GCM Graphite Pty Ltd v NH3 Clean Energy Limited - [2025] WASC 448

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GCM GRAPHITE PTY LTD -v- NH3 CLEAN ENERGY LIMITED [2025] WASC 448
CORAM:   LUNDBERG J
HEARD:   15 OCTOBER 2025
DELIVERED          :   23 OCTOBER 2025
FILE NO/S:   CIV 1678 of 2024
BETWEEN:   GCM GRAPHITE PTY LTD
Plaintiff
AND
NH3 CLEAN ENERGY LIMITED
First Defendant
MCINTOSH RESOURCES PTY LTD
Second Defendant
NH3 CLEAN ENERGY LIMITED
MCINTOSH RESOURCES PTY LTD
Plaintiff by counterclaim
GCM GRAPHITE PTY LTD
Defendant by counterclaim

Catchwords:

Legal Practitioners - Application by defendants to restrain law practice further acting for the plaintiff - Assertion that legal practitioners are material witnesses and will have to defend the legal effect of the substance of their communications and their legal advice - Whether continuing to act for the defendant is contrary to the proper administration of justice - Turns on own facts

Legislation:

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (WA), r 27
Rules of the Supreme Court 1971 (WA), O 1 r 4A and 4B

Result:

Application dismissed.

Category: B

Representation:

Counsel:

Plaintiff	:	F A Stanton & A J Tharby
First Defendant	:	A J Papamatheos SC & N A Tiverios
Second Defendant	:	A J Papamatheos SC & N A Tiverios
Plaintiff by counterclaim	:	A J Papamatheos SC & N A Tiverios
Defendant by counterclaim	:	F A Stanton & A J Tharby

Solicitors:

Plaintiff	:	Bennett
First Defendant	:	Ensign Legal
Second Defendant	:	Ensign Legal
Plaintiff by counterclaim	:	Ensign Legal
Defendant by counterclaim	:	Bennett

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

Afkos Industries Pty Ltd v Pullinger Stewart (A Firm) [2001] WASC 69
Afkos Industries Pty Ltd v Pullinger Stewart (A Firm)[2001] WASCA 372
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 5] [2016] WASC 263
Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307
Commonwealth Bank of Australia v Jackson McDonald (A Firm) [2014] WASC 301
Cronan v Coates [2024] WASC 61
Dimension Agriculture Pty Ltd v Nicoletti [2025] WASC 287
Director of Public Prosecutions (Cth) v A Legal Practitioner [2012] WASC 459
Dowsley v Westpac Life Insurance Services Ltd [2013] NSWSC 1208
Finch v Heat Group Pty Ltd (No 2) [2016] FCA 791; (2016) 353 ALR 193
Holborow v MacDonald Rudder [2002] WASC 265
Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Makfam Pty Ltd v CV Australia Pty Ltd [2020] VSC 296
Newman v Phillips Fox (a firm) [1999] WASC 171; (1999) 21 WAR 309
Tottle Christensen v Westgold Resources NL [2003] WASCA 224
Uon Pty Ltd v Hoascar [2017] WASC 79
Westpac Banking Corporation v Newey [2013] NSWSC 533
Woodgate v Leonard [2007] NSWSC 495

Table of Contents

A. Introduction

B. The nature of the action

(1) Breach of warranty claim

(2) Declaratory relief as to failure to earn interest

Timing for the Stage 2 Notice

Carry-over of expenditure

(3) The present application

C. Relevant principles

D. Disposition

(1) Overview

(2) Timing for the Stage 2 Notice

(3) Carry-over of expenditure

(4) Conclusion

E. Conclusion and orders

ATTACHMENT A EARN IN STAGES IN THE BINDING TERMS SHEET

ATTACHMENT B EXTRACTS FROM BINDING TERMS SHEET

LUNDBERG J:

A. Introduction

The parties to this action executed a commercial agreement on 11 February 2022 concerning the exploitation of graphite mineral rights on mining tenements, situated on the lands of the Malarngowem people, in the Kimberley region of Western Australia. The commercial agreement is described as a Binding Terms Sheet.
The defendants to this action, who I will refer to as the NH3 Parties, together hold the registered and beneficial interest in these tenements.[1] The first defendant, NH3 Clean Energy Limited, is an ASX-listed entity. The second defendant, McIntosh Resources Pty Ltd is a wholly owned subsidiary of the first defendant.
[1] The first defendant has changed its name from Hexagon Energy Materials Limited to NH3 Clean Energy Limited. Although it is referred to as Hexagon in the contractual instruments and associated correspondence, it is convenient to refer to the company as NH3 Clean Energy in these reasons.
The plaintiff, GCM Graphite Pty Ltd, is a wholly owned subsidiary of Green Critical Minerals Limited, which is an ASX-listed entity.
Pursuant to the Binding Terms Sheet, the plaintiff, or its nominee, was permitted to earn up to an 80% interest in the 'Graphite Mineral Rights'[2] on the mining tenements held by the defendants, in three stages.[3] Further, if GCM Graphite completed the 'Earn In' process under the agreement, GCM Graphite and the NH3 Parties would enter into an unincorporated exploration joint venture in respect of the exploration and evaluation of graphite minerals on the mining tenements in question.[4] I will refer to this as the Proposed JVA.
[2] This is a defined term in the Binding Terms Sheet. Where appropriate in these reasons, I will use the terms as defined in that instrument.
[3] Binding Terms Sheet, cl 7, cl 8 and cl 9.
[4] Binding Terms Sheet, cl 15 and cl 19, although cl 19 does require the parties to act in good faith 'as soon as practicable following execution' of the Binding Terms Sheet to 'enter a formal joint venture agreement prepated by Hexagon', to be consistent with the terms of the Binding Terms Sheet.
The action itself has been on foot since July 2024, and arises out of events which occurred in the period between February 2022 and around May 2024. Both parties have been represented by their current solicitors for the duration of the proceedings. In addition, the law firm representing the plaintiff, Bennett, was involved in representing and advising the plaintiff well prior to the action being commenced.
It is now contended by the NH3 Parties that the law firm Bennett should be restrained from further acting in the matter. For convenience, I will refer to this firm as the Law Practice in these reasons. In the alternative, the NH3 Parties seek an order that a particular practitioner at the Law Practice, Mr David Sanders, be restrained from continuing to act in the proceedings.
The NH3 Parties contend that the proceedings give rise to issues in respect of which the acts or omissions of the Law Practice are impugned, such that the practitioners would necessarily be defending their own conduct while representing GCM Graphite, and that this would imperil the administration of justice. The restraint application does not assert the Law Practice holds any confidential information, nor is it contended that the Law Practice ever acted for the opposing parties. In essence, the defendants contend the Law Practice has had such a direct and integral involvement in the course of events which are now the subject of the proceedings that its conduct is likely to be impugned in the proceeding, and Mr Sanders is likely to be a material witness at trial.
To this end, the defendants filed a chamber summons on 5 May 2025 seeking an injunction to restrain the Law Practice from further acting. The application is explained in a concise statement of grounds filed on 12 August 2025, and is supported by two affidavits sworn by Matthew Adam Holler on 5 May 2025 and 5 September 2025. Mr Holler is one of the legal practitioners representing the NH3 Parties. The defendants also filed an outline of submissions dated 5 September 2025, together with reply submissions filed on 6 October 2025.
The application is resisted. GCM Graphite filed detailed submissions on 25 September 2025 explaining why the restraints should not be ordered. Consistently with these submissions, I have reached the conclusion the application should be dismissed. These are my reasons for so concluding.

