Billabong Gold Pty Ltd v Vango Mining Ltd [No 2] - [2021] WASC 459 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BILLABONG GOLD PTY LTD -v- VANGO MINING LTD [No 2] [2021] WASC 459
CORAM:   KENNETH MARTIN J
HEARD:   23 & 24 AUGUST 2021
DELIVERED          :   14 DECEMBER 2021
FILE NO/S:   CIV 2932 of 2018
BETWEEN:   BILLABONG GOLD PTY LTD
Plaintiff
AND
VANGO MINING LTD
First Defendant
DAMPIER (PLUTONIC) PTY LTD
Second Defendant

Catchwords:

Contract - Alleged breaches - Right of first refusal (ROFR) promise in agreement- Questioned ROFR engagement by separate conduct of defendants in 2016 and 2017 - Final mandatory injunctive relief sought to compel compliance with ROFR obligation - Entitlement to common law damages for breach - Attempted assignment of underlying contract breach rights as chose in action to plaintiff - Validity of assignment of chose in action as bare right to litigate where corporate assignee did not exist at the time of the first tranche breaches - Maintenance by assignment of bare right to litigate for earlier ROFR promise breaches

Legislation:

Nil

Result:

Final mandatory injunctive relief orders to be settled relating to ROFR conduct of 2017 breaches of the defendants

Category: B

Representation:

Counsel:

Plaintiff	:	Mr S K Dharmananda SC & Mr T N Owen
First Defendant	:	Mr D R Chandler
Second Defendant	:	Mr D R Chandler

Solicitors:

Plaintiff	:	Grondal Bruining
First Defendant	:	Lawton Macmaster
Second Defendant	:	Lawton Macmaster

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

Coal Hub Pty Ltd v NSL Consolidated Ltd [No 4] [2018] WASC 41
County Hotel and Wine Co Ltd v London and North Western Railway Co [1918] 2 KB 251
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
Leveraged Equities v Goodridge [2011] FCAFC 3; (2011) 274 ALR 655
Monk v Australia and New Zealand Banking Group (1994) 34 NSWLR 148
Ninelen Pty Ltd v Interim Advance Corporation Pty Ltd [2011] WASC 107
Pata Nominees Pty Ltd v Durnsford Pty Ltd [1988] WAR 365
Sanrus Pty Ltd v Monto Coal 2 Pty Ltd [2005] QSC 284
THL Robina Pty Ltd v The Glades Golf Club Pty Ltd [2004] QSC 461
Trend-Tex Trading Corporation v Credit Suisse [1982] AC 679
Tribune Resources Ltd v EKJV Management Pty Ltd [2020] WASC 47
Western Areas Exploration Pty Ltd v Streeter [2011] WASCA 17
WorkCover Queensland v AMACA Pty Ltd [2012] QCA 240

Table of Contents

Introduction

The OTA

The Asset Sale and Purchase Agreement and the General Deed of Assignment and Assumption

Timing of Acquisition of OTA Rights

Separate trial

The ROFR clause in the OTA

Trial book (TB) documents and Agreed Chronology

Sale and Purchase Agreement (the SPA)

The General Deed of Assignment and Assumption (the 'GDAA')

Aspects of the ROFR obligation in cl 12.6 of the OTA

Relevance objections by the defendants

The position of Billabong Gold as an assignee of Northern Star of OTA rights

Clauses 12.1 and 12.3 of the OTA

Issues in the…

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: [2021] WASC 459 (S)
Decision Date

CaseChat Overview and Summary

In the case of Billabong Gold Pty Ltd v Vango Mining Ltd [No 2], the dispute centred on the validity of a General Deed of Assignment (GDAA) executed between Billabong Gold and Northern Star Resources Ltd, and the subsequent assignment of rights and obligations under an Ore Treatment Agreement to Vango Mining Ltd. The matter was heard in the Supreme Court of Western Australia. The primary legal issue was whether the GDAA was validly executed and whether the assignment of the Ore Treatment Agreement rights and obligations under the GDAA was effective.

