Madan v Mineralogy Pty Ltd - [2022] WASC 33

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MADAN -v- MINERALOGY PTY LTD [2022] WASC 33
CORAM:   KENNETH MARTIN J
HEARD:   11 NOVEMBER 2021
DELIVERED          :   7 FEBRUARY 2022
FILE NO/S:   CIV 1292 of 2021
BETWEEN:   HEM SHANKER MADAN
Plaintiff
AND
MINERALOGY PTY LTD
First Defendant
CLIVE FREDERICK PALMER
Second Defendant

Catchwords:

Practice and procedure - Strike out application against statement of claim - Various issues - Failure to plead reasonable causes of action - Lack of clarity in pleading giving rise to legal embarrassment

Legislation:

Companies Code 1981 (WA)
Corporations Act 2001 (Cth)
Limitation Act 2005 (WA)

Result:

Application for leave to amend statement of claim dismissed
Application to strike out statement of claim allowed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M Blandford
First Defendant	:	Mr P Dunning QC & Mr E Robinson
Second Defendant	:	Mr P Dunning QC & Mr E Robinson

Solicitors:

Plaintiff	:	Butcher Paull & Calder
First Defendant	:	Thomas Browning
Second Defendant	:	Alexander Law

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

BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] UKPCHCA 1; (1977) 180 CLR 266
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337
Gauci v Briffa [2011] WASCA 20
Mann v Paterson [2019] HCA 32; (2019) 267 CLR 560
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340
Otway Developments Pty Ltd v Waller (Unreported, WASC Library 9042, 1991)

Table of Contents

Introduction

Materials

Context

Procedural history

The defendants' challenges to the ReASOC pleading

The ReASOC contract pleas

Key challenges by the defendants on the present strike out application

First issue

Second issue

Third issue

Fourth issue

Fifth issue

Sixth issue

Seventh issue

Further observations (Implied Terms)

General concluding observations on the ReASOC

The way forward

Conclusions

Schedule 1

KENNETH MARTIN J:

Introduction

On these interlocutory applications, I am dealing with aspects of the defendants' amended chamber summons of 29 September 2021 (electronic court document 28) as well as components of the plaintiff's amended chamber summons of 6 October 2021 (electronic court document 32).
The aspect of the defendants' interlocutory application presently to be addressed, is a challenge by the first and second defendants advanced pursuant to Rules of the Supreme Court 1971 (RSC) O 20 r 19, against various paragraphs found within the plaintiff's most recent iteration of his pleaded statement of claim. This is the plaintiff's reamended statement of claim of 12 August 2021 (ReASOC) (electronic court document 17).
The strikeout application is resisted.
Another aspect of the defendants' amended chamber summons, seeking to advance the application by the first defendant for summary judgment pursuant to RSC O 16 r 1 against the plaintiff - is advanced on the basis of limitation of action arguments. But this arena of conflict is consensually agreed by the plaintiff to be stood over to be dealt with later, if necessary.
Correlatively heard along with the live aspects of the defendants' interlocutory application, is the plaintiff's cross application. This application, in effect, seeks leave to amend the plaintiff's writ, in respect of him adding certain extra causes of action (seen as being added to the statement of claim) under the last iteration of amendments to the plaintiff's pleading by his ReASOC.
It is accepted by the plaintiff that leave had been required to regularly amend the writ by adding in these additional contended causes of action. The amendments were made without first obtaining leave of the court to do that. Hence, leave to amend is now sought by the plaintiff, in effect, retrospectively - so as to try and fix the irregularity problem concerning the plaintiff's writ.

Materials

There was an extensive amount of affidavit and written submission material relied upon by both sides upon the present application.
This material in aggregate, is conveniently listed and is found set out under electronic court document 37 of 9 November 2021. This is a list of the parties' combined list of materials relied upon - for the present application.
Materially relied upon, for the defendants, essentially as the commencing protagonists on the present pleading strike-out application, are three affidavits, all made by the first defendant's in‑house Mineralogy lawyer of record, Mr Thomas Vincent Browning. These three affidavits were all read and received. Specifically, these are Mr Browning's affidavits of 8 June 2021 (electronic court document 7), a second affidavit of 1 July 2021 (electronic court document 14), and Mr Browning's third affidavit of 29 September 2021 (electronic court document 30).
For his part, the plaintiff relies upon his personal affidavit sworn 12 August 2021 (electronic court document 22), but upon the present applications, only upon pars 1, 2, 16, 17 and 20, therein. Documents as found annexed thereto (namely, annexures HSM-1 and HSM-3 to HSM-9) are relied upon.
There was also an array of written materials filed and exchanged prior to the hearing of the applications - although the scope of arguments narrowed somewhat for the hearing.
The defendants rely upon aspects of their written outline of argument of 9 July 2021 (electronic court document 15), by reference to the paragraphs as specifically identified therein. The defendants also filed a supplementary written outline of argument of 29 September 2021 (electronic court document 29), all of which is relied upon.
For the plaintiff, I hold his written submissions and then, his supplementary written submissions of 12 August and 6 October 2021 (electronic court documents 19 and 34), respectively. Certain paragraphs within those written materials are not relied upon - as explained by the covering document.

