Mirabela Nickel Ltd (in Liquidation) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [No 7] - [2023] WASC 155

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MIRABELA NICKEL LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED) -v- MINING STANDARDS INTERNATIONAL PTY LTD [No 7] [2023] WASC 155
CORAM:   HILL J
HEARD:   4 MAY 2023
DELIVERED          :   19 MAY 2023
FILE NO/S:   CIV 1806 of 2019
BETWEEN:   MIRABELA NICKEL LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)
First Plaintiff
MIRABELA INVESTMENTS PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)
Second Plaintiff
MARTIN MADDEN, SCOTT DAVID HARRY LANGDON AND RICHARD SCOTT TUCKER as joint and several receivers and managers of MIRABELA NICKEL LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)
Third Plaintiff
MARTIN MADDEN, SCOTT DAVID HARRY LANGDON AND RICHARD SCOTT TUCKER as joint and several receivers and managers of MIRABELA INVESTMENTS PTY LTD (IN LIQUIDATION) (RECEIVERS AND MANAGERS APPOINTED)
Fourth Plaintiff
AND
MINING STANDARDS INTERNATIONAL PTY LTD
Defendant

Catchwords:

Practice and procedure - Application for leave to amend statement of claim after trial and delivery of reasons for decision - Whether proposed amendment reflects the manner in which the trial was conducted - Whether court should exercise discretion to grant amendment - Relevant case management principles - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 21 r 5(2)

Result:

Application granted

Category: B

Representation:

Counsel:

First Plaintiff	:	S C Wong
Second Plaintiff	:	S C Wong
Third Plaintiff	:	S C Wong
Fourth Plaintiff	:	S C Wong
Defendant	:	L A Warnick SC & S C Russell

Solicitors:

First Plaintiff	:	Clayton Utz
Second Plaintiff	:	Clayton Utz
Third Plaintiff	:	Clayton Utz
Fourth Plaintiff	:	Clayton Utz
Defendant	:	Russells

Cases referred to in decision:

Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [No 2] [2006] FCA 1335
Gunn v Meiners [2022] WASCA 95
Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296
Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1
May v Thomas [2008] WASCA 215
Mirabela Nickel Ltd (in liq) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [2020] WASC 4
Mirabela Nickel Ltd (in liq) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [No 5] [2023] WASC 62
Mirabela Nickel Ltd (in liq) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [No 6] [2023] WASC 125
Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406

Table of Contents

Legal principles

Materials relied upon in support of the application

Manner in which the case was run at trial

Disposition

Discretionary factors

Explanation for delay

Case management considerations

Irremediable prejudice

Conclusion and orders

HILL J:

The trial of these proceedings took place in November and December 2020. At the conclusion of the trial, I reserved my decision. On 3 March 2023, I published my reasons for decision in this matter.[1] In these reasons, I have adopted the definitions used in the Primary Reasons.
[1] Mirabela Nickel Ltd (in liq) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [No 5] [2023] WASC 62 (Primary Reasons).
At the time of delivery of the Primary Reasons, counsel for the plaintiffs foreshadowed an application to amend the statement of claim would be filed. On this basis, no orders have yet been made by the court to reflect the Primary Reasons.
On 16 March 2023, an application for leave to amend the further amended statement of claim (statement of claim) was filed and was programmed through to a hearing on 4 May 2023.
Initially, the plaintiffs sought leave to amend [14] of their statement of claim to insert the words 'vary, modify or set', so that it would read that:
Between 17 and 18 November 2017, the Sellers and MSI agreed in writing to extend, vary, modify, or set the date of satisfaction of the Finance Condition to 22 November 2017.
After the defendant objected to the form of the amendment, the plaintiffs now seek to amend [14] by deleting the word 'extend' and replacing it with 'vary'. Similar amendments are sought to be made to the reply in 5(c), particular i of this paragraph, as well as 5(e), 5A(c), 5A(e), 5B(a), 5B(b) and 5B(c).
Counsel for the plaintiffs contended the proposed amendments are consistent with the manner in which the trial was conducted and that the application seeks to clarify the record, which will be relevant to any appeal. The plaintiffs say that if leave is granted, there will be no requirement to re-open the hearing. On this basis, the plaintiffs say there can be no irremediable prejudice to the defendant if the application is granted.
The defendant opposes the application on several grounds. Senior counsel for the defendant denied the proposed amendment reflected the manner in which the trial was conducted by both parties. While the defendant accepted the plaintiffs used the same or similar terminology as the initial proposed amendment in their closing submissions, the defendant denied it agreed to any expansion of the issues from those pleaded. The defendant also submitted the application should be refused as no explanation has been put forward for the plaintiffs' significant delay in seeking to amend their statement of claim. In addition, the defendant contended the application offends case management principles, including the finality of litigation, and said the defendant would suffer prejudice if the application were allowed which could not be remedied.
For the reasons that follow, it is my view that the amendments proposed by the plaintiffs reflect the manner in which, ultimately, the case was conducted by both parties at trial, and that leave should be granted to the plaintiffs to amend their pleadings.

