Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd
[2012] WASCA 216 (S)
HANCOCK PROSPECTING PTY LTD -v- WRIGHT PROSPECTING PTY LTD [2012] WASCA 216 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 216 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:43/2011 | 12-15 JUNE 2012, 12 DECEMBER 2012 AND ON THE PAPERS | |
| Coram: | McLURE P NEWNES JA LE MIERE J | 27/02/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Cross-appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | HANCOCK PROSPECTING PTY LTD WRIGHT PROSPECTING PTY LTD |
Catchwords: | Procedure Orders giving effect to reasons Dispute about terms and effect of declaration Turns on own facts |
Legislation: | Nil |
Case References: | Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HANCOCK PROSPECTING PTY LTD -v- WRIGHT PROSPECTING PTY LTD [2012] WASCA 216 (S) CORAM : McLURE P
- NEWNES JA
LE MIERE J
- Appellant
AND
WRIGHT PROSPECTING PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MURRAY J
Citation : WRIGHT PROSPECTING PTY LIMITED -v- HANCOCK PROSPECTING PTY LIMITED [No 9] [2010] WASC 44
File No : CIV 1279 of 2001
(Page 2)
Catchwords:
Procedure - Orders giving effect to reasons - Dispute about terms and effect of declaration - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Cross-appeal allowed in part
Category: B
Representation:
Counsel:
Appellant : Mr S Finch SC & Mr S Rushton SC & Mr C Bova
Respondent : Mr R Smith SC & Mr R Brender
Solicitors:
Appellant : Corrs Chambers Westgarth
Respondent : Lavan Legal
Case(s) referred to in judgment(s):
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216
(Page 3)
1 JUDGMENT OF THE COURT: The court published its reasons for judgment in this matter on 30 October 2012: Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216. On the date of publication, the appellant sought further time to consider its position in relation to the orders sought by the respondent in a minute it provided to the court (the respondent's minute).
2 On 30 October 2012 the President ordered that the appellant file and serve written submissions relating to the proposed orders by 13 November 2012 and that the respondent file and serve answering written submissions by 20 November 2012. The appellant's request that it be permitted to file written submissions in reply was refused.
3 The written submissions filed by the parties (the first set of written submissions) disclosed that the only area of dispute related to the terms of the declaration the subject of ground 11 of the cross-appeal: Hancock [316] - [319].
4 After the filing of the first set of written submissions there was a flurry of correspondence to the court from the solicitors for the parties. The appellant's solicitors foreshadowed that it may seek leave to file a reply to the respondent's written submissions (letter dated 23 November 2012) and later, that it was having difficulty obtaining instructions on whether to seek leave to file submissions in reply (letter dated 27 November 2012). That triggered extensive written submissions from the respondent's solicitors opposing the grant of leave (letter dated 27 November 2012). By letter dated 28 November 2012 the appellant's solicitors requested leave to reply to the respondent's submissions in the course of which letter they provided in effect a summary of the submissions they would make in reply (the reply submissions). By letter dated 29 November 2012 the respondent's solicitors contend that the letter dated 28 November 2012 from the appellant's solicitors should be disregarded by the court and then go on to address the merits of the appellant's reply submissions.
5 The written submissions and correspondence from the parties clearly identified and addressed the scope and merits of the issue in dispute. The respondent was seeking a declaration in terms which would, in effect, deliver to it an advantage which was neither apparent on the face of the declaration nor litigated by the respondent at trial or in the appeal.
6 The issue in dispute emerged in this way. The declaration sought by the respondent in its prayer for relief in par 25A of its statement of claim
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- (the claimed declaration) is set out in [316] of the judgment. The claimed declaration relevantly provided:
…
(c) HPPL is obliged to do all things necessary (including executing documentation and joining in the seeking of the consent of any Minister or joint venture party which may be necessary) to enable WPPL to have the benefit of the rights conferred on it by the 1984 Agreement.
