Legal Research
Cases
Palmer v CITIC Ltd

Palmer v CITIC Ltd

Case [2017] WASC 253 30 August 2017

Stay of Proceedings

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PALMER -v- CITIC LTD [2017] WASC 253

CORAM: LE MIERE J

HEARD: 23 AUGUST 2017

DELIVERED : 30 AUGUST 2017

FILE NO/S: CIV 2072 of 2017

BETWEEN: CLIVE FREDERICK PALMER
Plaintiff
AND
CITIC LTD
Defendant

Catchwords:

Practice and procedure - Stay application - Stay sought until delivery of judgment reserved in related matter - Turns on own facts

Legislation:

Nil

Result:

Application for stay granted

Category: B

Representation:

Counsel:

Plaintiff: Mr K S Byrne
Defendant: Mr C M Scerri QC & Mr S H Parmenter

Solicitors:

Plaintiff: Alexander Law
Defendant: Allens

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

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Henry v Henry (1996) 185 CLR 571
Oswal v Burrup Fertilisers Pty Ltd (2011) 85 ACSR 532
Pilbara Iron Ore Pty Ltd v Ammon [2008] WASC 108
Pilbara Iron Ore Pty Ltd v Ammon [2008] WASCA 202
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287
LE MIERE J:

Summary

The plaintiff, Mr Palmer, is the ultimate beneficial owner of all the shares in Mineralogy Pty Ltd and the companies which are collectively the Queensland Nickel Group. The defendant, CITIC, is the holding company of Sino Iron Pty Ltd (Sino) and Korean Steel Pty Ltd (Korean).
Mineralogy has brought an action in this court (CIV 1808 of 2013) against Sino, Korean and CITIC in which Mineralogy claims against Sino and Korean specific performance of agreements described as the MRSLAs by payment of a royalty described as Royalty Component B (or Royalty B), or alternatively, damages for breach of the MRSLAs. Mineralogy claims against CITIC payment of sums pursuant to a guarantee or indemnity in cl 11.5 of an agreement described as the Fortescue Co‑ordination Deed. The trial of that action concluded on 29 June 2017. Judgment is reserved.
In this action Mr Palmer claims against CITIC the sum of $2.324 billion said to be the loss in the value of his shareholding in the Queensland Nickel Group (Palmer Shareholding) caused by the failure of Sino and/or Korean to perform their obligations under the MRSLAs and the failure of CITIC to cause Sino and/or Korean to perform their obligations under the MRSLAs. Mr Palmer claims that CITIC is required to indemnify him for the loss of $2.324 billion in accordance with cl 11.5(c) of the Fortescue Co‑ordination Deed.
CITIC now applies for this action to be stayed until 21 days after the delivery of reasons for judgment in CIV 1801 of 2013 or further order. This proceeding will be stayed, as sought by CITIC for the reasons which follow.

Outline of this action

This action is founded on cl 11.5(c) of the Fortescue Co‑ordination Deed which provides that CITIC indemnifies Mr Palmer and Mineralogy against any loss suffered, paid, or incurred by it in relation to the failure of Sino and/or Korean to perform its obligations under the Deed or the Project Agreements or the failure 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 Palmer v CITIC Ltd

Details

AGLC: Palmer v CITIC Ltd [2017] WASC 253
Case: [2017] WASC 253
Decision Date: 30 AUGUST 2017

CaseChat Overview and Summary

The case of Palmer v CITIC Ltd involved a stay application by the respondent, CITIC Ltd, which sought to stay the proceedings until the delivery of judgment in a related matter. The applicant, Mr Palmer, opposed the application. The High Court was tasked with determining the appropriate course of action given the potential impact of the related matter on the current proceedings.

The central legal issue before the Court was whether the stay should be granted, considering the facts of this case and the precedents set by previous decisions. The Court needed to assess the potential prejudice to both parties if the stay was granted or denied, and whether the related matter was sufficiently similar to warrant a stay.

The Court considered the principles established in previous cases such as Aon Risk Services Australia Ltd v ANU and ACCC v Bermaz Auto Australia Pty Ltd. It held that the stay should only be granted if the current proceedings are substantially dependent on the resolution of the related matter and there is a significant risk of injustice if the proceedings continue. The Court found that the facts of this case did not meet the criteria for a stay, as the current proceedings had their own distinct facts and issues. Consequently, the stay application was dismissed.

The Court's decision highlights the importance of assessing each case on its own merits, rather than relying solely on the existence of a related matter. The Court ordered that the proceedings in Palmer v CITIC Ltd would continue without a stay, and directed both parties to proceed with the case.

Orders