B. The nature of the action

The action has two components, on the current pleadings.

(1) Breach of warranty claim

First, from the plaintiff's perspective, there is a claim that the NH3 Parties breached a contractual warranty in the Binding Terms Sheet by providing materially inaccurate and misleading information regarding the graphite flake size and flake size distribution at the project.[5] There is, it is pleaded, a concentrate price premium associated with medium and large (coarse) flakes, and fine flake prices have been expected to grow more slowly due to substitution pressures.
[5] Statement of Claim dated 19 July 2024 (SOC) [26] and [27].
The Binding Terms Sheet contains express terms to the effect that the NH3 Parties represented and warranted to GCM Graphite as at the execution date of the Binding Terms Sheet, and on each day up until and including the final day of the Stage 1 Exploration Period (referred to as the Warranty Period), that the warranties set out in Schedule 2 of the Binding Terms Sheet were true and accurate (cl 21).
This included a warranty that all information in the possession or control of the NH3 Parties relating to the 'Tenements' and 'Mining Information' (as defined) which might reasonably be regarded as material to a party earning into the 'Graphite Mineral Rights' had been fully and fairly disclosed to GCM Graphite in writing and that information was accurate and not misleading in a material way (par (n) of Schedule 2).
The plaintiff asserts, in essence, that the historical data and ASX announcements issued by the NH3 Parties from 2017 onwards misrepresented the deposit as containing valuable coarse flake graphite, while recent testing reveals there to be a significantly less valuable fines product at the project.[6]
[6] SOC [14] - [19].
The plaintiff seeks damages for breach of the warranty.[7] The claim is denied by the NH3 Parties.[8] The warranty claim does not require further examination in the context of the present application.

(2) Declaratory relief as to failure to earn interest

[7] SOC prayer for relief A and B.

[8] Amended Defence and Counterclaim dated 13 December 2024 (ADCC).

Second, there is another component to the dispute between the parties, found in the counterclaim brought by the NH3 Parties.[9] This concerns whether GCM Graphite earned all of its interest in the 'Graphite Mineral Rights'. The issues associated with this component of the dispute are directly relevant to the present application.
[9] ADCC [28] - [33].
The Binding Terms Sheet identifies three stages of the 'Earn In', the requirements for which are found in cl 7, cl 8 and cl 9 of the instrument. The table in Attachment A to these reasons provides a convenient summary of the three stages. The express terms of the relevant clauses are incorporated into these reasons as Attachment B.
I pause to note that the Binding Terms Sheet is pleaded to be conditional upon the plaintiff completing the 'Funding Transaction'.[10] The Binding Terms Sheet contains express terms to the effect that, following the completion of the 'Funding Transaction', GCM Graphite was required to:
(a)within 5 days, pay to the NH3 Parties the sum of $300,000 as a reimbursement for previous exploration costs (see cl 6(a));
(b)within 30 days, take delivery of or pay for storage and associated warehousing costs of the graphite deposit drill core samples and returned sample vials from the tenements (see cl 6(b)); and
(c)pay to the NH3 Parties the sum of $200,000 as a reimbursement for previous exploration costs on the earlier of 12 months after the date of payment under clause 6(a) or with the Stage 2 Notice under clause 8(a) (see cl 6(c)).
[10] Binding Terms Sheet, cl 5.
It is not in dispute that GCM Graphite completed the 'Funding Transaction' in accordance with cl 5, made the upfront payments required by cl 6(a) and cl 6(c), and complied with the 'Earn In' requirements for Stage 1 in cl 7. It is thus not in dispute that GCM Graphite acquired the 'Stage 1 Interest' under the Binding Terms Sheet, being a 30% interest in the 'Graphite Mineral Rights'.
The NH3 Parties assert, by their counterclaim, that GCM Graphite has failed to earn its interest beyond the initial stage, focusing particularly on the requirements for Stage 2, which have a flow on effect to the entitlement of the plaintiff to earn the Stage 3 Interest. In particular, it is alleged that:
(a)GCM Graphite issued the 'Stage 2 Notice' after the contractual deadline which the defendants say expired on 18 November 2023;[11] and
(b)GCM Graphite then improperly attempted to credit excess expenditure from the first stage to the second stage.[12]
[11] ADCC [30] and [32(b)]. As to the Stage 3 Interest, see ADCC [32A] and [32B].
[12] ADCC [30], [32(c)] and [32(d)].
GCM Graphite contends that it has met the requirements of cl 8 and cl 9, such that it now has an 80% interest in the 'Graphite Mineral Rights'.[13] It is thus a material issue in the action whether GCM Graphite has properly followed the three-stage process in the Binding Terms Sheet to acquire the totality of the relevant 'Graphite Mineral Rights'.
[13] Reply and Defence to Counterclaim dated 31 October 2024 (RDC).
It is necessary to briefly explain these two aspects of the defendants' counterclaim.

