RIVI Opportunity Fund LP v Hellyer Gold Mines Pty Ltd - [2025] WASC 95

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RIVI OPPORTUNITY FUND LP & ANOR -v- HELLYER GOLD MINES PTY LTD & ANOR [2025] WASC 95
CORAM:   MASTER RUSSELL
HEARD:   8 AUGUST 2024
DELIVERED          :   24 MARCH 2025
FILE NO/S:   CIV 1243 of 2024
BETWEEN:   RIVI OPPORTUNITY FUND LP
First Plaintiff
RCA NQ LLC
Second Plaintiff
AND
HELLYER GOLD MINES PTY LTD (ACN 125 516 636)
First Defendant
PIEMAN RESOURCES PTY LTD (ACN 631 444 089)
Second Defendant

Catchwords:

Practice and procedure - Summary judgment - Order 14 Rules of the Supreme Court 1971 (WA) - Plaintiff seeking declaration as to construction of contractual provision - Alternative claim for rectification - Turns on own facts
Contract - Construction and interpretation - Correction of obvious error by application of ordinary principles of construction - Whether objective intention self-evident -Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 14, O 18 r 16
Supreme Court Act 1935 (WA), s 25(6)

Result:

Application granted
Summary judgment for the plaintiff

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr G R Donaldson SC & Mr P H Murray
Second Plaintiff	:	Mr G R Donaldson SC & Mr P H Murray
First Defendant	:	Mr J E Scovell
Second Defendant	:	Mr J E Scovell

Solicitors:

First Plaintiff	:	K&L Gates
Second Plaintiff	:	K&L Gates
First Defendant	:	Taylor David Lawyers
Second Defendant	:	Taylor David Lawyers

Cases referred to in decision(s):

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Bankwest (a division of CBA) v Mann [2015] WASC 187
Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368
Commissioner of Taxation v The Trustee for the Michael Hayes Family Trust [2019] FCAFC 226; (2019) 273 FCR 567
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603
GEL Custodians Pty Ltd v Dewar [2014] WASC 177
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112
Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130; (2015) 89 NSWLR 198
Mak v Juventus Pty Ltd [2024] WASC 409
Morgan v Pallister [2004] WASC 188
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd Wright Prospecting Pty Ltd v Mount Bruce Mining Pty Ltd [2015] HCA 37; (2015) 256 CLR 104
QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186
Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2016] WASC 193
Schwartz v Hadid [2013] NSWCA 89
Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 260 CLR 85
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson [2019] WASCA 114
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21
Wallingford v Mutual Society (1880) 5 App Cas 685
Westpac Banking Corporation v Anderson [2017] WASC 106
Wright v Lemon [2024] WASCA 19
Wright v Wright [2002] WASC 30
YIC Industrial Pty Ltd v SPA Investments Pty Ltd [2022] QCA 95
Zhu v The Treasurer of the State of New South Wales [2004] HCA 56; (2004) 218 CLR 530

MASTER RUSSELL:

Overview

The first plaintiff, RIVI Opportunity Fund LP (RIVI), is registered as a limited partnership pursuant to the laws of the State of Delaware in the United States of America. The second plaintiff, RCA NQ LLC (RCA), is a limited liability company incorporated under the laws of Delaware.
The plaintiffs issued these proceedings against the first defendant, Hellyer Gold Mines Pty Ltd (HGM), and the second defendant, Pieman Resources Pty Ltd (Pieman) seeking declarations, alternatively orders for rectification, in relation to certain agreements.
The dispute between the parties concerns the terms of:
(a)a Gold Purchase Deed entered into between HGM, RIVI, NQ Minerals Plc (NQ) and others on about 3 July 2017 (Gold Purchase Deed); and
(b)a Silver Purchase Deed entered into between HGM, RCA, NQ and others on about 22 December 2017 (Silver Purchase Deed),
(together the Purchase Deeds) relating to what is defined in each deed as the Hellyer Project, as follows:
The Hellyer Project means the Hellyer mine (including the Processing Plant and associated and other infrastructure) and the Tailings Operations and related tenements and other exploration or mining operations, or proposed to be conducted, on the Mining properties.[1]
[1] Gold Purchase Deed cl 1(t), Affidavit of Kevin Puil sworn on 25 April 2024 (Puil Affidavit), KP‑19, page 658; Silver Purchase Deed cl 1(s), Puil Affidavit, KP-24, page 830.
The plaintiffs issued these proceedings against the defendants by writ of summons indorsed with a statement of claim on 29 February 2024. The defendants entered an appearance on 25 March 2024.
By chamber summons filed on 26 April 2024 (Application), the plaintiffs apply for summary judgment against the defendants pursuant to O 14 of the Rules of the Supreme Court of Western Australia 1971 (WA) (RSC).
As the Application was brought more than 21 days after the defendants entered an appearance, leave is required to bring the Application.
For the reasons that follow:
(a)the plaintiffs have leave to bring the Application, the time for which is extended to the date of filing; and
(b)the Application is allowed in relation to the plaintiffs' primary claim for declaratory relief, although with some variation to the terms of the declarations sought.

Submissions and evidence relied on by the parties

In support of the Application, the plaintiffs rely on an affidavit sworn by Kevin Puil on 25 April 2024 (Puil Affidavit) and an outline of submissions filed on 2 July 2024.
In opposition to the Application, the defendants rely on:
(a)an affidavit sworn on 17 May 2024 by Stephen Joseph White (White Affidavit);
(b)an affidavit sworn on 28 June 2024 by Victoria Louise Wilcox, a solicitor employed by the defendants' lawyers, attaching a letter from that firm to the plaintiffs' lawyers dated 21 May 2024 (Wilcox Affidavit); and
(c)outlines of submissions filed on 28 June 2024 and 2 August 2024.
The plaintiffs were required to file their outline of submissions in support of the Application by 7 June 2024. The defendants took objection to the late filing of the plaintiffs' submissions.
I allowed the plaintiffs to rely on their outline of submissions. Although they were not filed in accordance with the orders, there is no evidence or suggestion of any prejudice caused to the defendants by the late filing of the plaintiffs' submissions. They were filed and served on the defendants approximately six weeks before the hearing of the Application. The defendants filed and were permitted to rely on a supplemental outline of submissions in response to those filed by the plaintiffs.

Applicable legal principles - application for summary judgment

The procedural requirements for an application for summary judgment under O 14 RSC were summarised by Archer J (as her Honour then was) in Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna.[2]
[2] Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 [27] (Archer J).
An application for summary judgment must be brought within 21 days after an appearance has been filed, or at a later time with leave of the court.[3] The application must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[4]
[3] O 14 r 1(1) RSC.
[4] O 14 r 2(1) RSC.
The legal principles relating to applications for summary judgment are well established and were not in dispute. The power to grant summary judgment should be exercised with great care, and summary judgment should only be granted in the clearest of cases where there is no real issue to be tried. The key principles were summarised by the Court of Appeal in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd,[5] as follows:
… Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[5] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
The plaintiff bears the legal burden of persuading the court that its claim is a good one and that there is no defence to it. If the plaintiffs' affidavit or affidavits in support of the application make out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or some other reason there ought to be a trial of the action.[6]
[6] Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac v Anderson) [53] ‑ [54], [103]. See also Deputy Commissioner of Taxation v Lafferty[2017] WASC 257 (Lafferty) [54] (Tottle J), citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 (Moscow Narodny Bank), 110 (Brinsden J); Bankwest (a division of CBA) v Mann [2015] WASC 187 [46] (Gething AM); HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [26] (Gething AM); GEL Custodians Pty Ltd v Dewar [2014] WASC 177 [25] (Gething AM); Wright v Wright [2002] WASC 30 [19] (Sanderson M); Morgan v Pallister [2004] WASC 188 [4] (Pullin J).
A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[7]
[7] Lafferty [54] citing Moscow Narodny Bank 113 (Brinsden J); Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).
As observed by Pullin J in Morgan v Pallister, summary judgment 'is not confined to cases which are immediately plain and obvious and the fact that a transaction is intricate does not disentitle a plaintiff to relief in a clear case.' However, it is not the intention of O 14 that an action be disposed of summarily where the facts are in dispute.[8]
[8] Morgan v Pallister [4].