Legal principles

Order 21 r 5(2) of the Rules of the Supreme Court 1971 (WA) (Rules) provides that:
The Court may at any stage of the proceedings, without determining whether any relevant period of limitation has expired, allow the plaintiff to amend the plaintiff's writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.
As is clear from the terms of O 21 r 5(2) of the Rules, an application can be made at any time, including after trial and after the delivery of the court's reasons for decision.[2]
[2] See for example Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [No 2] [2006] FCA 1335.
The principles that govern the consideration of a late application to amend pleadings were summarised by Beech J in Hightime Investments Pty Ltd v Lungan [No 2] as follows:[3]
[3] Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 [52]; see also Sino Iron Pty Ltd v Mineralogy Pty Ltd [2014] WASC 406 [30] - [32] (Edelman J).
(a) the effect of an amendment on the court and on other litigants is relevant;
(b) there is no right to amend to introduce an arguable case and it is wrong to say that only in extreme circumstances would a party be shut out from litigating an arguable case;
(c) justice requires that parties have a proper opportunity to plead their case, but limits may be placed on repleading when delay and cost are taken into account;
(d) a just resolution does not mean that a party will always be permitted to raise any arguable case at any point in the proceedings, on payment of costs, even indemnity costs;
(e) the inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay ‑ this applies to natural persons and other litigants;
(f) the nature and importance of the amendment to the party amending must be taken into account;
(g) attention must be given to the extent of the delay, and the costs associated with it, the prejudice which might reasonably be assumed to follow from it and any prejudice that is shown;
(h) the point in the litigation relative to the trial may be an important consideration;
(i) where a discretion is sought to be exercised in favour of a party, an explanation will be called for; and
(j) the point can be reached where a party has had a sufficient opportunity to put its case.
In Sino Iron Pty Ltd v Mineralogy Pty Ltd, Edelman J added to these points the provisions of O 1 r 4A, which provides that a goal of the practice and procedure of the Supreme Court is the elimination of delay, and O 1 r 4B which includes, as principles of case management, the just determination of litigation, the efficient disposition of the court's business, the efficient use of judicial resources, the timely disposal of business, and proportionality.[4]
[4] Sino Iron Pty Ltd v Mineralogy Pty Ltd [32].
The general common law rule applicable to all causes of action is that pleadings define the issues to be determined in proceedings and that parties are bound by their pleadings.[5] However, as stated by Anderson J in Nationwide News Pty Ltd v Moodie:[6]
[T]here is an overriding judicial discretion to be flexible – to relax the degree of accuracy which a pleading is required to possess. The discretion is of course limited by considerations of fairness.
[5] Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314 [3].
[6] Nationwide News Pty Ltd v Moodie [3].
The purpose of pleadings was recently summarised by the Court of Appeal in Gunn v Meiners.[7] In that case, the plurality noted that:[8]
Pleadings have two main functions. First, to define the issues for decision so that the court can control the preparation of the case and the conduct of the trial. Second, to ensure a fair trial by putting the other party on notice of the case to be met. In the latter respect, the function of a pleading is to state the case that must be met with 'sufficient clarity'.
It follows from the procedural fairness aspect that attends the function of the parties' pleadings that, as a general rule, relief is confined to that available on the pleadings. Thus it is an error for a trial judge to decide a case relying on reasons or grounds that were not raised on the pleadings or otherwise go beyond the issues joined between the parties at trial. However, as is implicit in what we have just said, a case may be litigated at trial in a manner that is materially different from the issues as defined by the pleadings. The parties may disregard the pleadings - either confining or enlarging the issues - and fight the case on issues chosen at the trial. It is well established that where this occurs the parties cannot return to the pleadings as governing the area of contest (although there should be an appropriate amendment so that the cause of action alleged forms part of the court record).
The position is summarised by Mason CJ and Gaudron J in Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd in a passage that should be repeated:
[P]leadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.
Their Honours go on to explain that, ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted.
[7] Gunn v Meiners [2022] WASCA 95.
[8] Gunn v Meiners [109] - [113].
Although one of the functions of pleadings is to identify the issues that are required to be decided, parties are entitled to have the case decided on the issues that have been litigated at trial. As was noted by the Full Court of the South Australian Supreme Court in Macks v Viscariello:[9]
A party may obtain relief in respect of matters which were not pleaded if the relief was based on the evidence and concerned issues that were 'fairly fought out'.
[9] Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1[109].
The Full Court went on to state that:[10]
It is necessary in determining whether a party should be permitted to amend its pleadings to consider the rules of pleading, the requirements of procedural fairness and the objective of ensuring that what is truly in dispute between the parties is fully and finally decided. Obviously, procedural fairness is the dominant consideration when an application to amend is made after the trial has been completed. However, the question of whether an amendment should be allowed is within the discretion of the Primary Judge. Accordingly, the principles relevant to an appeal from the exercise of a judicial discretion apply and an appeal court should recognise the unique advantage that the Primary Judge had in determining whether it is in the interests of justice to permit an amendment to the pleadings. That is especially where the amendment is sought after the reasons have been delivered. At that point, the Primary Judge will have completed the complex analysis involved in judicial decision-making and will be well placed to determine whether it would be unjust to allow an amendment to the pleadings.
[10] Macks v Viscariello [112].