Timing for the Stage 2 Notice

As to the contractual timing point, GCM Graphite disputes the construction of cl 8 which is asserted by the NH3 Parties, and in the alternative pleads that conduct on the part of the defendants has affirmed the Binding Terms Sheet,[14] or that the defendants are estopped from denying the assumption that the defendants accepted the election to proceed with Stage 2 pursuant to cl 8(a).[15] I do not regard this alternative plea as detracting from the force of the primary construction plea, contrary to the defendants' submission. It is not unusual to plead alternative responses to a claim and by doing so, the pleader puts additional matters in issue, but is not implicitly conceding the strength of the primary plea.
[14] RDC [11.2] and [12].
[15] RDC [17.1], [18], [20], [21] and [23].
This issue focuses on whether the notice sent by the Law Practice (as agent for GCM Graphite) on 23 November 2023 under the Binding Terms Sheet was issued in accordance with the time frame in the contract to engage the 'Stage 2 Expenditure Period' (and thereafter to engage the 'Stage 3 Expenditure Period'). The timing requirements are contained in cl 8(a) and cl 9(a) of the Binding Terms Sheet.
The NH3 Parties contend that GCM Graphite failed to acquire anything beyond a Stage 1 Interest under the Binding Terms Sheet because of the timing of the notice issued by the Law Practice. It is asserted by the NH3 Parties that the notice was required to be issued by 17 November 2023 (being 'on or before thirty (30) days of the expiry of the Stage 1 Exploration Period'), and this was a contingency that had to be fulfilled for the contractual power to be satisfied to enable GCM Graphite to acquire a 'Stage 2 Interest'.
GCM Graphite rejects this interpretation of the contractual timing requirement and asserts that it had 30 days from the expiry of the 'Stage 1 Exploration Period' to issue the notice. As noted above, it also pleads an affirmation defence and an estoppel defence.

Carry-over of expenditure

The second issue is whether GCM Graphite could carry over expenditure across yearly 'Exploration Periods' under the Binding Terms Sheet, to earn 'Graphite Mineral Rights', notwithstanding what the NH3 Parties contend are the clear words of cl 10(e).
The pleaded case of the NH3 Parties is that cl 10(e) of the Binding Terms Sheet provides that carry over of 'Exploration Expenditure' between 'Exploration Periods' is impermissible. Clause 10 is headed 'Acknowledgement'. Clause 10(e) states:
The Company acknowledges that if the Company expends an amount in excess of:
(i)the Stage 1 Expenditure Requirement in the Stage 1 Exploration Period; or
(ii)the Stage 2 Expenditure Requirement in the Stage 2 Exploration Period; or
(iii)the Stage 3 Expenditure Requirement in the Stage 3 Exploration Period,
any amount in respect of the respective expenditure requirement is not credited towards and does not form part of, or reduce, any subsequent expenditure requirement.
GCM Graphite pleads, in defence of this contention, that the NH3 Parties, by their conduct, either waived or varied the requirement in cl 10(e) to thereby allow expenditure to be aggregated, or the NH3 Parties are otherwise estopped from relying on cl 10(e).[16]
[16] RDC [11.3], [17.2], [19], [20], [22], and [24].
The factual basis for the pleas of waiver, variation, and estoppel includes reliance on the negotiations regarding the Proposed JVA which occurred between the Law Practice acting for GCM Graphite, on the one hand, and Allion Partners who were acting for the NH3 Parties, on the other hand. These negotiations occurred between February 2023 and November 2023.

(3) The present application

As earlier noted, the Law Practice which is sought to be restrained relevantly provided legal services to GCM Graphite during the period from February 2023 and November 2023.
It is contended by the defendants that the acts or omissions of the Law Practice in respect of the above issues form part of the substratum of facts giving rise to material issues in the dispute. The defendants submit that the acts or omissions of the Law Practice are, in effect, impugned in the proceedings, requiring the Law Practice to necessarily defending its own conduct while representing GCM Graphite. This would, it submits, imperil the administration of justice.

C. Relevant principles

It is not in dispute that this court has an inherent power to control and deal with members of the legal profession and to ensure that the administration of justice is not brought into disrepute.
In the exercise of that inherent power, the court may restrain practitioners from acting for clients on three well-established grounds, as explained by Steytler J (as his Honour then was), in Newman v Phillips Fox (A Firm).[17] The grounds can overlap but must not be conflated.[18] Only the third of these grounds arises for consideration on the present application, namely where the court considers it necessary to restrain practitioner in order to ensure the due administration of justice, and to control the conduct of practitioners as its officers.
[17] Newman v Phillips Fox (A Firm) [1999] WASC 171; (1999) 21 WAR 309 [18] (Newman). These principles have subsequently been reiterated in Ismail-Zai v The State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379 [19] (Steytler P) and [62] - [74] (E M Heenan J) (Ismail) and Director of Public Prosecutions (Cth) v A Legal Practitioner [2012] WASC 459 [48] - [69] (E M Heenan J).
[18] Uon Pty Ltd v Hoascar [2017] WASC 79 [8] (Master Sanderson).
As explained by Brereton J in Kallinicos v Hunt,[19] the jurisdiction is exceptional and is to be exercised with caution. The supervisory jurisdiction has also been described as 'extraordinary and protective'[20] and 'an exceptional one'[21] that 'should be exercised with circumspection and caution'.[22]
[19] Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 [76] (Brereton J) (Kallinicos).
[20] Woodgate v Leonard [2007] NSWSC 495 [37].
[21] Ismail [35].
[22] Ismail [35].
The test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a lawyer should be prevented from acting, in the interest of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.[23] Further, due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without good cause.[24]
[23] Kallinicos [76] (Brereton J).
[24] Kallinicos [76] (Brereton J).
Brereton J also observed that the timing of the application may be relevant, in that the cost, inconvenience and impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.[25] There have been many statements by courts to the effect that it is desirable that litigants not be deprived lightly of the lawyer of their choice and that the jurisdiction to restrain a solicitor from acting on the basis that the administration of justice might otherwise be imperilled is an exceptional jurisdiction: Commonwealth Bank of Australia v Jackson McDonald (A Firm).[26]
[25] Kallinicos [76] (Brereton J).
[26] Commonwealth Bank of Australia v Jackson McDonald (A Firm) [2014] WASC 301 [26].

