Kipoi Holdings Mauritius Limited v Robert Michael Kirman and Robert Conry Brauer as joint and several administrators of Tiger Resources Limited (Subject to Deed of Company Arrangement) [No 6] - [2025] WASCA 65

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KIPOI HOLDINGS MAURITIUS LIMITED -v- ROBERT MICHAEL KIRMAN and ROBERT CONRY BRAUER as joint and several administrators of TIGER RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) [No 6] [2025] WASCA 65
CORAM:   BUSS P
MITCHELL JA
VAUGHAN JA

HEARD:   11 & 21 MARCH & 1 & 3 APRIL 2025
DELIVERED          :   8 APRIL 2025
PUBLISHED           :   5 MAY 2025
FILE NO/S:   CACV 106 of 2021
BETWEEN:   KIPOI HOLDINGS MAURITIUS LIMITED
Appellant
AND
ROBERT MICHAEL KIRMAN as joint and several administrators of TIGER RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
ROBERT CONRY BRAUER as joint and several administrators of TIGER RESOURCES LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
First Respondents
YINGKOU YANGZHOU TRADE CO LTD
Second Respondent
JINJI RESOURCES FINANCE PTY LTD
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: ROBERT MICHAEL KIRMAN as joint and several administrators of TIGER RESOURCES LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) -v- YINGKOU YANGZHOU TRADE CO LTD [No 2] [2021] WASC 354
File Number            :   COR 69 of 2021

Catchwords:

Appeals - Practice and procedure - Application to adduce additional evidence in s 59(4) Supreme Court Act 1935 (WA) hearing - Evidence sought to be adduced available at time of primary proceedings - Evidence as to whether relevant mine was on care and maintenance - Where not allowing additional evidence will result in s 59(4) hearing proceeding on false factual basis - Interests of justice - Application to adduce additional evidence granted - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 444GA
Supreme Court Act 1935 (WA), s 59(4)

Result:

Application to adduce additional evidence granted

Category: B

Representation:

Counsel:

Appellant	:	J J Hutton SC, P A Walker & A Pieniazek
First Respondents	:	No appearance
Second Respondent	:	S J Maiden KC, J G Abberton, B J Willesee & N J Wallwork
Third Respondent	:	S J Maiden KC, J G Abberton, B J Willesee & N J Wallwork

Solicitors:

Appellant	:	HWL Ebsworth
First Respondents	:	Norton Rose Fulbright Australia
Second Respondent	:	Lavan
Third Respondent	:	Lavan

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

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
CDJ v VAJ (No 1) [1998] HCA 67; (1998) 197 CLR 172
Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kipoi Holdings Mauritius Ltd v Kirman and Bauer as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [2021] WASCA 194
Kipoi Holdings Mauritius Ltd v Robert Michael Kirman and Robert Conry Brauer as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [No 4] [2024] WASCA 145
Kipoi Holdings Mauritius Ltd v Robert Michael Kirman as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [No 5] [2025] WASCA 60
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418
Robert Michael Kirman as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) v Yingkou Yangzhou Trade Co Ltd [No 2] [2021] WASC 354
Saunders v The Public Trustee [2015] WASCA 203
Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435

REASONS OF THE COURT:

Overview

On 8 April 2025 the court made orders on the appellant's application in an appeal dated 27 February 2025. Broadly speaking, by that application the appellant sought leave to adduce additional evidentiary materials at the trial and determination pursuant to s 59(4) of the Supreme Court Act 1935 (WA) as directed by this court in earlier orders. The court granted leave in various respects saying that it would provide written reasons for its orders later. These are our reasons for the orders of the court made 8 April 2025.

Background

The considerable history of this appeal is summarised in Kipoi Holdings Mauritius Ltd v Kirman [No 5].[1] Kipoi [No 5] concerned the appellant's application in an appeal dated 25 February 2025 for certain injunctive relief. That application was prosecuted while the appellant prosecuted its application in an appeal dated 27 February 2025 for leave to adduce additional evidentiary materials. So far as it is necessary to describe the background to the appellant's application in an appeal dated 27 February 2025 it is sufficient to incorporate what is said in Kipoi [No 5] [2] - [10].
[1] Kipoi Holdings Mauritius Ltd v Robert Michael Kirman as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [No 5] [2025] WASCA 60 (Kipoi [No 5]).
It is, however, useful to identify the following points in the chronology:
1.The deed administrators' application under s 444GA of the Corporations Act 2001 (Cth) seeking leave to transfer the shares in Tiger Resources Ltd (Tiger) for nil consideration was commenced on 23 April 2021.
2.The deed administrators' expert evidence was filed on or about 23 June 2021. The appellant's expert evidence was filed on or about 2 August 2021. The second and third respondents filed their expert evidence on or about 3 August 2021.
3.The hearing of the primary proceedings proceeded over 17 ‑ 19 August 2021 and 23 August 2021.
4.The primary court delivered reasons for decision on 20 October 2021 and on 28 October 2021 made final orders under s 444GA granting leave to transfer the Tiger shares for nil consideration.
5.The appellant filed a notice of appeal on 3 November 2021 and then sought and obtained a stay of the primary court's orders under s 444GA.
6.The stay lapsed on 17 November 2021. Thereafter, on 19 December 2021, the deed administrators transferred the Tiger shares. Subsequently this court heard the appeal against the s 444GA order for leave to transfer the Tiger shares for nil consideration over four days in August 2023.
Relevantly, after delivery of the court's reasons on the appeal in Kipoi Holdings Mauritius Ltd v Kirman [No 4],[2] on 22 November 2024 the court directed that the following question be tried and determined by a judge of the General Division pursuant to s 59(4) of the Supreme Court Act:
What was the residual value of the ordinary issued shares in Tiger Resources Ltd (Subject to Deed of Company Arrangement), if any, as at 28 October 2021 (or such earlier date as close as possible thereto) based on a valuation of the assets and liabilities of the company by reference to a liquidation scenario rather than as a going concern?
[2] Kipoi Holdings Mauritius Ltd v Robert Michael Kirman and Robert Conry Brauer as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [No 4] [2024] WASCA 145 (Kipoi [No 4]).
This question was ordered to be tried and determined to assist the court to conclude whether the primary court's order the subject of the appeal was erroneous. The primary court found that the issued shares in Tiger were of 'nil value'. Having so found the primary court made the order pursuant to s 444GA granting leave to transfer the shares in Tiger for nil consideration. For the reasons given in Kipoi [No 4] this court was satisfied that there were legal errors in the primary court's reasoning that resulted in the s 444GA order. However, the court found that it was unable to determine whether an order under s 444GA for leave to transfer ought to have been made on the trial record and the additional evidence adduced on the appeal. Additional factual findings were required. The court directed the trial and determination of an issue or question pursuant to s 59(4) to bring about the necessary findings for this court to make dispositive orders on the appeal.
Following the court's order providing for the s 59(4) trial and determination there were two further orders which were designed to set the parameters of the s 59(4) proceedings and to program the s 59(4) proceedings to a hearing.
The first order was made on 11 December 2024. By that order the court identified the scope of the permissible evidence for the trial and determination of the issue and question to be tried and determined pursuant to s 59(4). The order of 11 December 2024 was made after hearing from the parties and was based on considerations mentioned in Kipoi [No 4] (see especially Kipoi [No 4] [875] - [879]). In substance, the court confined the evidence for the s 59(4) proceedings to that which had been before the primary court at the original hearing and the court on the appeal together with some additional evidence to be filed. The additional evidence to be filed included further or supplementary expert reports updating or taking into account various matters (pars 1(a) and (b) of the order of 11 December 2024) as well as further evidence filed by the appellant and the second and third respondents on the subject matter of the further evidence led by the appellant at the hearing of the appeal (par 1(aa) of the orders of 11 December 2024).
The second order was made by Cobby J on 18 December 2024. Cobby J is the judge who is to hear and determine the s 59(4) proceedings. Cobby J made programming orders for the filing and service of the additional evidence permitted by the orders of 11 December 2024.
Some of the appellant's additional evidence was to be filed and served by 12 February 2025. On that day the appellant filed the following:
1.An affidavit of Jason Dent sworn 12 February 2025.
2.An affidavit of Ian Davies sworn 12 February 2025.
3.An affidavit of Eric Kadima sworn 12 February 2025.
4.An affidavit of Kristen Townsend sworn 12 February 2025.
It will be necessary, shortly, to say something more about the contents of Mr Dent's affidavit. For reasons that will become apparent it is not necessary to describe the contents of the other affidavits.
The second and third respondents considered that the appellant's affidavits as filed exceeded the scope of what was permitted by the court's orders of 11 December 2024. On 24 February 2025 the second and third respondents brought an application seeking a ruling that the affidavits were inadmissible in and could not be tendered at the hearing of the trial and determination under s 59(4). Cobby J heard that application on 26 February 2025 and delivered oral reasons on 27 February 2025. His Honour considered the proper construction of par 1(aa) of the orders of the court made 11 December 2024. Having done so, Cobby J held that the affidavits of Mr Dent and Mr Kadima were inadmissible as the contents thereof were outside the scope of what was permitted by the court's order. His Honour held further that the statements and documents attached to the affidavits of Ms Townsend and Mr Davies relating to production and export from the Kipoi copper mine in February and March 2022 may be admissible, but that the contents of those affidavits would not otherwise be admissible.
Later that day the appellant filed the application in an appeal dated 27 February 2025.
By the application in an appeal dated 27 February 2025 the appellant sought leave to file and adduce the additional evidence contained in the four affidavits at the trial and determination under s 59(4). The application was said to be made pursuant to s 59(4), the inherent jurisdiction of the court, or s 47(3)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA). In support of the application to adduce further evidence the appellant relied on an affidavit of James te Riele sworn 27 February 2025 and an affidavit of Melissa Ferreira sworn 27 February 2025. Mr te Riele is an officer of the appellant. Ms Ferreira is one of the solicitors acting for the appellant.

