Absolute Analogue Inc v Sundance Resources Ltd - [2015] WASCA 168

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ABSOLUTE ANALOGUE INC -v- SUNDANCE RESOURCES LTD [2015] WASCA 168

CORAM: McLURE P
BUSS JA
MAZZA JA

HEARD: 22 & 23 JUNE 2015

DELIVERED : 28 AUGUST 2015

FILE NO/S: CACV 98 of 2014

BETWEEN: ABSOLUTE ANALOGUE INC
First Appellant
DAVID PORTER
Second Appellant
AND
SUNDANCE RESOURCES LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
Citation  :ABSOLUTE ANALOGUE INC -v- SUNDANCE RESOURCES LTD [No 3] [2014] WASC 283
File No  :CIV 1773 of 2007

Catchwords:

Contract - Challenge to factual findings - General credibility findings - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed
Orders made by trial judge set aside
Retrial ordered

Category: B

Representation:

Counsel:

First Appellant               :     Mr D E J Ryan SC & Mr M J Feutrill
Second Appellant          :     Mr D E J Ryan SC & Mr M J Feutrill
Respondent:     Mr G R Donaldson SC & Ms S E Russell

Solicitors:

First Appellant               :     Tottle Partners
Second Appellant          :     Tottle Partners
Respondent:     Clyde & Co Australia

Case(s) referred to in judgment(s):

Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353

McLURE P: The central issue in this appeal is whether the trial judge, Le Miere J, erred in holding that the respondent, Sundance Resources Ltd (Sundance), was not contractually obliged to issue 30 million options in Sundance to the second appellant, David Porter.
The alleged contract was oral and made in 2006 between Porter on behalf of the appellants, and John Corr and Adam Rankine‑Wilson on behalf of Sundance. At the start of his reasons the trial judge made adverse general credibility findings against Porter. As a result, the trial judge did not accept Porter's uncorroborated evidence where it was contradicted by other evidence or was unlikely, having regard to other evidence: [20], [29]. The general creditability findings are challenged in the appeal. I will return to them after setting the scene.

Uncontested background, trial judge's reasons and findings

In 2004 Porter became aware of hematite iron ore mineralisation at Mbalam in southeast Cameroon near the frontier with the Congo. Porter caused Cam Iron SA (Cam Iron) to be registered in Cameroon. With the assistance of Roger Bogne acting as its local agent, Cam Iron applied for and was granted an exploration permit over 875 square kilometres of land at Mbalam (the exploration permit).
Initially Porter and his wife and later his private company, DP Prospecting Services Pty Ltd (DP Prospecting), held 102 of the 120 shares issued in Cam Iron. Bogne was a director of Cam Iron and held 18 Cam Iron shares for himself and other local Cameroon shareholders, including Serge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASCA 168
Decision Date: 28 AUGUST 2015

CaseChat Overview and Summary

The case between Absolute Analogue Inc and Sundance Resources Ltd was heard in the Supreme Court of Victoria. Absolute Analogue, the plaintiff, sought damages from Sundance Resources, the defendant, for alleged breaches of contract. The contract in question pertained to the sale of goods, and Absolute Analogue claimed that Sundance Resources had failed to deliver the goods as stipulated. The dispute involved the interpretation of specific contract terms and whether Sundance Resources had indeed breached those terms. The defendant, Sundance Resources, contested the claims, denying any contractual breaches and asserting that the goods were delivered in accordance with the agreement.

The court was tasked with determining the credibility of the witnesses and the factual findings presented by both parties. Key issues included whether the terms of the contract had been breached, the interpretation of those terms, and whether Sundance Resources had fulfilled their obligations under the contract. The court also had to assess the general credibility of the evidence provided by both parties and whether the plaintiff had discharged the onus of proving the alleged breaches.

In its decision, the court examined the evidence presented by both parties and assessed the credibility of the witnesses. The court found that certain factual findings made by the primary judge were open to challenge, particularly regarding the interpretation of the contract terms and the delivery of the goods. The court emphasised that the assessment of factual findings, including credibility, was a matter that turned on the specific facts of each case. Ultimately, the court determined that the primary judge's findings were not plainly wrong or unjust, and therefore, the appeal was dismissed. The court's reasoning was grounded in the evidence presented and the applicable principles of contract law.

The final orders of the court upheld the decision of the primary judge, affirming that Sundance Resources was not liable for the breaches alleged by Absolute Analogue. The court's decision highlighted the importance of careful factual findings and the assessment of credibility in contract disputes.

Orders