Materials relied upon in support of the application

The plaintiffs did not file any evidence in support of their application. For the purposes of the application, the plaintiffs relied on the following documents:[11]
(a)the reasons for decision delivered 3 March 2023;
(b)the plaintiffs' opening submissions filed 18 September 2020;
(c)the defendant's opening submissions filed 25 September 2020;
(d)the plaintiffs' closing submissions filed 23 December 2020;
(e)the defendant's closing submissions filed 23 December 2020; and
(f)the transcript of the trial.
[11] Book of materials in support of the plaintiffs' amendment application filed 21 April 2023.
Senior counsel for the defendant submitted the failure by the plaintiffs to file any evidence explaining their delay in bringing the application was fatal to its success.
I do not accept this submission. In this case, the basis for the plaintiffs' application is that the pleadings should be amended to reflect the manner in which the case was run at trial. I accept the plaintiffs' submission that in assessing this contention, the documents that are relevant to the consideration of this issue are the pleadings, the submissions of the parties at trial, and the transcript. If the plaintiffs do not succeed in establishing this contention, the application must fail.
For this reason, I turn first to consider the manner in which the case was run at trial.

Manner in which the case was run at trial

Both parties accepted that the relevant starting point was the pleadings and the issues for determination that arose from the pleaded case. I summarised the relevant pleadings of the parties at [19] - [34] and the Issues for determination at [35] of my Primary Reasons.
The plaintiffs pleaded the Agreement was exchanged on 1 November 2017 ([8]) and that, as a result, they were entitled to terminate the Agreement by notice to the defendant if the Finance Condition was not satisfied by 15 November 2017 ([9(d)]). In contrast, the defendant contended the Agreement was exchanged on 10 November 2017 ([8(f)]) and that, as a result, the plaintiffs could not terminate the Agreement for failure to satisfy the Finance Condition until 25 November 2017 ([9(d)]).
In the context of this fundamental difference between the parties, the plaintiffs pleaded at [14] that:
Between 17 and 18 November 2017, the Sellers and MSI agreed in writing to extend the date of satisfaction of the Finance Condition to 22 November 2017.
The particulars of this paragraph referred to an email from Mr Tucker to Mr Milbourne of 17 November 2017, various text messages that were exchanged between Mr Tucker and Mr Milbourne on 18 November 2017 and an email exchange between them on 18 November 2017. The relevant aspects of each of these emails and text messages are then pleaded in [14B] - [14E] of the statement of claim.
In response, at [14] of its defence, the defendant raised a number of alternative defences. Relevantly, these included that:
(a)no agreement was constituted by these communications;
(b)any alleged agreement was not valid because it did not comply with cl 16.1 of the Agreement, because it was not in writing and not signed by all parties to the Agreement; and
(c)any alleged agreement was not valid because the consideration (the 'present right' to terminate the Agreement) was illusory.
The plaintiffs responded to this pleading at [5] of their Fourth Further Amended Reply. Relevantly, the plaintiffs contended that:
(a)the 'agreement to extend the date' for satisfaction of the Finance Condition to 22 November 2017 was made by the documents pleaded in the statement of claim and that the defendant waived the requirements of cl 16.1 of the Agreement ([5(c)];
(b)a forbearance to sue on a contractual right to terminate was valid consideration ([5(d)]; and
(c)alternatively, the defendant accepted the date of exchange was 1 November 2017 on the Receivers performing their promise not to take any steps to terminate the Agreement prior to 22 November 2017 ([5(d)].
In its Second Further Amended Rejoinder, the defendant denied it entered into any agreement to extend the date for satisfaction of the Finance Condition ([1C(c)]).
In the plaintiffs' written opening submissions, the plaintiffs' described the key issue for determination as whether the notice of termination of 22 November 2017 was properly issued.[12] This key issue was said to give rise to a number of questions including whether the plaintiffs and defendant agreed to 'extend the date for satisfaction of the Finance Condition to 22 November 2017'.[13] The plaintiffs addressed the question of the Agreement at [39] ‑ [60], and the defendant's defences at [61] ‑ [107]. Relevantly, in their written submissions, the plaintiffs refer again to 'an agreement to extend the date' ([40]). The written submissions subsequently describe the setting of the deadline for satisfaction of the Finance Condition as 'a compromise' ([53]) between the parties' respective positions before again stating that the parties agreed to 'extend the date' for satisfaction of the Finance Condition ([60]).
[12] Plaintiffs' opening submissions [3].
[13] Plaintiffs' opening submissions [4(a)].
In responding to the defences raised by the defendant, the plaintiffs first addressed the 'variation' ([65]) by referring to the relevant authorities that a contract can be varied by oral or implied agreement ([64]). In relation to the question as to whether valuable consideration was provided, the plaintiffs relied on forbearance from exercising a legal right as constituting valuable consideration ([71]). After asserting MSI's construction of cl 2.5 was wrong, the submissions state at [74] that:
The point is that the parties were in dispute about the proper construction of clause 2.5. Even if MSI's construction were to be favoured, MSI received valuable consideration by securing a practical benefit.
The submissions went on to state that even if the Receivers were wrong about the date of exchange of the Agreement, forbearance from terminating the Agreement was valid consideration to support an agreement to vary the contract ([75]).