The significance of Mr Dent's affidavit

The significance of Mr Dent's affidavit should be explained before dealing with the many twists and turns that arose in connection with the appellant's application in an appeal dated 27 February 2025.
It will be apparent from the question to be tried and determined in the s 59(4) proceedings that the central issue for determination in those proceedings is one of valuation. The s 59(4) proceedings will determine the residual value of the issued shares in Tiger as at around the time of the s 444GA order. The value of Tiger's issued shares was a critical issue in the primary proceedings: Kipoi [No 4] [237], [422] ‑ [423]. So too the value, if any, to be attributed to Tiger's issued shares was an issue before this court at the appeal hearing and was the subject of detailed submissions to and consideration by the court: Kipoi [No 4] [238] ‑ [239], [299] ‑ [393], [430], [459], [461], [650] ‑ [653], [671], [684] ‑ [690], [701] ‑ [747]. It was the court's inability to determine, properly and justly, the valuation issues that brought about the direction that the question reproduced at [4] above be tried and determined by a judge of the General Division pursuant to s 59(4): Kipoi [No 4] [241], [870], [873] - [875].
For reasons that are explained more fully in Kipoi [No 4], the value of Tiger's issued shares as at the relevant date is heavily dependent on the value attributed to the 'Kipoi copper mine'. The Kipoi copper mine is in the Democratic Republic of the Congo and is held by one of Tiger's subsidiaries, a Congo domiciled company called Société d'Exploitation de Kipoi SA (SEK). Much of the expert evidence in the primary court concerned the value to be attributed to the Kipoi copper mine. See generally Kipoi [No 4] [246] ‑ [247], [250], [311] ‑ [315], [299] ‑ [393].
In the primary proceedings it was common ground that the Kipoi copper mine as operated by SEK had been placed into care and maintenance in April 2020 due to the adverse impact of the COVID‑19 pandemic: Kipoi [No 4] [248], [395] (see also Kirman v Yingkou Yangzhou Trade Co Ltd [No 2][3]).
[3] Robert Michael Kirman as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) v Yingkou Yangzhou Trade Co Ltd [No 2] [2021] WASC 354 [41], [44].
Throughout the primary proceedings the litigation was conducted on the basis that the Kipoi copper mine was in care and maintenance. For example, in their initial affidavit sworn in support of the application under s 444GA, the deed administrators referred to the suspension of operations at the mine and the mine's 'care and maintenance' status.[4] Thereafter, in an explanatory statement dated 23 June 2021 made available to shareholders, the deed administrators included their valuation report for the purposes of the primary proceeding which also referred to the Kipoi copper mine being in care and maintenance.[5]
[4] Affidavit of RM Kirman sworn 23 April 2021 par 9(k) and attachment 'RMK-5' (page 350).
[5] Affidavit of RM Kirman sworn 23 June 2021 pars 11 ‑ 13 and attachment 'RMK-18' (esp. pages 125, 127 ‑ 128, 142 - 143, 151 - 152, 154).
The expert opinions in relation to the value to be attributed to the Kipoi copper mine were premised on and impacted by an assumption that the mine continued to be in care and maintenance. See for example the evidence recited in Kirman v Yingkou Yangzhou Trade Co Ltd [No 2] [15](3), [21](93) and Kipoi [No 4] [334](d), [336], [351](2)(b), [352] - [353], [355], [362], [367], [387] - [389], [525]. At the time of the hearing in the primary court there was also a substantial issue as to the continued availability of care and maintenance funding in a liquidation scenario: Kirman v Yingkou Yangzhou Trade Co Ltd [No 2] [41], [44]. That issue presupposed that the Kipoi copper mine continued to be preserved on a care and maintenance basis as at the time of the hearing before the primary court.
By the time of the appeal hearing the Kipoi copper mine had resumed mining operations: Kipoi [No 4] [274] - [275]. That was evident from the contents of a letter from the second and third respondents' solicitors, dated 24 November 2021, which was adduced as additional evidence in the appeal: Kipoi [No 4] [273]. The letter stated that:
We refer you to annexure RMK-8 to the affidavit of Robert Michael Kirman sworn 18 November 2021 in support of the former deed administrators' application for directions that they are justified in transferring the shares in Tiger to YYT, which stated at [15] on page 369:
'Our clients [ie the second and third respondents] have previously told the Deed Administrators on numerous occasions that as soon as the DOCA is effectuated and the shares in Tiger and [sic] transferred to YYT that they intend to immediately take steps to resume production at the Kipoi copper mine.'
…
We write to confirm (as was indicated in our previous letter) that SEK has resumed mining operations at the Kipoi mine. (original emphasis)
The implication in the letter of 24 November 2021 is that steps to resume production at the Kipoi copper mine would follow and had followed the effectuation of the deed of company arrangement. The deed of company arrangement was effectuated on 19 November 2021: Kipoi [No 4] [270]. Accordingly, the implication to be drawn from the 24 November 2021 letter is that mining operations at the Kipoi copper mine resumed some time between 19 November 2021 and 24 November 2021.
The correspondence of 24 November 2021 was sent in a context where affidavits filed by the second and third respondents in the appeal had suggested that the Kipoi copper mine continued to be in care and maintenance as at early November 2021. Those affidavits were filed in relation to a stay application made by the appellant. See generally Kipoi [No 4] [269] ‑ [270] and Kipoi Holdings Mauritius Ltd v Kirman.[6] This court relied on those affidavits in fixing an amount to be provided by way of security for an undertaking as to damages as a condition of the stay: Kipoi Holdings Mauritius Ltd v Kirman [53], [57](1), [58], [60], [62].
[6] Kipoi Holdings Mauritius Ltd v Kirman and Bauer as joint and several administrators of Tiger Resources Ltd (subject to deed of company arrangement) [2021] WASCA 194 (esp. [32] ‑ [34]).
The relevant affidavits comprised the affidavit of Aiping Wei sworn 5 November 2021 and the affidavit of Dandan Dou sworn 5 November 2021.
Ms Wei is an employee and authorised signatory of the second respondent. She swore an affidavit to provide an update on the ongoing funding being provided to SEK (and another Tiger subsidiary) by a company related to the second and third respondents 'to ensure … the Kipoi copper mining project … remains viable' (par 7). Ms Wei deposed to numerous payments between 3 July 2021 and 29 September 2021 (pars 8 - 10). Ms Wei went on to state that each of the payments was made for the purpose of satisfying liabilities of SEK 'and ensuring that the Kipoi Project remains viable whilst on care and maintenance' (par 11).
There was no suggestion in Ms Wei's affidavit of 5 November 2021 that mining operations at the Kipoi copper mine had already resumed or that the mine had ceased to be on care and maintenance.
Dandan Dou is the Deputy General Manager of SEK. She had been employed by SEK since October 2020 and was appointed as its Deputy General Manager on 14 August 2021. Ms Dou confirmed that the payments specified by Ms Wei had been used to fund 'ongoing care and maintenance costs of the Kipoi Project' (par 9). Then, under a heading of '[f]uture care and maintenance costs', Ms Dou deposed to other matters. First, Ms Dou referred to an affidavit of Paul Mapan which was attached to her affidavit (par 11). Then Ms Dou went on to provide an update and further information regarding SEK's 'estimated care and maintenance costs' for October to December 2021 (pars 12, 16 ‑ 19). While doing so Ms Dou stated:
As at the date of this affidavit [ie 5 November 2021], the Kipoi Project remains under care and maintenance and continues to incur costs with maintaining the state of repair of the mine site and SEK's related property, plant and equipment (par 13).