Context

To provide a necessary and better context for what is essentially the underlying contractual dispute arising between these parties, I will attach as Schedule 1 to these reasons, a 14 June 1985 letter that is attachment HSM‑1 to Mr Hem Shanker Madan's affidavit of 12 August 2021.
Then, at par 2 of his affidavit, Mr Madan swears in relation to the abovementioned 1985 letter, that:
2.On or around 21 June 1985 I received a letter dated 14 June 1985 on Mineralogy Pty Ltd's (then Mineralogy Ltd) letterhead, and I believe to be signed by Mr Palmer. I signed that letter in front of a witness on 21 June 1985 and returned it to Mineralogy Pty Ltd (then Mineralogy Ltd) or Mr Palmer soon after. Attached and marked HSM-1 is a true copy of the signed document.
Whilst the full content of the 14 June 1985 letter may be observed in full in the schedule to these reasons, there are two significant aspects to appreciate at the outset around this letter.
The first fundamental matter to observe around the 1985 letter is its endorsed date of 14 June 1985, being now, over some 36 years ago.
An associated possible difficulty with the 14 June 1985 date of the offer made by that letter, is that at the time, the corporation Mineralogy Ltd (later to be Mineralogy Pty Ltd), had not yet been incorporated. The corporation therefore did not exist as a legal entity at the time of the letter and its expressed offer to the plaintiff. However, for Mineralogy Ltd (later Pty Ltd), it is not in controversy that this corporation did come to be incorporated some four days later, namely, at 18 June 1985.
It may be noted next, that Mr Madan says he signed the letter
- signifying his acceptance of the offer made to him by Mineralogy Ltd and his agreement with its proposed terms - at 21 June 1985.
At that acceptance date, Mineralogy Ltd, as an existing corporation and entity, had then been in existence for some three days.
Some issues around the present application arise, by reference to an agreed statutory liability of promoters of corporations - under circumstances where they attempt to make, or try to enter binding corporate contractual commitments, prior to their corporation actually being incorporated.
Here, the plaintiff's observed as signed acceptance at 21 June 1985, and his conduct by sending back of the letter duly signed by him (and keeping a signed copy for himself), might of course be viewed as being in the nature of a counter offer by the plaintiff - then open for acceptance by Mineralogy thereafter and obviously at a time when Mineralogy was then a fully incorporated entity. Possibly, it could be said that the counter offer of Mr Madan came later to be accepted under Mineralogy's affirmative adoption conduct of those written terms - post its incorporation. But there is no such adopted counter-offer plea by the plaintiff to date, as I read his ReASOC at least.
Nor is there any plea of a conventional estoppel by the parties - by reference to their mutual dealings adopting, in effect, the written terms of the accepted letter of 14 June 1985 - after 21 June 1985.
Nevertheless, there is a plea of a ratification by Mineralogy, concerning the alleged perfection of a written agreement, in terms of the accepted letter by ReASOC par 22.
A second fundamental matter to observe upon around the 1985 letter are the dual aspects of the identified spheres of engagement of the plaintiff in the letter as seen in its first, and second paragraphs, respectively.
The first paragraph of the letter deals discretely with Mr Madan's proposed appointment to act as a consultant geologist to Mineralogy Ltd. This proposed appointment was to be on the basis of a payment to Mr Madan at the rate of $225 per full day spent in connection with 'the above company or project'.
Also seen in the subject matter dual appointments heading of the 1985 letter are the words 'Re: Appointment Consulting Geologist and Appointment for Negotiation Balmoral Project, Australian Hanna Ltd'.
These dual appointments in the letter's heading for Mr Madan, also assist to identify there a 'project' - as referred to in the first paragraph of the letter (ie as the Balmoral Project in the heading).
The second paragraph of the 1985 letter then discretely addresses the second of the dual proposed appointments offered to the plaintiff. In the present action, it is this aspect of appointment which is the more critical - towards supporting his present financial and damages claims as advanced against Mineralogy and Mr Clive Frederick Palmer.
As seen, the critically important second paragraph of the 1985 letter, reads:
We also agree in relation to the Balmoral project in the event of our company obtaining and exercising an option on the above project to pay you 1% of the net profits derived by our company from any source during the course of our company involvement. Such sum is to be paid annually within 30 days of the 30th June, for the end of the previous financial year. (my emphasis in bold)
The 1985 letter on its face looks to carry the endorsed signature of Mr Palmer and a typed concluding endorsement, 'For and on behalf of Mineralogy Limited'.
The significance of and in these aforementioned aspects of the 1985 letter communication will emerge.

Procedural history

Whilst the plaintiff's action concerns events and contended obligations potentially extending back to 1985 and thereafter, the plaintiff's writ, exhibiting as it was first filed in this court an endorsed statement of claim - did not issue until 14 April 2021 (electronic court document 1).
On 25 May 2021, the plaintiff came then to issue an amended statement of claim (ASOC) (electronic court document 4).
By the prayer for relief (which did not change as between the original pleading and the subsequently filed ASOC of 25 May 2021), Mr Madan, as plaintiff, then sought as his relief against Mineralogy Pty Ltd, as first defendant:
1.A declaration that the plaintiff is entitled to receive 1% of funds received by the first defendant in relation to deposits known as the Balmoral Project.
2.A consequential order that the first defendant and/or the second defendant pay to the plaintiff:
(a)1% of $615 million US;
(b)1% of $149,413,470 US; and
(c)1% of all other payments received by the first defendant in relation to the Balmoral Project that are not covered by order 5 below.
3.In the alternative to 2, damages.
4.An account of royalties received by the first defendant from Sino Iron Pty Ltd and Korean Steel Pty Ltd since 1 January 2013 at common law, alternatively in the auxiliary jurisdiction of equity.
5.A consequential order for payment of 1% of the royalties paid to the first defendant by Sino Iron Pty Ltd and Korean Steel Pty Ltd.
6.In the alternative to 4 and/or 5, damages.
7.In addition, damages for the lost use of the amounts awarded to the plaintiff in this action.
8.Interest on the sum due to the plaintiff as referred to in 2(a), (b) and (c), alternatively the damages as referred to in 3, at the rate of 6% per annum pursuant to section 32 of the Supreme Court Act 1935 from 1 April 2017 until judgment.
9.Interest on the sum due to the Plaintiff as referred to in 4 and 5, alternatively the damages as referred to in 6, at the rate of 6% per annum pursuant to section 32 of the Supreme Court Act 1935 from 1 January 2013 until judgment.
10.Costs.
Against both the first defendant and second defendant, there followed in the ASOC a prayer for further relief against both these defendants, seeking as well:
ALTERNATIVELY THE PLAINTIFF CLAIMS AS AGAINST THE FIRST DEFENDANT OR THE SECOND DEFENDANT:
11.Orders against the first defendant in accordance with section 131 of the Corporations Act 2001 in the sum of Orders 1 - 9 herein.
12.In the alternative to order 11, the second defendant pay damages in accordance with section 131 of the Corporations Act 2001 in the sum of Orders 1 - 9 herein.
13.Costs.
On 8 June 2021, the defendants filed a chamber summons application pursuant to RSC O 16 r 1 and RSC O 20 r 19, seeking summary judgment favouring the first defendant in respect of aspects of the plaintiff's then ASOC, and further, pursuing pleading strike out relief, concerning variously identified paragraphs of the ASOC.
On 12 August 2021, the plaintiff unilaterally filed a reamended statement of claim (ReASOC), adding at then what presented as even more pleading amendments and articulating, under that revised pleading, even further contended causes of action. The plaintiff now sought even greater relief - by amendments to the prayers for relief at the end of the ReASOC.
Also on 12 August 2021, the plaintiff filed his own chamber summons application, framed as an extension application that was made under s 38 of the Limitation Act 2005.
The relief sought by the plaintiff on the face of that chamber summons was:
1.that the plaintiff have leave pursuant to section 38(1) of the Limitation Act 2005 (WA) to continue its proceedings to the extent that they are based on causes of action that accrued before 15 April 2015;
2.an order pursuant to section 38(2) of the Limitation Act 2005 (WA) that the limitation period applicable to any such causes of action be extended to the date in which the proceedings CIV 1292 of 2021 were commenced, or in the case of any cause of action added after that date, to the date any such cause of action was added;
3.the application be heard at the trial of the action between the parties in CIV 1292 of 2021;
...
On 29 September 2021, the chamber summons application of the first and second defendants was unilaterally amended in important respects.
The pleading strike out relief, as was sought pursuant to par 2 of that chamber summons, was amended and expanded so as to seek:
2.Pursuant to Order 20 Rule 19 of the Rules:
(a)each of the amendments purportedly made by the Re‑ASOC be struck out;
(b)alternatively to (a), paragraphs [7A]-[7D], [20A]-[20D], [40](d), [46A]-[46E], [55A]-[55B], [57A], and [58A] of the Re-ASOC and paragraphs [4A], [5A], [5B] and [9A] of the prayer for relief be struck out pursuant to 1(a), alternatively paragraph 1(c) of Rule 19;
(c)paragraphs [4(d)], [6], [7], [19], [20], [50], [58] and [61] of the Re-ASOC and paragraphs [11] and [12] of the prayer for relief be struck out pursuant to paragraphs 1(a) and/or 1(c) of Rule 19;
(d)the Re-ASOC otherwise be struck out as against the second defendant pursuant to paragraph 1(a) of Rule 19; and
...
Relief was also sought then, for the defendants to be relieved from pleading any formal defence in the action - until the interlocutory challenges as raised were resolved. There was no disagreement evident about that proposal. Consequently, no defence pleadings have been filed by the defendants so far in the action.
On 6 October 2021, the plaintiff also unilaterally amended his chamber summons of 12 August 2021, seeking further interlocutory relief. In particular, by the amended proposed order 2 of that chamber summons, the plaintiff now seeks:
2.an order, to the extent necessary, pursuant to section 38(2) of the Limitation Act 2005 (WA), that the limitation period applicable to any such causes of action be extended as set out in the table below, because of the improper conduct of the first defendant and or second defendant.
There followed a newly inserted table, by reference to par 2, in the plaintiff's amended chamber summons. The table lists some 10 different causes of action of the plaintiff across three columns. The second column in the table reads 'When The Action Ought Reasonably Have Been Commenced'. The third column of the table reads 'The Time To Which The Court Ought Extend The Limitation Period'.
Paragraph 3 of the plaintiff's amended chamber summons was also amended so as to seek:
3.the application relating to the extension of the limitation periods be heard at the trial of the action between the parties in CIV 1292 of 2021; and
...
The plaintiff further amended his chamber summons by the insertion of pars 5 and 6, now seeking:
5.The plaintiff have leave to amend its (sic, his) statement of claim to add the following causes of action against the first defendant;
(a)Account based on the first defendant's conduct in preventing the plaintiff's rights from accruing pleaded in paragraph 46B when read with paragraph 60; and
(b)Equitable fraud pleaded at paragraph 46E; and
(c)Breach of contract pleaded at paragraph 55A; and
(d)Breach of contract pleaded at paragraph 55B; and
(e)Account in equity pleaded at paragraph 57A based on paragraph 46E; and
(f)Section 131 of the Corporations Act 2001 based on the causes of action in paragraphs 5(a) to 5(e) above.
6.The plaintiff have leave to amend its (sic, his) statement of claim to add the following causes of action against the second defendant:
a.Money had and received pleaded with paragraph 58A; and
b.Section 131 of the Corporations Act 2001 based on the causes of action in paragraphs 5(a) to 5(e) above.
...
The plaintiff's 6 October 2021 amendments to his chamber summons, seeking leave at then, in respect of as enumerated further causes of action, looks to be predicated upon a necessary (albeit late) realisation. This realisation is that although there is - by the Rules of the court generally speaking - unlimited leave for a party to amend their pleadings in the time period up to seven weeks before commencement of a civil trial (subject to any order of the court to the contrary) - that the same bountiful measure of pleading amendment liberality does not apply in respect of an amendment proposed to a plaintiff's writ.
Leave to amend a writ is required where the proposed amendment would introduce a new cause of action, or would add a new party to the litigation: see RSC O 21 r 1(1) and (3). These rules provide:
(1)Subject to subrule (3), the plaintiff may, without the leave of the Court, amend the writ once at any time before the pleadings in the action begun by the writ are deemed to be closed by filing its amended writ before the closure.
...
(3)This rule shall not apply in relation to an amendment which consists of -
(a)the addition, omission or substitution of a party to the action or an alteration of the capacity in which a party to the action sues or is sued; or
(b)the addition or substitution of a new cause of action; or
(c)without prejudice to rule 3, an amendment of the statement of claim, if any, indorsed on the writ.

