Norilsk Nickel Cawse Pty Ltd v Wingstar Investments Pty Ltd
[2017] WADC 94
•27 JULY 2017
NORILSK NICKEL CAWSE PTY LTD -v- WINGSTAR INVESTMENTS PTY LTD [2017] WADC 94
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 94 | |
| Case No: | CIV:2579/2016 | 30 NOVEMBER 2016, 15 FEBRUARY 2017, 13 MARCH 2017, 31 MAY 2017 | |
| Coram: | DEPUTY REGISTRAR HARMAN | 27/07/17 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | NORILSK NICKEL CAWSE PTY LTD NORILSK NICKEL AVALON PTY LTD WINGSTAR INVESTMENTS PTY LTD ROBERT CHARLES GARDNER |
Catchwords: | Practice WA Practice under the Rules of the Supreme Court of Western Australia 1971 (WA) Application of plaintiffs for summary judgment Application for leave to apply Onus on applicants |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First plaintiff
NORILSK NICKEL AVALON PTY LTD
Second plaintiff
AND
WINGSTAR INVESTMENTS PTY LTD
First defendant
ROBERT CHARLES GARDNER
Second defendant
Catchwords:
Practice - WA - Practice under the Rules of the Supreme Court of Western Australia 1971 (WA) - Application of plaintiffs for summary judgment - Application for leave to apply - Onus on applicants
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
First plaintiff : Dr P A Saraceni
Second plaintiff : Dr P A Saraceni
First defendant : Mr P B Dobson
Second defendant : Mr P B Dobson
Solicitors:
First plaintiff : Clifford Chance
Second plaintiff : Clifford Chance
First defendant : Hotchkin Hanly
Second defendant : Hotchkin Hanly
Case(s) referred to in judgment(s):
Nil
1 DEPUTY REGISTRAR HARMAN: The second defendant guaranteed performance by the first defendant of obligations under agreements for its purchase of each of the plaintiffs' mining assets.
2 With reference to the agreement between the first plaintiff and the defendants (ASA) the plaintiffs allege:
9. Closing of the transaction comprising the ASA occurred on 17 December 2014.
10. In breach of the ASA, since closing, despite demand from the first plaintiff … the first and second defendants have failed or refused to:
(a) …
(b) …
(c) …
(d) complete the transfer the relevant statutory licence, (sic) being Pipeline Licence No. 37 (PL 37),to the first defendant as soon as possible after Completion, in breach of clauses 11.2 and 11.4 of the ASA, in circumstances where PL 37 remains in the name of the first plaintiff and the first plaintiff has incurred, and continues to incur, loss, damages and expenses in relation to compliance with the conditions attaching to PL 37;
Particulars
See the letter from the Government of Western Australia, Department of Mines and Petroleum addressed to Global Exploration and Tenement Services of (sic) behalf of the first defendant dated 4 April 2016 and the letter from the Government of Western Australia, Department of Mines and Petroleum addressed to Norilsk Nickel Australia dated 12 July 2016. Further particulars will be provided after discovery.
(e) …
(f) indemnify the first plaintiff for losses that it has incurred and continues to incur arising from the first defendant's breach of clauses 10.3 and 14.5 of the ASA, in breach of clause 14.7 of the ASA; Further particulars of loss and damage will be provided; and
(g) indemnify the first plaintiff for losses that it has incurred and continues to incur arising from the first defendant's breach of clause 11 of the ASA, in breach of clause 11.5 of the ASA . Further particulars of loss and damage will be provided.
Further particulars will be provided after discovery.
(1) …
(2) A declaration that on the proper construction of clause 11.2 of the ASA, the first defendant is obliged, as soon as possible after Completion to take:
(1) all necessary steps effect the transfer of Pipeline Licence No 37 to the first defendant;
and
(2) to take any other step reasonably required by the first plaintiff which is necessary or desirable to effect the transfer of Pipeline Licence No 37;
(3) A declaration that on the proper construction of clause 11.4 of the ASA, the defendant is obliged, from Completion to:
(1) assume all of the liabilities of the first plaintiff under or in respect of Pipeline Licence No 37;
(2) properly perform the obligations of the first plaintiff under Pipeline Licence No 37;
and
(3) comply with any condition required by any third party in relation to the transfer of Pipeline Licence No 37 to the first defendant;
(4) An order for specific performance of the ASA in that the first defendant effect the transfer of … Pipeline Licence No. 37 to the first defendant.