Accordingly, Ms Dou positively averred that the Kipoi copper mine remained on care and maintenance as of 5 November 2021.
Mr Mapan's affidavit, as attached to Ms Dou's affidavit, was sworn on 21 July 2021. Mr Mapan is the Country Manager of SEK. Mr Mapan deposed that the Kipoi copper project transitioned from production to care and maintenance in April 2020 (par 7). Mr Mapan then went on to say that, as at the date of the affidavit, the Kipoi copper project remained under care and maintenance (par 8).
The appeal hearing before this court was conducted on the basis that the Kipoi copper mine was in care and maintenance at the time of the hearing in the primary proceedings (ie in mid-August 2021) and the ensuing s 444GA order for leave to transfer (on 28 October 2021). See eg appeal ts 124, 135, 188, 351, 416. Senior counsel for the second and third respondents observed, relevantly, that the Kipoi copper mine had 'rebegun operations' after the transfer of the Tiger shares on 19 November 2021 (appeal ts 366).
Mr Dent's affidavit sworn 12 February 2025 raises an issue as to whether in fact the Kipoi copper mine was in care and maintenance as at the time of the primary hearing (ie in mid‑August 2021). Alternatively, Mr Dent's affidavit raises an issue as to the extent to which the Kipoi copper mine was in care and maintenance as at the time of the primary hearing.
It is not for this court, in these reasons, to resolve and determine those issues. The issue for this court on the appellant's application in an appeal dated 27 February 2025 was simply to determine whether the appellant should have leave to adduce Mr Dent's affidavit and the other evidentiary materials as additional evidence in the s 59(4) proceedings.
Accordingly, subject to two matters, it is enough to refer to the contents of Mr Dent's affidavit on the basis that this is the evidence that Mr Dent will be giving if the appellant is granted leave to adduce the additional evidence. The two exceptions are as follows. First, for reasons that will now be explained, the fact that Mr Dent's company carried out crushing activities at the Kipoi copper mine from mid‑June 2021 became uncontroversial for the purpose of the appellant's application in an appeal dated 27 February 2025 (see [43] ‑ [44] below). Accordingly, the substance of that evidence may be accepted for the purpose of the appellant's application in an appeal dated 27 February 2025. Second, there was no challenge to Mr Dent's evidence of receipt of payments from SEK. In the absence of any challenge, and where the receipt of the funds was supported by contemporaneous documentary evidence that verified the payments, we accept that evidence (see [36] and [81] below).
Mr Dent states that he is a director and shareholder of Crushing 4 Congo SARL (C4C). C4C is a company incorporated in the Democratic Republic of Congo. It carries on business in the Congo providing crushing services in that country. C4C provided crushing services at the Kipoi copper mine operated by SEK from mid‑June 2019 to around 29 March 2020. At that time production at the mine stopped and the mine was placed on care and maintenance due to the COVID‑19 pandemic. While C4C's workers demobilised, its crushing equipment remained onsite (pars 1, 4, 6 - 20).
Mr Dent attended the Kipoi copper mine in September and October 2020 but did not see any mine workers or vehicles moving around the site (par 23).
C4C did not undertake any crushing work at the Kipoi copper mine between March 2020 and around June 2021. But, according to Mr Dent, around June 2021 (ie before the mid-August 2021 hearing in the primary proceedings) C4C received instruction to recommence crushing at the mine. C4C mobilised workers to recommence crushing operations. C4C recommenced crushing operations at the Kipoi copper mine around 21 June 2021. Initially C4C used only one of two available plants for the crushing operation; from August 2021 C4C was instructed to use both crushing plants. Mr Dent states that, when he attended the mine from July 2021, he observed that it had a similar level of activity in operational areas to that which he had seen when he attended the mine in the period between 2019 and March 2020 (pars 24 ‑ 26, 28 ‑ 31).
Mr Dent attaches various daily crushing reports for the period from 22 June 2021 to 29 June 2022 (attachments 'JSD‑01' ‑ 'JSD‑03') as well as invoices from 30 June 2019 to 31 October 2023 (attachment 'JSD‑04'). Mr Dent also deposes as to the payments received from SEK (pars 55 ‑ 61).