As now seen, the plaintiff's writ in the present action was filed with an accompanying indorsed statement of claim, on 14 April 2021. The writ therefore came to be amended for a first time (see RSC O 21 r 1(1)) under the amendments observed to the indorsed ASOC, at 25 May 2021.
In any event, an addition of new causes of action, as attempted under the ReASOC, clearly required prior leave to thereby necessarily amend the writ - in respect to those newly added causes of action (see RSC O 21 r 1(3). Recognition of a failure by the plaintiff to meet the requirements of RSC O 21 r 1(3), seems to be implicit in the plaintiff's application seeking leave of the court (after the event) so to amend the statement of claim - under pars 5 and 6 of the plaintiff's amended chamber summons, of 6 October 2021.

The defendants' challenges to the ReASOC pleading

With that procedural background, I can turn back to the pleading challenges presently raised by the defendants against aspects of the ReASOC.
Essentially, the defendants' challenges are advanced on a basis that the current statement of claim pleading iteration, by reference to RSC O 20 r 19(1), either fails to disclose reasonable causes of action or, alternatively, that some impugned pleas, by reference to RSC r 19(1)(c), may 'prejudice, embarrass or delay the fair trial of the action' and so, should be struck out. If such a second tier legal embarrassment pleading problem is shown, there will generally be afforded a further corrective opportunity to remedy, and to amend the deficient plea, by leave. This would be leave to correct the problematic issue(s) by such further amendments.
In advancing their present strike out application, the defendants explicitly state that they do not contend that the plaintiff has not raised to date, under three iterations of statement of claims so far, at least one reasonably arguable cause of action that should stand for a trial as against the first defendant (limitation of action issues aside). Specifically, for the contract breach relief grounded upon, in effect, the second paragraph of the letter of 14 June 1985 against the first defendant, Mineralogy (noting the submission of senior counsel for the first and second defendants at ts 32), the defendants do not challenge the arguability of that cause of action.
Beyond that concession however, various issues around the plaintiff's added further attempted causes of action against both defendants are said to be conceptually problematic, and are challenged, in effect, as not being reasonably arguable as pleaded.
Consequently, I will need to explain more of the structure of the ReASOC pleading as it now presents.

The ReASOC contract pleas

Within the plaintiff's ReASOC pleading, there can be found a contract obligation breach framed plea against the first defendant. This plea looks to be grounded upon the terms of the second paragraph of the Mineralogy Ltd letter communication of 14 June 1985 - as generating a (ratified) binding written contract between the plaintiff and Mineralogy Ltd. See pleas found at between pars 17 - 20D - as claims based upon such a written contract.
Interestingly, the ReASOC's initial contract grounded breach relief plea, manifesting in the ReASOC between pars 4 and 16, is not advanced by reference to an alleged written contract. Instead, it is advanced by what is referred to as a Mineralogy Ltd 'pre‑incorporation', 1985 oral agreement, said to have been with the plaintiff with Mr Palmer, acting on behalf of Mineralogy.
Paragraph 4, as it came to be amended by the ReASOC, reads:
In around April to June 1985 the plaintiff and the first defendant, by the second defendant who acted, or purported to act on behalf of, or for the benefit of the first defendant, entered into a pre-incorporation oral agreement whereby it was agreed that:
(a)the plaintiff would introduce the first and second defendants to mining companies that might be interested in allowing the second defendant to acquire their tenements and provide information and advice to the first and second defendants about those mining companies and their tenements;
(b)the plaintiff would assist with the acquisition of an interest in any mining tenements and records and data results the subject of any such introduction by way of negotiations or due diligence;
(c)the plaintiff would be paid $225 a day or the equivalent per hour by the first defendant for consultancy work done for the first defendant;
(d)the first defendant would pay the plaintiff a royalty of 1% on all net profits derived from any source during its involvement in any tenements introduced by the plaintiff, that sum being payable annually at the end of each financial year.
Particulars
The oral agreement was made at 11 Sovereign Avenue, Willetton in around April to June 1985, the precise time and date the plaintiff does not recall.
Subsequently then pleaded under the ReASOC commencing at par 17 (through to ReASOC par 20D), are further contract breach pleas made in the alternative as to an alleged written agreement allegedly perfected as between the plaintiff and Mineralogy Ltd. This is by reference to the terms of the 14 June 1985 offer letter of Mineralogy Ltd, being accepted by the plaintiff.
Then, under ReASOC par 22, are pleas in the alternative by the plaintiff to the effect either that the contended 1985 oral agreement (pars 4 to 7D), or a 1985 written agreement (pars 17 to 20D), came to be ratified by Mineralogy Ltd by its conduct - after incorporation of that entity on 18 June 1985. The ratification of the contract(s) as contended for is seen under ReASOC subpars 22(a) through (c).

