR 511 Kemppi v Adani Mining Pty Ltd (No 2) (2019) 271 FCR 423 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104 QGC Pty Limited v Alberts [2020] FCA 1869 Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596

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