(d) (i) Subject to (ii), WPPL is entitled to the exclusion of HPPL to any proceeds of sale or other benefits derived on disposal by WPPL of the Rhodes Ridge Interest.
(ii) WPPL's rights under (i) are subject to its obligation to ensure that any royalty obtained on such disposal shall be shared equally between HPPL and WPPL.
However, the [claimed] declaration should be amended to make it clear that cls 1 to 3 do not survive the transfer of HPPL's interest in Rhodes Ridge to WPPL pursuant to cl 4 of the 1984 Agreement. Moreover, par (c) of the declaration should be confined to the rights conferred on WPPL by cl 1 of the 1984 Agreement as varied by the 1987 Agreement. Finally par (d)(ii) should reflect the language of cl 1which refers to the disposal of royalties. With those alterations, I would uphold ground 11 of the cross-appeal [319]. (emphasis added)
8 The court's intention, borne out by the immediate and broader context ([319], [32] and [83]), is that the reference to cl 1 in italics in the quoted paragraph is to cl 1 of the 1984 Agreement. Clause 1(a) (which relates to the appellant) and cl 1(b) (which relates to the respondent) of the 1984 Agreement are in relevantly the same terms. Clause 1(b) relevantly provides:
WPPL shall assume sole control over and responsibility for the administration, development and disposal of the assets and interests of the Partnership set out in Schedule 2 hereof other than royalties in respect thereof or premiums referred to in Clause 5 hereof. (emphasis added)
9 Proposed order 4 of the respondent's minute relevantly provided:
4.1 WPPL is entitled to the sole control over and responsibility for the administration, development and disposal of the Rhodes Ridge Interest as defined in orders 2 and 3 of the Orders [made by
- Murray J on 22 March 2011] with the corrections provided for in order 5 hereof;
- …
4.4 Subject to 4.5, WPPL is entitled to the exclusion of HPPL to any proceeds of sale or other benefits derived on disposal by WPPL of the Rhodes Ridge Interest including capital profits;
4.5 WPPL's rights under 4.4 are subject to its obligations pursuant to cl 1 of the 1987 Agreement.
10 The only contentious amendment sought by the appellant was to order 4.1 as follows (the original formulation):
4.1 WPPL is entitled to the sole control over and responsibility for the administration, development and disposal of the assets and interests of the partnership between the cross-respondent (HPPL) and WPPL (Partnership) in and to the interests identified in paragraph (a) of Schedule 2 of the 1984 Agreement, other than royalties in respect thereof or premiums referred to in clause 5 of the 1984 Agreement (Rhodes Ridge Interest).
11 The respondent opposed the appellant's amendment to order 4.1, claiming that the exclusion of royalties and premiums in the proposed amended order 4.1 introduced a qualification into the claimed declaration which was not argued on the appeal; if there had been argument on that issue, the respondent would have submitted that the carve out (our description) of royalties and premiums in cl 1(a) and cl 1(b) of the 1984 Agreement had been impliedly deleted as a result of the deletion of cl 1(c) of the 1984 Agreement by the 1987 Agreement. That construction was not raised by the respondent in its cross-appeal or notice of contention, nor was it addressed in its written or oral submissions in the appeal. Issues of construction of the 1984 Agreement were largely left to the court to raise and determine: Hancock [318]. Indeed, exchanges between the President and Senior Counsel for the appellant in the course of the hearing of the appeal (ts 85, 102, 106) are not consistent with the construction articulated, for the first time, by the respondent.
12 Just prior to the court handing down its reasons on the disputed order, the parties filed a Consent Notice dated 12 December 2012. The dispute in relation to proposed order 4.1 was resolved in the respondent's favour. At a hearing on 12 December 2012 the President advised the parties that the reference to cl 1 in the penultimate sentence of [319] is an intended reference to cl 1 of the 1984 Agreement and that the court was not then prepared to make the consent order in the terms of the proposed
(Page 6)
- declaration. Programming orders for further written submissions were made. Those submissions have now been filed. The appellant seeks an order hearing to respond to the respondent's criticism of the terms of its proposed declaration.