Key challenges by the defendants on the present strike out application

The issues to be addressed upon the present application to strike out came to be somewhat distilled under verbal arguments of senior counsel for the defendants. These issues of challenge can be grouped as explained below.

First issue

First challenged, is the plaintiff's ReASOC par 46E plea alleging it is put equitable fraud and made in circumstances where this cause of action was not originally pleaded out on the statement of claim first indorsed to the writ, as lodged.
The Rules of the court are clear to the effect that any plea of fraud, equitable or otherwise, ought not be a subject of a plea under a statement of claim that is indorsed to a writ. Such a proposed plea of fraud, equitable or otherwise, should, by the requirements of RSC O 6 r 3, be discretely raised only upon an indorsement to the writ: see Gauci v Briffa [2011] WASCA 20 at [6].
In Gauci v Briffa, Pullin JA, delivering the reasons of the Court of Appeal, applied well known observations of Anderson J in Otway Developments Pty Ltd v Waller (Unreported, WASC Library 9042, 1991). At [6] Pullin JA observed:
The explanation for this rule is said to be that a writ of summons is a public document that anyone may inspect, whereas a statement of claim filed separately from the writ, is not accessible by the public as of right and that unproven allegations of fraud should not be available for publication by the mere filing of a writ.
[Referring then to an observation found in Civil Procedure Western Australia at 6.3.1.]
Notwithstanding a rehabilitative submission by counsel for the plaintiff contending otherwise, the March 2018 amendments under RSC O 67B made to the Rules of the court - do not bear upon or affect the requirements and obligations under RSC O 6 r 3 - which remains in place unaltered.
Even after the arrival of RSC O 67B in 2018, there is still no general right of access to allow third parties to obtain the pleadings filed in civil actions - see the Table to RSC O 67B r 6(4)(a). Permission is first required: see RSC O 67B r 8.
Recently, I followed the Otway Developments Pty Ltd line of authority in Healy v Chopping as Commissioner for Consumer Protection [2021] WASC 328 at [31]. It remains good law.
The plaintiff's equitable fraud plea arrived and manifests by par 46E of the ReASOC. Leave was not obtained beforehand.
I would refuse the retrospective leave now sought by the plaintiff seeking after the event to add that par 46E further attempted cause of action plea to his writ, at 6 October 2021 (by way of the introduction of par 46E of the ReASOC). I also strike it out from the ReASOC pleading, since it was introduced in violation of RSC O 6 r 3(a).
The plaintiff, if he still wishes to pursue this equitable fraud cause of action, is at liberty to file a fresh writ properly bearing only an indorsement of claim (not a statement of claim) - and seeking to pursue that attempted cause of action. Limitation of action questions aside, an application might later be made by RSC O 83 to consolidate a further proceeding commenced in regular fashion by the plaintiff, with any remnants of the existing action.
That is all, however, a future matter for the plaintiff to consider. The defendants therefore succeed on that aspect of the present strike out application.

Second issue

Also impugned are the introduced ReASOC paragraphs which contend for, alternatively, money had and received cause of action pleas under par 58A against Mr Palmer, as second defendant. Also challenged is the money had and received plea by ReASOC par 58 raised against Mineralogy as first defendant, 'to the extent that any cause of action accrued before 15 April 2015'.
These ReASOC money had and received pleas were said by the plaintiff to be advanced in the alternative to the plaintiff's contractual or debt claims.
The in principle strike out challenge as now advanced by the defendants, relates to a contended absence of a reasonably arguable cause of action grounded upon money had and received - being conceptually incapable of any legitimate discernment in the ReASOC pleas.
The defendants' challenge is grounded on a premise that if the plaintiff does hold, as he claims, a (as seen, oral or written) 1985 perfected contractual rights and entitlements to a (1%) percentage component of the first defendant's 'net profits' from the 'Balmoral Project', that his claim must be at best, only a wholly contractual claim and not a claim in quasi-contract or restitution so called. Hence, it is put that there can be no possible occasion for the plaintiff to hold an extra restitutionary or quasi-contractual cause of action - in the character of money had and received remedy. The ReASOC pleas, it is said, do not demonstrate anything to arguably support the existence of such a remedy for the plaintiff.
It is said as well by the defendants, that in the event of an ultimately assessed absence of any contractual claim entitlement in the plaintiff, then there could simply be no viable further basis for some other entitlement to a money had and received remedy against either defendant. The plaintiff has never otherwise held any interest himself, such as in funds provided by him to the defendants, or in 'the profits' of a Balmoral Project.
Essentially, the defendants say that the position is either one of all or nothing success for the plaintiff, by the route of contractual relief against Mineralogy Ltd. In the circumstances, I accept that submission. ReASOC par 58 fails to display any reasonably arguable cause of action against Mineralogy Ltd.
Quasi‑contractual, or restitutionary remedies under money had and received relief, have no place in circumstances where the parties' relationship is otherwise governed by the terms of a valid contractual bargain. The primacy of a contractual remedy above a restitutionary remedy is a point made by the High Court in Mann v Paterson [2019] HCA 32; (2019) 267 CLR 560, by the joint reasons of Kiefel CJ, Bell and Keane JJ [14] - [18], by the joint reasons of Nettle, Gordon and Edelman JJ [164] and in the reasons of Gageler J [63].
A similarly grounded conceptual challenge was directed against the further money had and received ReASOC cause of action - as it was attempted to be raised by ReASOC par 58A against Mr Palmer, as second defendant. There is, of course, no contract contended for as between the plaintiff and Mr Palmer. Yet again, on my assessment, the challenge must be upheld. No arguable or reasonable basis for such a cause of action presents against Mr Palmer in my view. Furthermore, such misconceived ReASOC pleas seeking such relief by money had and received - should not be a subject of leave to amend, as is sought by the plaintiff. These pleas should as well be struck out from the ReASOC pleading as conceptually untenable, in failing to show any reasonable cause of action. Therefore, leave to amend in those respects is refused. The pleas by pars 58 and 58A of the ReASOC are as well struck out and leave to replead in those respects is refused.

Third issue

The next challenge is against the plea of a contended implied terms regarding commission (see pars 6 and 7 of the ReASOC), observed in both the ReASOC's oral and written 1985 contract pleas.
This challenge is more in the nature of a plea as to legal embarrassment, grounded upon the allegedly opaque nature of the pleaded implied terms and the manner in which a term said to arise by the implication, is then sought to be deployed (see ts 41).
The inter-relationship between the oral contract plea at ReASOC subpar 4(d), its particulars, and the following plea under par 6 - is said to be unacceptably confusing.
I return to discuss this challenge later in the reasons - in a context of my general review of the ReASOC pleas as a whole.

