Range Resources Ltd v Pacific Islands Gold Nl
[1999] WASC 131
RANGE RESOURCES LTD -v- PACIFIC ISLANDS GOLD NL & ORS [1999] WASC 131
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 131 | |
| Case No: | CIV:2063/1998 | 9 AUGUST 1999 | |
| Coram: | MASTER SANDERSON | 16/08/99 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted subject to conditions | ||
| PDF Version |
| Parties: | RANGE RESOURCES LTD (ACN 002 522 009) PACIFIC ISLANDS GOLD NL (003 144 670) NATIONWIDE PACIFIC NL (ACN 003 283 378) MT KASI LTD |
Catchwords: | Practice and procedure Application for leave to file amended defence Turns on its own facts |
Legislation: | Nil |
Case References: | Range Resources Ltd v Pacific Islands Gold NL & Ors [1999] WASC 38 Ashmore v Corporation of Lloyd's [1992] 1 WLR 446 GAF Corp v Anchem Products Inc (1975) 1 Lloyds Rep 601 Giannarelli v Wraith (1988) 165 CLR 543 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
PACIFIC ISLANDS GOLD NL (003 144 670)
First Defendant
NATIONWIDE PACIFIC NL (ACN 003 283 378)
Second Defendant
MT KASI LTD
Third Defendant
Catchwords:
Practice and procedure - Application for leave to file amended defence - Turns on its own facts
Legislation:
Nil
(Page 2)
Result:
Leave granted subject to conditions
Representation:
Counsel:
Plaintiff : Mr P G Clifford
First Defendant : Mr N D C Dillon
Second Defendant : Mr N D C Dillon
Third Defendant : Mr N D C Dillon
Solicitors:
Plaintiff : Craig Readhead & Co
First Defendant : Corrs Chambers Westgarth
Second Defendant : Corrs Chambers Westgarth
Third Defendant : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Range Resources Ltd v Pacific Islands Gold NL & Ors [1999] WASC 38
Case(s) also cited:
Ashmore v Corporation of Lloyd's [1992] 1 WLR 446
GAF Corp v Anchem Products Inc (1975) 1 Lloyds Rep 601
Giannarelli v Wraith (1988) 165 CLR 543
(Page 3)
1 MASTER SANDERSON: This is an application on the part of the first and second defendants for an extension of time in which to serve an amended defence. On 25 January 1999 I gave the first and second defendants leave to file an amended defence within 14 days. The amended defence was not filed until 6 April 1999. The plaintiff objects to the extension of time to file the amended defence on the basis that the amended defence is not in a proper form and parts of it would be liable to be struck out. Submissions were not made on behalf of the plaintiff that the amended defence should be rejected because of the delay in complying with my earlier order.
2 This matter was the subject of a summary judgment application. On 21 May 1999 I dismissed the application and I published reasons for doing so: see Range Resources Ltd v Pacific Islands Gold NL & Ors [1999] WASC 38. In the course of delivering those reasons I provided some detail as to the facts and the matters in dispute between the parties. I do not propose to repeat what I said in my earlier decision. For the purposes of this application, it is unnecessary for me to do so. So far as the present application is concerned, a number of brief uncontested facts may be stated. On 7 December 1990 the plaintiff and the first and second defendants entered into an agreement described as a Share Acquisition Agreement. This is referred to in the statement of claim and in the defence of the first and second defendants as the "1990 Agreement". That is the terminology that I will use. It was a term of this 1990 Agreement that the third defendant would execute a deed of charge in a form annexed to the 1990 Agreement. On 1 September 1997 the plaintiff and the first and second defendants entered into a further agreement described as a Share Acquisition Agreement - Amendment Agreement. The defendant has referred to this document as the "1997 Amendment Agreement". Once again, that is the terminology I will adopt. By the terms of the 1997 Amendment Agreement the third defendant was to enter into a deed of charge, but the form of this deed of charge was not attached to the 1997 Amendment Agreement. As part of the relief sought by the plaintiff in the action, it seeks an order that the first and second defendants procure the third defendant to execute a deed of charge. The first and second defendants resist this order on a number of different grounds.
3 What is under attack by the plaintiff is various parts of par 17 of the first and second defendants' defence. Essentially, par 17, taken in the overall, deals with why the first and second defendants say the plaintiff is not entitled to an order for specific performance - that is to say, an order that the first and second defendants procure the third defendant to enter
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- into a deed of charge. Objection is first taken to par 17.1(d) of the defence. That paragraph is in the following form:
"It is either an express or implied term of the 1997 Amendment Agreement that the deed of charge referred to in clause 6.1 of the 1997 Amendment Agreement is to replace the deed of charge referred to in the 1990 Agreement."
5 Pursuant to cl 6 of the 1997 Amendment Agreement the first and second defendants were to cause the third defendant to
"enter on the date hereof a Deed of Charge to secure the payments referred to in Clause 3.2, which sums shall be the 'Indebtedness' referred to in the Deed of Charge."
6 It is the case that cl 1.2 of the 1997 Amendment Agreement incorporates the definitions set out in the 1990 Agreement. The definitions in that agreement are to be found in cl 1.1. There is a definition of "Charge" which is defined to mean:
"the deed in the form of the deed of charge annexed to this Agreement and marked 'A'."
7 However, there is no definition of the term "Deed of Charge". It might well be argued that the reference in the 1997 Amendment Agreement to "Deed of Charge" is a reference to something other than the "Charge" referred to in the 1990 Agreement. Thus it may be that the difference in the wording opens the prospect that there was an express or implied term in the 1997 Amendment Agreement that an alternative form of the deed of charge would replace the deed of charge annexed to the 1990 Agreement. It is an argument that is open to the defendants and it therefore seems to me that par 17.1(d) can stand.