The progress of the appellant's application in an appeal dated 27 February 2025

The court made programming orders with a view to the appellant's application in an appeal being heard on 11 March 2025.
A number of further affidavits were filed on the application. The second and third respondents relied on affidavits of Jing Yun Soh (a solicitor at the firm acting for the second and third respondents) and Linda Pontre (a translator) sworn 6 March 2025. The appellant relied on the affidavit of Ms Ferreira sworn 6 March 2025 (which simply adduced the transcript of Cobby J's ex tempore reasons of 27 February 2025) and an affidavit of Mr te Riele sworn 10 March 2025. Then, at the hearing on 11 March 2025, senior counsel for the appellant sought to rely on Mr Dent's affidavit. That proved controversial. The hearing of the application was adjourned until 1 April 2025 and the second and third respondents were provided with an opportunity to file and serve affidavits in response to Mr Dent's affidavit.
There was, however, some common ground that emerged by the hearing of 11 March 2025. The second and third respondents indicated a preparedness to agree certain facts as to the production figures for the Kipoi copper mine.[7] At the hearing on 11 March 2025 senior counsel for the appellant informed the court that this had been accepted and the parties would in due course file a statement of agreed facts.[8] This proposal, if facilitated by the court, avoided the necessity to adduce the affidavits of Mr Kadima and Ms Townsend in their entirety. It also avoided the need to include large parts of Mr Davies' affidavit. Mr Davies' affidavit only remained contentious so far as Mr Davies translated some of the documents annexed to Mr Dent's affidavit.
[7] Second and third respondents' submissions dated 6 March 2025 pars 79 - 84. See also attachments 'JYS‑2' ‑ 'JYS‑6', to the affidavit of Ms Soh sworn 6 March 2025.
[8] Appeal ts 624 - 625.
On 12 March 2025 a consent notice was filed whereby the appellant and the second and third respondents consented to orders as follows:
Order 1 of the orders made by the Court of Appeal on 11 December 2024 be amended to include reference to [a] new sub-paragraph '(aaa)' as follows:
'(aaa) any statement of agreed facts regarding the volume of copper cathode exported from the Democratic Republic of the Congo during 2021, 2022 and 2023[.]'
The court deferred dealing with the consent notice so that it could be addressed with any other orders to be made on the appellant's application in an appeal dated 27 February 2025.
The second and third respondents were to file and serve any affidavits in response to Mr Dent's affidavit by 4.00 pm on 18 March 2025. Instead, by an application in an appeal dated 19 March 2025, the second and third respondents sought to vacate the hearing listed for 1 April 2025 and have the application for leave to adduce additional evidentiary materials relisted sometime after 12 May 2025. The application to adjourn was listed for hearing before Mitchell and Vaughan JJA on 21 March 2025. For oral reasons delivered on that date their Honours refused the application to vacate the hearing date of 1 April 2025. However, the second and third respondents were provided with a short extension of time to file and serve any affidavits in response to Mr Dent's affidavit.
The application to vacate the hearing relied on an affidavit of Jing Yun Soh sworn 19 March 2025. Ms Soh, as previously mentioned, is one of the solicitors acting for the second and third respondents. Ms Soh's affidavit attached a letter from the second and third respondents' solicitors dated 18 March 2025 (attachment 'JYS-1'). In that letter the second and third respondents' solicitors stated at par 36:
To be clear, we are instructed that our clients' position is that the crushing activities that were undertaken by C4C [the company associated with Mr Dent] were limited to existing stockpile, and were necessary in order to maintain the status of the mine - by avoiding further litigation and the threatened liquidation proceedings - and avoid any in country ruling that may have led with [sic] withdrawal of mining rights.
Accordingly, as Mitchell and Vaughan JJA referred to in refusing the adjournment application, the fact of the crushing as deposed to by Mr Dent is not in contest. What is in contest is whether the crushing was limited to existing stockpile. Mr Dent's affidavit did not condescend to this level of particularity. Nonetheless, the second and third respondents' effective admission that crushing activities were being undertaken at the Kipoi copper mine over the period as deposed to by Mr Dent represented a departure from the previous common position on which the dispute had been litigated in both the primary court and this court.
On 21 March 2025 the time for the second and third respondents to file any affidavits in response to Mr Dent's affidavit was extended to 26 March 2025.
On 26 March 2025 the second and third respondents filed another affidavit of Ms Soh. Rather than responding to the substance of Mr Dent's affidavit, Ms Soh's affidavit simply attached correspondence sent by the second and third respondents' solicitors to the appellant's solicitors on 26 March 2025. In the first of those letters (attachment 'JYS‑1') the second and third respondents' solicitors stated:
In light of the consent notice and the agreed statement of facts, the only matter outstanding on the application is the question of whether the Court of Appeal should further amend the orders of 11 December 2024 to allow the tender of the affidavit of Jason Samuel Dent sworn 12 February 2024, and the partial tender of the affidavit of Ian Howard Davies (in so far as that affidavit provides evidence of translations of documents the subject of the Dent affidavit).
Having regard to the exchange between our clients' respective counsel and the bench at the 21 March 2025 hearing, YYT and Jinji [ie the second and third respondents] are now willing to consent to the remainder of the relief sought.
We have enclosed a consent notice for your client's consideration. The effect of the consent notice, given that all of the remaining orders being sought by KHML [ie the appellant] on the Application are agreed, is that it disposes of the need for further hearing of the Application on 1 April 2025.
The proposed consent order contemplated the appellant being granted leave to adduce Mr Dent's affidavit, together with the salient parts of Mr Davies' affidavit, as evidence in the s 59(4) proceedings.
On 28 March 2025 the second and third respondents filed a minute of proposed orders to a similar effect. The second and third respondents' solicitors also wrote to the Court of Appeal registrar mentioning that the second and third respondents had consented to the orders sought by the appellant to allow the tender of Mr Dent's affidavit and the partial tender of Mr Davies' affidavit at the s 59(4) hearing.
While, outwardly, the appellant's application in an appeal dated 27 February 2025 had seemingly been resolved, matters did not end there. Two further things occurred. First, the appellant filed a further affidavit of Ms Ferreira sworn 28 March 2025. This, among other things, deposed to further investigations by or on behalf of the appellant. Two further potential witnesses had been located. These potential witnesses, employees of C4C who had worked at the Kipoi copper mine, were said to be able to give further and more detailed evidence of the operations being carried out at the mine over the period from June 2021 to 19 November 2021. One potential witness would say that in 2021, while on site, he saw large quantities of copper cathode sheets stored at the mine (par 21(a); see also par 23(a)). The other potential witness would say that over the same period: he personally observed blasting and the use of excavators to mine copper ore and remove waste material; he also personally observed the loading of ore on trucks for transportation to the crusher; and he saw a large number of copper cathode sheets being gradually stockpiled at the Kipoi copper mine (par 29).
The second thing that occurred is that the appellant filed a minute of proposed orders dated 31 March 2025. This sought, in addition to the kind of orders proposed by the second and third respondents as to the affidavits of Mr Dent and Mr Davies, an order permitting the filing of 'any further affidavit evidence on the topic of the resumption of production at the Kipoi mine (including as to when the mine ceased to be on care and maintenance)'. Plainly this was intended to permit the appellant to file affidavit evidence of the kind foreshadowed in Ms Ferreira's affidavit sworn 28 March 2025.
The appellant's minute of proposed orders dated 31 March 2025 also incorporated the orders sought in the consent notice dated 12 March 2025 and proposed consequential amendments to the court's orders of 11 December 2024.
Senior counsel for the appellant confirmed that the appellant's minute of proposed orders dated 31 March 2025 superseded the orders sought in the appellant's application in an appeal dated 27 February 2025.[9]
[9] Appeal ts 694 - 695.
The appellant's application in an appeal dated 27 February 2025 came on for hearing on 1 April 2025. The most significant area of dispute concerned the appellant's proposed order designed to allow it to adduce evidence from the proposed witnesses as identified in Ms Ferreira's affidavit of 28 March 2025. The second and third respondents opposed that order. In the alternative, if an order was to be made that extended the additional evidence for the s 59(4) proceedings beyond that as originally sought by the appellant's application in an appeal dated 27 February 2025, the second and third respondents sought a different form of order - one that 'amended in a more fundamental way' by removing 'all fetters' on the scope of the additional evidence.[10]
[10] Appeal ts 781 - 782 (this submission was made on 3 April 2025 rather than 1 April 2025).
In addition to hearing the parties' submissions on these substantive matters, the court raised issues as to the form of the proposed orders - in particular, the interaction of the proposed orders with the court's orders made 11 December 2024.
The court suggested that it may be beneficial if, having considered what had been raised at the hearing on 1 April 2025, the appellant produce a composite minute of proposed orders that addressed both the orders sought as to the additional evidentiary materials and the necessary modifications to the orders of 11 December 2024. The appellant filed that composite minute on 2 April 2025. The matter came back before the court on 3 April 2025, at which time the court heard further argument largely directed to the form of the appellant's composite minute of 2 April 2025. The court directed there be some uncontroversial changes to the composite minute of 2 April 2025. The appellant then filed an amended composite minute of proposed orders on 3 April 2025.
On 8 April 2025, working from the amended composite minute of 3 April 2025, the court pronounced the orders that it made on the appellant's application in an appeal dated 27 February 2025. The court also provided a highlighted minute that showed the amendments that the court had made to the appellant's amended composite minute of 3 April 2025.