Fourth issue

A fourth area of challenge by the defendants concerns further contended implied terms as to, in effect, cooperation and good faith, raised by the ReASOC.
By these ReASOC pleas concerning the alleged written and oral contracts as contended for, it is said Mineralogy was required by such implied obligations to 'not conduct itself' - to the effect of preventing the plaintiff's right to 1% of net profit from accruing.
Such alleged 'preventing' conduct, by the ReASOC, is said to be by Mineralogy entering into what is termed an uncommercial contract for the extraction of ore from tenements, by reference to the Mining Right and Sign Lease Agreement (MRSLA) entered as between Mineralogy and Korean Steel Pty Ltd.
The defendants' strike out challenge is, in effect, that no sufficient basis is discernible from the ReASOC to sustain that plea as to an uncommercial Korean Steel MRSLA contract, or as to why or how the Korean Steel MRSLA can be challenged as an uncommercial agreement, referring particularly to par 46B in the ReASOC.
This challenge presents to be a 'no arguable cause of action' grievance, as well as a legal embarrassment issue grievance - assessed by reference to the contentions.
Again, I return to discuss this challenge later. But as I will seek to explain, this aspect of the defendants' no cause of action challenge, in my assessment, is well founded.

Fifth issue

A fifth tier grievance of the defendants, concerns the alleged ReASOC failure to plead any sufficient causal link as between a breach of the contended implied terms, and to a loss as suffered by the plaintiff as a result of such contended breaches.
The causation challenge grievance is that the plea does not sufficiently articulate what, potentially, the plaintiff would have done had Mineralogy, hypothetically, ever notified the plaintiff as to its making of 'profits' on the Balmoral Project and how that failure has caused him any loss (see ts 49).
There is also a complaint of omission concerning what hypothetically Mr Madan, as plaintiff, would have done had Mineralogy ever advised him of it entering into a so-called 'uncommercial' MRSLA contract with Korean Steel. I will also discuss these grievances later in the reasons.

Sixth issue

A sixth pleading challenge was directed against the same ReASOC para 46E equitable fraud plea - which I have now disallowed - as to Mineralogy entering the Korean Steel MRSLA. The perfection of the Korean Steel MRSLA with Mineralogy (with Korean Steel then being a subsidiary) is said, allegedly, to have negatively affected the contractual rights held by the plaintiff against Mineralogy. It is also said that the public policy then infringed, was a policy that parties should honour their contracts. As already decided, the plea will be struck out in any event on the basis indicated.

Seventh issue

The last substantive arena of challenge was in relation to ReASOC pleas made concerning the second defendant, Mr Palmer, and to a plea invoking s 131 of the Corporations Act 2001. A challenge is raised as well by the first defendant, Mineralogy.
The first contention of the defendants, essentially, is that s 131 of the current Corporations Act 2001 could not, even arguably, be relevant. In short, this is because that legislation was enacted many years after all the breach conduct events, as alleged. As to that, however, it is not clear from the ReASOC when breaches of, say, a (ratified) 1985 oral or written agreements first occurred. Of course, a contract cause of action will be perfected at the time of breach - and unlike for tortious actions, not at the time that damage is suffered by reason of the breach.
Essentially, the defendants' challenge is that the plaintiff's reliance upon s 131 of the Corporations Act 2001 - directed towards answering Mineralogy's possible defensive future stance of an alleged non‑ratification of any pre-incorporation 1985 contract with the plaintiff - is a misconceived effort to transport the current Corporations Act 2001 back in time to 1985 on a retrospective basis.
Back in June 1985, the applicable legislation governing corporations and addressing the ramifications of their pre-incorporation commitments entered by their promotors, was s 81 of the Companies Code 1981 (under the various relatively uniform State Companies Codes of the day then operative across the various states and territories of Australia generally, as at that time).
It is said by the defendants, that the attempted invocation by the plaintiff of the present s 131(4) (as it came to be clarified at the hearing) of the Corporations Act 2001, must be hopelessly unarguable

- directed as supporting a potential statutory cause of action against the second defendant, Mr Palmer.
The plaintiff, by ReASOC at par 22, primarily pleads as now seen, that Mineralogy, as first defendant, did ratify both an as pleaded 1985 oral agreement as well as a contended written 1985 agreement, based on the terms of the 1985 June letter already seen. The first defendant, Mineralogy, has not yet pleaded a defence in this action to say whether or not it will seek to defend upon a basis of it not ratifying any 1985 pre-contractual agreement with the plaintiff. An eventuality of a

non-ratification defensive stance by Mineralogy, is thus, currently unknown.
Until Mineralogy's position on that ratification point emerges, the question of a need for the plaintiff to invoke s 81 of the Companies Code 1981, or s 131 of the Corporations Act 2001, against Mineralogy - for a failure to ratify the as alleged ReASOC oral or written 1985 agreements with the plaintiff - is essentially anticipatory.
Only at the hearing, however, was it clearly exposed additionally that the plaintiff is actually, by his ReASOC pleas, attempting to pursue two causes of action (both grounded upon s 131 of the Corporations Act 2001).
First, via par 22 of the ReASOC vis-à-vis, is the alleged ratification plea put against Mineralogy by its conduct - towards a 1985 perfected, enforceable oral agreement as pleaded under ReASOC pars 4 to 7D. Alternatively argued as being ratified by Mineralogy, is the alternatively run 1985 perfected written agreement, seen pleaded under ReASOC pars 17 to 20D. The two ReASOC 1985 perfected agreement pleas by the plaintiff do not present, as at least at first sight, as being all that significantly different in their alleged content. These pleas look, to their later ratification by Mineralogy, to be framed around s 131(1), or rather, to its earlier statutory predecessors being engaged as a valid ratification by Mineralogy of such agreements. So much is orthodox and understandable.