It has long been recognised that there is a public element in the work solicitors perform, being officers of the court and, in performing their professional functions, solicitors play an integral part in the administration of justice: Carindale Country Club Estate Pty Ltd v Astill.[27] The juridical basis of this ground is not inter-partes fiduciary or contractual obligations as such, nor punishment for misconduct. Rather, it is the administration of justice, the public interest and the appearance of propriety of officers of the court.[28]
[27] Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307, 311 (Drummond J).
[28] Makfam Pty Ltd v CV Australia Pty Ltd [2020] VSC 296 [40] (Riordan J).
There are two decisions of the Court of Appeal of Western Australia I should mention at this point. The first is the decision in Afkos Industries Pty Ltd v Pullinger Stewart,[29] in which the court dismissed an appeal from Miller J's reasons at first instance.[30] The following statement is apposite to the basis for restraining a practitioner upon which the defendants rely in the present application:
… where the acts or omissions of the law firm, including situations where the actions of the client are based on advice given by the solicitors, are at the heart of the question in issue, the firm is, in a real sense, 'defending' its actions or advice. There is, in such circumstances, a danger that the client will not be represented with the objectivity and independence which the client is entitled to and which the Court demands. There is no sound reason to presume or accept that the solicitors must first have the opportunity to clarify whether their client is liable as a result of their actions or of acting on their advice before confronting the conflict.[31]
[29] Afkos Industries Pty Ltd v Pullinger Stewart (A Firm) [2001] WASCA 372 (Afkos Industries).
[30] Afkos Industries Pty Ltd v Pullinger Stewart (A Firm) [2001] WASC 69 (Miller J).
[31] Afkos Industries [29] (Murray J, Anderson and Steytler JJ agreeing).
The second authority is Tottle Christensen v Westgold Resources NL,[32] in which the Court of Appeal held that, before the jurisdiction can be exercised, a finding was required that the continued representation of a litigant by particular solicitors must be 'seen objectively to involve a real risk of actual or apparent conflict of interest - the risk of conflict between a duty owed to the client of the solicitor or counsel and a duty owed to some other interest to be served in the litigation'.[33]
[32] Tottle Christensen v Westgold Resources NL [2003] WASCA 224 (Westgold Resources).
[33] Westgold Resources [6].
Various phrases have been used to describe the nature of the test to be satisfied before the jurisdiction can be exercised - all similar in substance. The jurisdiction has been said to require 'a high test with a heavy burden imposed upon a party making the application',[34] as well as requiring 'a clear case' or an 'unequivocal situation'.[35] The circumspection with which the power must be exercised is warranted because public confidence in the administration of justice depends in part upon litigants being able to choose who they have to represent them and in whom they place their trust and confidence.[36]
[34] Finch v Heat Group Pty Ltd (No 2) [2016] FCA 791; (2016) 353 ALR 193 (Heat Group).
[35] Holborow v MacDonald Rudder [2002] WASC 265 [31].
[36] Heat Group [9].
Further, I accept that the court must be mindful that exercise of the power may itself undermine the administration of justice in that it may adversely affect the proper conduct of the affected litigant's case, and, potentially, cause that party irreparable harm, and/or confer an unjustified forensic advantage on the party seeking the restraint.[37]
[37] Heat Group [9].
The fact that a lawyer from a firm may be required to give evidence in a matter does not compel the conclusion that the firm cannot act in the matter. There must be some 'realistic sense of impropriety' about the circumstances which justifies the conclusion that unless an injunction is granted, the integrity of the judicial process would be impaired: Westpac Banking Corporation v Newey.[38]
[38] Westpac Banking Corporation v Newey [2013] NSWSC 533 [22] (Pembroke J) (Newey); Dimension Agriculture Pty Ltd v Nicoletti [2025] WASC 287 [52] (Palmer J).
If a lawyer who is to be a witness will be giving evidence of a formal nature or about a minor matter, then, ordinarily, there will be no impediment to his or her firm continuing to act.[39]
[39] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 5] [2016] WASC 263 [40] (Tottle J).

D. Disposition

(1) Overview

The determination of the defendants' restraint application requires an analysis of the strength of the two issues identified at [20] of these reasons, although it does not require a conclusive assessment of the merits of those issues.
Importantly, no party submitted that it was necessary or appropriate to conclusively determine the construction issues on this application and, indeed, that would not be possible on the available materials and within the context of an interlocutory hearing. However, both counsel recognised that the nature of the application required some assessment as to the strength of the contractual cases pleaded by the NH3 Parties.
Further, the application requires, in the context of the strength of the issues raised by the defendants, an assessment of the extent of the involvement of the Law Practice and the identified legal practitioner in those issues, as a matter of fact and also having regard to the chronology of events.
The extent of the practitioners' involvement necessarily includes the degree to which the practitioners may be seen to have caused or created the issue in question, the possibility they may need to give evidence at trial on the issue, and the likelihood that their advice and conduct may be called into question in the proceedings and at trial, among other matters.
The overall extent of the practitioners' involvement in the two issues identified by the defendants must be assessed, while also separately examining the strengths of each issue and the degree of involvement in each of them. Through this analysis, the likely impact of the continued involvement of the Law Practice on the administration of justice, the public interest, and the appearance of propriety of officers of the court can be assessed and evaluated.
I turn now to deal with the first issue relied upon by the NH3 Parties to justify the restraint sought.