The parties' submissions on the application to adduce additional evidence

The rapid evolution of the parties' respective positions on the appellant's application in an appeal dated 27 February 2025 makes a complete account of the parties' written and oral submissions redundant. That is particularly so where, as has been described, the second and third respondents eventually consented to there being leave to adduce Mr Dent's affidavit sworn 12 February 2025 at the hearing of the s 59(4) proceedings and the issue as to the affidavits of Mr Davies, Mr Kadima and Ms Townsend was effectively dealt with by the consent notice of 12 March 2025.
It is, however, appropriate to record the following; it conveys the substance of the parties' respective positions as to the material issues that arose on the appellant's application in an appeal dated 27 February 2025.
The appellant advanced its application to adduce the additional affidavits on two bases. The appellant first submitted that the contents of the affidavits accorded with the 'true intent' of par 1(aa) of the orders of the court made 11 December 2024. There was no substance in this submission. Cobby J correctly rejected the appellant's contention that, properly construed, the four affidavits were admissible as being within the scope of the court's orders made 11 December 2024. In any event, there was no appeal from Cobby J's determination. The true intent of par 1(aa) of the court's orders made 11 December 2024 is disclosed by the proper construction of the order. There was no proper basis to go hunting through the transcript of the argument before the court on 11 December 2024 in an attempt to find some other subjective 'true intent' that was not discernible from the terms of the order properly construed.
In the alternative the appellant submitted that the interests of justice supported the receipt of the additional affidavits.
The appellant submitted that the evidence may be highly significant to the valuation exercise to be carried out in the s 59(4) proceedings. It was put, in this regard, that the evidence tended to contradict the second and third respondents' asserted position that the Kipoi copper mine remained on care and maintenance until effectuation of the deed of company arrangement - and that, to the contrary, the mine was no longer in care and maintenance as at 28 October 2021 (being the date mentioned in the question the subject of the s 59(4) question). The appellant said that it previously had no basis to challenge the proposition that the Kipoi copper mine was in care and maintenance at the relevant time. The appellant contended that the court should not proceed to value the Tiger shares on a factual basis that appeared to be incorrect and that may substantially affect the result.
In opposing the application, the second and third respondents pointed to what had been said in Kipoi [No 4] [878]:
Kipoi opposed the reception of new evidence. Prima facie there is merit in Kipoi's resistance to the potential introduction of a series of new experts. The interests of justice will not be served by allowing the parties free rein to recast or improve their respective cases at the trial and determination the subject of the s 59(4) direction by adducing evidence that could and should have been presented at the hearing before the master.
Nonetheless, reading on from the passage quoted by the second and third respondents, the court envisaged the possibility that some additional evidence might be adduced. It was expressly contemplated in Kipoi [No 4] [878] that it might be appropriate to allow the parties to file short supplementary expert reports that updated the experts' respective calculations to take account of movements in the copper price. And, ultimately, the court's order of 11 December 2024 permitted the parties to file such reports together with other evidentiary materials meeting a prescribed criteria. Doing so was consistent with the purpose of the s 59(4) hearing. The purpose of the s 59(4) proceedings is to provide this court with sufficient findings for it to determine, properly and justly, whether leave under s 444GA should have been given as at the date of the primary court's order (either conditionally, if that be permissible, or unconditionally). That purpose contemplates the possibility of additional evidence being received at the hearing of the s 59(4) proceedings where the admission of that additional evidence is in the interests of justice.

The second and third respondents submitted that a valuation on the basis that the Kipoi copper mine was operational rather than a mine on care and maintenance involved a fundamentally different valuation inquiry. That must be accepted. Indeed, the appellant accepted as much at the hearing before Cobby J on 26 February 2025.[11] From this platform the second and third respondents submitted that, as to the interests of justice generally, allowing evidence of the kind proposed would require not just a reopening but a recasting of the appellant's case on value. New expert reports would be required and there would have to be a complete rehearing of the valuation question. The second and third respondents submitted that this court should not entertain the appellant's attempt to advance an argument not previously run - one which contradicted the appellant's case at trial and was directly contrary to the basis on which it had run its case on appeal to date. It was also said that the s 59(4) proceedings would become, in effect, a remitter on the question of the residual value of the Tiger shares. It that respect the appellant was really seeking a new trial. The second and third respondents argued that this was contrary to the strong public interest in the finality of litigation and oppressive to them in circumstances where the hearing of the s 59(4) proceedings would take place more than three years after the original hearing before the primary court.
[11] Appeal ts 587, 590.
Finally, the second and third respondents submitted that the appellant had not satisfied the heavy burden of establishing that the additional evidence sought to be relied on could not have been adduced had reasonable diligence been applied at trial or on the appeal to date.