Leave to bring an application for summary judgment out of time

Order 14 r 1(1) RSC requires an application for summary judgment to be made within 21 days after an appearance has been filed, or any later time with leave of the court.
The 21-day time limit to bring an application for summary judgment reflects the view that such applications should be brought at an early stage of the proceedings before too much expense has been incurred. Where there is a delay, the onus is ordinarily on the applicant to demonstrate that the delay is justifiable in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.[9]
[9] See Westpac v Anderson [38] and the authorities referred to.
The Application was brought 10 days after the time provided in O 14 r 1(1). However, it has been brought at an early stage of the proceeding and there is no suggestion or evidence that the relatively short delay in bringing the Application has caused any prejudice to the defendants.
I am satisfied, in the circumstances, that leave should be granted to bring the Application, the time for which is extended to the date of filing.

The evidence and relevant factual background

The following is a summary of the relevant factual background, which is largely derived from the Puil Affidavit and the documents attached to it. Other than as defined in these reasons, all capitalised terms are references to defined terms in the Purchase Deeds and have the meaning given to them in the Purchase Deeds.
HGM is the sole legal and beneficial owner of the mining tenements, processing plant and infrastructure associated with the Hellyer Gold Mine located near Beaconsfield in Tasmania.[10]
[10] Puil Affidavit [13] ‑ [14], KP-3, KP-4.
RIVI is a private equity partnership which provides financing in the precious metals sector. Mr Puil is a managing partner and founder of RIVI. He is also a director of RCA, which was incorporated for the purpose of investing in the Hellyer Project.[11]
[11] Puil Affidavit [1] - [9], KP-1, KP-2.
HGM and Pieman are wholly owned subsidiaries of Ivy Resources Pty Ltd (Ivy), of which the sole shareholder is Keen Pacific Limited (Keen), a company incorporated in the British Virgin Islands. Until August 2022, NQ (now in liquidation), a public company incorporated and registered in England, was the ultimate holding company of both HGM and Pieman.[12]
[12] Puil Affidavit [15], KP-3; Statement of claim [8] - [9].
In about February 2017, Mr Puil, on behalf of RIVI, began negotiating with Walter Doyle (director and founder of NQ), Roger Jackson, (director and chief executive officer of NQ) and others as to terms upon which RIVI would contribute finance for NQ to acquire Keen, and ultimately HGM and the Hellyer Project.[13]
[13] Puil Affidavit [15] - [16].
On 25 April 2017, RIVI (through its partner RIVI Capital LLC) made an indicative, non-binding proposal to NQ to invest in the Hellyer Project by way of what is described as a metal purchase or streaming agreement.[14] Mr Puil describes this as an agreement whereby a mining company agrees to sell the 'streamer', often a financier, metal ore produced from the mine at a discounted price to the spot market price in return for upfront funding by the financier.[15]
[14] Puil Affidavit [17], KP-5.
[15] Puil Affidavit [18].
Mr Puil deposes that, at the time he sent the letter containing the non‑binding proposal to NQ, NQ had not acquired Keen and did not control HGM.[16] He also deposes that, on 26 April 2017, he received a copy of the non-binding proposal signed by Mr Doyle on behalf of NQ.[17] A copy of the letter referred to as having been signed by Mr Doyle is not attached to the Puil Affidavit.
[16] Puil Affidavit [22]. There are no company extracts attached to the Puil Affidavit which verify this.
[17] Puil Affidavit [23].
Between May and July 2017, there were further communications and drafts of a gold purchase agreement were exchanged between RIVI and its lawyers and between RIVI's and NQ's lawyers.[18]

Gold Purchase Deed

[18] Puil Affidavit [24] - [27], [29], [32] - [36], [38], [40], [41], [48] - [52], KP-6 to KP-17.

On about 3 July 2017, RIVI, HGM, NQ, Keen and Ivy executed the Gold Purchase Deed.[19] The recitals to the Gold Purchase Deed state:[20]
WHEREAS HGM is the sole legal and beneficial owner of the Mining Properties and associated Processing Plant;
AND WHEREAS HGM has agreed, among other things, to sell to RIVI, and RIVI has agreed to purchase from HGM, an amount of Refined Gold subject to and in accordance with the terms of this Deed;
AND WHEREAS the Guarantors have agreed to guarantee the performance of the obligations of HGM under this Deed;
…
[19] Puil Affidavit [53] - [54], KP-18, KP-19.
[20] The recitals to the Silver Purchase Deed are in substantially the same terms except they refer to RCA instead of RIVI and to Refined Silver instead of Refined Gold.
No physical gold was to be delivered to RIVI under the terms of the Gold Purchase Deed. Rather, amounts determined under the agreement were to be credited to RIVI's designated bullion account.
The disputed terms of the Gold Purchase Deed are considered later in these reasons.

Silver Purchase Deed

Following completion of the Gold Purchase Deed, Mr Puil was involved in further discussions with representatives of NQ, which led to a separate proposal for RCA to advance funding under a silver purchase agreement.[21]
[21] Puil Affidavit [55] - [56].
On 23 October 2017, RCA made an indicative, non-binding proposal to NQ to invest in the Hellyer Project by way of a silver purchase agreement. NQ accepted the proposal on 24 October 2017.[22]
[22] Puil Affidavit [57], KP-20.
There were further communications and drafts of a silver purchase deed based on the Gold Purchase Deed, but relating to silver instead of gold, were exchanged between RCA and its lawyers and between RCA's and NQ's lawyers.[23]
[23] Puil Affidavit [58] - [61], KP-21, KP-22, KP-23.
On about 22 December 2017, RCA, HGM, NQ, Keen and Ivy executed the Silver Purchase Deed,[24] the recitals and terms of which essentially mirror those of the Gold Purchase Deed, except they relate to funding provided by RCA instead of RIVI and to the sale and purchase of silver from the Hellyer Project by RCA, instead of gold by RIVI.
[24] Puil Affidavit [62], KP-24.
Payments were made into RIVI's and RCA's designated bullion accounts from 2017 until 2019.[25]

NQ refinancing and restructure

[25] Puil Affidavit [63], KP-25.

In 2020, NQ undertook a refinancing and restructuring transaction with a new financier, ING, in connection with which Mr Puil deposes that:
(a)all NQ's existing debts, including payment in full of accrued and unpaid amounts outstanding and owed by HGM to RIVI and RCA under the Purchase Deeds, were repaid; and
(b)all future debts HGM owed to RIVI and RCA in connection with the Purchase Deeds were subordinated in favour of ING until ING was repaid in full, with the result that HGM's streaming obligations under the Purchase Deeds would accrue, but not be payable in cash for the period of the subordination.[26]
[26] Puil Affidavit [65], [68], KP-29.
RIVI and RCA refer to, and seek to rely on, statements made in documents relating to the restructure, in which it is stated in relation to the Purchase Deeds that:
(a)'NQ confirms that the stream is an enduring liability of HGM which will be supported by NQ through the cash/equity top up mechanism;'[27] and
(b)'[HGM] has the primary obligation to pay these streaming amounts, even where another NQM Group entity is the holder of the operating mining tenement.'[28]
[27] Puil Affidavit [66], KP-27, page 981.
[28] Puil Affidavit [67], KP-28, page 996. See also plaintiffs' outline of submissions [40].
The defendants say that the plaintiffs have 'cherry-picked' those parts of a longer communication, a copy of which is attached to the White Affidavit, in which statements are also made in relation to the Purchase Deeds that:[29]
(a)'… the stream is an enduring responsibility of HGM (and NQ) …'; and
(b)'[i]n respect to ongoing stream payments NQ/HGM will agree/confirm a process that ensures these are paid at either the Hellyer or NQ level … '.
[29] White Affidavit [18 c], SJW-3, page 45.
Mr Puil also deposes to, and the plaintiffs refer to and seek to rely on, what documents titled 'Equity Payment Letters' entered into by NQ and RIVI and by NQ and RCA on 30 November 2020, in connection with the refinancing and restructure.[30]
[30] Puil Affidavit [68], KP-29.
The parties accept that this and other evidence of their subsequent conduct is not admissible for the purpose of construction of the relevant terms of the Purchase Deeds. They do not seek to rely on such evidence for that purpose, but in relation to the plaintiffs' rectification claim.