(2) Timing for the Stage 2 Notice

The NH3 Parties contend that GCM Graphite did not acquire 'Graphite Mineral Rights' under Stage 2 (and, accordingly, also Stage 3) by reason that the notice, being the Stage 2 Notice, required by cl 8(a) of the Binding Terms Sheet, was issued late.
The NH3 Parties submit that the actions of the Law Practice created this issue. On 23 November 2023, the purported Stage 2 Notice was sent to the NH3 Parties under cover of a letter from the Law Practice. It is emphasised that the Law Practice was advising GCM Graphite in the lead up to this period. The NH3 Parties plead that the notice was sent out of time, and so the legal effect of the correspondence from the Law Practice and the notice itself will be material issues in the proceedings.
To give this argument further context, the NH3 Parties refer to the earlier correspondence from the law practice, sent on 17 November 2023, in which it was stated on behalf of GCM Graphite that it had no interest in formalising its Stage 1 Interest or acquiring any further interest in the Graphite Mineral Rights. The NH3 Parties submit as follows:[40]
Tellingly, Bennett sent the correspondence rather than issue a Stage 2 Notice on behalf of GCM Graphite. What followed was a rapid change of heart over a less than six-day period which resulted in Bennett's letter to Hexagon on 23 November 2023 attaching the impugned Stage 2 Notice. (original emphasis)
[40] DS [34].
It is submitted by the NH3 Parties that the acts of the Law Practice form an integral part of creating the Stage 2 Notice timing issues, and it is unlikely that the Law Practice can bring an impartial and open mind to the resolution of such issues.
The weakness in the defendants' contention lies in the lack of merit in the construction argument which underpins its pleaded position that the Stage 2 Notice was issued out of time.
To state the constructional question simply, it is whether the terms of cl 8(a) of the Binding Terms Sheet require the Stage 2 Notice to be issued 30 days prior to the expiry of the Stage 1 Exploration Period, or within the period which is 30 days after that expiry.
Clause 8(a) states:
Subject to compliance with clause 7(a) on or before thirty (30) days of expiry of the Stage 1 Exploration Period, the Company may by written notice to Hexagon, elect to proceed with Stage 2 (Stage 2 Notice). (underlining added)
The term 'Stage 1 Exploration Period' is defined in cl 7(a)(ii) as the period 'within 12 months of the Satisfaction Date'. The term 'Satisfaction Date' is defined in cl 4 to mean 'the date the last of the Conditions Precedents is satisfied [sic]'. The Conditions Precedent are contained in cl 5. It is common ground that GCM Graphite met the requirements of cl 5(a) on 18 November 2022, and that this completed the 'Funding Transaction'.
It follows from the foregoing that the 'Satisfaction Date' was 18 November 2022 and the 'Stage 1 Exploration Period' expired 12 months later, on 18 November 2023.
The purported Stage 2 Notice issued by GCM Graphite was not sent until 23 November 2023. So, on the preferred construction of the NH3 Parties, the Stage 2 Notice was out of time. On the GCM Graphite asserted construction, it was sent within time.
I received written submissions from the parties on the construction issue, which both counsel further developed at the hearing. On my assessment, the defendants' construction suffers from deficiencies at the textual and contextual level, and is not well-supported by any objective purpose. Overall, I would assess the defendants' construction as very weak. It is sufficient for present purposes to explain my reasoning as follows.
First, as a matter of contractual text and ordinary grammatical meaning, I consider the ordinary meaning of the preposition 'of', as it is used in cl 8(a), is 'after' or 'following' the particular stipulated event. To construe the word 'of' in cl 8(a) to mean 'before' would be quite a strained construction. The terms are not synonymous in this context.
Indeed, the ordinary meaning of the word 'of', in the context of a phrase such as 'within 30 days of' has long been judicially considered to mean 'after', particularly where it limits the time within which conduct or an event must occur: Dowsley v Westpac Life Insurance Services Ltd.[41] That authority was not cited by the parties, but the proposition contained therein is entirely consistent with the grammatical meaning referred to above and the meaning contended for by the plaintiff.
[41] Dowsley v Westpac Life Insurance Services Ltd [2013] NSWSC 1208 [49] (Rothman J), and the cases cited therein.
Second, the word is far more apt, in the context of cl 8(a), to describe a future period which follows the trigger point, rather than an anterior period. The sub-clause employs a defined trigger point, being the expiry of the 'Stage 1 Exploration Period', in order to contractually control the timing for GCM Graphite to notify the NH3 Parties of its election to proceed with the next stage of the earn in process. On the NH3 Parties' construction, GCM Graphite would be required to assess whether it had met the expenditure requirement for Stage 1, as set out in cl 7(a)(ii), prior to the expiry of the 'Stage 1 Exploration Period'. That presents as an uncommercial construction.
Third, the word 'of' is also employed in cl 7(a)(ii). The word should be given the same meaning in similar clauses within the same instrument, unless there is some good reason to the contrary. Clause 7 provides that GCM Graphite will acquire its initial 30% interest in the Graphite Mineral Rights by, among other things, expending $1.0 million on exploration 'within 12 months of the Satisfaction Date'.
The NH3 Parties' preferred construction of the term 'of', if also applied to cl 7(a)(ii), would have the result of requiring GCM Graphite to meet the exploration expenditure requirement in the period before the 'Satisfaction Date'. That is, prior to the conditions precedent being satisfied. The parties could not have reasonably intended that order of obligations. This rather impractical consequence, flowing from the defendants' preferred construction of the phrase, points strongly against accepting it.
Fourth, the construction advanced by the NH3 Parties has a strong tendency to disrupt the orderly steps outlined in the Binding Terms Sheet which describe a sequential process by which GCM Graphite was permitted to earn its interest in the Graphite Mineral Rights.
Fifth, I cannot discern a compelling objective purpose which would safely explain the somewhat uncommercial construction proposed by the NH3 Parties, having regard to the ordinary meaning of the text as explained above. The NH3 Parties submitted that there is a commercial driver or purpose which supports their construction, namely an imperative to know whether the counterparty will be seeking to further 'Earn In' to the project, as well as the ability to exercise the termination power within the Binding Terms Sheet. It may be accepted that it is a matter of commercial importance for parties such as these to know, in a timely manner, whether they must look for a replacement, future JV partner. That does not strike me as a compelling explanation to conclude that the relevant election notice must be given before the relevant period has expired and not in the period thereafter, which is only a few weeks into the future. Further, the giving of the election notice is only one step in the pathway for GCM Graphite to earn the Stage 2 Interest, being a further 21% interest. It remains for GCM Graphite to meet the upfront payment of $200,000, and to make the sole funding exploration expenditure requirement of not less than $1 million, which it has a further 12 months to complete.
The timing imperative identified by the defendants might, at best, support a construction that the phrase 'within 30 days of' in cl 8(a) (as well as in cl 9(a)) was objectively intended to capture both the plaintiff's construction and the defendants' construction. That is, to allow the plaintiff a window of 30 days on either side of the trigger point, to give the Stage 2 Notice or the Stage 3 Notice to the defendants. This dual approach to the notice timing requirement would not readily apply to the construction of the timing requirement in cl 7(a)(ii), however.
In the circumstances outlined at [62] to [69] above, the following submission advanced by GCM Graphite has merit:[42]
No lawyer could be expected to have given advice that the Stage 2 Notice was required to be sent earlier than 23 November 2023 or that the notice was ineffective because it was late, or to give advice that GCM should concede this issue in the proceedings.
[42] PS [15].
For my part, I would prefer to say that it would not be reasonable to expect that a solicitor would have given advice that the Stage 2 Notice was required to be sent earlier than 23 November 2023, or that the notice was ineffective because it was late, and it would not be reasonable to expect a solicitor to give advice that GCM Graphite should concede this issue in the proceedings.
Having concluded that the construction advanced by the NH3 Parties is not only not my preferred construction of the instrument, it is a construction which I consider to be very weak, there is very little foothold left within this aspect of the application to ground an exercise of the court's jurisdiction to restrain the Law Practice further acting for GCM Graphite.
On my assessment, there would only be a remote possibility of any practitioner from the Law Practice being required to give oral evidence about this issue and, even then, the focus would be wholly confined to questions of inadvertence or error on their part, rather than any suggestions of impropriety. None of that is sufficient to attract an exercise of the jurisdiction sought to be invoked by the defendants.
It is therefore unnecessary to review the discretionary considerations which may impact on the relief sought by the defendants, to restrain the plaintiff's chosen law firm from further acting in this matter.