Disposition

The existence of the court's power to admit additional evidence on appeal is well established. In Saunders v The Public Trustee Mitchell J (Buss JA & Beech J agreeing) made the following observations as to the exercise of the power to admit additional evidence on appeal:
In deciding whether to allow an applicant to adduce additional evidence on an appeal against a final decision made after trial, the strong public interest in the finality of litigation will be an important consideration. That public policy provides a powerful reason for strictly confining the circumstances in which a party on appeal will be allowed to augment the evidence led at trial. Except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial.
Another important consideration will be whether the additional evidence is properly characterised as fresh evidence which either did not exist at the time of the trial or which could not have been discovered with reasonable diligence at that time. Generally, the discretion will be exercised against admitting evidence which is not fresh in this sense, particularly where the evidence has been deliberately withheld at trial.
It will also be relevant to consider the strength of the evidence, whether it is contested and whether there is a significant possibility that the evidence would lead to a different result if admitted. If evidence is contested and would require a new trial to resolve factual disputes if it were admitted, then that will be a factor counting against its admission in the appeal.
Ultimately the question is whether it is in the interests of justice to admit the additional evidence, having regard to the above considerations.[12] (citations omitted)
[12] Saunders v The Public Trustee [2015] WASCA 203 [87] - [90].
We have accepted the second and third respondents' submission that admission of the additional affidavit material would involve a fundamentally different valuation inquiry at the s 59(4) hearing. So too, as the second and third respondents submit, it will necessitate new expert reports - the experts will need to consider the impact that the different scenario has for their respective opinions. The case that the appellant pursued in the primary proceedings and in the appeal to date was a case in which the appellant (in common with all other parties) accepted that the Kipoi copper mine was on care and maintenance at the material time. So far as the appellant relies on a valuation based on the alternate scenario it will be running a different valuation case at the s 59(4) proceedings.
It is, in the circumstances, relevant to consider the principles applying to the grant of a new trial on the ground of fresh or new evidence. In determining to proceed by way of a trial or determination under s 59(4) of the Supreme Court Act this court deliberately chose not to remit the deed administrators' application under s 444GA of the Corporations Act to the General Division for a new trial. However, as the second and third respondents submit, the s 59(4) proceedings will take on a different character - almost akin to a new trial - if the additional evidentiary materials that the appellant seeks to adduce are to be admissible for the purpose of the s 59(4) hearing.
Common law courts have always reserved to themselves an exceptional power to set aside a verdict on the ground of further evidence where the interests of justice require it: CDJ v VAJ (No 1).[13] The grounds on which an appellate court proceeds in granting the remedy of a new trial have been settled by practice but have flexibility; they are governed by the overriding purpose of reconciling the demands of justice with the public interest policy of finality: McCann v Parsons;[14] CDJ v VAJ (No 1) [105]. The general rule directed to the 'ordinary case' where all that is involved is that relevant fresh evidence has come to the notice of the unsuccessful party after trial is stated in Wollongong Corporation v Cowan.[15] In Commonwealth Bank of Australia v Quade the High Court of Australia explained:
In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes and Greater Wollongong Corporation v Cowan establish that the reconciliation of 'the demands of justice' and the 'policy' that there be an end to litigation at least prima facie (or 'generally') dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest.[16]
[13] CDJ v VAJ(No 1) [1998] HCA 67; (1998) 197 CLR 172 [105].
[14] McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418, 430 - 431.
[15] Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435, 444.
[16] Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134, 141.
In Quade the court went on to state that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case (141 - 142). However, the court stated that the position was different where, for example, the unavailability of the evidence resulted from a significant failure by the successful party to comply with an order for discovery. The application of the general rule to that category of case did not serve the demands of justice in the individual case or the public interest in the due administration of justice (142). The court eschewed enunciating a general rule as to when a new trial should be ordered in a case where misconduct by the successful party had the result that relevant evidence remained undisclosed until after judgment. The court said only that the issue must depend on the appellate court's assessment of what will best serve the interests of justice 'either particularly in relation to the parties or generally in relation to the administration of justice' (142).
The court observed that the 'competing factors' would include (143):
1.The degree of culpability of the successful party.
2.Any lack of diligence on the part of the unsuccessful party.
3.The extent of the likelihood that the result would have been different if the misconduct had not occurred and the non‑disclosed material had been made available. As to this consideration, while it was not necessary to show that it is 'almost certain' or 'reasonably clear' that an opposite result would have occurred, a new trial will almost inevitably be refused if it does not appear that there is 'at least a real possibility' that an opposite result would have occurred.
4.General considerations relating to the administration of justice.
The appellant did not allege any misconduct on the part of the second and third respondents for the purpose of the appellant's application in an appeal dated 27 February 2025.[17] There was, for example, no submission to the effect that the second and third respondents had knowingly sought to mislead the court or the appellant about the operational status of the Kipoi copper mine. Rather, for the purpose of the appellant's application in an appeal dated 27 February 2025, the appellant's submission went no higher than that it should be inferred that to the extent that there was crushing of ore at the Kipoi copper mine at the relevant time, that was known to the second and third respondents.[18]
[17] In the context of the appellant's application in an appeal dated 25 February 2025 the appellant went further. See the appellant's submissions dated 25 February 2025 par 14(c). However, as a submission to that effect was not advanced in the context of the appellant's application dated 27 February 2025 that matter need not be considered in these reasons.
[18] Appeal ts 652, 663, 675 - 676.
Senior counsel for the second and third respondents contended that this unfavourable inference should not be drawn.[19]
[19] Appeal ts 710 - 711. See also appeal ts 721, 723.
The second and third respondents' failure to respond to Mr Dent's affidavit means that the adverse inference sought by the appellant may be drawn with greater confidence (officers of the second and third respondents, such as Ms Wei, plainly being able to cast light on whether the inference should be drawn): Jones v Dunkel;[20] Kuhl v Zurich Financial Services Australia Ltd.[21]
[20] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308, 312, 319, 321.
[21] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [63].
The Kipoi copper mine was owned and operated by SEK, rather than Tiger, and the second respondent did not become the ultimate holding company of SEK until effectuation of the deed of company arrangement. This stands in the way of the inference sought by the appellant. However, there are numerous factors in support of the inference that the second and third respondents were aware of at least the crushing of ore at the Kipoi copper mine at the material time.
First, the second respondent was the proponent of the deed of company arrangement: Kipoi v Kirman [No 4] [5], [243]. It is to be expected that, as the proponent of the deed of company arrangement, the second respondent was actively monitoring what was occurring at the Kipoi copper mine throughout the period of the deed. That is even more so where the Kipoi copper mine was, through SEK, Tiger's most significant asset.
Second, Ms Wei, an employee of the second respondent and a director of the third respondent, swore an affidavit in the primary proceedings on 5 July 2021. In that affidavit Ms Wei confirmed that the second and third respondents were related entities. So too was another company, CGM Lishi Mining SARL (CGM), of which Ms Wei was also an employee and an authorised signatory (par 3). Ms Wei referred to CGM making US$11.2 million in payments to outstanding creditors of SEK in March and April 2021, ie after the execution of the deed of company arrangement (pars 4, 22 ‑ 23). Thereafter CGM continued to provide funding to SEK to ensure that the Kipoi copper mining project remained viable (par 25). Some US$6.8 million was provided between 1 May 2021 and 24 June 2021 (pars 26 ‑ 28). Ms Wei said that CGM would immediately cease all funding to SEK if the deed of company arrangement was set aside and Tiger was placed into liquidation (par 32).
Ms Wei also referred to a letter dated 1 July 2021 received from Mr Mapan (SEK's Country Manager). In that letter, Mr Mapan stated (attachment 'AW‑28'):
In recent months, SEK has had insufficient working capital to preserve the value of the Kipoi Copper project. The funding contributions made to SEK by Jinji [ie the third respondent], CGM and related entities since at least December 2020 have allowed SEK to preserve the value of the Kipoi Copper Project, including by allowing SEK to pay its workforce and other operational costs to ensure that the Kipoi Copper Project can stay on care and maintenance.
Mr Mapan thanked Ms Wei for the ongoing support.
In Mr Mapan's affidavit sworn 21 July 2021 he stated that since at least November 2020 SEK had insufficient working capital to continue production at the Kipoi copper mine or to undertake essential work required to preserve the value of the Kipoi copper mining project (par 6). Mr Mapan referred to funding contributions SEK had received (pars 10 - 11). The inescapable inference, reading Ms Wei's affidavit of 5 July 2021 with Mr Mapan's affidavit of 21 July 2021, is that those funding contributions were advanced to SEK by CGM (CGM being a related entity to the second and third respondents).
Mr Dent gave uncontradicted evidence that C4C received large payments from SEK - US$300,000 on or about 24 September 2021 and some US$1.1 million on or about 6 October 2021. There was another payment of US$500,000 on 14 December 2021 (Mr Dent's affidavit pars 59 ‑ 61 and attachment 'JSD‑08'). Having regard to the other evidence, particularly that of Mr Mapan and Ms Dou, SEK did not have sufficient financial resources to make the September, October and December 2021 payments without funding from CGM. The inescapable inference is that SEK made those payments to C4C from funding made available to SEK by CGM.
In circumstances where CGM, the second and third respondents' related entity, was funding SEK's operations at the Kipoi copper mine - and the second respondent was the proponent of Tiger's deed of company arrangement with a substantial interest in the ongoing status of the mine - the strong objective likelihood is that the second and third respondents were at all material times aware of the funding requirements for the mine and thus were aware of the ongoing operations at the mine. The possibility that CGM would fund payments on behalf of SEK without knowing what those payments were for is remote. Given Ms Wei's pivotal role her knowledge through CGM is attributable to the second and third respondents.
In the last respect, it is relevant and probative of the second and third respondents' knowledge that, in relying on Ms Wei's affidavit, the second and third respondents advanced the position that Ms Wei was authorised to make the affidavit by each of the second and third respondents as well as by CGM (Ms Wei's affidavit sworn 5 July 2021 par 4).
Third, as has been seen, on 21 July 2021 and 5 November 2021 the second and third respondents were able to procure the assistance of senior officers of SEK to provide affidavit evidence as to the then status of the Kipoi copper mine and its funding requirements. The second and third respondents relied on that affidavit evidence in the litigation against the appellant. Insofar as the second and third respondents were able to procure the assistance of senior officers of SEK to provide affidavit evidence as to the then status of the Kipoi copper mine and its funding requirements, it is more likely than not that the second and third respondents were at all material times kept informed of the operational status of the Kipoi copper mine. That conclusion is supported by the second respondent's status as proponents of the deed of company arrangement, leading to the matters previously referred to, and the circumstance that CGM - a related entity to the second and third respondents - was funding SEK's commitments in relation to the Kipoi copper mine.
Fourth, Ms Wei, on behalf of the second and third respondents, purported to give affidavit evidence as to the operational status of the Kipoi copper mine as at 5 July 2021 (at least implicitly) and 5 November 2021 (here expressly). So far as the second and third respondents advanced Ms Wei as a person who was able to inform the court of the status of the Kipoi copper mine on their behalf it should be accepted that Ms Wei's knowledge of the status of the mine is attributable to the second and third respondents. It should also be accepted that Ms Wei was aware of the operational status of the Kipoi copper mine.
In all of these circumstances, the reasonable and probable inference, and the inference that we draw, is that the crushing of ore at the Kipoi copper mine between mid‑June 2021 and 24 November 2021 was known to the second and third respondents at that time through Ms Wei.
This finding is only made for the purpose of the appellant's application in an appeal dated 27 February 2025. Importantly, it will not bind Cobby J in the s 59(4) proceedings. Whether or not this matter will be relevant for the purpose of the s 59(4) proceedings is unclear. However, if knowledge of the crushing activities at the Kipoi copper mine arises as an issue in the s 59(4) proceedings, it is likely that there will be further evidence going to that issue. Cobby J will have to consider the issue having regard to all of the evidence that is before his Honour.
The finding that the second and third respondents were aware at the time of the crushing of ore at the Kipoi copper mine between mid‑June 2021 and 24 November 2021 cannot be used to support any finding of misconduct. The appellant did not allege any misconduct. No misconduct could or should be found. However, the finding was of some relevance to the issues before the court.
The second and third respondents invoked AON Risk Services Australia Ltd v Australian National University[22] in seeking to restrict any additional affidavit evidence on the part of the appellant to that of Mr Dent. In contending that the appellant had already had sufficient opportunity to investigate, and a new valuation case should not be countenanced within the s 59(4) proceedings because it was oppressive to them given the time that had passed, the second and third respondents overlooked their knowledge of the crushing of ore at the Kipoi copper mine between mid-June 2021 and 24 November 2021. In allowing the litigation to proceed on the common position on which the dispute had been litigated - despite its knowledge of the crushing activities - the second and third respondents assumed the risk that the appellant might later become aware of the crushing activities and seek to modify its valuation case as a result. The second and third respondents ought not to now be heard to complain of the fact that this risk has eventuated.
[22] AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
Turning, then, to our reasons for the orders made on 8 April 2025, it will be appreciated that there were essentially three different categories of order to be addressed. It is convenient to deal with those categories as follows:
1.The order the subject of the consent notice dated 12 March 2025 allowing for a statement of agreed facts as to copper cathode exports from the Congo.
2.Mr Dent's affidavit.
3.The further affidavits that the appellant ought to adduce being:
[A]ny further affidavit evidence on the topic of resumption of production at the Kipoi mine (including as to when the mine ceased to be on care and maintenance)[.]