Deed of variation and release

On about 30 November 2020, RIVI, RCA, NQ, NQ Minerals Pty Ltd, Keen, Ivy, Circle Resources Pty Ltd and Pieman executed a deed titled 'Deed of Variation and Release' (Variation Deed).[31]
[31] Puil Affidavit [70], KP-30.
Relevantly, and in summary, by the Variation Deed:
(a)NQ, Keen and Ivy were released as parties to, and guarantors under, each of the Purchase Deeds and were released from all future liabilities and obligations under or in relation to each of the Purchase Deeds;[32]
(b)the parties agreed that each of the Purchase Deeds were to continue in full force and effect;[33] and
(c)HGM confirmed that the Continuing Securities (as defined in the Variation Deed) remained in full force and effect and would continue to secure all monetary obligations and liabilities due, owing and payable by HGM under the Purchase Deeds after the Effective Date (as defined in the Variation Deed).[34]
[32] Puil Affidavit [70], KP-30, cl 7.1(a) and cl 7.1(b), Schs 2 and 3.
[33] Puil Affidavit [70], KP-30, cl 7.3(a), pages 1021 - 1022.
[34] Puil Affidavit [70], KP-30, cl 7.3(b), page 1022.
It is pleaded, although not deposed to by Mr Puil, that by separate deeds of guarantee and assumption dated 30 November 2020 executed by Pieman and RIVI and by Pieman and RCA, Pieman assumed the obligations of a guarantor under each of the Purchase Deeds as if it were named as a party to, and as a guarantor under, each of the Purchase Deeds on and from the date of the relevant Purchase Deed.[35] Copies of the deeds of guarantee and assumption referred to are not before the court.
[35] Statement of Claim [23] - [24].
In November 2022, a dispute arose between the parties about the operation of the Purchase Deeds,[36] following receipt of an email dated 24 November 2022 by Mr Puil from Tony Tran, HGM's financial manager, stating amongst other things:
… HGM notes that Commercial Production has not presently occurred for the purposes of the [GPD/SPD] and that, as such, HGM has no present obligation to sell as set out in clause 2(a) of the [SPD/GPD] and no present obligation to make any deliveries or payments under clause 4 of that document.

Mr White's evidence

[36] Puil Affidavit [75] - [81], KP-31 to KP-35.

Mr White was the chief executive officer and sole director of HGM between May 2017 and August 2021.[37] He deposes that he was responsible for executing each of the Purchase Deeds and the Variation Deed, which were presented to him for execution.[38] He was not involved in negotiating the Purchase Deeds or Variation Deed.[39]
[37] White Affidavit [1], SJW-1.
[38] White Affidavit [1], [9], [12].
[39] White Affidavit [4] - [6], [11], [15].
Mr White states that, in about June 2017, when the Gold Purchase Deed was entered into:
(a)NQ was a publicly listed company;
(b)HGM was the entity who had leased the mining tenement the subject of the Hellyer Project;
(c)HGM required funding from NQ to refurbish the mill at the mine site before it could produce metal commercially. It was uncertain if or when HGM would cover costs (on a month‑to‑month basis), prior to the completion of refurbishment and commissioning of the mill.[40]
[40] White Affidavit [7].
He gives evidence as to his subjective intention and understanding of HGM's obligations under the Gold Purchase Deed, which includes that HGM would not have obligations under it on 'day one' - immediately following its execution. He says that HGM would only have means to satisfy financial obligations under the Gold Purchase Deed once Commercial Production had been reached.[41] He states that he read the Gold Purchase Deed when it was presented to him to execute and noted it was consistent with those matters.[42]
[41] White Affidavit [8].
[42] White Affidavit [9] - [10].
He makes similar statements in relation to the Silver Purchase Deed[43] and Variation Deed.[44]
[43] White Affidavit [12] - [13].
[44] White Affidavit [16].
Mr White states that he disputes the plaintiffs' position[45] that NQ's and HGM's conduct subsequent to execution of the Purchase Deeds and until November 2022 was consistent with the parties' alleged common intention.[46] He states, amongst other things, that he recalls HGM had cash shortfalls during the first year of operations (from October 2018) and required regular cash injections from NQ. He refers, in broad terms, to some payments being made under the Purchase Deeds by HGM from cash injected by NQ and at other times NQ instructed payment directly from HGM, if funds were available.[47]
[45] As pleaded in statement of claim [25].
[46] As pleaded in statement of claim [13(a)] and [18(a)].
[47] White Affidavit [18 a].
As has been accepted, whilst evidence of subjective understanding or intention and subsequent conduct may be admissible in relation to the rectification claim, such is not admissible for the purpose of construction of the Purchase Deeds.

Ms Wilcox's evidence

The Wilcox Affidavit attaches a copy of a letter dated 21 May 2024 from the defendants' lawyers to the plaintiffs' lawyers addressing why, in the defendants' view, the plaintiffs' application for summary judgment ought be withdrawn. It also sets out the defendants' contentions that there should be further discovery and cross‑examination in relation to the negotiation and drafting of the Purchase Deeds and asserts a conflict of interest of the plaintiffs' lawyers and whether they should continue to represent the plaintiffs in this proceeding.
As submitted on behalf of the plaintiffs, whether there is any conflict of interest is a matter between the plaintiffs and their lawyers. It is not a matter that gives rise to a defence to the plaintiffs' claim, a triable issue, or some other reason why the action should proceed to trial.

The dispute between the parties

The dispute between the parties centres around whether the agreement under each of the Purchase Deeds obliges HGM to deliver and credit amounts to RIVI's or RCA's designated bullion accounts, as the case may be, or whether, in certain circumstances, the parties intended that obligation to fall on NQ.
In summary:
(a)the plaintiffs' position is that the obligation under the Purchase Deeds to deliver and credit amounts to RIVI's or RCA's designated bullion accounts falls on HGM, whether before or after Commercial Production is achieved;
(b)the defendants' position is that HGM is only obliged to deliver and credit amounts to RIVI's or RCA's designated bullion accounts once Commercial Production is achieved and, until such time, the obligation rests with NQ.
Counsel for the defendants stated that there was no disagreement between the parties that Commercial Production is reached once at least 35,000 tonnes of gold bearing pyrite concentrate is produced by HGM in connection with the Hellyer Project per month for two consecutive calendar months.[48]
[48] In relation to the Gold Purchase Deed.
The defendants contend that Commercial Production, as defined in each of the Purchase Deeds, has not yet been achieved, such that HGM has no present obligation to deliver and credit amounts to RIVI's or RCA's designated bullion accounts. The defendants' position is that cl 4(c) provides that in the period before Commercial Production is achieved, such obligation falls on NQ.
Before setting out the parties' respective positions in further detail, and to understand the dispute between them, it is necessary to consider the relevant terms of the Gold Purchase Deed and the Silver Purchase Deed. As noted, although one deals with gold and the other deals with silver, the terms of each of the Purchase Deeds are essentially the same.
As such, I set out the relevant terms of the Gold Purchase Deed and note the corresponding provisions of the Silver Purchase Deed, highlighting any relevant differences between the two by way of footnote.[49]
[49] In doing so, I refer to clauses of the Purchase Deed, as the plaintiffs have in the statement of claim and as the parties have in their evidence and submissions. The Purchase Deeds refer to 'Sections'. See for example, cl 2(a) refers to 'Section 4', as opposed to cl 4.