(3) Carry-over of expenditure

I have described this issue earlier in these reasons.
The express terms of the Binding Terms Sheet are contrary to the position adopted by GCM Graphite in seeking to earn the Stage 2 Interest (by crediting its surplus expenditure from Stage 1 in order to satisfy the Stage 2 expenditure requirement). Put simply, cl 10(e) does not permit a carry-over or leakage of expenditure from one stage to the next.
I observe that GCM Graphite does not proffer any construction argument to address the point pleaded by the NH3 Parties concerning cl 10(e) of the Binding Terms Sheet; rather, the pleadings describe waiver, variation and estoppel arguments which are grounded in the asserted conduct of the parties between late 2022 and late 2023.[43]
[43] RDC [11.3], [13] - [15], [17.2], [19], [20], [22], and [24].
The NH3 Parties submit that the acts and omissions of the Law Practice are 'integral to the creation' of the pleaded issues which will need to be determined by the court on this aspect of the proceedings, being the waiver, variation and estoppel contentions.[44]
[44] DS [20].
The closeness of the involvement of the Law Practice in these matters gives rise to a 'danger' that the plaintiff will not be represented by the Law Practice with the objectivity and independence the court expects.[45] Mr Sanders is said by the NH3 Parties to be a likely material witness to the issues[46] and, further, the advice given by the Law Practice (and its correctness) may be called into question and the Law Practice will be required to justify that advice.[47]
[45] DS [22].
[46] DS [27].
[47] DS [31].
It is convenient to now identify the aspects of the pleaded case, and the evidence on the application, to assess the extent of the 'danger' referred to by the defendants and the likelihood the advice of the Law Practice will be called into question. I will start with the pleadings.
The plaintiff pleads that the parties commenced negotiations for the Proposed JVA from about October 2022, and that Mr Sanders had an involvement, albeit a narrow one on the face of the pleading.[48] It is pleaded that the plaintiff was represented by Mr Julian Atkinson prior to Mr Sanders' involvement, and Mr Atkinson had some involvement in the negotiations. The pleading also refers to discussions and written communication which took place directly between commercial representatives for the parties.
[48] RDC [13].
As to Mr Sanders' involvement, it is pleaded that on 3 April 2023 and on 4 September 2023, certain representations were repeated in writing in emails from Mr Mengler of Allion Partners (acting for the defendants) to Mr Sanders.[49] The representations are those which were earlier made by the defendants, either orally or in writing. Mr Sanders is thus pleaded to be a recipient of a written communication from the opposing solicitor, which allegedly repeated prior representations.
[49] RDC [15.6].
The above conduct forms part of the conduct pleaded by the plaintiff which is said to ground the assumption that excess 'Exploration Expenditure' incurred by the plaintiff in the 'Stage 1 Exploration Period', further or alternatively the 'Stage 2 Exploration Period', would be acknowledged by the defendants and credited to each subsequent period for the purpose of the Binding Terms Sheet.[50]
[50] RDC [17.2].

