Oceltip Pty Ltd v Noble Resources Pte Ltd - [2018] QSC 317

SUPREME COURT OF QUEENSLAND

CITATION:

Oceltip Pty Ltd v Noble Resources Pte Ltd & Ors [2018] QSC 317

PARTIES:

Applicant:  OCELTIP PTY LTD ACN 124 757 197

AND

First Respondent:  NOBLE RESOURCES PTE LTD (NOW KNOWN AS COFCO INTERNATIONAL SINAPORE PTE LTD)

AND

Second Respondent:               MIDDLEMOUNT COAL PTY LTD ACN 122 348 412

AND

Third Respondent:                   RIBFIELD PTY LTD ACN 080 772 283

AND

Fourth Respondent:                 GLOUCESTER (SPV) PTY LTD ACN 145 498 380

FILE NO/S:

SC No BS3899/15

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

14 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

14 September 2018

JUDGE:

Bond J

HIS HONOUR: This case concerns the conduct of the first respondent (“Noble”) in dealing with a marketing royalty payable pursuant to a “Restated Noble Royalty Deed”, in relation to the Middlemount Mine, near Emerald. The plaintiff (“Oceltip”) and Noble, and other entities, were parties to the Restated Noble Royalty Deed. By the terms of that deed, Oceltip was granted a valuable pre-emptive right over a particular marketing royalty. The marketing royalty is a reference to royalty payable in relation to the activities in the mine.
The combination of clauses in the Restated Noble Royalty Deed were significant, and they may be briefly, and at a high statement of generality, described as operating in this way:
(a)they prohibited Noble from assigning, or otherwise dealing with the marketing royalty without obtaining Oceltip’s written consent;
(b)they obliged Noble if it wanted to assign the marketing royalty, to give notice to Oceltip, which would permit it to exercise the pre-emptive right in relation to the marketing royalty within a specified time period;
(c)they permitted Noble to assign to a related body corporate, without complying with those constraints, provided the related body corporate entered into an agreement with Oceltip, which gave Oceltip the pre-emptive right in the event the assignee ceased being a related body corporate; and
(d)they provided constraints on waiver rights.
Oceltip had two directors at material times. At some time prior to 13 July 2010, Noble approached Mr Tinkler, one of the two directors of Oceltip, to obtain a waiver by Oceltip of its pre-emptive right. Ultimately, Noble obtained a waiver deed, signed by Mr Tinkler on behalf of Oceltip. However, communications that occurred between the time of first approach and the time they obtained the deed, reveal that Noble initially sought to obtain – as one might well imagine – the deed signed by both the directors of Oceltip.
Oceltip’s case is that the waiver deed was signed without the knowledge or consent of its other director, Mr Higgins. There is a great deal of complexity in the issues that arise in the case. However, for present purposes, it is only necessary to deal with one aspect of that complexity. Relevant to the case is Noble’s argument that Oceltip is estopped from contending that the waiver deed was not binding on Oceltip, and was not on the proper construction of the Restated Noble Royalty Deed, writing signed by Oceltip. So relevantly…

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.

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Details

Case: [2018] QSC 317
Decision Date: 14 September 2018

CaseChat Overview and Summary

This case concerns a dispute between Oceltip Pty Ltd and Noble Resources Pte Ltd and others over a marketing royalty payable in relation to the Middlemount Mine. The case involves complex issues, but the primary issue before the Supreme Court of Queensland was whether Oceltip is estopped from contending that a waiver deed was not binding on it. Noble argues that Oceltip is estopped from contesting the validity of the waiver deed as it had represented to Noble that the waiver deed was validly executed and binding upon Oceltip. Noble claims that Oceltip knew or ought to have known that the waiver deed was invalid, but failed to assert this, leading Noble to assume that Oceltip had validly waived its rights. The court considered whether there had been an implied waiver of privilege by Noble concerning communications between it and its legal advisors. Oceltip argued that Noble had impliedly waived privilege by pleading its state of mind, which was likely influenced by confidential communications with its legal advisors. The court found that Noble had impliedly waived privilege over communications relevant to its state of mind, and ordered Noble to disclose these communications. The court also made orders concerning costs, noting that Oceltip was entitled to costs for the successful application regarding the waiver of privilege, while the costs of the unsuccessful application for disclosure of financial statements and income tax returns were to be borne by the parties themselves.

Orders