The relevant terms of the Gold Purchase Deed

The relevant terms of the Gold Purchase Deed are as follows:[50]
[50] Any defined terms included within the definitions have the meaning given to them in cl 1 of the Gold Purchase Deed (and the Silver Purchase Deed, as applicable).
1Definitions
…
(g)"Commercial Production" means HGM in connection with its Hellyer Project producing a gold-bearing pyrite concentrate (whether at the Processing Plant or otherwise) of at least 35,000 tonnes per month for 2 consecutive calendar months.[51]
[51] Clause 1(g) of the Silver Purchase Deed is in substantially the same terms except it refers to the Hellyer project producing 'a silver-bearing lead, zinc or pyrite concentrate … at a run-rate of at least 420,000 tonnes per annum'.
…
(s) "Guarantors" means each of NQ, Keen, Ivy and any other entity which becomes bound by this Deed as a guarantor pursuant to clause 16(c).
(t) "Hellyer Project" means the Hellyer mine (including the Processing Plant and associated and other infrastructure) and the Tailings Operations and other exploration or mining operations, or proposed to be conducted, on the Mining Properties.
…
(gg) "Parties" means HGM and RIVI and "Party" means any one of the Parties, except in Section 11 (Confidentiality), 12 (Assignment), 13 (Right to Future Streams), 15 (GSD Security and Guarantee), 16 (Registration) and clause 21 (General Provisions) where "Parties" means all parties to this Deed and "Party" means any one of them.[52]
[52] Clause 1(ff) of the Silver Purchase Deed is in substantially the same terms except it refers to RCA instead of RIVI.
(hh) "Payable Gold" means the number of Ounces of gold derived from the Mineral Properties and either:
(i) sold and/or delivered by or on behalf of HGM to an Offtaker as calculated under the relevant arrangements with an Offtaker or where such arrangements are not on arm's length terms as would have been calculated under an arm's length arrangement; or
(ii) if not sold to an Offtaker, is equal to the ounces of Refined Gold that gold produces or would, if refined, produce.[53]
[53] Clause 1(gg) of the Silver Purchase Deed is in substantially the same terms but relates to Payable Silver instead of Payable Gold and refers to silver and Refined Silver instead of gold and Refined Gold.
…
(tt)"Term" means the period commencing on the Effective Date and, subject to the operation of Section 6, ending on the earlier of:
(i)the date all Minerals covered by the Mining Properties or the subject of the Hellyer Project are mined, produced, extracted or otherwise recovered from the Mining Properties; and
(ii)the date that is 40 years after the Effective Date.
2. Purchases and Sale of Refined Gold[54]
[54] Clause 2 of the Silver Purchase Deed is in substantially the same terms but refers to RCA instead of RIVI and to silver instead of gold.
(a) Subject to and in accordance with the terms of this Deed and in consideration of the provision by RIVI of the RIVI Financial Accommodation, HGM agrees to sell to RIVI, and RIVI agrees to purchase from HGM in accordance with Section 4, an amount of Refined Gold equivalent to the Agreed Proportion of all Payable Gold (subject to a minimum of 100 Ounces of Refined Gold per month)[55] once Commercial Production has been achieved for the Gold Purchase Price, free and clear of all Encumbrances for the Term.
[55] The minimum amount of Refined Silver in cl 2(a) of the Silver Purchase Deed is 17,500 ounces per month.
(b) HGM shall satisfy its obligation under Section 2(a) by delivering, or procuring delivery of, gold credits to RIVI's designated bullion account from time to time during the Term in accordance with Section 4 but subject always to section 4(t).
(c) For the avoidance of doubt, this Deed does not contemplate the delivery to RIVI of physical gold.
…
4. Deliveries, Gold Price and Payment[56]
[56] Clause 4 of the Silver Purchase Deed is in substantially the same terms but refers to RCA instead of RIVI and to silver instead of gold.
(a) During the Term, HGM shall sell and deliver to RIVI all Refined Gold to be sold and delivered under this Deed by way of credit to the designated bullion account of RIVI with a bank to be specified by RIVI from time to time (the "Place of Delivery") subject always to section 4(t).
(b) HGM shall notify RIVI in writing at least three (3) Business Days before any delivery and credit to the designated bullion account of RIVI of:
(i) the number of Ounces of Refined Gold to be delivered and credited; and
(ii) the estimated date and time of delivery and credit.
(c) Within seven (7) days after the conclusion of the month in which the Effective Date falls and for every month thereafter until the month following Commercial Production being achieved (at which point Section 4(d) will apply), NQ shall deliver and credit to RIVI's designated bullion account Refined Gold in an amount equal to the number of Ounces or the Agreed Proportion of Payable Gold for or in respect of, which:
(i) payment has been received (or would have been received had the relevant arrangements with the Offtaker been on arm's length terms) or would have been received had payment been received within 30 days of delivery or such Payable Gold to an Offtaker; or
(ii) credits to the gold bullion account of HGM, NQ or any other Related Bodies Corporate have been made,
as specified in the Monthly Report of the calendar month most recently ended.
(d) Within seven (7) days after the conclusion of the month in which Commercial Production is achieved and for every month thereafter during the Term, HGM shall deliver and credit to RIVI's designated bullion account refined Gold in an amount equal to the greater of:
(i) 100 Ounces;[57] and
[57] The amount stated in cl 4(d)(i) of the Silver Purchase Deed is 17,500 Ounces.
(ii)the number of Ounces of the Agreed proportion of Payable Gold for, or in respect of, which:
(A)payment has been received (or would have been received had the relevant amounts with the Offtaker been on arm's length terms); and
(B)credits to the gold bullion account of HGM, NQ or any other Related Bodies Corporate of NQ have been made,
as specified in the Monthly Report of the calendar month most recently ended.
…
(j)The Parties acknowledge and agree that:
(i)RIVI will be damaged by the failure of HGM to deliver and sell to RIVI an amount of Payable Gold in accordance with Sections 2 and 4(d) (including due to the increased risk profile associated with the Hellyer Project, cost of capital and delay in receipt of Refined Gold in circumstances of a volatile Market Price of Gold) and it would be impracticable or extremely difficult to fix the actual damages resulting therefrom; and
(ii) any sums payable under the NSR Royalties are in the nature of liquidated damages, not a penalty, and are fair and reasonable; and
(iii)any payment made by HGM to RIVI under the NSR Royalties represent a genuine reasonable estimate of fair compensation for the loss, damage and costs that may reasonably be anticipated from such failure.
…
(p) RIVI shall pay to HGM, in accordance with Sections 4(r) and 4(s) of this Deed,[58] the Gold Purchase Price for each Ounce of Refined Gold delivered by HGM to RIVI under this Deed.
[58] Clause 4(r) and cl 4(s) are not reproduced. Both provide for payment to be made by RIVI or RCA, as applicable, to HGM.
Unless RIVI gives written notice electing otherwise, RIVI will pay amounts payable under this Section 4(p) by setting off such amounts against gold credits that HGM would otherwise be required to deliver to RIVI's designated bullion account under this Deed. …
…
(t) At any time by written notice to HGM, RIVI may elect to receive the cash equivalent of Refined Gold that HGM would otherwise be required to deliver to RIVI under this Deed. In the event RIVI makes such election, HGM must:
(i) pay RIVI the cash equivalent of Refined Gold that HGM would otherwise be required to deliver to RIVI under this Deed, to be calculated as the Market Price of Gold, as applicable, on the trading day immediately prior to the date that such amount of Refined Gold would have been credited to the metal account of RIVI in accordance with this Deed but for such election.
(ii)include in the relevant invoice the calculation in sub-section 4(t)(i) above.
…
…
15.GSD Security and Guarantee[59]
…
(b) In consideration of RIVI entering into this Deed for the benefit of HGM, each of the Guarantors unconditionally and irrevocably guarantees to RIVI the due payment and performance by HGM of all of HGM's obligations under this Deed (the "Guarantee" or "Guaranteed Obligations").
…
…
[59] Clause 15 of the Silver Purchase Deed is in substantially the same terms but refers to RCA instead of RIVI.
The balance of cl 15 is not reproduced. All references to obligations guaranteed by the Guarantors are obligations of HGM.