But as clarified, there is also a further s 131 Corporations Act 2001 based cause of action, that is sought to be raised against Mr Palmer, as second defendant. This cause of action seeks to rely upon s 131(4) of the Corporations Act 2001. It effectively goes to raise, so it was said, Mr Palmer's alleged personal statutory liability - even under circumstances of Mineralogy's ascertained ratification of either 1985 agreement, but arising as a liability later by Mineralogy's alleged non‑adherence (ie, a later breach) against performance requirement aspects (it would seem) of what would otherwise be found as fully ratified 1985 (written or oral) and legally binding agreements, as between Mineralogy and Mr Madan.
The plaintiff's s 131 argument - put against Mr Palmer as second defendant as it came to be explained, was clarified at the hearing to be grounded upon the terms of s 131(4) of the Corporations Act 2001, reading:
(4)If the company ratifies the pre-registration contract but fails to perform all or part of it, the court may order the person to pay all or part of the damages that the company is ordered to pay.
No case authority about this provision (or its earlier statutory predecessors) was canvassed before me at the hearing concerning the possible implications of such a widely drawn legislative provision. Research undertaken in my chambers also confirms a lack of case authority on this provision or some earlier statutory predecessors. It seems, but it is not totally clear, that a level reliance is also directed by the plaintiff under the ReASOC vis-à-vis Mr Palmer, upon s 81(7) of the Companies Code 1981 - manifesting an act or legislative predecessor - albeit then using somewhat different language.
On a preliminary basis, if the Corporations Act 2001 can be relevantly made applicable (to any breach conduct subsequent to 1985 and before 2001), I would observe upon a use in s 131(4) of the word 'may' - in the phrase 'the court may order the person to pay'. This would look to indicate a discretion in the court in terms of an exercise of the power.
Second, and on the same preliminary basis, I observe upon the textual terminology that is only directed towards relief as damages - indicating that some damages for a breach of contract looks to be required as first established - against a corporation concerned under the (ratified) pre‑registration contract, and to later act(s) of non‑performance (ie breach), subsequently.
Prima facie then, I would not assess s 131(4) Corporations Act 2001 as being potentially applicable towards a claim seeking to compel the performance of obligations under a subsisting contract. For instance, by compelling a payment said to be due, or by a court order requesting the performance of an obligation under a still extant contract. Such relief would not look to be in the character of breach damages for the purposes of engaging with s 131(4).
Third, I assess on the same preliminary basis, that any s 131(4) discretionary further relief against a natural person concerned, is confined to damages - particularly to the damages 'that the company is ordered to pay'.
Consequently, if a company concerned were ultimately ordered not to pay damages, then s 131(4) looks prima facie, not to be engaged.
Those are merely my prima facie observations - offered without benefit yet of any more considered arguments towards a potential applicability of s 131(4) in relation to the second defendant's possible liability to statutory relief.
Presently, I am concerned with the attempted invocation of s 131(4) Corporations Act 2001 under somewhat unique respects, concerning the second defendant. The nature of the invocation grounded on s 131(4) only became explicit during oral argument of counsel at the hearing. Moreover, the claimed relief is only supported in the ReASOC on the basis of what is contended to emerge out of one of the ReASOC prayers for relief (prayer 12), and which itself makes no explicit reference to s 131(4). Given what is to otherwise occur with the ReASOC more generally, that deficiency of clarity as regards s 131(4) being engaged, needs to be remedied.
All of that, of course, is without any present consideration as to whether a current provision of the Corporations Act 2001 might be assessed as being arguably applicable to alleged contract breaches of the first defendant - occurring, if they did, at before the 2001 legislative provision took effect. A lack of clarity in the ReASOC as to when it is contended that Corporations Act 2001 legislature applicability breaches (of the alleged contracts) occurred - should also be remedied. That is a coherency of expression problem. In the end, I do not need to finally resolve the underlying legal issues to resolve the present applications.

Further observations (Implied Terms)

Earlier I mentioned the ReASOC implied term pleas (either of law, or said to arise ad hoc, as a matter of fact - by reference to BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] UKPCHCA 1; (1977) 180 CLR 266). Four suggested implied terms arising in the pleaded 1985 oral agreement are contended for by the ReASOC, seen at pars 6 (by law and ad hoc), 7 (ad hoc), 7A (a duty to cooperate) and 7C (a duty to act in good faith - and which term is said to have obliged each party to refrain from acting so as to destroy the fruits of their agreement).
For the ReASOC pleaded written agreement, there are also four contended implied terms pleaded in close, but not identical, structure. These are found at ReASOC pars 19 (by law and ad hoc), 20 (ad hoc), 20A (duty to cooperate) and 20C (duty to act in good faith - which obliged each party to refrain from acting so as to destroy the benefits of their agreement).
There is a measure of observed looseness around these implied terms, as regards to their suggested derivation and their interactions with express contractual terms - either in the oral agreement, or with the written agreement in the ReASOC.
The pleas seen under ReASOC pars 6 and 7 however, as to implied terms in the contended 1985 oral agreement, are not clearly untenable. Likewise, for somewhat akin suggested implied terms of the 1985 written agreement, under ReASOC pars 19 and 20.
The remaining implied term pleas however, in my view, are very problematic as to a disclosure of any arguable cause of action. For instance, the plea seen under par 7A (for an implied term in the oral agreement as regards to an alleged duty to cooperate, which is then a subject of a plea under par 7B as to its 'proper construction').
The as pleaded ReASOC notion of a proper construction exercise later coming to be applied to an as then derived implied term in a contract, either found to be implied by law, or found to be implied ad hoc (being itself an exercise in the process of interpretation of the language of a contract (although not an orthodox exercise) as Mason J explained in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, 345) is, on my assessment, wholly misconceived conceptually.
On the other hand, as I discussed with counsel for the plaintiff at the hearing, if ReASOC pars 7B, 7D, 20B and 20D were to uniformly excise the current opening phrase 'On a proper construction of the implied term pleaded', to instead read along the lines of commencing 'By reason of the aforementioned implied term…', then a task of detecting some arguable merit in the pleas would be clarified to some extent.
But even read that way, par 7B of the ReASOC is still factually blighted, on my assessment, by its reference to an 'uncommercial contract', seen in par 7B(b) and (c).
Likewise, for ReASOC subpars 7D(b) and (c), their references to 'any uncommercial contract', cannot be supported. The same problem manifests again at ReASOC subpars 20B(d) and (c), and at subpar 20D(b)(c).
The introduction of these newly seen ReASOC pleas to the writ had always required leave, as they would add new causes of action. Given their present incoherency, I would deny that leave that is now sought by the plaintiff's application.
Likewise, the observed ReASOC as introduced equitable fraud and restitutionary pleas concerning money had and received, are untenable. They will also be struck out from the ReASOC. They required leave in order to be introduced in the first place. That leave, now sought retrospectively, will not be granted to advance those untenable causes of action.

