JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AMMON -v- CONSOLIDATED MINERALS LTD [No 3] [2007] WASC 232
CORAM: MARTIN CJ
HEARD: 6, 7, 12 - 16 & 19 - 23 FEBRUARY 2007
DELIVERED : 4 OCTOBER 2007
FILE NO/S: CIV 1222 of 2004
BETWEEN: DEREK NOEL AMMON
Plaintiff
AND
CONSOLIDATED MINERALS LTD (ACN 000 727 926)
First DefendantPILBARA IRON ORE PTY LTD (ACN 100 410 295)
Second Defendant
Catchwords:
Breach of contract - Construction and interpretation of contract - Use of pre-contractual and post-contractual conduct in aid to construing terms of the contract - Implied terms - Breach of confidence - Whether information was confidential - Whether unconscientious use of information occurred - Breach of fiduciary duty - Misleading and deceptive conduct
Legislation:
Nil
Result:
Action dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr J J Garnsey QC & Mr R J L McCormack
First Defendant : Mr G R Donaldson SC & Mr S K Dharmananda
Second Defendant : Mr G R Donaldson SC & Mr S K Dharmananda
Solicitors:
Plaintiff: Taylor Linfoot & Holmes
First Defendant : Blakiston & Crabb
Second Defendant : Blakiston & Crabb
Case(s) referred to in judgment(s):
Attorney-General v Observer Ltd (1990) 1 AC 109
B.P. Refinery (Westernpoint) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266
Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187
Butt v M'Donald (1896) 7 QLJ 68
Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33
Coco v AN Clark (Engineers) Ltd (1969) RPC 41
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
C-Shirt Pty Ltd v Barnett Marketing & Managing Pty Ltd (1996) 37 IPR 315
FAI Traders Insurance Co Ltd v Savoy Plaza Ltd (1993) 2 VR 343
Fractionated Cane Technology Ltd v Ruiz-Avila [1988] 1 Qd R 51
Frame v Smith (1987) 42 DLR (4th) 81; [1987] 2 SCR 99
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104; (1975) 5 ALR 527
Lac Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574; (1989) 16 IPR 27
Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd & Others [2006] FCAFC 144
Mackay v Dick (1881) 6 App Cas 251
N P Generations Pty Ltd v Feneley [2001] SASC 185; (2001) 80 SASR 151
National Roads and Motorists' Association Ltd v Geeson [2001] NSWCA 343; (2001) 40 ACSR 1
O'Brien v Komesaroff (1982) 150 CLR 310
Peters (WA) v Petersville Ltd [2001] HCA 45; (2001) 205 CLR 126
Pethybridge v Stedikas Holding Pty Ltd [2007] NSWCA 154
Price v Powers [2005] WASC 154
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- Case
- [2007] WASC 232
- Decision Date
CaseChat Overview and Summary
The primary legal issues in this case revolved around the interpretation of specific terms within the contract between Mr Ammon and ConsMin. The court needed to ascertain the meaning and implications of terms 3 and 5 of the general conditions, particularly in relation to the rights and obligations of the parties concerning tenement E47/1140 and other tenements for which ConsMin had applied. Additionally, the court examined whether there was any breach of confidence, implied terms, or fiduciary duty by either party, including whether there was unconscientious use of information or misleading and deceptive conduct.
The court carefully considered the evidence and submissions from both parties. It found that term 3 did not imply that Mr Ammon had a present interest or entitlement to all tenements related to the project. Instead, it was interpreted as a condition under which ConsMin could return all leases and technical data if they chose not to proceed with the project. The court also highlighted that Mr Ammon's understanding and communications consistently indicated that he only had an interest in tenement E47/1140 and not in the other tenements. Furthermore, the court concluded that there was no breach of confidence, implied terms, or fiduciary duty by either party.
As a result of the court's reasoning, the action was dismissed. The court ruled that the terms of the contract were clear and that there was no breach of any contractual obligations by either party. Consequently, no further legal action was warranted in this matter.
Orders
Orders of the court
Action dismissed
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Term 3 of the general conditions gives rise to the same inference. It was as follows:3.The current 60 day agreement is: that I will not enter into any legally binding arrangements with regard to E47/1140 with any third party for the duration of the agreed period. Term 5 of the conditions said to apply to the second alternative offer; namely, the option to buy, was expressed in the following terms:5.At the end of the five years you must buy or walk ie if you don't exercise the option to buy, all leases held or applied for in relation to this project, plus all accumulated technical data must be returned to me free of charge without encumbrance. It was submitted on behalf of Mr Ammon that this term reflects an understanding on his part to the effect that he had a present interest or entitlement to all tenements held in relation to the project. I do not accept that submission. The term proposed was a term to the effect that, if ConsMin elected not to proceed with the project generally, Mr Ammon should receive the project in its entirety. Viewed in that way, the proposal tells one nothing about his understanding of the entitlements which he had at the time he advanced the proposal. Mr Greygoose provided a hardcopy of the email and attached terms to Mr Kiernan. Mr Kiernan's view of Mr Ammon's proposal is succinctly revealed in the words which he endorsed on it by hand at the time he passed it on to Mr Smith when he wrote:Colin, this bloke is away with the pixies! Mr Kiernan also directed an email be sent to Mr Ammon advising that he was reconsidering ConsMin's position in relation to Mr Ammon's various proposals. On 12 June 2002, Mr Ammon sent an email to Mr Faris dealing with native title issues. That email refers twice to EL47/1140, and makes no reference to the tenements for which ConsMin had applied, even though Mr Ammon was, by then, well aware of ConsMin's applications. Again, the terms of this email are entirely consistent with an understanding by Mr Ammon to the effect that his only interest was in EL47/1140 and that he had no interest or entitlement to the tenements for which ConsMin had applied. Nor was there any different understanding within ConsMin. On 13 June 2002, Mr Smith provided a memorandum to Mr Kiernan, responding to Mr Kiernan's implicit request for advice in relation to Mr Ammon's proposals. Mr Smith's memorandum commences with the observation:Ammon is not off with the pixies.He is one. The terms of the memorandum are only consistent with an understanding by Mr Smith to the effect that Mr Ammon had full ownership of EL47/1140, but ConsMin had full right, title and ownership to the tenements for which it had applied. For example, the memorandum contains the following paragraph:But importantly we should through or with Ammon, get the process moving, ie the cultural clearance(s). Even if we start with only the Ammon property. (NB: Ammon's greed has put paid to that approach and we must therefore concentrate on our own property. If that proves successful we become well placed in negotiations opposite Ammon.)