The order the subject of the consent notice was uncontroversial given the parties' consent. In substance it was intended to allow the parties to agree facts which fell within the kind of evidence permitted by par 1(aa) of the court's orders made 11 December 2024. Cobby J had already held, in effect, that such evidence could be adduced. The necessity for an order of this court only arose as par 1(aa) of the court's orders made 11 December 2024 contemplated one or other of the parties filing further evidence rather than the matter being dealt with by a statement of agreed facts. It was appropriate for this court to facilitate the parties' sensible agreement on this matter rather than to burden Cobby J with affidavits dealing with factual matters that were common ground. Accordingly, this aspect of the orders made 8 April 2025 was made because it was just to do so.
By 8 April 2025 the reception of Mr Dent's affidavit was also uncontroversial. However, it should not be thought that leave was given to adduce Mr Dent's affidavit as additional evidence in the s 59(4) proceedings simply because of the second and third respondents' belated consent. To the contrary, the reasons we will now come to dealing with leave to adduce the further affidavits as additional evidence in the s 59(4) proceedings apply equally to Mr Dent's affidavit.
The third category was pursued by the appellant to enable it to file and rely on affidavits to be obtained from the two C4C employees as foreshadowed in Ms Ferreira's affidavit sworn 28 March 2025 (see [49] above).
Senior counsel for the second and third respondents opposed leave being granted in this respect. Initially it was said that the reception of any affidavits beyond that of Mr Dent exceeded the scope of the appellant's application in an appeal dated 27 February 2025. That argument was unmeritorious. The appellant's minute of 31 March 2025 was sufficient to identify that the appellant sought further orders permitting it to file and adduce additional evidence on the topic of the resumption of production at the Kipoi copper mine.
More generally, senior counsel for the second and third respondents relied on the submissions previously described (see [62] ‑ [65] above). Senior counsel submitted that evidence of the kind foreshadowed in Ms Ferreira's affidavit would dramatically widen the scope of the s 59(4) proceedings so that the hearing would become a new trial contrary to the intended confined hearing carefully and deliberately fixed by this court's orders of 11 December 2024. Senior counsel dismissed any suggestion that if the evidence was rejected it might result in the court determining the appeal on a false factual basis. According to senior counsel, the court was confronted with no more than the appellant saying that it did not investigate a key factual proposition at any stage until February 2025. Senior counsel submitted that the appellant's lack of diligence precluded the order sought.
There is no allegation of misconduct on the part of the second and third respondents. But nor is this an 'ordinary' case involving no more than that relevant evidence has come to the notice of the unsuccessful party after trial. This is not an ordinary case because the appellant has already established error in the primary court's reasoning that resulted in the s 444GA order for leave to transfer the Tiger shares for nil consideration. As a consequence of that erroneous reasoning, this court has directed that an issue or question is to be tried and determined pursuant to s 59(4) of the Supreme Court Act. Accordingly, there is to be a new hearing for the purpose of the s 59(4) proceedings at which additional evidence will be adduced. There is, in this regard, already a substantial intrusion adversely affecting the principle of finality in litigation. That intrusion was an unavoidable consequence of the limitations of appellate review which meant that this court was unable to determine whether the s 444GA order ought to have been made on the trial record and the additional evidence adduced on the appeal.
In circumstances where the s 59(4) proceedings are ongoing - and, for the purpose of those proceedings, this court has already permitted additional evidence to be adduced going to the residual value of Tiger's issued shares - we were and are comfortably satisfied that it is in the interests of justice to receive additional evidence of the kind mentioned in Ms Ferreira's affidavit sworn 28 March 2025.
There is an unacceptable risk that refusal of this aspect of the appellant's application in an appeal dated 27 February 2025 will result in the court proceeding on a false factual assumption in its ultimate disposition of the appeal. It is in the interests of justice that the court's ultimate disposition proceed on the true factual basis rather than some assumed factual basis.
The desirability of proceeding on a true factual basis is not the only consideration in assessing the interests of justice. It must be weighed together with the importance of the principle of finality and the other matters that the second and third respondents raise. The most material of those other matters is the appellant's acquiescence in and lack of investigation as to the hitherto common position as to the Kipoi copper mine's status. The case management considerations raised by senior counsel for the second and third respondents are, for reasons we have already explained, a secondary consideration which are of lesser weight in the overall assessment. But, in evaluating the interests of justice, the risk that the court might proceed on a false factual assumption in the absence of the additional evidence compelled the conclusion that the appellant should be permitted to adduce additional evidence of the kind mentioned in Ms Ferreira's affidavit sworn 28 March 2025.
That is even more so where, as the second and third respondents accepted, the assumed fact that the Kipoi copper mine was in care and maintenance impacted significantly on the valuations - in particular, it affected the appropriate methodology and the discount rate to apply.[23]
[23] Second and third respondents' submissions dated 6 March 2025 par 48.
It is true that on delivery of Kipoi [No 4] this court decided to direct that a question be tried and determined pursuant to s 59(4) rather than a remitter and new trial. In part that was due to complications that might arise on a remitter because of the effectuation of the deed of company arrangement: Kipoi [No 4] [871]. More generally it was due to the circumstances as a whole as then understood by the court. Taking those circumstances into account, and conscious of the undesirability of the introduction of additional evidence without limitation, the court confined the parties' entitlement to adduce additional evidence in the s 59(4) proceedings. One of the circumstances underpinning that approach was the court's then understanding that the Kipoi copper mine was in care and maintenance for the purpose of the valuation exercise to be carried out in the s 59(4) proceedings.
The appellant's additional evidence in the form of Mr Dent's affidavit - which the second and third respondents now agree ought to be admitted in the s 59(4) proceedings - materially affects the basis on which this court made its orders of 11 December 2024. Mr Dent's affidavit raises for consideration a real issue as to whether the Kipoi copper mine was in care and maintenance at the time of the primary hearing. Alternatively, Mr Dent's affidavit raises a real issue as to the extent to which the Kipoi copper mine was in care and maintenance at the time of the primary hearing. In the unusual circumstances of the present case, the interests of justice support the appellant being permitted to run a valuation case in the s 59(4) proceedings that departs from the hitherto common position as to the Kipoi copper mine's status unless the appellant's failure to do so at an earlier time is due to a lack of reasonable diligence on its part.
We do not accept that the appellant's acquiescence in and lack of investigation as to the Kipoi copper mine's status is due to a lack of reasonable diligence on the part of the appellant.
The additional evidence existed, and therefore could have been adduced, at the time of the primary hearing. But this does not mean that the additional evidence could have been discovered by the exercise of reasonable diligence at the time of trial. Nor does it mean that the additional evidence should have been adduced by the appellant at the time of the primary hearing. In that regard the addition of the word 'should' is an important qualifier to the passage from Kipoi [No 4] [878] that is relied on by the second and third respondents (see [62] above). The appellant had a little under six weeks to file its evidence after the deed administrators produced their valuation evidence. It will be recalled that the deed administrators' valuation evidence was filed and served two days after C4C recommenced crushing operations at the Kipoi copper mine. There was, however, no mention of this in the deed administrators' evidence. The deed administrators' valuation evidence was premised on the assumption that the Kipoi copper mine continued to be in care and maintenance.