13 The respondent presses for a declaration in the terms of the consent notice or with a minor amendment that does not affect its substance.
14 The appellant claims that the most appropriate course is for the court to decline to make any declaration. In the alternative, it now seeks a declaration in terms which advance its construction of the relevant provisions. The appellant seeks amendments to cl 4.1 and cl 4.5 as follows:
4.1 WPPL is entitled to the sole control over and responsibility for the administration, development and disposal of the Rhodes Ridge Interest (as defined in orders 2 and 3 of the Orders, with the corrections provided for in order 5 hereof and it being noted that the interest does not extend to royalties in respect thereof or premiums referred to in clause 5 of the 1984 Agreement;
4.5 WPPL's rights under 4.4 do not include the right to conclude any negotiations or make any agreement having the effect of adducing or disposing completely of any royalties in respect of the Rhodes Ridge Interest or premiums referred to in clause 5 of 1984 Agreement to which the partnership may or shall be entitled.
15 Neither party in the appeal sought to litigate the effect of the 1987 Agreement on cl 1(b) of the 1984 Agreement in relation to royalties and premiums for which they now contend. The parties' position on that subject should not be determined in this appeal. It is unnecessary to hear further from the parties. Accordingly, the court hereby makes the following orders:
1. The appeal is dismissed.
2. The appellant do pay the respondent's costs of the appeal including any reserved costs to be taxed if not agreed.
3. Grounds 11 and 14 of the cross-appeal be allowed.
4. The court declares that by virtue of the rights conferred on the cross-appellant (WPPL) by cl 1 to cl 3 of the 1984 Agreement, until the assignments and transfers identified in par 5 of the orders made by the Honourable Justice Murray on 22 March 2011 (Orders) are completed pursuant to cl 4 of the 1984 Agreement:
- 4.1 WPPL is entitled to the sole control over and responsibility for the administration, development and disposal of the assets and interests of the partnership between the cross-respondent (HPPL) and WPPL (Partnership) in and to the interests identified in paragraph (a) of Schedule 2 of the 1984 Agreement, other than royalties in respect thereof or premiums referred to in cl 5 of the 1984 Agreement except to the extent varied (if at all) by the agreement dated 12 June 1987 between HPPL and WPPL (the 1987 Agreement) (the Rhodes Ridge Interest);
4.2 All income or profits earned including capital profits and expenses incurred by the Partnership in respect of the Rhodes Ridge Interest during any year of income is to the account of WPPL provided that any expenses or moneys which have already been paid by the Partnership and are later refunded in respect of any existing mining joint venture shall be to the account of the Partnership;
4.3 HPPL is obliged to do all things necessary (including executing documentation and joining in the seeking of the consent of any Minister or joint venture party which may be necessary) to enable WPPL to have the benefit of the right to assume sole control over and responsibility for the administration, development and disposal of the Rhodes Ridge Interest;
4.4 Subject to 4.5, WPPL is entitled to the exclusion of HPPL to any proceeds of sale or other benefits derived on disposal by WPPL of the Rhodes Ridge Interest including capital profits;
4.5 WPPL's rights under 4.4 are subject to the 1984 Agreement as varied by the 1987 Agreement.
- 5. The tenement references in Schedule 2 of the Orders to 'M47/539' and 'M47/540' be deleted and be respectively replaced with the tenement references 'E47/539' and 'E47/540'.
6. The cross-appeal be otherwise dismissed.
7. The cross-respondent pay the cross-appellant's costs of the cross-appeal including any reserved costs to be taxed if not agreed.
(Page 8)
- 8. For the purposes of orders 2 and 7, all limits on costs prescribed by any applicable legal costs determination be removed.
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