In addressing the deadline as to when a notice of termination could be given, the plaintiffs again referred to an agreement to extend the deadline for satisfaction of the Finance Condition ([108]).
In its opening submissions, the defendant described the issue for determination as being whether there was an agreement 'to extend the date for satisfaction of the Finance Condition to 22 November 2017' and, if so, what were the terms of the agreement and whether it was enforceable ([12]). In addressing this issue at [45] ‑ [74], the defendant commenced by emphasising the plaintiffs' pleaded case was that it was an agreement to extend the date. The defendant drew attention to the terms of the offer made by Mr Tucker which was not to extend the date for satisfaction of the Finance Condition but to forbear from terminating the Agreement until 5:00 pm on 22 November.
The defendant's submissions then addressed the reasons the defendant submitted that any agreement was not enforceable. In addressing these matters, the defendant referred to:
(a)the right to terminate arising by way of a separate agreement which modified the Agreement by changing the date for satisfaction of the Finance Condition ([54]);
(b)any agreement with respect to acceleration of the deadline for compliance with the Finance Condition must take account of all communications between the parties [66];
(c)the possibility that the effect of the parties' communications was to bring forward the time for satisfaction of the Finance Condition ([67]);
(d)the only possible consideration for an agreement to accelerate the date for compliance would be a promise to forbear from exercising an accrued right of termination ([68]);
(e)the characterisation of the agreement in the reply as a variation agreement ([70]); and
(f)the alternative allegations that the alleged agreement was to extend the period or that any such agreement would have abridged the period for satisfaction of the Finance Condition ([71]).
The written submissions filed by the parties are consistent with the manner in which each senior counsel opened at trial. Senior counsel for the plaintiffs, after addressing the plaintiffs' primary contention that the Agreement was exchanged on 1 November 2017, addressed the position if 1 November 2017 was not the effective date. Senior counsel submitted that:[14]
Now if 1 November 2017 is not the effective date, then the question arises as to whether the receivers and MSI agreed to modify that date for the satisfaction of the finance condition to 22 November 2017. The plaintiffs identify documentary evidence that is indisputable. It is documentary evidence that culminates in an exchange between Mr Milbourne and Mr Tucker that evidence the agreement to extend the date for the satisfaction of the finance condition to 22 November. [emphasis added]
[14] ts 321.
Following the opening address of senior counsel for the plaintiffs, in accordance with the orders made on 13 November 2020, senior counsel for the defendant opened the defendant's case. In the course of his opening address, senior counsel had the following exchange with the court:[15]
[15] ts 393 ‑ 394.
HOWARD, MR: Now, look there's – it's probably not much in the difference perhaps when one really comes down to it but if we're right on issue 1 then, the plea at 14 of the statement of claim and reply 5(c) would fall away because the date for satisfaction of the finance clause or finance condition would have been 24 November and so it wouldn't make any sense for there to be – couldn't be an agreement to extend the date for satisfaction.
HILL J: Yes.
HOWARD, MR: That would - - -
HILL J: That it's important that they're pleaded that it's an agreement to extend and not to vary.
HOWARD, MR: Well, and we assume that's what they meant, but 5(d) would be, well, there was – and, again, it turns on what your Honour finds in relation to issue 1 - - -
HILL J: Yes.
HOWARD, MR:
But a forbearance to exercise a contractual right to terminate can constitute valid consideration.
Well, there must be a contractual right to terminate.
Following the opening addresses, the parties dealt with a number of preliminary matters, including objections to evidence. In the course of these matters, the parties were again reminded that this court is a court of pleadings and the matter would be decided on the pleadings.[16] This exchange occurred in relation to the question of whether Mr Tucker had agreed to give Mr Milbourne 24 hours' notice of any decision to terminate the Agreement.
[16] ts 452.
During the cross‑examination of Mr Milbourne, senior counsel for the plaintiffs asked Mr Milbourne a series of questions concerning [5A] of the Fourth Further Amended Reply. After an objection was taken to a question, Mr Milbourne was asked to withdraw and the following exchange occurred:
HILL J: … Mr Dharmananda, look, I think one of the issues – and that's why I just didn't want to have this discussion in front of the witness – but it's a question as to whether the agreement is to extend or vary.
DHARMANANDA, MR: And that's what I was going to get to, your Honour.
HILL J: Yes.
DHARMANANDA, MR: If that's what he was directing attention to, so be it, but in order to get there, I've got to ask him what he means by it.
HOWARD, MR: Well, there's no plea of variation.
HILL J: No, no. I appreciate it's not a pleaded case. Well, it's not the plea …
HOWARD, MR: Well, the plea in the statement of claim is not a variation. It's about extension, and so everything that follows from that, which flows through, and - - -
HILL J: But I think, then, it is – Mr Dharmananda is saying, you know, are you denying there's a decision or an entry into an agreement, or is it to extend the date of satisfaction? I think he's trying to clarify which of those bits are being denied. Now, if it's the third bit, then I think – which is about the extension – I think that's the aspect that needs to be clarified.
HOWARD, MR: Well, as long as it's understood there is no plea that there's a variation.
DHARMANANDA, MR: Well, we will have a debate about that, your Honour, because we've – to plead an extension is to plea the variation - - -
HOWARD, MR: Well, it's not.
DHARMANANDA, MR: - - - self-evidently, and we use the language of variation - - -
HOWARD, MR: No, it's not.
HILL J: Well, I - - -
DHARMANANDA, MR: - - - in the instrument. It's a pleading dispute, your Honour.
After Mr Milbourne was recalled to the witness box, senior counsel for the plaintiffs sought clarification about the defendant's response to this aspect of the plaintiffs' pleaded case. Mr Milbourne's evidence was that:
