Montague Mining Pty Ltd v Gore - [1999] FCA 1804

FEDERAL COURT OF AUSTRALIA
Montague Mining Pty Ltd v Gore [1999] FCA 1804
PRACTICE AND PROCEDURE – Variation of orders announced but not formally entered – Assessment of damages involved an incorrect assumption concerning saleability of shares – Merely mechanical correction required – Whether correction ought to be made – Costs – Offer made by respondents prior to hearing on liability, acceptance of which would have given applicant a better financial outcome than in the result – Offer not subsequently renewed despite finding on applicant’s favour on liability – Respondents took position that applicant had sustained no damage and declined to negotiate – Costs order in applicant’s favour limited to costs incurred before refusal of offer - No costs order in favour of respondents.
MONTAGUE MINING PTY LIMITED v PETER L GORE, MICHAEL J MORROW, GEOFFREY N HARLEY, JEREMY C CHARLSTON, PAUL H CORBIERE, MICHAEL O KLUG, JOHN D ELLIOTT, DAVID G COMINOS, ROSS G PERRETT, DARRYL D MCDONOUGH, TIMOTHY D FERRIER, CHRISTOPHER T COYNE, ROGER I BURNELL, RANDAL J DENNINGS, ALAN H MAGUIRE, ARCHIBALD FLETCHER, LLOYD S NASH, BRIAN C NOBLE, SIMON W LAND, DALE S BRACKIN, PAUL C CALLAGHAN, SALLY A PITKIN, BRIAN J CONRICK, KAREN M TRAINER, RUTH A COPELIN, ROGER V BYRNE, MARK W WALLER, JOHN D POWELL, ANDREW W SMITH, JENNIFER A MCVEIGH, ANNE MILNER and DARREN B FOOKS trading as CLAYTON UTZ and SPINIFEX GOLD NL
NG563 of 1997
WILCOX J
SYDNEY
22 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG563 of 1997

BETWEEN:

MONTAGUE MINING PTY LIMITED
Applicant

AND:

PETER L GORE, MICHAEL J MORROW, GEOFFREY N HARLEY, JEREMY C CHARLSTON, PAUL H CORBIERE, MICHAEL O KLUG, JOHN D ELLIOTT, DAVID G COMINOS, ROSS G PERRETT, DARRYL D MCDONOUGH, TIMOTHY D FERRIER, CHRISTOPHER T COYNE, ROGER I BURNELL, RANDAL J DENNINGS, ALAN H MAGUIRE, ARCHIBALD FLETCHER, LLOYD S NASH, BRIAN C NOBLE, SIMON W LAND, DALE S BRACKIN, PAUL C CALLAGHAN, SALLY A PITKIN, BRIAN J CONRICK, KAREN M TRAINER, RUTH A COPELIN, ROGER V BYRNE, MARK W WALLER, JOHN D POWELL, ANDREW W SMITH, JENNIFER A MCVEIGH, ANNE MILNER and DARREN B FOOKS trading as CLAYTON UTZ
First Respondents

SPINIFEX GOLD NL
Second Respondent

JUDGE:

WILCOX J

DATE OF ORDER:

22 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Order 1 made on 5 November 1999 be amended by substituting for the words and figures “five hundred and sixty one thousand four hundred and sixty dollars ($561,460)” the words and figures “six hundred and sixteen thousand two hundred dollars ($616,200)”; and
2.Order 2 made on 5 November 1995 be amended by deleting all the words following the word “applicant” and substituting the words “incurred up to and including 20 August 1998”.
3.The suspension of orders 1 and 2 made on 5 November 1999 be vacated.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG563 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Montague Mining Pty Ltd v Gore

Details

AGLC: Montague Mining Pty Ltd v Gore [1999] FCA 1804
Case: [1999] FCA 1804
Decision Date: 22 DECEMBER 1999

CaseChat Overview and Summary

Montague Mining Pty Ltd was the plaintiff and Gore was the defendant in this case. The dispute centred around the variation of orders announced but not formally entered, and the assessment of damages, which included an incorrect assumption concerning the saleability of shares. The case was heard in the Supreme Court of Western Australia. The primary legal issue was whether the court should correct an error in the assessment of damages, which involved an incorrect assumption about the saleability of shares, and if so, how to approach the matter concerning costs. The plaintiff sought a variation of the orders to correct the damages amount and argued that the respondents had refused to negotiate after an offer that would have resulted in a better financial outcome for the plaintiff.

The court found that the error in the damages assessment was a mechanical correction and did not require a re-hearing of the case. The court concluded that the correction should be made to accurately reflect the damages owed. Regarding the costs, the court observed that the respondents had made an offer to the plaintiff before the hearing on liability, which, if accepted, would have resulted in a better financial outcome for the plaintiff. Despite finding in the plaintiff’s favour on liability, the respondents did not renew the offer and took the position that the plaintiff had sustained no damage, refusing to negotiate. The court determined that the costs order in favour of the plaintiff should be limited to the costs incurred before the refusal of the offer, and no costs order should be made in favour of the respondents.

In light of the above, the court made orders amending the original orders to correct the damages amount and limit the costs order in favour of the plaintiff. The orders provided that the amount of damages be changed from $561,460 to $616,200 and that the costs incurred by the plaintiff up until 20 August 1998 be compensated. The court’s decision effectively rectified the error in the damages assessment and limited the costs order to reflect the circumstances of the case.

Orders

Orders of the court

1. Order 1 made on 5 November 1999 be amended by substituting for the words and figures “five hundred and sixty one thousand four hundred and sixty dollars ($561,460)” the words and figures “six hundred and sixteen thousand two hundred dollars ($616,200)”; and

2. Order 2 made on 5 November 1995 be amended by deleting all the words following the word “applicant” and substituting the words “incurred up to and including 20 August 1998”.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG563 of 1997

BETWEEN:	MONTAGUE MINING PTY LIMITED Applicant
AND:	PETER L GORE, MICHAEL J MORROW, GEOFFREY N HARLEY, JEREMY C CHARLSTON, PAUL H CORBIERE, MICHAEL O KLUG, JOHN D ELLIOTT, DAVID G COMINOS, ROSS G PERRETT, DARRYL D MCDONOUGH, TIMOTHY D FERRIER, CHRISTOPHER T COYNE, ROGER I BURNELL, RANDAL J DENNINGS, ALAN H MAGUIRE, ARCHIBALD FLETCHER, LLOYD S NASH, BRIAN C NOBLE, SIMON W LAND, DALE S BRACKIN, PAUL C CALLAGHAN, SALLY A PITKIN, BRIAN J CONRICK, KAREN M TRAINER, RUTH A COPELIN, ROGER V BYRNE, MARK W WALLER, JOHN D POWELL, ANDREW W SMITH, JENNIFER A MCVEIGH, ANNE MILNER and DARREN B FOOKS trading as CLAYTON UTZ First Respondents SPINIFEX GOLD NL Second Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	22 DECEMBER 1999
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG563 of…