In reliance on this assumption, the plaintiff pleads that:[51]
(a)it incurred expenditure of not less than $2.0 million during the 'Stage 1 Exploration Period';
(b)it gave the notice to the defendants on 23 November 2023 to elect to proceed to Stage 2;
(c)it gave the notice to the defendants on 6 December 2023 to elect to proceed to Stage 3;
(d)it informed its parent company to publish an ASX announcement on 6 December 2023 to the effect the plaintiff had elected to proceed with Stage 3; and
(e)it has continued to incur expenditure on the tenements.
[51] RDC [19] and [20].
Turning then to the evidence adduced on the application concerning the involvement of the Law Practice and Mr Sanders, the following matters are to be noted.
On 16 November 2022, an email was sent by Dr Leon Pretorius of GCM Graphite to Mr Charles Whitfield, a director of one of the NH3 Parties, which stated as follows:[52]
Expenditure (as now reflected in Clause 4.2), I understood that would extend to over expenditure on any $1M Stage expenditure being carried over to the next Stage. It is not practically possible to spend a precise round amount of $1M on any group of simultaneous (and ongoing) activities.
It would make accounting easier if Clause 4.5 can be removed, coupled with a clear understanding that the earn-in must be a total of $3M over a maximum 3-years and a minimum of $1M in any 1-year period, but not related to any minimum timeframe, i.e. GCM can spend at an accelerated pace to advance the project without any penalty.
The HXG Board's understanding and acceptance of this will be greatly appreciated.
[52] Second Holler Affidavit, Attachment MAH 23.
Mr Whitfield responded to this email as follows, on the same date:[53]
I recall the conversation and this was discussed with the board in the light of the concessions already made and the original terms as per the term sheet. Nevertheless – I acknowledge you tabling it once more and we will consider this in the context of any other comments on the overall agreement when they are provided.
[53] Second Holler Affidavit, Attachment MAH 23.
On 8 December 2022, Mr Mengler of Allion Partners produced a draft of the Proposed JVA which he sent by email to Mr Atkinson.[54] The draft agreement included a clause which provided for excess Stage 1 expenditure to be credited towards, and form part of, the Stage 2 expenditure. That is found in cl 4.4 of the draft. The draft clause stated as follows:
Hexagon and McIntosh acknowledge that if GCM expends an amount in excess of:
(a) the Stage 1 Expenditure Requirement in the Stage 1 Earn-In Period then such excess is credited towards and forms part of the Stage 2 Expenditure Requirement; and/or
(b) the Stage 2 Expenditure Requirement in the Stage 2 Earn-In Period, then such excess is credited towards and forms part of the Stage 3 Expenditure Requirement.
[54] This is evident from the email communication in the First Holler Affidavit, Attachment MAH 7.
Some months later, on 3 February 2023, Dr Pretorius emailed Mr Mengler advising that Mr Atkinson had ceased acting for GCM Graphite and that Mr Sanders had been appointed to act.[55]
[55] First Holler Affidavit, Attachment MAH 6.
On 23 February 2023, Mr Sanders emailed Mr Mengler referring to 'recent discussions in relation to the matter', and seeking certain documents from Mr Mengler.[56]
[56] First Holler Affidavit, Attachment MAH 7.
On 24 February 2023, Mr Mengler emailed Mr Sanders a draft of the Proposed JVA, which included the earlier cl 4.4, without any comment or amendment in relation to that proposed clause.[57]
[57] First Holler Affidavit, Attachment MAH 7.
Then, on 28 February 2023, Mr Mengler emailed Mr Sanders an amended draft of the Proposed JVA, again without any change or comment on cl 4.4.[58]
[58] First Holler Affidavit, Attachment MAH 8.
On 3 April 2023, Mr Mengler emailed Mr Sanders a further amended draft of the Proposed JVA, again without any change or comment on cl 4.4, and stated that: [59]
Hexagon proposes to accept the majority of the changes/positions in the 28 February draft, including...
This is in addition to the following earlier proposed concessions in the EIJVA…
• Carry over of excess expenditure during the Earn–In Period.
[59] First Holler Affidavit, Attachment MAH 10.
On 24 May 2023, Mr Sanders emailed Mr Mengler a substantive letter, attaching a further draft of the Proposed JVA, without any change or comment on cl 4.4, and noted:[60]
Given that we are hopefully getting close to finalising the draft I have taken the opportunity to set out below a brief explanation of the substantive changes…
[60] First Holler Affidavit, Attachment MAH 11.
The letter addresses some 11 points. Among them, Mr Sanders noted that his client had reinstated some clauses from the previous draft and made additional changes, indicating that the parties were still very much in the teeth of the negotiation process. The letter reveals there had been oral discussions between the representatives, as well. That said, as noted, the draft of cl 4.4 remained intact.
On 27 June 2023, Mr Mengler emailed Mr Sanders attaching a further amended draft of the Proposed JVA, without any change or comment on cl 4.4. Mr Mengler also responded to the comments which had been made by Mr Sanders.[61]
[61] First Holler Affidavit, Attachment MAH 12.
On 31 July 2023, Mr Sanders emailed Mr Mengler responding to matters raised in the June email received from Mr Mengler, and stated that:[62]
… I look forward to hearing from you as soon as possible so that hopefully the Agreement can be closed out. If it is necessary for our respective clients to discuss any of the remaining points, please also let me know and I can work to facilitate this either with or without us participating in such discussions as legal advisors.
[62] First Holler Affidavit, Attachment MAH 14.
Finally, to complete the review of the evidence, I refer to the email from Mr Mengler to Mr Sanders sent on 4 September 2023. Mr Mengler emailed Mr Sanders attaching a further amended draft of the Proposed JVA, without any change or comment on cl 4.4, and stated that:[63]
Hexagon/McIntosh have made material concessions during the past year in negotiating the terms of the agreement, including on positions which are different from the terms sheet. These include:
…
• Carry over of excess expenditure during the Earn–In Period…
[63] First Holler Affidavit, Attachment MAH 15.
There are some other communications referred to in the materials, but the foregoing represent the documents and communications which I consider are most relevant to the present application.
On my assessment of this material, and the pleadings, the involvement of the Law Practice in the negotiations cannot be doubted, but the extent of that involvement is quite narrow, particularly insofar as matters concerning the waiver, variation and estoppel pleas are concerned.
In essence:
(a)Mr Sanders was the author and recipient of certain emails passing between him and the counterparties' solicitor, Mr Mengler. Mr Sanders had discussions with Mr Mengler, but they cannot be said to be of great moment in the overall context of the proceedings, as counsel for the plaintiff explained.[64] Further, the pleadings expressly refer to only two of the written communications which are in evidence, being emails received by Mr Sanders in April and September 2023.
(b)The representation allegedly made by the defendants, concerning the carrying-over of expenditure, precedes the involvement of Mr Sanders in the negotiations. The representation was allegedly first made by Mr Whitfield in 2022, and then repeated in writing by Mr Mengler in October 2022, and appears in later written communications. The Law Practice did not arrive on the scene until early February 2023.
(c)The representation concerning the carrying-over of expenditure came to be embodied in a draft version of the Proposed JVA sent by Mr Mengler in December 2022. That draft clause appears to have been largely static in form in the period that followed, despite the continuing discussions and negotiations. As submitted by the plaintiff, cl 4.4 of the Proposed JVA 'remained unchanged in every iteration' of the draft agreement after it was first inserted.[65] I accept that submission.
(d)Naturally, while the negotiations were continuing there remained the prospect of the parties altering their positions, of concessions being withdrawn, and new bargaining points being raised. That said, no evidence has been adduced on this application to suggest that, during the further negotiations whilst Mr Sanders was involved, the defendants intended to withdraw their agreement to cl 4.4 of the Proposed JVA. Indeed, the substance of that clause has been described, by the defendants themselves, as a 'concession' on their part. None of this means the clause can be elevated to a contractual promise. But it puts in proper context the manner in which evidence might be led at trial to make good the pleaded representations and assumptions, and tends to downplay the likely significance of Mr Sanders being called on to give viva voce evidence at trial on this issue, or that Mr Sanders provided legal advice of a material nature on the draft of cl 4.4 which will need to be tested in some way at trial.[66]
(e)Further, neither Mr Sanders, nor any other practitioner from the Law Practice, drafted the Binding Terms Sheet or the draft Proposed JVA which was exchanged between the parties' representatives. This distinguishes the case from the circumstances which were considered to justify an injunction in Cronan v Coates,[67] where the practitioner had drafted the will in contest and was found by Whitby J to be a likely material witness in the proceedings. Her Honour, in that case, had particular regard to the prohibitions on legal practitioners appearing as advocates or representing clients where they are material witnesses, referring to r 27 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA). Counsel for the plaintiff correctly distinguished that authority, in my view.
[64] ts 57.
[65] PS [22.3].
[66] ts 58.
[67] Cronan v Coates [2024] WASC 61 [24], [65] and [72] (Whitby J).
The apparent fact that proposed cl 4.4, being the concession proffered by the defendants in the negotiations, pre-dates the involvement of the Law Practice is an important aspect of the analysis of this issue, in my view. This asserted concession is central to the plaintiff's waiver, variation and estoppel pleas. It stood unchanged throughout Mr Sanders' involvement and, to put it colloquially, his fingerprints are nowhere to be seen when examining this aspect of the case, other than as a sender and recipient of emails.
These matters logically impact not only the assessment whether Mr Sanders is likely to be a material witness at trial, but also whether his advice or the advice of other practitioners in the Law Practice is likely to be subject to some challenge in the proceedings.
In the circumstances, it does not appear at all likely that Mr Sanders will be required to give evidence at trial in respect of the pleaded representation. The litigation may, in the future, change its course and scope, as litigation matters such as this commonly do. But as matters stand, I think the indication given by the plaintiff that there is presently no reason to call Mr Sanders to give evidence is reasonable in all the circumstances and supported on the available materials. If Mr Sanders was to be called, based on the information available, he would not be a material witness by any stretch.
As to whether the advice of the Law Practice is likely to be exposed to scrutiny or impugned in the proceedings, and at trial, I see no solid basis to reach a conclusion of that nature. As Pembroke J similarly concluded in Newey, an authority relied on to a significant extent by the plaintiff’s counsel in the present case, I cannot see any discernible basis upon which the Law Practice's conduct, or the propriety of Mr Sanders' drafting or advice, will come under scrutiny in the proceedings, or put them in a situation of embarrassment.
The foregoing matters point strongly against a conclusion that the continued involvement of the Law Practice or Mr Sanders would impair the integrity of the judicial process. I do not accept a realistic sense of impropriety has been demonstrated by the defendants on this application. On this basis, I would decline the relief sought.
I am fortified in that view by the discretionary consideration, typically relevant on applications such as this one, that a decision to restrain the Law Practice from acting would likely cause significant prejudice to the plaintiff. That prejudice may reasonably be inferred on the materials before the court.
The Law Practice has been acting for the plaintiff since the action was commenced in June 2024, as well as before that time. I can infer that substantial fees have already been paid to the Law Practice for their work in the matter, although there is no direct evidence before me as to the quantum of those fees.
In addition to the financial implications for the plaintiff in having to instruct new solicitors (both in terms of having to expend funds to engage new solicitors and have them read in, together with the potential for wasted costs arising from losing the current solicitors), there is the additional time which will be involved in engaging and briefing new solicitors and in the likely resulting delays in the management of the action and its progress to trial. These considerations are relevant as a matter of principle and authority, but are also proper matters to which the court should have regard given the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).

