Aquila Resources Ltd v Pasminco Ltd (Administrators Appointed) - [2002] WASC 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: AQUILA RESOURCES LTD & ANOR -v- PASMINCO LTD (ADMINISTRATORS APPOINTED) & ORS [2002] WASC 53

CORAM: MASTER SANDERSON

HEARD: 26 FEBRUARY 2002

DELIVERED : 22 MARCH 2002

FILE NO/S: CIV 2618 of 2001

BETWEEN: AQUILA RESOURCES LTD (ACN 092 002 769)
First Applicant
AQUILA EHM PTY LTD (ACN 095 529 445)
Second Applicant
AND
PASMINCO LTD (ADMINISTRATORS APPOINTED) (ACN 004 368 674)
First Respondent
MIM HOLDNGS LTD (ACN 009 814 019)
Second Respondent
ERNEST HENRY MINING PTY LTD (ACN 008 495 574)
Third Respondent
SAVAGE RESOURCES LTD (ADMINISTRATORS APPOINTED) (ACN 009 551 624)
Fourth Respondent
SAVAGE EHM FINANCE PTY LTD (ADMINISTRATORS APPOINTED) (ACN 071 375 221)
Fifth Respondent

FILE NO/S :COR 376 of 2001

BETWEEN :AQUILA RESOURCES LTD (ACN 092 002 769)
Applicant
AND
PASMINCO LTD (ADMINISTRATORS APPOINTED) (ACN 004 368 674)
First Respondent
SAVAGE RESOURCES LTD (ADMINISTRATORS APPOINTED) (ACN 009 551 624)
Second Respondent
SAVAGE EHM FINANCE PTY LTD (ADMINISTRATORS APPOINTED) (ACN 071 375 221)
Third Respondent

Catchwords:

Corporations Act - Whether application for pre-action discovery 'a proceeding' under s 440D(1) - Whether leave should be granted to bring proceeding

Practice and procedure - Pre-action discovery

Legislation:

Companies (Queensland) Code, s 371(2)

Corporations Act, s 440D(1)

Supreme Court Rules, O 26A r 4

Result:

Discovery ordered against first and second respondent

Category: A

Representation:

CIV 2618 of 2001

Counsel:

First Applicant              :     Mr C L Zelestis QC & Mr G H Murphy
Second Applicant          :     Mr C L Zelestis QC & Mr G H Murphy
First Respondent           :     Mr P D Evans
Second Respondent       :     Mr G M Abbott
Third Respondent         :     Mr G M Abbott
Fourth Respondent        :     Mr P D Evans
Fifth Respondent          :     Mr PD Evans

Solicitors:

First Applicant              :     Fearis Salter Power Shervington
Second Applicant          :     Fearis Salter Power Shervington
First Respondent           :     Freehills
Second Respondent       :     Allens Arthur Robinson
Third Respondent         :     Allens Arthur Robinson
Fourth Respondent        :     Freehills
Fifth Respondent          :     Freehills

COR 376 of 2001

Counsel:

Applicant:     Mr C L Zelestis QC & Mr G H Murphy
First Respondent           :     Mr P D Evans
Second Respondent       :     Mr P D Evans
Third Respondent         :     Mr P D Evans

Solicitors:

Applicant:     Fearis Salter Power Shervington
First Respondent           :     Freehills
Second Respondent       :     Freehills
Third Respondent         :     Freehills

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

Alliance Petroleum Australia (NL) v Australian Gas Light Co (1983) 48 ALR 69
Brian Rochford Ltd (Administrator Appointed) v Textile Clothing & Footwear Union of NSW (1998) 17 ACLC 152
Davis & Ors v Saygar Pty Ltd & Anor, unreported; SCt of WA; Library No 980443; 10 August 1998
dayTraderHQ Ltd v Hometrader Ltd & Ors [2001] WASC 283
Foxscroft v The Ink Group Pty Ltd (1994) 12 ACLC 1063
Hill v National Australia Bank Ltd, unreported; SCt of WA; Library No 980676; 24 November 1998
Ledger & Anor v Natwest Australia Bank Ltd & Ors, unreported; SCt of WA; Library No 980061; 16 February 1998

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: [2002] WASC 53
Decision Date

CaseChat Overview and Summary

Aquila Resources Ltd and Aquila EHM Pty Ltd sought pre-action discovery orders against Pasminco Ltd and MIM Holdings Ltd. The applicants sought documents from the respondents for the period 23 February to 31 March 2001 relating to a transfer notice, a proposed extension of the pre-emption period, and the obligation to make payment of a termination fee. The applicants argued that they may have a cause of action against the respondents based on allegations of misleading and deceptive conduct by Pasminco, and knowing involvement by MIM. The respondents argued that the applicants had not made reasonable enquiries and that there were no reasonable grounds for believing that the respondents had relevant documents. Master Sanderson held that the applicants had established that they wanted to commence proceedings against the respondents, that they had made reasonable enquiries, and that they had not obtained sufficient information to enable a decision to be made whether to commence proceedings. The Master was satisfied that there were reasonable grounds for believing that the respondents had documents that may assist in the applicants making their decision. Discovery orders were made in favour of the applicants against the respondents. The respondents were ordered to provide verified discovery of documents in the period 23 February to 31 March 2001 relating to a transfer notice, an extension, proposed extension and any communications, understanding, arrangement or agreement in relation to an extension, or any proposed extension, of the period for MIM to exercise rights of pre-emption in 2001 in relation to shares in Ernest Henry Mining, and the obligation to make payment to the applicants of a termination fee by Pasminco pursuant to a deed of commitment. The respondents were to provide evidence as to the costs of providing discovery and indicate the basis upon which the costs are calculated. The applicants should have the chance to respond. The costs of the application itself were to be reserved.

Orders