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Palmer v CITIC Ltd [No 13]

Palmer v CITIC Ltd [No 13]

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Case Copied 10 September 2024 81 min read

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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…

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: [2024] WASC 325
Decision Date: 10 SEPTEMBER 2024

CaseChat Overview and Summary

The respondents, being Palmer, Fortescue Metals Group Limited, and Mineralogy, brought proceedings against the appellants, CITIC Ltd and CITIC Resources Holdings Limited, in the Supreme Court of New South Wales. The dispute concerns alleged breaches of an indemnification agreement and related contractual obligations. The respondents sought to strike out various paragraphs from the appellants' defences, which the appellants resisted. The court had to determine whether the respondents' strike-out applications were valid and whether the appellants' defences should be expunged.

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