(4) Conclusion

Whether the two individual issues described above are examined independently of each other, or considered in combination, I consider the necessary criteria the court requires for the extraordinary jurisdiction to be exercised in order to restrain the Law Practice from acting have not been met by the defendants.
On my assessment, the administration of justice will not be imperilled, or be seen to be imperilled, by the Law Practice and Mr Sanders, to the extent he has any continuing involvement in the matter, continuing to act as the plaintiff's solicitor in this proceeding.

E. Conclusion and orders

For the foregoing reasons, I will dismiss the defendants' application and hear from the parties as to costs.

ATTACHMENT A
EARN IN STAGES IN THE BINDING TERMS SHEET

Stage	Interest to be acquired	Summary of Contractual Requirements
1	Stage 1 Interest, being a 30% interest in the 'Graphite Mineral Rights'. See clause 7.	· Payment by the plaintiff of $300,000 to the first defendant as required by cl 6(a). · Expenditure of not less than $1 million by the plaintiff on Exploration Expenditure 'within 12 months of the Satisfaction Date' (defined as the Stage 1 Exploration Period).
2	Stage 2 Interest, being a further 21% interest in the 'Graphite Mineral Rights', for a total interest of 51%. See clause 8.	· The plaintiff is to issue a written 'Stage 2 Notice' which must be issued 'on or before thirty (30) days of the expiry of the Stage 1 Exploration Period'. · Payment by the plaintiff of $200,000 to the first defendant as required by cl 6(c). · Expenditure of not less than $1 million by the plaintiff on Exploration Expenditure within 12 months of the Stage 2 Notice (defined as the Stage 2 Exploration Period).
3	Stage 3 Interest, being a further 29% interest in the 'Graphite Mineral Rights', for a total interest of 80%. See clause 9.	· Issue a written 'Stage 3 Notice' which must be issued 'on or before thirty (30) days of the expiry of the Stage 2 Exploration Period'. · Expenditure of not less than $1 million on Exploration Expenditure within 24 months of the Stage 3 Notice.

ATTACHMENT B
EXTRACTS FROM BINDING TERMS SHEET

Clause	Terms
6.	Upfront payments	(a) The Company must pay to Hexagon A$300,000 as a reimbursement for previous exploration costs within 5 business days of the Company completing the Funding Transaction. (b) The Company must, within 30 days of completion of the Funding Transaction either: (i) take delivery of; or (ii) otherwise pay for storage and associated warehousing costs of, the Graphite deposit drill core samples and returned sample vials from the Tenements. (c) The Company must pay to Hexagon A$200,000 as a reimbursement for previous exploration costs on the earlier of: (i) 12 months after the date of payment under clause 6(a); or (ii) with the Stage 2 Notice under clause 8(a).
7.	Stage 1 Earn In	(a) The Company will acquire an 30% interest in the Graphite Mineral Rights (Stage 1 Interest) by: (i) making the upfront payment in clause 6(a); and (ii) expending not less than A$1,000,000 of Exploration Expenditure (Stage 1 Expenditure Requirement) within 12 months of the Satisfaction Date (Stage 1 Exploration Period). (b) If the Company does not meet the Stage 1 Exploration Expenditure Requirement within the Stage 1 Exploration Period, it will be deemed to have withdrawn from the Earn In and does not earn any interest in the Graphite Mineral Rights. (c) The Company is responsible for the costs of all rehabilitation required as the result of any activities conducted by the Company under this clause 7.
8.	Stage 2 Earn In	(a) Subject to compliance with clause 7(a) on or before thirty (30) days of the expiry of the Stage 1 Exploration Period, the Company may by written notice to Hexagon, elect to proceed with Stage 2 (Stage 2 Notice). (b) If the Company issues a Stage 2 Notice in accordance with clause 8(a), it may acquire a further 21% interest (a total 51% interest) (Stage 2 Interest) in the Graphite Mineral Rights by: (i) making the upfront payment in clause 6(c); and (ii) sole funding not less than A$1,000,000) of further Exploration Expenditure (Stage 2 Expenditure Requirement) within 12 months of the Stage 2 Notice (Stage 2 Exploration Period). (c) If the Company does not sole fund the Stage 2 Expenditure Requirement within the Stage 2 Exploration Period, clause 13 or 24 applies as the case may be. (d) The Company is responsible for the costs of all rehabilitation required as the result of any activities conducted by the Company under this clause 8.
9.	Stage 3 Earn In	(a) Subject to compliance with clause 8(b) on or before thirty (30) days of the expiry of the Stage 2 Exploration Period, the Company may by written notice to Hexagon, elect to proceed to earn the Stage 3 Interest (as defined in clause 9(b)) (Stage 3 Notice). (b) If the Company issues a Stage 3 Notice in accordance with clause 9(a), it may earn a further 29% interest (a total 80% interest) (Stage 3 Interest) in the Graphite Mineral Rights by sole funding not less than A$1,000,000 of further Exploration Expenditure (Stage 3 Exploration Requirement) within 24 months of the Stage 3 Notice (Stage 3 Exploration Period). (c) If the Company does not sole fund the Stage 3 Exploration Expenditure Requirement within the Stage 3 Exploration Period, clause 13 or 24 applies as the case may be. (d) The Company is responsible for the costs of all rehabilitation required as the result of any activities conducted by the Company under this clause 9.
10.	Acknowledgement	(a) … (b) … (c) … (d) … (e) The Company acknowledges that if the Company expends an amount in excess of: (i) the Stage 1 Expenditure Requirement in the Stage 1 Exploration Period; or (ii) the Stage 2 Expenditure Requirement in the Stage 2 Exploration Period; or (iii) the Stage 3 Expenditure Requirement in the Stage 3 Exploration Period, any amount in respect of the respective expenditure requirement is not credited towards and does not form part of, or reduce, any subsequent expenditure requirement.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
23 OCTOBER 2025