The plaintiffs' claim and submissions

It is the plaintiffs' position that each of the Purchase Deeds creates a regime whereby RIVI and RCA are entitled to receive from HGM, and pay a discounted price to HGM for, Refined Gold or Refined Silver produced and sold from the Hellyer Project in each month during the Term, as provided in the relevant Purchase Deed.
The agreement in each case does not contemplate the sale and delivery of physical gold or silver. Rather, the obligation is to deliver and credit amounts, as provided in the relevant Purchase Deed, to RIVI's or RCA's designated bullion accounts.
The plaintiffs seek declarations as to the proper construction of certain clauses of the Purchased Deeds, and in particular the obligation under cl 4(c) to deliver and credit amounts of Refined Gold and Refined Silver, as applicable, to RIVI's and RCA's designated bullion accounts.[60]
[60] Statement of claim [11] - [12], [16] - [17], Prayer for relief [A].
Alternatively, if the plaintiffs' construction is not accepted and they do not succeed in obtaining declaratory relief, the plaintiffs claim that the Purchase Deeds do not reflect the parties' common intention at the time the deeds were entered into, and seek rectification of the Purchase Deeds.[61]
[61] Statement of claim [13], [18], Prayer for relief [B].
RIVI and RCA contend as follows.
1.The first drafts of the Gold Purchase Deed were between NQ and RIVI only and contemplated that NQ would supply Refined Gold to RIVI before and after Commercial Production, with a minimum supply obligation arising after Commercial Production is achieved.[62]
[62] Puil Affidavit [27], [35], [36], KP-7: cl 2(a), cl 5(c), and cl 5(d), KP-10: cl 2(a), cl 5(c) and cl 5(d), KP‑11: cl 2(a), cl 5(c) and cl 5(d).
2.On 21 June 2017, lawyers acting on behalf of the NQ parties (NQ, HGM, Keen and Ivy) circulated a draft of the Gold Purchase Deed,[63] which had not been the subject of discussion, in which:
[63] Puil Affidavit, [38] - [39], KP-12.
(a)HGM was introduced as the party with the obligation to sell Refined Gold in place of NQ and references to NQ throughout the Gold Purchase Deed were changed to HGM;
(b)NQ remained a party in the capacity of a guarantor only; and
(c)the obligation to deliver Refined Gold in the period prior to Commercial Production was wholly deleted, in that:
(i)in cl 2(a) the words 'once Commercial Production has been achieved' had been deleted; and
(ii)what was cl 4(c) was deleted entirely.
3.On 22 June 2017, Mr Puil had a telephone conversation with Mr Doyle in which, amongst other things, it is alleged that they discussed the streaming obligation commencing immediately (before Commercial Production was reached).[64]
[64] Puil Affidavit [40].
4.On 23 June 2017, RIVI's lawyers sent an email to the NQ parties' lawyers stating, amongst other things, in relation to the key amendments that 'The gold stream is on all production - after Commercial Production the 100 ounces minimum kicks in'. An amended draft of the Gold Purchase Deed was attached to the email, in which:
(a)the words 'once Commercial Production has been achieved' were reinstated in cl 2(a), albeit erroneously outside the brackets; and
(b)clause 4(c) was reinstated to provide for gold streaming before Commercial Production was achieved, albeit erroneously without updating the reference to NQ to HGM.[65]
[65] Puil Affidavit [41], KP-13.
5.The drafting errors referred to did not reflect the discussion between Mr Puil and Mr Doyle and were not identified by RIVI.[66]
6.On 24 June 2017, Mr Puil had a telephone conversation with Mr Doyle, in which it is alleged that Mr Puil and Mr Doyle agreed that:
(a)the gold stream was on all production; and
(b)the only function the Commercial Production milestone played was to trigger the obligation to pay a minimum monthly stream amount.[67]
7.Further drafts of the Gold Purchase Deed to reflect the agreement reached between the parties and related emails were exchanged.[68]
8.Mr Puil did not notice that NQ had not been replaced with HGM in cl 4(c) in the subsequent drafts of the Gold Purchase Deed until after the current dispute between the parties arose.[69]
9.That was an oversight, which flowed through into the Silver Purchase Deed and does not reflect the parties' common intention.
[66] Puil Affidavit [43] - [44].
[67] Puil Affidavit [48], [49], KP-14.
[68] Puil Affidavit [5], KP-15, [51], KP-16, [52], KP-17.
[69] Puil Affidavit [43].

The plaintiffs' position is that the reference to NQ in cl 4(c) of each Purchase Deed is an obvious error and should instead refer to HGM. It is submitted that it is clear from the text of the Purchase Deed, in each case, that the parties' intention was that HGM, as the primary party to the agreement, was to have the obligation to sell the Refined Gold or Refined Silver, as applicable, and that NQ was a party to each of the Purchase Deeds only in its capacity as a Guarantor.
In relation to the obligations to deliver Refined Gold or Refined Silver, as applicable, in cl 4(c) and cl 4(d), the plaintiffs submit that the only difference is that cl 4(d) provides that in the period after Commercial Production is achieved there is a minimum amount to be delivered, as provided in the relevant Purchase Deed.
The plaintiffs submit that the reference to NQ in cl 4(c) is a self‑evident absurdity in the literal meaning of each of the Purchase Deeds and an obvious error, which the court has power to correct by an application of the ordinary principles of construction.[70]
[70] Referring to YIC Industrial Pty Ltd v SPA Investments Pty Ltd [2022] QCA 95 (YIC Industrial) [33] (Fraser JA), [1], [56] (Sofronoff P and Flanagan J agreeing) and the authorities referred to in that decision.
RIVI and RCA submit that the court should grant the primary declaratory relief sought by way of summary judgment as it is a clear question of objective construction of the Purchase Deeds and does not involve determination of any disputed issue of fact.

Declarations sought

In the statement of claim and the orders sought in the Application, the plaintiffs seek declarations that:
(a)'HGM has, and since the 'Effective Date' (as defined in the Gold Purchase Deed made on 1 July 2017) has had, a present obligation, under cl 2(a), cl 2(b) and cl 4(c) of the Gold Purchase Deed, to sell and deliver 'Refined Gold' to RIVI'; and
(b)'HGM has, and since the 'Effective Date' (as defined in the Silver Purchase Deed) made on 22 December 2017) has had, a present obligation under cl 2(a), cl 2(b) and cl 4(c) of the Silver Purchase Deed, to sell and deliver 'Refined Silver' to RCA. '
I raised with senior counsel for the plaintiffs whether the declarations sought required the court to determine, as a question of fact, whether HGM presently has an obligation, or has had an obligation since the Effective Date, to sell and deliver Refined Gold to RIVI or Refined Silver to RCA, as applicable.
It was submitted on behalf of the plaintiffs that the court does not need to determine, as a fact, whether the obligation referred to in cl 4(c) has arisen. Rather, if the court is satisfied, as a matter of construction, that the obligation in cl 4(c) is an obligation of HGM, not NQ, the plaintiffs ask the court to make a declaration to that effect. It was submitted that this could be done without the declaration referring to there being, or having been, a 'present obligation', and it is within the court's power to vary the wording of the declaration as it considers appropriate.