The Court found that the GDAA was validly executed as a deed in accordance with s 127(3) of the Corporations Act and s 9 of the Property Law Act 1969 (WA). The GDAA was executed as a deed by Billabong Gold and Northern Star, and it met the statutory requirements for a valid assignment under s 20(1) of the Property Law Act. Notice of the assignment was duly given to Vango Mining Ltd, fulfilling the statutory requirements for a valid legal assignment. Consequently, the Court held that the GDAA was a perfected agreement and that the assignment of rights and obligations under the Ore Treatment Agreement was effective.

Given the findings, the Court ruled in favour of Billabong Gold Pty Ltd, confirming the validity of the GDAA and the assignment of the Ore Treatment Agreement rights and obligations. The Court's decision effectively resolved the dispute in favour of Billabong Gold, affirming the enforceability of the assignment and the rights and obligations under the Ore Treatment Agreement.

Orders

Orders of the court

Full text does not contain this section.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Fifth, as is admitted, Northern Star (see exhibit 1.94) as the assignor, on 21 October 2016 had then advised the directors of Vango in terms:Dear Sirs,COMPLETION OF SALE OF PLUTONIC GOLD OPERATIONSNorthern Star Resources Ltd (Northern Star) completed the sale of the Plutonic gold operations to Billabong Gold (Billabong Gold) on 11 October 2016.We enclose for your records a copy of a General Deed of Assignment executed by Northern Star and Billabong dated 11 October 2016 under which Northern Star assigns the rights, and Billabong assumes the obligations of Northern Star under, the Ore Treatment Agreement dated 23 September 2013 [sic - 23 September 2014]. The letter is signed by a Liza Carpene, described as the company secretary, Northern Star Resources Ltd. The attachment to that communication contained, essentially, the substance of the GDAA including, with some redactions, reference to Northern Star agreements as being the subject of assignment as an assigned agreement, and as referred to by the Schedule to the GDAA, as:3.Ore Treatment Agreement between Northern Star Resources Ltd, Ord River Resources Pty Ltd [sic] and Dampier (Plutonic) Pty Ltd ...albeit still with the erroneous date (but obvious otherwise) reference of September 2013 [sic, 2014] and referring, as continuing parties, to Ord River Resources Pty Ltd and to Dampier (Plutonic) Pty Ltd. The suggested curious Access Deed header reference was seen on the last two pages of the notified copy of the instrument. This also is only an immaterial and irrelevant distraction. Sixth, exhibits 1.11 and 1.12 are admissible in evidence, in any event, as business records tendered by the plaintiff. So, at the end, I am left satisfied that despite the denial of the defendants the GDAA instrument between Billabong Gold and Northern Star Resources was validly perfected under the terms of exhibits 1.11 and 1.12 (which are identical) at 11 October 2016. The instrument describes itself as a deed. It was, I also find, executed in conformity with the requirements of s 127(3) of the Corporations Act - albeit seals of the two corporate entities were not applied. Nevertheless, by s 127(3) of the Corporations Act, a company may validly execute a document as a deed if the document is expressed to be executed as a deed and is executed in accord with subs (1) or (2). That is the case here. The GDAA was validly executed in accord with s 127(1) by Billabong Gold and by Northern Star. Consequently, the GDAA instrument was a perfected agreement as between those two Australian corporations at the time. It is also an instrument executed as a deed in accord with the requirements of s 9 of the Property Law Act 1969 (WA) as to the required formalities for a valid deed. Notice of the GDAA's assignment in respect of Northern Star's rights and obligations by the GDAA was then duly given to the defendants - under communications the subject of par 15 of the ASOC which came to be admitted by the defendants. Consequently, the requirements of s 20(1) of the Property Law Act for a valid legal assignment at law under statute were, I find, met for the GDAA. Section 20(1) of the Property Law Act relevantly provides:Any absolute assignment by writing under the hand of the assignor ... of any debt or other legal chose in action, of which express notice in writing has been given to the ... other person from whom the assignor would have been entitled to receive or claim that debt or chose in action, is effectual in law (subject to equities having priority over the right of the assignee), to pass and transfer from the date of the notice -(a)the legal right to that debt or chose in action;(b)all legal and other remedies for the debt or chose in action; and ...