JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PALMER -v- CITIC LTD [No 13] [2024] WASC 325
CORAM: LUNDBERG J
HEARD: 6 AUGUST 2024
DELIVERED : 10 SEPTEMBER 2024
FILE NO/S: CIV 2072 of 2017
BETWEEN: CLIVE FREDERICK PALMER
First Plaintiff
MINERALOGY PTY LTD
Second Plaintiff
AND
CITIC LTD
First Defendant
SINO IRON PTY LTD
Second Defendant
KOREAN STEEL PTY LTD
Third Defendant
FILE NO/S: CIV 1267 of 2018
BETWEEN: MINERALOGY PTY LTD
Plaintiff
AND
CITIC LTD
First Defendant
SINO IRON PTY LTD
Second Defendant
KOREAN STEEL PTY LTD
Third Defendant
Catchwords:
Practice and procedure - Strike-out applications brought by the Mineralogy Parties in both the QNI Proceeding and the Palmer Petroleum Proceeding - Application to strike-out paragraphs of the defences filed by the CITIC Parties - Relevant principles applicable to strike-out applications
Practice and procedure - Challenge to defendants' plea concerning the onus arising under cl 9.1(e) of the Fortescue Coordination Deed - Disputed questions of construction involved - Whether appropriate to strike-out paragraphs raising disputed questions of construction - Appropriate test to apply in the circumstances
Practice and procedure - Challenge to defendants' plea which is said to answer the causation allegations in the statement of claim - Claim is with respect to an indemnification 'in relation to' certain matters expressly identified in the Fortescue Coordination Deed
Practice and procedure - Challenge to defendants' plea as to requirement for plaintiff to take all reasonable steps to minimise or where possible avoid the claimed loss - Whether pleading ambiguous - Whether counterfactual properly pleaded
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 3 r 5(1), O 20 r 13, O 20 r 19(1), and O 20 r 19(3)
Result:
Extension of time to bring the strike-out application and request for further and better particulars granted, in each action
Applications to strike-out paragraphs of the defences and alternatively to seek further and better particulars, dismissed
Category: B
Representation:
CIV 2072 of 2017
Counsel:
| First Plaintiff | : | P J Dunning KC, K S Byrne, H Cooper, D J Fawcett & M Karam |
| Second Plaintiff | : | P J Dunning KC, K S Byrne, H Cooper, D J Fawcett & M Karam |
| First Defendant | : | S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe |
| Second Defendant | : | S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe |
| Third Defendant | : | S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe |
Solicitors:
| First Plaintiff | : | Alexander Law |
| Second Plaintiff | : | Alexander Law |
| First Defendant | : | Allens |
| Second Defendant | : | Allens |
| Third Defendant | : | Allens |
CIV 1267 of 2018
Counsel:
| Plaintiff | : | P J Dunning KC, K S Byrne, H Cooper, D J Fawcett & M Karam |
| First Defendant | : | S K Dharmananda SC, J D Birch, S B Nadilo & J R C Sippe |
| Second Defendant | : | S K Dharmananda SC, J D Birch, S B Nadilo… |
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- Case
- [2024] WASC 325
- Decision Date
CaseChat Overview and Summary
The court addressed the legal issues by considering the principles applicable to strike-out applications. It assessed whether the paragraphs in question involved disputed questions of construction or were otherwise ambiguous. The court also examined the appropriate test for determining the validity of the strike-out applications. It considered whether the respondents' challenge to the appellants' plea concerning the onus under clause 9.1(e) of the Fortescue Coordination Deed was valid and whether the plea answered the causation allegations in the statement of claim. Additionally, the court examined the challenge to the appellants' plea regarding the requirement for the respondents to take all reasonable steps to minimise or avoid the claimed loss.
The court found that the respondents' challenge to the appellants' plea concerning the onus under clause 9.1(e) was valid as it involved disputed questions of construction. The court determined that the plea did not properly answer the causation allegations in the statement of claim. However, it held that the plea regarding the requirement for the respondents to take all reasonable steps was not ambiguous and properly pleaded the counterfactual. Consequently, the court dismissed the respondents' applications to strike out paragraphs 17 and 18 of the defences. The court also dismissed the respondents' application to strike out paragraphs 20 and 21 on the basis that they were not ambiguous.
The final orders included dismissing the respondents' applications to strike out certain paragraphs of the defences and affirming the validity of the appellants' pleas concerning the onus under clause 9.1(e) and the requirement for the respondents to take all reasonable steps.
Orders
Orders of the court
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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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