The plaintiffs' construction argument

The plaintiffs rely on the recitals to each of the Purchase Deeds, from which they say it is clear that HGM is the party which agreed to sell amounts of Refined Gold to RIVI and amounts of Refined Silver to RCA. They submit that there is no reference to any such obligation on the part of NQ in either of the Purchase Deeds other than in cl 4(c).
The plaintiffs also point to the following in support of the construction they contend for.
1.There are no provisions relating to any default by NQ except in relation to the GSD Security or if an insolvency event occurs in relation to NQ, as opposed to the extensive provisions addressing a default by HGM, including of its obligations under cl 4.[71]
2.In each of the Purchase Deeds, HGM gives extensive representations and warranties[72] including, in relation to delivery of Refined Metals, that it will be the legal and beneficial owner of the Refined Metals delivered and credited to the metal account of RIVI or RCA, as applicable.[73] By contrast, no such representation or warranty is given by NQ, and the warranties given by NQ are much more confined, reflective of its status as a Guarantor only.
3.Except for the reference to NQ in cl 4(c) of each of the Purchase Deeds, all other primary obligations refer only to HGM.
4.There is no provision relating to the issue of an invoice by NQ or imposing an obligation on RIVI or RCA, as applicable, to pay anything to NQ in respect of the amounts delivered and credited to their bullion accounts.
5.Each of the Purchase Deeds requires the parties to execute the GSD Security 'as security for the performance of obligations of HGM' under the applicable deed.[74] The Purchase Deeds also provide for NQ and the other Guarantors to guarantee 'the due payment and performance by HGM of all of HGM's obligations under the Deed'.[75] There are no equivalent provisions relating to any obligation of NQ because it is a party to the Purchase Deeds solely in its capacity as a Guarantor.
6.The construction advanced by the defendants would be commercially absurd. There is no provision guaranteeing NQ's performance and its only obligation, other than as a Guarantor, is that which the plaintiffs say has been included by mistake in cl 4(c) of the Purchase Deeds.
7.The reference to NQ in cl 4(c) is a self-evident absurdity in the literal meaning of each of the Purchase Deeds and an obvious error, which the court has power to correct by application of the ordinary principles of construction.
8.The literal meaning of cl 4(c) of the Purchase Deeds contended for by the defendants is absurd and inconsistent with all of the other provisions of the Purchase Deeds.
[71] Purchase Deeds, cl 7, not reproduced in these reasons.
[72] Purchase Deeds, cl 17, not reproduced in these reasons.
[73] Purchase Deeds, cl 17 (xxix).
[74] Gold Purchase Deed, cl 1(q) and cl 15(a); Silver Purchase Deed cl 1(p) and cl 15(a).
[75] Purchase Deeds, cl 15(b).
The plaintiffs acknowledged that, to the extent Mr Puil deposes to his subjective intention in relation to the Purchase Deeds, such is not admissible for the purpose of construction of those instruments. Nor are the drafts of the Purchase Deeds, the communications relating to their negotiation and drafting or evidence of subsequent conduct. Such evidence is only sought to be relied upon by the plaintiffs in relation to their alternative claim for rectification.

The plaintiffs' alternative claim for rectification

If the Purchase Deeds are not to be construed as the plaintiffs contend and declarations made, the plaintiffs seek orders in the alternative, that the Purchase Deeds ought to be rectified so as to reflect the parties' common intention at the time they were entered into.
The plaintiffs claim that the common intention of the parties was that HGM, not NQ, would deliver and sell Refined Gold to RIVI and Refined Silver to RCA, before and after Commercial Production was achieved, and NQ's only obligation was as a Guarantor.[76]
[76] As set out more fully in the statement of claim [13(a)] and [18(a)].
RIVI's and RCA's alternative claim for rectification seeks the following orders:
1.The Gold Purchase Deed be rectified to reflect the common intention of the parties by:
(a)in cl 2(a), deleting the ')' after the word 'month' and inserting a ')' after the word 'achieved'; and
(b)in cl 4(c), deleting the term 'NQ' in the third line and replacing it with the term 'HGM'.
2.The Silver Purchase Deed be rectified to reflect the common intention of the parties by:
(a)in cl 2(a), deleting the ')' after the word 'month' and inserting a ')' after the word 'achieved'; and
(b)in cl 4(c), deleting the term 'NQ' in the third line and replacing it with the term 'HGM'.
The plaintiffs' submissions in support of their rectification claim were to the following effect.
1.The inclusion of NQ in cl 4(c) of the Gold Purchase Deed was clearly a mistake, a drafting error. The earlier drafts of the Gold Purchase Deed were prepared on the basis that the primary parties to the agreement were to be RIVI and NQ. That changed to RIVI and HGM, as the owner of the Mining Properties and the gold that would be produced from the Hellyer Project.
2.Clause 4(c) was copied and pasted from cl 5(c) of the earlier drafts and, in error, the reference in the earlier clause was not amended to replace NQ with HGM to reflect the common intention of the parties.
3.Mr White's evidence is insufficient to establish that HGM held a different intention to NQ, RIVI and RCA. Mr White, on his own evidence, was not involved in the negotiations leading to execution of the Purchase Deeds[77] or the commercial decision to enter into them. He merely signed each of the Deeds presented to him to execute[78] in his position as chief executive officer and sole director of HGM.[79]
4.The parties' subsequent conduct, including in relation to the refinancing and restructure, is consistent with HGM, not NQ, having the primary obligation under the Purchase Deeds, before and after Commercial Production being achieved.
5.It was only after a change in control of HGM that HGM notified RIVI and RCA, on 23 November 2022, that it had no present obligation to make payments under either of the Purchase Deeds.
6.There was no commercial rationale for NQ to have had any obligation to sell Refined Gold to RIVI and Refined Silver to RCA. It was, and is, HGM that owns the mining properties and tenements from which such was to be and is produced.
[77] White Affidavit [4] - [6], [11].
[78] White Affidavit [9], [12].
[79] White Affidavit [1], SJW-1.

The defendants' submissions

The defendants' construction argument

The defendants' construction focusses to a large degree on a temporal distinction it is submitted should be drawn between cl 4(c) and cl 4(d) of the Purchase Deeds.
It is not in dispute, that:
(a)clause 4(c) applies to the period commencing seven days after the conclusion of the month in which the Effective Date falls until the month following Commercial Production being achieved; and
(b)clause 4(d) operates in the period commencing seven days after the conclusion of the month in which Commercial Production is achieved.
Each of the parties referred to these periods as before Commercial Production is achieved and after Commercial Production is achieved.
The defendants submit there is no absurdity in the inclusion of NQ in cl 4(c) and that it makes sense that NQ was to be the party that was obliged to deliver and credit Refined Gold to RIVI and Refined Silver to RCA before Commercial Production is achieved.
The defendants' position is, in essence, that once Commercial Production is achieved, cl 4(d) applies, which they accept is clearly an obligation of HGM. Up until that point the obligation, as provided in cl 4(c) is NQ's.
The defendants submit that, having regard to Mr White's evidence that HGM did not have the means to satisfy any financial obligations until after Commercial Production had been achieved, it would be commercially absurd if HGM was the party liable under cl 4(c).
The defendants referred to Mr White's evidence to the effect that it was his understanding that HGM would not have obligations immediately following execution of the Gold Purchase Deed (or the Silver Purchase Deed). Mr White deposes that HGM would only have means to satisfy any financial obligations under the Purchase Deeds once Commercial Production had been reached and it was never his intention or understanding that HGM would have financial obligations from 'day one'.[80]
[80] White Affidavit [7] - [8], [10], [12] - [13].
It was submitted that, when Mr White's evidence is taken into account, the inclusion of NQ in cl 4(c) is not absurd but makes a great deal of sense. However, evidence relating to Mr White's subjective intention or understanding is not admissible for the purpose of construction of the Purchase Deeds.
In response to the plaintiffs' submissions to the effect that there are no references to NQ and no primary obligations of NQ in the Purchase Deeds other than in cl 4(c), the defendants point to the following definitions, which refer to NQ:
(a)the definition of Mining Properties,[81] which includes 'any mining tenements presently held or acquired in the future within 10 kilometres of any of the mining tenements listed in schedule 'A' in which NQ or any of its Related Bodies Corporate and interest from time to time' [sic]; and
(b)the definition of Monthly Report,[82] which refers to the number of ounces of gold (or silver) and other minerals mined, produced, extracted and recovered from the Mining Properties and, relevantly, credited to a gold (or silver) bullion account of 'HGM, NQ or its other Related Bodies Corporate.'
[81] Gold Purchase Deed cl 1(aa); Silver Purchase Deed cl 1(z).
[82] Gold Purchase Deed cl 1(cc)(i)(C); Silver Purchase Deed cl (bb)(i)(C).
The defendants dispute the plaintiffs' contentions that NQ is solely a party to the Purchase Deeds in its capacity as a Guarantor of HGM's obligations, and that the guarantee provisions are inconsistent with NQ having the obligation under cl 4(c). The defendants say that the guarantees given under cl 15 relate to HGM's obligation under cl 4(d) and to other obligations that are expressed as obligations of HGM and have no work to do in relation to cl 4(c) because that is an obligation of NQ, not an obligation of HGM.