General concluding observations on the ReASOC

The so-called pre-incorporation 1985 oral agreement the subject of the plea under pars 4 through 16, aligns, broadly, to the pre‑incorporation 1985 written agreement - which is the subject of pleas under pars 17 through 20D.
Both such agreements are later pleaded to have been ratified by the conduct of Mineralogy following that entity's incorporation at 18 June 1985, at par 22 of the ReASOC.
The plea as to the pre-incorporation 1985 oral agreement, identify at subpars 4(a) through 4(d), what look to be four express terms in a wholly oral agreement. This agreement was said to be made around April to June 1985 by the plaintiff, Mr Madan, with the second defendant, Mr Palmer - who was acting for the corporation, Mineralogy, but which corporation was only incorporated on 18 June 1985.
The express oral term seen as pleaded under subpar 4(d), mentions a term by which Mineralogy would pay Mr Madan 'a royalty of 1% on all net profits derived'.
Reference to a 'royalty', is otherwise unexplained. The plea looks on its face to be curiously out of place. If it is to remain, then some viable basis for that terminology should be stated with more clarity. Otherwise, the reference should be removed, as counsel for the plaintiff seemed ultimately to accept at the hearing (see ts 78).
By contrast, the pre-incorporation 1985 written agreement seen as pleaded by what looks to be a counterpart plea under subpar 18(c), does not mention 'royalty'. It reads:
(c)... the first defendant would pay the plaintiff 1% of the net profits derived by the first defendant from any source during its involvement in the Balmoral Project ,…
There is, broadly speaking, a common structure observable as between the two pre‑incorporation versions of a 1985 agreement pleaded by the ReASOC. The plea as to the oral agreement identifies at par 4 what looks to present as the four contended express terms of the wholly oral agreement. In addition, pleas then follow, as to four further implied terms said to be found in that oral agreement.
The derivation of the first of these implied terms in the oral agreement is said by particulars (at subpar6(a)), to be an incident of an 'agency' contract.
However, that agency plea under preceding par 5, is only a characterisation applied against the express terms of the oral agreement seen assembled under preceding par 4.
On the basis of the par 5 characterisation, the first implied term in the oral agreement is pleaded to emerge, in the alternative.
A question then presents: alternatively to what? Possibly, this is an intended reference to the express term earlier found under subpar 4(d), given its subject matter. However, that is not made clear enough. There should be no guesswork needed. An alternative basis in the particulars for the first implied term, is essentially, a BP Westernport v Hastings five-fold criteria invocation for an ad hoc implied term. But the last of those well known criteria requires an absence of any contradiction as between the advocated implied term when measured against the express terms of the contract. Here, there does look to be a level of contradiction presenting as between the desired implied term under par 6, when measured against the earlier express oral term as seen pleaded under ReASOC par 4(d).
A second implied term contended to be found in the oral agreement is seen under ReASOC par 7. Again, a basis for its derivation in the further alternative is as an ad hoc implied term of fact, under the BP Westernport v Hastings five-fold criteria (by reference to the given particulars).
Again, a question that presents is, alternatively to what? Presumably, this is put in the alternative to the implied term under par 6, as well as to the express oral term seen under subpar 4(d). Again, this is not clear enough and should be clarified under future amendments - for which there should be leave.
There follow the counterpart implied term pleas within the oral agreement, seen under ReASOC pars 7A and 7B.
Paragraph 7A displays a contended implied term of the oral agreement obliging each party to cooperate in securing the benefit of the agreement, and not to hinder or prevent that benefit being secured. Then, by the following the par 7B plea, are seen the problematic words 'On a proper construction of the implied term pleaded in par 7A above …'. I have already discussed the obvious defect in that plea and, as well, the remedy.
In the result, the plea under ReASOC par 7B and in par 7D, and in their ensuing ReASOC counterparts concerning the written agreement - need to be prefaced differently - otherwise than by reference to any degree of 'proper construction'. I have approached the issue on a basis that the pleas will be corrected, so that the pleas under pars 7B and 7D will eventually commence along the lines of 'By reason of … the implied term pleaded in par 7A or 7C above…', as the case may be.
The pars 7B and 7D pleas would then effectively read so as to contend for obligations arising out of the application of the cooperation (or as regards par 7C), or the good faith implied terms as contended for.
However, there still is a problem with the pleas under subpar 7B(c) and with its counterparts at subpars 7D(c), 20B(c) and 20D(c). Whilst I assess it as being arguable that there could be an implied term in a negative sense as seen under 7B(b) - essentially to abstain from conduct with an effect of preventing the plaintiff's right to 1% of net profits from accruing (by reference to entering into an uncommercial contract for the extraction of ore …) - the plea is presently inconsistent. This is seen particularly when measured against the ensuing plea under subpar 7B(c), as to an affirmative obligation to advise the plaintiff if Mineralogy had entered into any uncommercial contract for the extraction of ore from tenements. The pleas are not put in the alternative.
But even if they were, a notion of an implied obligation to advise a third person of an 'uncommercial contract' being entered into for the extraction of ore, is grating. Contrast the incongruity between, say, an obligation not to act unlawfully, later being coupled to an alleged implied obligation to advise of unlawful conduct.
I will not grant leave for the plaintiff to advance untenably inconsistent implied obligation pleas as seen under subpar 7B(c), and the counterparts in subpars 7D(c), 20B(c) and 20D(c).
Moreover, the ReASOC pleas under subpar 7B(b) and the counterparts, give rise to a need to address further ReASOC pleas seeking to advance an 'uncommercial contract' under pars 46B and 46C.
These pleas, in my view, are presently unclear and unsustainable, particularly the plea under subpar 46B(d).
Entry into the MRSLA as between Mineralogy and Korean Steel Pty Ltd (then a controlled and related entity of Mineralogy), saw Korean Steel assume a long term obligation to pay both Royalty Component A and Royalty Component B payments to Mineralogy once production of concentrate magnetite for shipment began. These were akin to like royalties payment obligations receivable by Mineralogy from Sino Iron Pty Ltd under the earlier Sino Iron MRSLA.
Mineralogy, by the MRSLA, had granted long term express contractual and site lease rights under those MRSLAs to Sino Iron and Korean Steel. Mineralogy remained the holder of the mining leases. Later, by takeover agreements, the ownership of Mineralogy's Sino Iron and Korean Steel as subsidiary or related companies - by the sale and purchase of their shares - saw control of the shares in Sino Iron and Korean Steel change hands under takeover share acquisition purchase arrangements. These saw a capital acquisition - of the shares in each corporation sold off by Mineralogy, of the shares in Sino Iron, or by reference to interests held by or associated with Mr Palmer, for the sold and acquired shares in Korean Steel. For a collection of the background facts surrounding the two MRSLAs and their aforementioned related corporate takeover agreements by the CITIC group, see Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340 at [150] - [153], [219] - [220].
How the Korean Steel MRSLA and the distinct share Korean Steel share takeover capital acquisition by the CITIC group (for about US$200 million) arrangements, might possibly bear a characterisation of being an uncommercial contract entered by Mineralogy, for the extraction of ore, is puzzling. If anything, the MRSLA long term contracts from a royalty obligation payment benefit perspective to Mineralogy present, objectively, as highly lucrative for Mineralogy rather than being uncommercial. There seems to be some conflation here of the takeover arrangements terms with terms of the Korean Steel MRSLA.
The Korean Steel MRSLA terms, on no sensible objective view, look to be uncommercial terms from the perspective of Mineralogy. They are almost word for word the same terms as the Sino Iron MRSLA. If anything, the MRSLA terms were highly lucrative for Mineralogy.
What presents as a confused grievance by the ReASOC pleas as to an 'uncommercial' MRSLA Korean Steel contract entered by Mineralogy, looks more directed at the takeover acquisition of the shares in Korean Steel under the Korean Steel takeover agreement. Even so, the vendors received US$200 million or thereabouts for the acquired shares in Korean Steel. How that is an uncommercial contract from Mineralogy's perspective is not otherwise explained. It is not apparent to me.
The Korean Steel share acquisition takeover arrangements do not display a link relevant to the plaintiff by reference to some arguably lost entitlement of his in Mineralogy's profits, or to 'net profits' upon a basis of the express oral term under subpar 4(d), the implied term under par 6, or the alternative implied term under par 7.
Likewise, for counterpart ReASOC pleas concerning the 1985 written contract under ReASOC pars 18(c), 19 (first alternative implied term of the written contract) or 20 (second alternative implied term of the written contract).
In short, the plaintiff has not yet done nearly enough in the ReASOC to show a link between a Mineralogy Korean Steel MRSLA contract entered under on some unexplained uncommercial basis around Korean Steel's shares being acquired, that can have thwarted for this plaintiff his opportunity to share in Mineralogy's net profits - measured by reference to Korean Steel's MRSLA arrangements. A bland plea seen under par 46C only states a bare conclusion to that end, rather than identifying any required material facts showing a necessary loss outcome linkage.
In the neighbourhood of the contended pre-incorporation written agreement, I also hold a difficulty with the contended interrelationship as between ReASOC pars 17 and 18.
At par 17, a 1985 written agreement by reference to Mr Madan's acceptance of the pre-incorporation Mineralogy letter of 14 June 1985, is relied upon. Particulars given make reference to 'the written agreement for its full terms and effect.' Presumably, that was, I speculate, an intended reference to some express contractual terms found in the letter of 14 June 1985, which I have set out earlier. But for such a critical plea of those express terms, there again ought to be no resort to such guesswork.
I pointed out to the plaintiff's counsel at the hearing, that unlike for the plea seen concerning the terms of the wholly oral 1985 agreement, the ReASOC pleas concerning the written agreement do not actually identify any express terms of a written agreement. In response, reference was made to the par 17 particulars referring to the quote 'written agreement'.