The affidavits of Ms Ferreira and Mr te Riele sworn 27 February 2025 satisfactorily establish that neither the appellant nor its solicitors were aware of or put on notice of the crushing activities at the Kipoi copper mine until January 2025. It may be accepted that, had contact been initiated with Mr Dent in late June 2021 to early August 2021, the fact of the crushing activities would have emerged. Accordingly, the additional evidence is evidence that the appellant could have adduced at the primary hearing. But we do not accept that there was a lack of reasonable diligence in the appellant failing to investigate and uncover the ongoing activities at the Kipoi copper mine in the course of the primary proceedings. The copper mine is in the Congo. At the relevant time the COVID‑19 pandemic continued to have an impact on international travel. More importantly, in the context of the primary proceedings, the appellant was entitled to reasonably rely on the evidence adduced by the deed administrators as to the status of the Kipoi copper mine. The deed administrators were officers of Tiger. In carrying out their duties and functions the deed administrators were required to act independently and impartially. In the specific context of a s 444GA application the court expects that a full and accurate description of the proposal will be given to the company's members: Kipoi [No 4] [288](5). In that regard the explanatory statement made available to members was premised on the Kipoi copper mine being preserved in care and maintenance.
In all the circumstances the appellant was entitled to reasonably expect that the deed administrators would inform the court and the appellant if there was any material change in the circumstances of the Kipoi copper mine that might impact on the residual value of the issued shares in Tiger.
Nor, after the primary decision, was there any lack of reasonable diligence on the part of the appellant. It continued to be the case that the appellant might reasonably rely on the position as stated by the deed administrators. Similarly, there was no reason to doubt the second and third respondents' assertions in the affidavits of Ms Wei and Ms Dou to the effect that the Kipoi copper mine continued to be in care and maintenance.
While, for these reasons, we were and are satisfied that it is in the interests of justice to allow the appellant to adduce additional evidence in the s 59(4) proceedings in each of the three respects outlined at [90] above, something should be said about the form of the orders made by the court on 8 April 2025.
In addressing the form of the orders, senior counsel for the second and third respondents raised the following:
1.The court should recast the terms of the third category as sought by the appellant (see [90](3) above) and instead expand the permissible additional evidence to include:
[A]ny further affidavit evidence ~~on the topic of resumption of production at the Kipoi mine~~ (including as to when the mine ceased to be on care and maintenance).[24] (strikethrough identifying the change to the appellant's proposed order)
2.There was no need for the parties to exchange the additional evidence. Instead, it would be preferable if the appellant went first, the second and third respondents responded and the appellant was then entitled to reply.[25]
3.The restriction in the orders of 11 December 2024 as to the identities of the parties' experts should be removed - in this respect senior counsel particularly referred to the circumstance that Mr White had ceased to be a partner at KPMG.[26]
4.The restrictions in the orders of 11 December 2024 as to the cross-examination of witnesses who were not cross-examined at the primary hearing should be revisited.[27]
[24] Appeal ts 783.
[25] Appeal ts 784.
[26] Appeal ts 782, 785 - 786.
[27] Appeal ts 786 - 787.
Other minor matters of a drafting nature were also raised. As these matters did not address matters of substance we will not deal with them in these reasons. The court's consideration and resolution of the drafting issues raised by senior counsel for the second and third respondents is self-evident in the orders as pronounced on 8 April 2025.
The last three matters raised by senior counsel for the second and third respondents may be dealt with quite briefly. As to the second matter, we are satisfied that an exchange of evidence by the parties will be more conducive to the court receiving accurate, reliable and full accounts as to the status of and activities at the Kipoi copper mine at the material time. As to the third matter, the second and third respondents' issue concerning Mr White was fully ventilated at the hearing on 11 December 2024. The second and third respondents did not point to any material change in circumstance that warranted reconsideration of the matter. None was provided by the orders permitting additional evidence to be adduced at the s 59(4) proceedings. Mr White remains available on subpoena. In any case the second and third respondents continue to have their original liquidator expert, Mr Donnelly. Finally, as to the fourth matter, it sufficed that there could be cross‑examination of the new deponents of affidavits. To the extent that Ms Wei was not cross-examined at the primary hearing, this was a matter for the appellant. The appellant did not seek modification to the orders of 11 December 2024 in this regard in its composite minute of 2 April 2025.
In support of the first suggested change, senior counsel for the second and third respondents submitted that the order as formulated by the appellant would not result in the court proceeding on a true factual basis. It only affected one of a number of relevant integers. Senior counsel submitted that the parties should be able to adduce any relevant information or data that might affect the valuation as of 28 October 2021.[28]
[28] Appeal ts 779 - 781.
We were and are not satisfied that the scope of the admissible evidence for the s 59(4) proceedings should be expanded in so dramatic a fashion. The considerations that informed the court's orders of 11 December 2024 remain applicable. It was and is, for the reasons we have given, in the interests of justice to allow the appellant to adduce additional evidence dealing with the status and activities at the Kipoi copper mine over the period to the making of the s 444GA order. But the form of order sought on behalf of the second and third respondents was untethered to dealing with the assumption that the mine continued in care and maintenance up to the effectuation of the deed of company arrangement.
That said, the form of order proposed by the appellant was in some respects too limiting and in other respects too vague. The formulation adopted by the court was as follows:
[A]ny further affidavits in relation to activities at the Kipoi mine between 1 June 2021 and 28 October 2021, including any operations at the mine, any production at the mine, when the mine ceased to be on care and maintenance and when production at the mine resumed during that period.
The order in that form reflected the substance of the matters raised in argument before the court on the appellant's application in an appeal dated 27 February 2025. The dates of 1 June 2021 to 28 October 2021 are intended to capture the period from just before the 21 June 2021 date mentioned in Mr Dent's affidavit to the date of the primary court's s 444GA order. There is a subject matter restriction that is consonant with the rationale for the orders sought by the appellant's application in an appeal dated 27 February 2025. And the form of the order is sufficiently broad to allow the second and third respondents to respond to the material parts of Mr Dent's affidavit as to the crushing activities carried out at the Kipoi copper mine from 21 June 2021.

Conclusion and orders

It was for these reasons that we made the orders of the court pronounced on 8 April 2025 in relation to the appellant's application in an appeal dated 27 February 2025. In relation to the costs order, the appellant was the party who was substantially successful on the application. However, the appellant only ever sought that the costs of the application be its costs in the cause. It was appropriate to make a costs order in those terms given the appellant's substantial success on the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SD
Associate to the Hon Justice Vaughan
5 MAY 2025