The defendants' submissions in relation to the alternative claim for rectification

The defendants submit that there is insufficient evidence before the court to support the plaintiffs' alternative case for rectification, there are issues of fact to be determined, and it is not an appropriate case to be determined by way of summary judgment.
The defendants' submissions in opposition to the Application in so far as the claim for rectification is concerned may be summarised as follows.
1.The plaintiffs have not made out a prima facie case that the Purchase Deeds do not reflect the common intention of the parties or that the inclusion of NQ in cl 4(c) is a common mistake that ought to be rectified.
2.Rather, Mr Puil's evidence suggests that any mistake was a unilateral one on the part of the plaintiffs.
3.The genesis of the change from NQ to HGM in cl 4(c) contended for by the plaintiffs is a telephone call Mr Puil claims to have had with Mr Doyle in which it is stated that the parties agreed that HGM would have the obligation provided for in cl 4(c).[83] This is not a finding the court can or should make summarily.
4.The defendants should have the opportunity to test Mr Puil's evidence of any conversations with Mr Doyle relevant to the parties' common intention by way of cross examination at trial.
5.They should also have the opportunity to cross examine the plaintiffs' lawyer said to be responsible for the alleged drafting error.
6.Before a determination can be made as to the parties' common intention at the time the Purchase Deeds were executed, the full extent of the communications between the parties and between the plaintiffs and their lawyers concerning the negotiation and drafting of the Purchase Deeds should be provided by way of discovery, and all relevant evidence of such adduced.
[83] Puil Affidavit [52].
In their written submissions, the defendants contend that there has been an implied waiver of legal professional privilege, and that orders should be made for discovery of all the communications between the plaintiffs and their lawyers in relation to the negotiation and drafting of the Purchase Deeds.
There was no discovery application before the court. In any event, the issue of discovery is one that necessarily follows determination of any application for summary judgment made at an early stage of a proceeding before a defence has been filed.
The request for discovery was not pressed at the hearing of the Application but the need for full discovery of documents relevant to the issue of the parties' common intention was advanced as another reason as to why there ought to be a trial in respect of the rectification claim. It was submitted, in effect, that the matter should proceed to trial and discovery given in the ordinary course so that the defendants and the court have the full picture, not just the documents selected by the plaintiffs.

Plaintiffs' submissions in reply

In reply to the defendants' submissions to the effect that NQ is referred to in the definition of Monthly Report, the plaintiffs submitted:
1.The definition of 'Monthly Report' demonstrates that the purpose of the Monthly Report is the means by which HGM discloses to RIVI or RCA when money is coming in from the Hellyer Project.
2.It makes sense that the Monthly Report would include money paid not just to HGM but also to NQ and other Related Bodies Corporate.
3.It does not create any obligation on NQ. It is merely a mechanism to show that all of the money being received from the Hellyer Project is captured.
4.This is consistent with the obligation being tied to the gold produced by HGM and the definition of Payable Gold:
"Payable Gold" means the number of Ounces of gold derived from the Mineral Properties and either:
(i)sold and/or delivered by or on behalf of HGM to an Offtaker … ; or
(ii)if not sold to an Offtaker, is equal to the ounces of Refined Gold that gold produces or would, if refined, produce.

The proper construction of the Purchase Deeds

Applicable principles

It is well settled that a commercial contract is to be construed objectively based on the understanding of a reasonable person in the position of the parties to it by reference to the contract as a whole, to its text, context and its purpose or objects.[84] Unless the contrary intention is indicated, the court is entitled to apply a businesslike interpretation and prefer a construction that makes commercial sense and will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust.[85]
[84] Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 (Electricity Generation Corporation) [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd Wright Prospecting Pty Ltd v Mount Bruce Mining Pty Ltd[2015] HCA 37; (2015) 256 CLR 104 [46] ‑ [53]; JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 [67] ‑ [72] and the authorities referred to.
[85] See Australian Broadcasting Commission v Australasian Performing Right Association Ltd[1973] HCA 36; (1973) 129 CLR 99, 109;Zhu v The Treasurer of the State of New South Wales[2004] HCA 56; (2004) 218 CLR 530, [82]; Electricity Generation Corporation [35].
Although, the recitals do not form part of the agreement between the parties, they may be used as an aid to construction of the operative terms of the relevant instrument.[86]
[86] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 (Franklins v Metcash) [379] - [390] (Campbell JA). See also Wright v Lemon [2024] WASCA 19 (Wright v Lemon) [536] ‑ [538], citing Franklins v Metcash [379] ‑ [390], Schwartz v Hadid [2013] NSWCA 89 [80] ‑ [81], Lachlan v HP Mercantile Pty Ltd[2015] NSWCA 130; (2015) 89 NSWLR 198 [52] - [53] (Bathurst CJ, Beazley P & McColl JA).
It is not permissible to consider extrinsic evidence to subtract from, add to, vary or contradict the language of a written contract.[87] However, resort to extrinsic circumstances and things external to the contract may be necessary to identify its purpose and in determining the proper construction where there is a constructional choice.[88]
[87] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 347, 348, 352; see also Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [35] - [36].
[88] Black Box Control Pty Ltd v Terravision Pty Ltd[2016] WASCA 219 (Black Box Control v Terravision) [42(4)]; Simic v New South Wales Land and Housing Corporation[2016] HCA 47; (2016) 260 CLR 85 (Simic) [18].