However, all relevant express written terms of the written agreement that are relied upon, should have been pleaded.
Nor is it an answer to that concern to refer to par 18. The plea carries a curious preface. See 'The effect of the pre-incorporation written agreement pleaded in paragraph 17 above on a proper construction of its terms was ...'.
Before embarking on a proper construction exercise of express written terms, those terms first need to be collected and identified. They are not.
The pleas underlying ReASOC par 18 are not sufficiently clear. Possibly, again, the intent was to plead out the relevant obligations arising by reason of the (as yet unidentified) express written terms of the written agreement. Again, there should be no need for guesswork. The concern needs to be addressed.
There are then some knock on consequences by reason of the encountered deficiencies, as earlier identified, concerning the par 46B and par 46C pleas regarding the alleged entry into of a 'uncommercial contract' by Mineralogy. Under par 46E, the ReASOC introduces what is referred to as the equitable fraud plea. I have already addressed why such a plea ought first to have been the subject of a general indorsement, rather than introduced via a reamended statement of claim.
Even more substantively, the plea as observed under par 46E is linked to the obviously deficient uncommercial (MRSLA) contract pleas.
The preface reads 'By entering into the MRSLA with Korean Steel, the first defendant engaged in fraud in equity in that: …'. Subparagraph 46E(a) carries express reference to the MRSLA being 'affected' by the MRSLA pleaded in par 46B. The plea as framed, derivatively fails to disclose any arguable cause of action in equitable fraud, by reference to the Korean Steel MRSLA, as contended.
I have already referred to and determined the deficiencies in the further pleas concerning the money had and received remedy, under par 58 vis‑à-vis Mineralogy, and par 58A, concerning Mr Palmer. Those pleas fail to disclose any arguable cause of action.
Likewise, the equitable account plea as seen under par 57A seeking 'an account in equity, alternatively equitable compensation, in respect of 1% of the net profits…' is also by its preface, expressly seen as linked back to the defective equitable fraud plea under par 46E. Like deficiencies flow through to that plea as well.
I also observe regarding the plea under par 55 of the ReASOC, that the plea does not identify a term or terms of the agreement from par 4 (of the 1985 oral agreement) or par 17 (of the 1985 written agreement)

- said to have been breached and when that breach or breaches happened. Hence, there is a deficiency of material facts in that respect that ought be corrected by the next iteration of the pleading.
The plea seen under par 55A also does not identify terms of the 1985 oral agreement or of the 1985 written agreement, said to have been breached. Assuming however, that the intended reference was to a breach of the obligation under subpars 7B(b), 20B(b) or 20D(b), the further difficulty with the pleas is its observed reference once again, to Mineralogy entering into the MRSLA with Korean Steel for the extraction of ore from the Balmoral Project - as being an 'uncommercial contract'. Reference seen back to par 46B essentially draws in all the deficiencies of that plea so as then to infect par 55A, as well. It must also fall, derivatively.
Likewise, pleas as seen under ReASOC subpar 55B(b) referring to the entry of the MRSLA with Korean Steel as an uncommercial contract, are defective.
Pleas in the prayer for relief introduced under pars 4A, 5A, 5B and 9A are derivatively bad as well.
More particularly so, is the plea as seen in the prayer for relief at par 12 which, as explained, was explained at the hearing to be an intended reference to an attempted reliance upon s 131(4) of the Corporations Act 2001 against Mr Palmer personally, as second defendant. The difficulty is that there is no material facts found pleaded earlier to sustain a s 131(4) plea. I strike out this plea as embarrassing - but with leave to amend.
As regards the plaintiff's chamber summons, and in particular, his application under pars 5 and 6, the terminal conceptual deficiencies in those attempted pleas now seen in the ReASOC, have been fully canvassed along the way. Given those deficiencies, it would be inappropriate (putting all other associated limitation of action questions aside to address on another day) to allow deficient pleas in that form.
Consequently, I must refuse leave to introduce defective pleas in the form as currently manifested at the identified paragraphs in the ReASOC and at pars 5 and 6 of the plaintiff's chamber summons.

The way forward

The way forward from here looks to be for the plaintiff to start work again, but commencing from his penultimate 25 May 2021 ASOC iteration of a statement of claim in CIV 1292 of 2021 - to address the multiple pleading deficiencies which have now been identified in these reasons in that penultimate pleading. There should be leave to amend the ASOC to allow that in accord with these reasons. But the entirety of what was added under the ReASOC pleas, should be struck out.
For the ReASOC pleas as to an uncommercial Korean Steel MRSLA contract, money had and received, and of equitable fraud and the other attempted causes of action the subject of pars 5 and 6 of the plaintiff's chamber summons, leave to amend would, in any event, be refused. There are simply too many deficiencies as now explained.
As earlier discussed, an open course for the plaintiff, if he wishes to persist with a plea of equitable fraud - if he believes he can fashion in future a coherent plea in that respect - would be to issue a fresh writ with an indorsement that complies with RSC O 6 r 3. To the extent any statement of claim would follow, then these reasons will not inhibit the plaintiff from attempting to plead out there, a statement of claim, in respect of an equitable fraud cause of action - which does not manifest the deficiencies I have now identified in these reasons.
There should therefore be leave to amend to allow a future pleading of another statement of claim in another action freshly commenced. But the money had and received pleas attempted against Mineralogy and Mr Palmer, which on my assessment, are completely without merit and are incapable of remedy, should not be seen again in this action or anywhere else.
If the plaintiff wishes to persist with a reliance upon s 131(4) of the Corporations Act 2001, then a next iteration of his pleading ought display the necessary material facts towards the 2001 Corporations legislation as being applicable to any past events underlying that contention, and also with a lot more clarity demonstrate why s 131(4) can arguably be said to be engaged vis-à-vis Mr Palmer, as second defendant.

Conclusions

The defendants, as successful applicants on the present application, should prepare, within say 21 days, a minute of orders giving effect to these reasons, to be circulated to the plaintiff's lawyers with a view to conferral as to orders.
If there are any residual disagreements, the parties can then indicate to my Associate, by email, how the parties wish to proceed.
The plaintiff, as the unsuccessful party on both applications, should prima facie bear both defendants' taxed costs of these applications (heard together).

Schedule 1

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
PP
Research Associate to the Honourable Justice K Martin
7 FEBRUARY 2022