4 With reference to the agreement between the second plaintiff and the defendants (Avalon ASA) the plaintiffs allege:
13. Closing of the transaction comprising the Avalon ASA occurred on 17 December 2014.
10. In breach of the Avalon ASA, since closing, despite demand from the second plaintiff the first and second defendants have failed and/or refused to:
(a) …
(b) indemnify the second plaintiff for losses that it has incurred and continues to incur arising from the first defendant's breach of clauses 10.3 and 14.5 of the Avalon ASA, in breach of clause 14.7 of the Avalon ASA.
6 Neither defendant has filed a defence.
7 The plaintiffs have applied for summary judgment and for leave to do so. At the conclusion of the third day of the hearing the relief sought was put in the terms of a minute dated 13 March 2017 in different terms to that put in the application. By the minute each plaintiff seeks relief in more limited terms than was the case in either the pleading or the application. It is not clear whether success would bring the action to a conclusion satisfactory to the plaintiffs. By the minute the first plaintiff seeks an order that the first defendant makes a new application to the Department of Mines and Petroleum to transfer Pipeline Licence No 37 and comply with any request of the Department in relation to that application. Each of the plaintiffs seeks liquidated damages of $65,465.25 and an indemnity for money expended as a result of the defendants' breaches of the agreements.
8 Although there was much common ground the application both as filed and as put by the minute were opposed.
9 An application for a grant of leave to apply engages unfettered discretion to permit recourse to the procedure outside the period of time specified in the rule. Commentary suggests that in considering whether to exercise discretion in favour of an applicant the extent of delay in applying, the reasons for delay, the extent of any delay in prosecuting an application and the merits of the substantive application would be determinative. In combination those factors suggest a context in which the applicant had been obliged to apply.
10 Although it is open to consider that there is some rationale for specification of the period of 21 days after the date of appearance within which to apply, in order to determine whether to grant leave it is not necessary to conduct any investigation. It is open to consider that the rule simply provides limited scope for recourse. There is no reason to consider that the test of the question whether to grant leave is any different to that which applies to the substantive application.
11 An applicant for summary judgment carries the onus of persuasion that the case upon which judgement is sought is sufficiently clear to justify that result. An exercise of discretion to award summary judgment is only likely where the statement of claim is sufficient to put a cause of action, each allegation of material fact is established upon satisfactory evidence and the relief sought is appropriate to the case.
12 On the first day of hearing, the plaintiffs submitted that as they had complied with the requirements of the relevant rule, an onus had been engendered in the respondents.
13 In a context where the applicant carries the onus of establishing a clear case, that the application is competent conveys nothing of any consequence.
14 There is no reason to consider that a respondent to a summary judgment application should carry any greater burden than it would do in any other: to ensure that any submission that it cares to make that requires support is supported.
15 Upon the hearing of an application for summary judgment there is no reason to conduct an evaluation of the applicant's case other than for the purpose of considering whether to enter judgment.
16 The plaintiffs relied upon seven affidavits. Two were filed prior to the defendants answering affidavit and five subsequent. To the extent that they would rely upon the content of the five, the plaintiffs would require a grant of leave. Of that content some is responsive but most is late in that it has been filed out of sequence as measured by the standard that the respondent's affidavit would address the case put in the application. The test of admission of responsive evidence of the applicant is that it be amenable to characterisation as being conclusive. The test of leave to rely upon evidence filed late is that to do so would not detract from procedural fairness.
17 In relation to the whole of the content of two of the five affidavits, the plaintiffs contended that a different consideration applies. It was submitted that they had been filed as the result of questioning from the bench as to the financial resources of the first defendant. Questioning the sufficiency of an applicant's case does not generate any special consideration that would justify leave.
18 The determination of an application for leave would draw upon considerations that relate to discrete evidence. To the extent that the evidence for which a grant of leave is required was not identified and dealt with in the course of the hearing, the content of the affidavits is excluded from consideration in the process of determining the applications.