Is it the case that your pleading rests on the assumption that you did not extend the date for the satisfaction of the finance condition because on your case, it was made shorter?---Well, my understanding on the date when I made that email was the contract had been exchanged on the 10th, and the soonest that there would be any right to terminate, regardless of finance, would have been the 25th. That was my position. So when I wrote this, or when I instructed this – this was with respect to the finance condition, not termination, but the finance condition – that that was certainly not an extension, because an extension could only come in effect if the contract had come into effect on the 1st. So, on the 10th, this was a reduction.
So it was a shortening?---Correct.
Do you say that you did not agree to shorten the relevant period on your case?---I agreed that I was giving notice to Mr Tucker that the period for binding finance would be effectively 12 days.
So it had to be satisfied by 22 November?---I agreed to that date.
Thank you. Now, Mr Milbourne - - -?---But again – excuse me. When I agreed to that date, it was subject to notice, in my mind.
At the conclusion of evidence, both parties filed written closing submissions and addressed the court in oral closing submissions.
In the plaintiffs' closing submissions, the plaintiffs sought to recharacterise the issue for determination in respect of this agreement as being whether the parties agreed to 'modify, vary, or extend the date for satisfaction of the Finance Condition to 22 November 2017'.[17] The plaintiffs, after referring to [14] of the statement of claim, submitted at [67] that:
[t]he plea uses the language of variation being 'the Sellers and MSI agreed', which is echoed in the Reply which uses the phrase 'agreement to extend the date for satisfaction of the Finance Condition to 22 November 2017'. MSI raises issues of lack of consideration and invokes the variation only in writing clause in response.
[17] Plaintiffs' closing submissions [10(b)].
The written submissions referred to the importance of the date for satisfaction of the Finance Condition ([68]) and quoted Mr Milbourne's evidence that he agreed to shorten the period for binding finance to 12 days to be satisfied by 22 November ([69]). The submissions subsequently referred to the agreement to 'modify' the date ([76]).
In addressing the issue of election, the plaintiffs returned to the language of 'extension' by referring to the 'extended date' for the Finance Condition Precedent ([166]) and extension to the date for the Finance Condition ([201]).
In its closing submissions, the defendant also recharacterised this issue and described it as whether 'there was an enforceable agreement in writing, by force of which the Plaintiffs gained the right to terminate under clause 2.5(a) at any time after 5:00 pm AWST on 22 November 2017'.[18] In its submissions addressing this issue, the defendant commenced by emphasising that the statement of claim pleaded an extension of the relevant date.[19]
[18] Defendant's closing submissions [4(b)].
[19] Defendant's closing submissions [52], [55].
After discussing the pleadings, the defendant contended the pleaded 'agreement in writing to extend' was potentially confusing unless three separate concepts were distinguished, namely:
(a)an extension of time for performance of a contractual obligation, which does not constitute a variation of the contract;[20]
(b)an agreement to vary an undisputed and unexpired time stipulation in a contract;[21] and
(c)an agreement to settle a dispute over the interpretation of a time stipulation in the contract by agreeing a mutually accepted interpretation. In this case, two possibilities arose. First, the party claiming the date had passed may give up the claim and agree to a mutually acceptable date in the future. Second, the party claiming the date had passed may hold to this claim but agree to forbear exercising its asserted right to terminate for a finite period. In both cases, a new contract arises.[22]
[20] Defendant's closing submissions [58(a)].
[21] Defendant's closing submissions [58(b)].
[22] Defendant's closing submissions [58(c)].
The defendant then expressed the view that the applicable position was the third of these alternatives which was reflected in the alternative pleadings in the reply.[23] The defendant then addressed in detail both of the possible options.[24]
[23] Defendant's closing submissions [59].
[24] Defendant's closing submissions [70] - [87].
A similar approach was taken by senior counsel for both parties in their oral closing submissions. Specifically, senior counsel for the defendant, in discussing who bore the onus of proof, referred to the '18 November agreement in the terms contended for by the plaintiffs'.[25] Senior counsel then accepted that the plaintiffs' case on the 18 November agreement was put in 'potentially two different ways'. The first was an extension of time and the second as a compromise.[26] However, in oral submissions, senior counsel emphasised that 'it's not pleaded that there's a variation of the contract'.[27]
[25] ts 672.
[26] ts 679.
[27] ts 679.
Senior counsel for the plaintiffs addressed what he described as 'a pleading point of sorts' at the outset of his submissions on this issue. Senior counsel acknowledged that MSI contended there was no plea of variation, which the plaintiffs disputed,[28] and then submitted:[29]
the central material fact is the identification of the other agreement. That's how variation works, in the sense that there is identified a further contract. And the pleading in the statement of claim identifies that other agreement. That's the material fact that's identified. As to the legal conclusion with respect to extend, that's consistent with the case the plaintiffs are running. But that's the legal conclusion, not the material fact. And in those circumstances, your Honour, we say that there's nothing in that – the pleading, the pure pleading point.
Now, the effect of the further agreement on the plaintiff's case is to extend the deadline for the satisfaction of the finance condition, either by reason of proper construction of clause 2.5(a) or on the basis of the conventional estoppel. But in both instances, the critical concept is agreement, and an agreement to extend is as much a variation as an agreement to shorten. It's the effect as described by reference to the plaintiff's case that our learned friends are raising issues about.
But in our submission on a fair and proper reading of it, our learned friends have engaged with the argument on the basis that it's not merely waiver. It is, indeed, an agreement to raise a variation. They still contend that on our case, we will not be able to establish consideration that's required, but the pure pleading point we say, your Honour, does not arise.
Now, and that of course explains something else, your Honour, which is they have put as fairly and as well as they can all of the arguments relevant to the plea of the variation on 18 November. They've run the point about termination consideration and then they've raised five other points about it, including the form point.
[28] ts 716.
[29] ts 717.