8 The second objection taken by the plaintiff was to par 17.1(d)(i)(D) and (E). Reference is made in both sub-pars (i)(D) and (i)(E) to a deed of charge annexed to the 1997 Amendment Agreement. In fact it was
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- conceded that no such deed of charge was annexed to that agreement. Amendment of these sub-paragraphs will be required.
9 Thirdly, objection was taken to par 17.1(d)(ii). This deals with what are said to be particulars of the plea as to the express or implied terms in the 1997 Amendment Agreement with respect to the deed of charge. It was submitted on behalf of the plaintiff that in the face of an express term as to the form of the deed of charge contained in the 1997 Amendment Agreement by reference to the definitions in the 1990 Agreement it was not open to the first and second defendants to plead an implied term. As I have already indicated, I am satisfied that there is sufficient uncertainty as between the two agreements regarding what is meant by the deed of charge to allow for the possibility that a fresh deed of charge was anticipated by the 1997 Amendment Agreement. It follows, then, that I am prepared to allow the first and second defendants to plead that this was an implied term of the 1997 Amendment Agreement, rather than an express term.
10 Fourthly, objection was taken to par 17.2(b)(i) and par 17.2(c). These pleas have to do with waiver. By par 17.2(a) the first and second defendants pleaded that the plaintiff waived its right to have a charge executed in the form annexed to the 1990 Agreement. Paragraph 17.2(b) says that the waiver resulted from the failure of the plaintiffs to require the defendants to execute the charge for a period of seven or eight years. The plea in par 17.2(c) is to much the same effect. The plaintiff's argument is that, as the first and second defendants undertook to have the charge annexed to the 1990 Agreement executed by virtue of the terms of the 1997 Amendment Agreement, the plea cannot stand. Essentially, it was submitted that the signing of the 1997 Amendment Agreement put an end to any suggestion of waiver of the obligations under the 1990 Agreement. Having concluded that it is arguable that the 1997 Amendment Agreement does not require the execution of the deed of charge annexed to the 1990 Agreement, it seems to me that it is also open to argument whether and in what circumstances there has been a waiver of the obligation under the 1990 Agreement. It is the case that there is a non-waiver clause in the 1990 Agreement. It may be that this clause will preclude the first and second defendants' relying upon an argument of waiver. But that is a matter which should properly be decided by the trial Judge.
11 Fifthly, objection is taken to par 17.2(d) and (e). By these two paragraphs the first and second defendants plead that, subsequent to the 1990 Agreement, the third defendant continued to trade, became insolvent and entered into a scheme of arrangement with its creditors. Presumably,
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- what the defendants are pleading is that, given events that have transpired, the plaintiff is not entitled to the relief of specific performance. For its part, the plaintiff says that the pleas are embarrassing and vexatious. It is submitted that at all times the first and second defendants were aware of their obligation to procure execution of the deed of charge and, in any event, the obligations undertaken in the 1997 Amendment Agreement were entered into well in advance of the third defendant entering into a scheme of arrangement.
12 In my view, both paragraphs can stand. It may well be open to question whether matters pleaded in par 17.2(d) and (e) can provide any defence to the plaintiff's claim for specific performance. But that is a matter which should be determined in the context of a trial of the issues. It is not a matter about which the parties will need to lead any lengthy evidence. It is essentially a question of law to be determined according to equitable principles. To strike out these paragraphs at this stage of the action would serve no useful purpose whatever.
13 Much the same considerations apply to the sixth matter raised by the plaintiff. This relates to par 17.2(f) and (g). Both these paragraphs claim that, as a consequence of the insolvency of the third defendant, it is not now appropriate for the Court to make orders for specific performance. These are matters for the trial Judge. Once again, no significant evidence will need to be led on this point and I would not strike out these two paragraphs.
14 The seventh point raised by the plaintiff relates to par 17.3. This appears to be a general plea of laches or acquiescence. In its present form I doubt that the plea adds much to the defence of waiver. The particulars to the paragraph refer to par 17.2(b). That paragraph in turn only details matters of delay. Whatever the merits of the plea, it is apparent to the plaintiff what case has to be met. In the circumstances, I am satisfied that par 17.3 can stand.
15 Finally, objection is taken to par 17.4 and par 17.5(f) and (j). These paragraphs deal with matters arising under Fijian law. By par 17.4, it is pleaded that any obligation on the third defendant is unenforceable pursuant to the provisions of the Companies Act (Fiji). Paragraph 17.5(f) and (j) deal with findings of the Fijian High Court in relation to the scheme of arrangement entered into by the third defendant. I accept that it is open to question whether these pleas are likely to advance the case of the first and second defendants. However, they deal with matters which are questions of fact and which the first and second defendants either will
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- or will not be able to establish. Once the facts are established then the legal consequences are a matter which can be determined by the trial Judge. In my view, there would be nothing to gain by my undertaking a detailed analysis of the factual position and then perhaps striking out these two paragraphs. Once again, there is very little evidence that will need to be led by the parties on this issue. The matters raised by the plaintiff are best considered by the trial Judge.
16 In the circumstances, then, I am prepared to allow the first and second defendants' amended defence to stand, subject to further amendment to par 17.1(d)(D) and (E). I will also make further orders as to the programming of this matter for trial. I will hear the parties as to costs.
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