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Billabong Gold Pty Ltd v Vango Mining Ltd [No 2]

Billabong Gold Pty Ltd v Vango Mining Ltd [No 2]

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Case Copied 18 April 2023 78 min read

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BILLABONG GOLD PTY LTD -v- VANGO MINING LTD [No 2] [2023] WASCA 58
CORAM:   QUINLAN CJ
MURPHY JA
BEECH JA

HEARD:   15 & 16 FEBRUARY 2023
DELIVERED          :   18 APRIL 2023
FILE NO/S:   CACV 23 of 2022
BETWEEN:   BILLABONG GOLD PTY LTD
Appellant
AND
VANGO MINING LTD
First Respondent
DAMPIER (PLUTONIC) PTY LTD
Second Respondent

Catchwords:

Assignment - Whether bare cause of action - Whether assignee had genuine and substantial interest or genuine commercial interest independent of assignment of chose - Whether need for pre‑existing commercial interest anterior to assignment

Contract - Novation - Whether 'pre‑authorised' novation - Effective date of novation

Remedies - Equitable relief - Mandatory injunction compelling promisor to make offer to promisee in accordance with right of first refusal - Hardship - Whether mandatory injunctive relief inconsistent with previous injunctive relief granted by primary judge in respect of other causes of action

Practice and procedure - Appeal - New point raised on appeal

Legislation:

Nil

Result:

Appeal allowed

Category: A

Representation:

Counsel:

Appellant	:	S K Dharmananda SC, T N Owen
First Respondent	:	M Howard SC, D R Chandler
Second Respondent	:	M Howard SC, D R Chandler

Solicitors:

Appellant	:	Grondal Bruining
First Respondent	:	Lawton Macmaster Legal
Second Respondent	:	Lawton Macmaster Legal

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

ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (NSW) [2012] HCA 6; (2012) 245 CLR 338
Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 97 ALJR 1
Anchorage Capital Master Offshore Pty Ltd v Sparkes [2019] NSWSC 384
Bakewell v Anchorage Capital Master Offshore Ltd [2019] NSWCA 199; (2019) 372 ALR 349
Billabong Gold Pty Ltd v Vango Mining Ltd [2021] WASC 459 (S)
Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35
Billabong Gold Pty Ltd v Vango Mining Ltd [No 2] [2021] WASC 459
British Cash and Parcel Conveyors Ltd v Lamson Store Service Co Ltd [1908] 1 KB 1006
Brownton Ltd v Edward Moore Inbucon Ltd [1985] 3 All ER 499
Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41; (2006) 229 CLR 386
Chester v WA Country Health Service [2022] WASCA 57
Coal Hub Pty Ltd v NSL Consolidated Ltd [No 4] [2018] WASC 41
Coles Supermarkets Australia Pty Ltd v Australian Retail Freeholds Pty Ltd (1996) 16 WAR 282
Cominos v Rekes (1979) 2 BPR 9619
Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
CSG Ltd v Fuji Xerox Australia Pty Ltd [2011] NSWCA 335
Deloitte Touche Tohmatsu v JP Morgan Portfolio Services Ltd [2007] FCAFC 52; (2007) 158 FCR 417
Despot v Registrar General of New South Wales [2016] NSWCA 5
Di Giovanni v Dark Horse Developments Pty Ltd (in liq) [2014] WASCA 188
Dover v Lewkovitz [2013] NSWCA 452
Ellis v Torrington [1920] 1 KB 399
Equuscorp…

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: [2023] WASCA 58
Decision Date

CaseChat Overview and Summary

In the appeal from Billabong Gold Pty Ltd v Vango Mining Ltd [No 2], the Court of Appeal allowed the appeal and set aside the orders of the Supreme Court of Western Australia. The primary judge had found that the assignment by Northern Star to Billabong of the cause of action for breach of clause 12.6 of the Ore Treatment Agreement in 2016 was not assignable and that Billabong was not entitled to mandatory injunctive relief. The appeal court held that the assignment was not the assignment of a bare cause of action and that Vango/Dampier was not entitled to raise the defence of hardship for the first time on appeal. The appeal court found that Billabong was entitled to a mandatory injunction requiring an offer to be made to it in respect of the Vango/Dampier tenements. The appeal court allowed the appeal and set aside the orders of the primary judge, with costs.

Orders