Disposition

For the following reasons, on balance, I accept that during the course of the trial, while not ignoring the pleadings, both parties accepted that the issue for determination was not limited to whether the alleged agreement extended the time for satisfaction of the Finance Condition but was whether there was an agreement between the parties to fix the time for satisfaction of the Finance Condition at close of business on 22 November 2017.
First, as set out above, while in opening submissions, the focus of both parties was on whether there was an agreement to extend time, there was a significant shift in how both parties described the issue for determination between their opening submissions and their closing submissions. However, even in the defendant's submissions, the defendant addressed the possibility the pleaded agreement shortened the relevant obligation and then addressed why it was contended this claim should not be accepted. The change in emphasis was not limited to senior counsel for the plaintiffs; similar terminology was adopted by the defendant in both its oral and written closing submissions.
Second, in closing submissions, senior counsel for the plaintiffs contended the defendant had addressed all arguments which were relevant to a plea of variation. No objection was taken by senior counsel for the defendant that this submission did not represent the defendant's view or was inaccurate.
Third, the questions of whether there was consideration for any alleged agreement and whether any alleged agreement was required to be in writing, as required by cl 2.6 of the Agreement, are only relevant if the issue to be determined by the court is whether there was an agreement between the parties to vary the date in the Agreement. If the issue was limited to the question of whether there had been an extension of time for the performance of a contractual obligation, this would not constitute a variation of the Agreement and these issues would be irrelevant.
Having disregarded the pleadings and answering or joining issue on the plaintiffs' expanded case, the defendant cannot now insist that the application to amend the pleadings should be refused. While I accept that the defendant contended during the course of the hearing that the plaintiffs' pleaded case was limited to an extension of time and not a variation of the Agreement, this position is not reflected in the defendant's closing submissions. In my view, the defendant having answered the plaintiffs' case on variation, agreed or, at a minimum, acquiesced to the expansion of the issues. As explained by the Court of Appeal in Gunn v Meiners, where this has occurred, an appropriate amendment should be made to the pleadings so that the expanded issues form part of the court record.
The question then arises as to whether the court should exercise its discretion to allow the amendment to reflect the manner in which the case was run at trial.

Discretionary factors

In considering whether to allow the amendment, the defendant submits there are three primary grounds on which the court should exercise its discretion to refuse the amendment: delay, including the absence of any evidence that the application is brought in good faith, case management issues (including the importance of the finality of litigation), and irremediable prejudice.