19 Insofar as the first plaintiff seeks specific performance relating to Pipeline Licence No 37, there is no pleading that the licence is within the scope of the agreement or that the first defendant is contractually obliged to transfer the licence to itself. That want of pleading is consistent with the first plaintiff having sought declarations that under cl 11.2 and cl 11.4 of the ASA the first defendant is so obliged.
20 Both in pleading those clauses and in the relevant allegation of breach the word 'Completion' is utilised in a manner that suggests the specification of an event. It is not clear whether the term 'the closing of the transaction' also used in the allegation of breach would either be constituted as that event or have some bearing upon it. The fact that there is no specification of what the term conveys introduces uncertainty to the allegation of breach.
21 That uncertainty is compounded by the fact that in the context established by the relief sought the plea of breach by failure or refusal to act is insufficient. The remedy would only be available where a respondent had refused to act in accordance with an obligation. The plaintiffs have not made that allegation.
22 The plaintiffs provide evidence of Fulmer an officeholder of each plaintiff. He deposes that the first defendant has failed or refused to complete the transfer of Pipeline Licence No 37. He refers to communications with the Department of Mines and Petroleum and the second defendant that are to the effect that an application for transfer of the licence made by the first defendant to the Department had been subject to requisitions.
23 None of the evidence relating to the application and the requisitions was in issue. Indeed the defendant by its director has given similar evidence by reference to communications with the Department and otherwise. It is common ground that subsequent to the plaintiff pleading its case the application then before the Department has been rejected.
24 I took it to be the case that the plaintiffs considered that the lodgement of the new application proposed in the minute was the next logical step in the process of giving effect to the ASA. The defendant contends that the failure of the plaintiff to plead a case that it makes such an application is significant.
25 Regardless the particular terms of the order now sought the pleading does not assert any contractual obligation relating to the pipeline. The plea of breach is insufficient to establish grounds to justify an order for specific performance. On a review of the evidence it is not clear how the relevant plea of breach is justified.
26 I take it to be common ground that the Minister of Mines and Petroleum has a discretionary judgment to exercise on the question whether the licence be transferred. Although the process of seeking approval had been ordered around the requisitions issued by the Department, their fulfilment would not necessarily lead to an exercise of discretion favourable to the applicant defendant. The history of the application for transfer previously made by the defendant indicates that the existence of the ASA would not be determinative.
27 In considering whether to grant the particular relief the court would reflect upon whether it was appropriate to order a party to act in circumstances where there was no certainty that any benefit would be generated for the applicant.
28 Another consideration that would tell against awarding the relief sought is that to order the defendant to apply would be likely to generate ongoing and perhaps a significant degree of supervision by the court. Cause to so reflect arises from the terms of the requisitions that issued in in the context of the application that was rejected.
29 The only adverse consequence for the first plaintiff if that part of the application fails is that it would continue to be responsible for costs associated with the pipeline. The defendant has given evidence that the pipeline is not in use. It has given evidence of its intention to decommission the pipeline. Be that as it may, based on the pleading there is a prospect that the plaintiff has the benefit of a contractual indemnity.
30 It is for the plaintiffs to satisfy the court that it is an appropriate time for the court to engage in the process of awarding a discretionary remedy. In my opinion trial would be a more appropriate forum to reflect upon the appropriate course to take.
31 To the extent that the plaintiffs sought unliquidated damages they plead that they 'have suffered loss, damage and expense' and that particulars would be provided however none emerged in the context of the application.
32 To the extent that the plaintiffs now seek liquidated damages of $65,465.25 there is no pleading to support the claim. I take from their unsupported submissions that one or other of them has paid each particular third party invoice and that the total of such payments would found the claim. It follows that if consideration was given to awarding the particular relief the result would not be of the unapportioned sum.
33 As for the prayer that the plaintiffs be indemnified for money expended as the result of the defendants breaches of the agreement, as I have just noted there is no pleaded case to identify any particular item of expenditure by reference to either plaintiff. To the extent that the relief sought amounts to specific performance there is no plea of any refusal to indemnify. There is no pleading that recovery of damages for loss would not recompense the plaintiffs for their expenditure.
34 The test of the application for a grant of leave is that the case in the application would appeal as one which carries with it the prospect of success because of its clarity. The application does not come within that scope.
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