Explanation for delay

The defendant submitted the plaintiffs 'deliberately and consistently' pleaded their case on the basis set out in [14] of the statement of claim and that no explanation had been given as to why the plaintiffs should be entitled, after the delivery of reasons for decision, to resile from this position.[30]
[30] Defendant's submissions [1(a)].
Counsel for the plaintiffs submitted the proposed amendments concerned the legal characterisation of the documents said to comprise the agreement and the conclusions that follow from this evidence. For this reason, the plaintiffs submitted it was not necessary for them to file any affidavit in support of the application. This position was consistent with the approach that had been taken in other similar cases.[31]
[31] See, for example, Genocanna Nominees Pty Ltd v Thirsty Point Pty Ltd [No 2].
The plaintiffs contended the explanation was 'evident from the transcripts', namely that the plaintiffs believed they were running a variation case. They denied a forensic decision was made not to raise a variation case, from which they were seeking to resile.
I accept that the plaintiffs' application has been brought at a very late stage of proceedings when the Primary Reasons have been delivered and that the application has been brought as a consequence of these reasons. However, as set out above, I accept that over the course of the trial, the plaintiffs made it plain that they were contending the amendment to the date by which the Finance Condition was required to be satisfied was an extension, variation or modification of the Agreement. I also accept that, during the course of the trial, I made it clear to the parties that the dispute would be determined on the pleaded issues and that at no stage did the plaintiffs seek leave to amend their statement of claim. However, these comments, of themselves, do not mean the plaintiffs should be prevented from making an application or that the court should conclude the application is not made in good faith.
While I accept that these are factors that should be weighed in the balance in the decision whether or not to allow the amendment, I consider the possible consequences of any amendment, including whether it will lead to an application to re-open and the requirement to devote additional resources to the matter, and the extent of any prejudice suffered by the proposed amendment, are more significant factors in any decision on a late application for amendment of the pleadings.

Case management considerations

I accept the submission of senior counsel for the defendant that the public interest in finally disposing of all matters in dispute between the parties is a relevant consideration in considering whether or not to exercise the discretion to allow the amendment.

The plaintiffs say the application does not offend this principle because the proposed amendments will not impact the orders to be made by the court, require a re-opening of the case, or for any further evidence to be adduced.
In this case, I consider it material that if the amendment is allowed, it will not change my conclusion on this aspect of the plaintiffs' claim nor will there be any need to re-open the case or adduce any additional evidence. On this basis, I accept that a successful application to amend the statement of claim will not offend the principle of the finality of litigation. In my view, the proposed amendment can be addressed by the evidence that has already been given and within the reasons that have been delivered, save for one matter.
In dismissing the plaintiffs' claim on this aspect, I identified two primary difficulties with the claim that had been advanced. The first was the issue raised by the failure to plead a variation (which is sought to be addressed by this application) and the second was the absence of any evidence that the Company had agreed to any variation of the Agreement. This second matter is not addressed by the proposed amendment. On this basis, granting the plaintiffs' application will not alter the court's ultimate conclusion or cause the plaintiffs, as unsuccessful parties, to be given the opportunity to renew their case on an entirely different ground.
Neither the plaintiffs nor the defendant contended that there would be any application to re-open their case or a requirement to hear further evidence if the amendment is allowed. In my view, this is a material consideration. Any application for an amendment to pleadings which is brought with the benefit of hindsight and necessitates additional resources to be committed to the case would, in my view, be unlikely to succeed.
In this case, the proposed amendment to the pleadings:
(a)apart from the hearing and determination of this application, will not have any further effect on the court or the defendant;
(b)will not cause any further delay to the finalisation of the proceedings; and
(c)will, in my view for the reasons set out above, reflect the manner in which both parties addressed the issue at trial.
On this basis, I consider that allowing the amendment would not be contrary to the finality principle or appropriate case flow management principles.

Irremediable prejudice

The plaintiffs submitted that because the proposed amendment concerned the characterisation of documents tendered at trial and the legal conclusions that flow from this evidence, the defendant would not suffer any irremediable prejudice if the amendment were allowed. In contrast, it was submitted the plaintiffs would suffer prejudice if the application were dismissed as it would prevent them from raising on any appeal an issue that was 'properly joined at trial'.[32]
[32] Plaintiffs' submissions [41].
The plaintiffs accept they bear the burden of persuading the court the amendment will not cause irremediable prejudice to the defendant.[33] However, there is an evidential onus on the defendant, who opposes the amendment, including on the basis of prejudice to adduce evidence in relation to prejudice, where that prejudice is in the hands of that party.[34]
[33] Plaintiffs' submissions [38].
[34] May v Thomas [2008] WASCA 215 [34].
In this case, the defendant's evidence of prejudice refers to three matters: costs, the abandonment of any reliance on cl 2.2 of the Agreement, and issues concerning Mr Tucker's credibility.
In opposing the application, the defendant filed an affidavit of its solicitor, Mr Russell. The defendant says that it will suffer irremediable prejudice if the application is granted. Specifically, Mr Russell's evidence is that:
(a)the defendant prepared its case on the basis of the allegation in [14] of the statement of claim, namely that it was alleged there was an agreement to extend the date for satisfaction of the Finance Condition to 22 November 2017;
(b)on the basis of [14] of the statement of claim as it then stood, advice was given to the defendant and ultimately the defendant instructed its solicitors to abandon its defence under cl 2.2 of the Agreement;
(c)Mr Russell is unable to say definitively one way or another whether his advice would have been different if the statement of claim was in the terms now proposed, although he says the state of the pleadings was a matter he took into account and his advice may have been different; and
(d)unless the defendant recovers indemnity costs of the application, it will suffer prejudice of incurring the unrecovered costs of this application.
In his affidavit, Mr Russell gave evidence about the circumstances that surrounded the abandonment of the defence under cl 2.2 of the Agreement. This included that an appeal had been filed against an earlier decision of the court to dismiss the application for a letter of request to be issued to the Supreme Court of Singapore to examine Mr Economou, of Trafigura, and for the production of documents.[35] Mr Russell expressed the opinion that if this application was pressed, and documents sought from Trafigura, this could have delayed the hearing of the proceedings for one to two years.
[35] Mirabela Nickel Ltd (in liq) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [2020] WASC 4.
An additional matter raised by the defendant in submissions was that the contrast between the amendment and previous affidavits filed by Mr Tucker would have raised additional issues about Mr Tucker's credibility.
The plaintiffs say the defendant has not discharged its evidentiary onus in relation to prejudice because it has not explained how it would have conducted the trial any differently if the proposed amendment had been made at an earlier stage. In relation to its contention that the defendant would not have deleted its pleading concerning the alleged breach by the plaintiffs of cl 2.2 of the Agreement, the plaintiffs note that this matter has been raised by the defendant in its claim in the Federal Court.[36]
[36] As summarised in Mirabela Nickel Ltd (in liq) (Receivers and Managers Appointed) v Mining Standards International Pty Ltd [No 6] [2023] WASC 125 [7(d)].
In my view, the primary consideration in determining whether the plaintiffs should be permitted to amend their statement of claim at this late stage is procedural fairness and whether the defendant will suffer irremediable prejudice if the amendment is allowed. I accept that if the amendment raises an issue that was properly joined at trial and which was the subject of evidence and submissions by both parties, the defendant will not be unfairly prejudiced by the plaintiffs being permitted to amend their pleading to reflect this position.
In my view, for the following reasons, none of the matters raised by the defendant are sufficient to establish that the defendant will suffer irremediable prejudice if the amendment is allowed.
First, in relation to costs, any prejudice the defendant may suffer may be remedied by an appropriate costs order. In this regard, I note that there is no evidence as to the amount of costs the defendant has incurred in relation to this application.
Second, in relation to the abandonment of any reliance on cl 2.2 of the Agreement, Mr Russell's evidence is not that his advice would have been any different or that the defendant would have taken any different steps in the event the amendment had been made at that stage. He does not contend that the defendant would wish to reintroduce this allegation if the amendment was allowed, the defendant would have approached the trial differently or adduced any different or additional evidence, or that it would necessitate the re-opening of the trial.
Third, as set out in his evidence, while the status of the pleadings was a matter that he considered in giving his evidence, it is clear from the history of the matter that this was not the only consideration he took into account. At that stage, if the reliance on cl 2.2 of the Agreement had been maintained, it was likely there would be significant delays associated with the proceedings, both in disposing of the appeal and in any subsequent application to obtain these documents. In addition, Mr Russell considered the defendant's case on the primary issue in these proceedings, namely that the plaintiffs had prematurely terminated the Agreement, was strong. In my view, given these matters, the status of the pleadings was unlikely to have been the major consideration in deciding whether or not to maintain this defence.
Fourth, the defendant has brought a claim in the Federal Court of Australia which includes a claim in reliance of cl 2.2 of the Agreement. That is, the defendant is pursuing its claim based on this clause. There is no evidence of any prejudice the defendant may have suffered from the deletion of this claim from these proceedings.
Finally, Mr Tucker did not give evidence at the hearing. On this basis, it is not clear how the amendment could give rise to any new issue concerning Mr Tucker's credibility. No findings were made as to Mr Tucker's credibility as he was not called as a witness at trial.

Conclusion and orders

For the reasons set out above, on balance, I am satisfied that the amendments the plaintiffs seek reflects the manner in which the parties addressed the issue at trial. In these circumstances, notwithstanding the significant delay in making this application, I am satisfied that it would be appropriate to grant leave to the plaintiffs to amend their statement of claim.
Prior to the hearing, the defendant objected to the form of the proposed amendment and the plaintiffs subsequently filed further amended proposed pleadings. At the hearing, the defendant did not address whether these proposed amendments addressed the concerns they raised as to form. Before making any formal orders, I will hear from the defendant whether there are any remaining objections to the form of the amendments and from the parties as to the costs of the application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JN
Associate to the Honourable Justice Hill
19 MAY 2023