The Court of Appeal set out the principles that must be applied in respect of extrinsic evidence in Black Box Control Pty Ltd v Terravision Pty Ltd,[89] as follows:
(5)If an expression in a contract is unambiguous and susceptible of only one meaning, evidence of surrounding circumstances cannot be adduced to contradict its plain meaning.
(6)To the extent that a contract, document or statutory provision is referred to, expressly or impliedly, in an instrument, that contract, document or statutory provision can be considered in construing the instrument, without any need for ambiguity or uncertainty of meaning.
(7)There are important limits on the extent to which evidence of surrounding circumstances (when admissible) can influence the proper construction of an instrument. Reliance on surrounding circumstances must be tempered by loyalty to the text of the instrument. Reference to background facts is not a licence to ignore or rewrite the text. The search is for the meaning of what the parties said in the instrument, not what the parties meant to say.
(8)There are also limits on the kind of evidence which is admissible as background to the construction of a contract, and the purposes for which it is admissible. Insofar as such evidence establishes objective background facts known to the parties or the genesis, purpose or objective of the relevant transaction, it is admissible. Insofar as it consists of statements and actions of the parties reflecting their actual intentions and expectations it is inadmissible. Such statements reveal the terms of the contract which the parties intended or hoped to make, and which are superseded by, or merged into, the contract.
(citations omitted).
[89] Black Box Control v Terravision [42](5) - (8)].
It was submitted on behalf of the plaintiffs, in effect, that any reasonable person in the position of the parties to the Purchase Deeds would have understood the parties to have intended that HGM be stated as the party having the obligation referred to in cl 4(c) of the Purchase Deeds, not NQ as stated.
The plaintiffs submit that the reference to NQ in cl 4(c) is clearly in error, having regard to the agreement as a whole and one that is within the court's power to correct.
The applicable principles were set out by Fraser JA in YIC Industrial Pty Ltd v SPA Investments Pty Ltd,[90] by reference to Steward J's restatement of the principles in Commissioner of Taxation v The Trustee for the Michael Hayes Family Trust,[91] which I gratefully adopt without repeating in full.
[90] YIC Industrial [33] (Fraser JA), [1], [56] (Sofronoff P and Flanagan J).
[91] Commissioner of Taxation v The Trustee for the Michael Hayes Family Trust [2019] FCAFC 226; (2019) 273 FCR 567 (Commissioner of Taxation v Trustee for the Michael Hayes Family Trust) [34] ‑ [39] (Steward J, Griffiths and Derrington JJ agreeing). See also Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson[2019] WASCA 114 (Tokio Marine) [77] (Buss P, Beech and Pritchard JJA).
As stated by Steward J in Commissioner of Taxation v The Trustee for the Michael Hayes Family Trust:[92]
[92] Commissioner of Taxation v Trustee for the Michael Hayes Family Trust [34], [36].
34The correction of obvious errors by an application of the ordinary principles of construction is well known. As Dixon C.J. and Fullagar J. said in Fitzgerald v Masters (1956) 95 CLR 420 at 426-427:
Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency.
…
36Once again, I turn to Leeming JA for the most recent expression of the principle. In Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2019] NSWCA 11, his Honour said at [6]-[10]:
Rectification by construction
At common law, if the error is clear, and it is also clear what a reasonable person would have understood the parties to have meant, then the mistake may be corrected as a matter of construction. …
In determining whether something is an obvious mistake which may be corrected as a matter of construction, there are two conditions which must be satisfied. They are:
(a)that the literal meaning of the contractual words is an absurdity; and
(b)that it is self-evident what the objective intention is to be taken to have been.
The level of satisfaction about those two matters must be high.[93]
[93] Commissioner of Taxation v Trustee for the Michael Hayes Family Trust [37]. See also Tokio Marine [77].
Circumstances in which those principles have been applied include when, as is contended in the present case, an instrument mistakenly refers to the wrong party.[94]

Determination

[94] See Commissioner of Taxation v Trustee for the Michael Hayes Family Trust [39] and the authorities referred to.

Although evidence has been led of the parties' subjective intentions, of earlier drafts of the Purchase Deeds and of the parties' subsequent conduct, such evidence is not admissible for the purpose of construction. I have not taken that evidence into account in my determination of the Application in so far as it concerns the claim for declaratory relief.
Applying the principles of construction, as outlined, having regard to the Purchase Deeds as a whole, their text, context and purpose, the plaintiffs' construction of cl 4(c) of the Purchase Deeds is to be preferred. I am satisfied that the reference to NQ in cl 4(c) of each of the Purchase Deeds is in error. This is self-evident on an objective construction of the Purchase Deeds.
On a proper construction, cl 4(c) should refer to HGM, not NQ because:
1.The inclusion of HGM in the clause is consistent with, and the inclusion of NQ in the clause is inconsistent with:
(a)HGM being the sole legal and beneficial owner of the Mining Properties, associated Processing Plant as provided in the recitals and in cl 17(xxix) and, it follows, of the gold and silver produced by the Hellyer Project to be delivered to RIVI and RCA under the terms of the Purchase Deeds;
(b)the primary parties to each of the Purchase Deeds, being
(i)in respect of the Gold Purchase Deed, HGM and RIVI;[95] and
[95] Gold Purchase Deed cl 1(gg).
(ii)in respect of the Silver Purchase Deed, HGM and RCA.[96]
[96] Silver Purchase Deed cl 1(ff).
(c)the text and express language in the recitals and in cl 2(a), which provide that:
(i)it is HGM which has agreed to sell the Refined Gold to RIVI and the Refined Silver to RCA; and
(ii)RIVI and RCA which have agreed to purchase the Refined Gold and the Refined Silver from HGM,
in accordance with cl 4, for the Term;
(d)the text and express language of cl 2(b), which provides that HGM shall satisfy its obligation under cl 2(a) by delivering, or procuring delivery of, gold or silver credits to RIVI's or RCA's designated bullion account;
(e)the text and express language of cl 4(a), which provides that during the Term, HGM shall sell and deliver all Refined Gold to be sold and delivered to RIVI and all Refined Silver to be sold and delivered to RCA;
(f)the text and express language of cl 4(b), which provides that HGM shall notify RIVI or RCA, as the case may be, as to the number of Ounces of Refined Gold or Refined Silver to be delivered and credited to their accounts and the estimated date of delivery and credit;
(g)all of the other terms in cl 4 relating to obligations concerning the delivery of Refined Gold and Refined Silver under the Purchase Deeds, which expressly refer to HGM, not NQ;
(h)title to the Refined Gold and Refined Silver passing from HGM to RIVI and from HGM to RCA, as provided in cl 4(m);
(i)the provisions of cl 7, which deal with with events of default and remedies and provide for events of default by HGM and RIVI or RCA, as applicable, in relation to the primary obligations. There are no provisions relating to any default by NQ in relation to an obligation under cl 4 or otherwise, except in relation to the GSD Security or if an insolvency event occurs in relation to NQ;
(j)the terms of cl 15, which require the parties to execute the GSD Security as security for the performance of HGM's obligations,[97] and for NQ and the other Guarantors to guarantee 'the due payment and performance by HGM of all of HGM's obligations under the Deed'.[98] There are no corresponding provisions relating to any obligation of NQ, which is consistent with NQ being a party to the Purchase Deeds solely in its capacity as a Guarantor.
[97] Gold Purchase Deed, cl 1(q) and cl 15(a); Silver Purchase Deed cl 1(p) and cl 15(a).
[98] Purchase Deeds, cl 15(b).
2.The inclusion of NQ in cl 4(c) is inconsistent with:
(a)the nature and terms of the other contractual obligations of NQ in each of the Purchase Deeds, which are confined to obligations as a Guarantor;[99]
[99] NQ (together with Ivy and Keen) were released as parties to and Guarantors under each of the Purchase Deeds and the GSD Security by the Variation Deed.
(b)the absence of other provisions one would reasonably expect to be included if NQ had assumed a primary obligation to sell and deliver the Refined Gold and Refined Silver and credit amounts to RIVI's and RCA's designated bullion accounts, including provisions:
(i)relating to the issue of invoices to RIVI and RCA by NQ;
(ii)imposing obligations on RIVI and RCA to pay NQ in respect of the amounts delivered and credited to their bullion accounts;
(iii)relating to default by NQ of the obligations under cl 4(c) and remedies for any such event of default.
3.Except for the reference to NQ in cl 4(c) of each of the Purchase Deeds, all other primary obligations refer only to HGM. All other references to NQ are in its capacity as a Guarantor.
4.The construction contended for by the defendants that HGM's obligations to deliver did not commence until after Commercial Production is inconsistent with the text and express language of:
(a)clause 2(a), which provides that the obligation to sell the Refined Gold and the Refined Silver in accordance with cl 4 is 'for the Term';
(b)clause 4(a), which provides that '[d]uring the Term', HGM shall sell and deliver all reined Gold to RIVI and all Refined Silver to RCA to be sold and delivered under this Deed …'.
5.Relevantly, the 'Term',[100] commences on the Effective Date, being the date upon which all counterparts of the Purchase Deed have been executed and exchanged between the Parties. Commencement of HGM's obligations is not connected to whether or not Commercial Production has been achieved, as contended by the defendants.
[100] As defined in Gold Purchase Deed cl 1(ss), Silver Purchase Deed cl 1(u).
For these reasons:
(a)I am satisfied to the high level required, that the inclusion of NQ in cl 4(c) does not reflect the objective intention of the parties;
(b)it is self-evident that the reference to NQ in cl 4(c) is in error, its inclusion is inconsistent with the text of and the agreement reflected in the other terms of the Purchase Deeds; and
(c)this is a clear case, in which such an error should be corrected as a matter of construction, in my view.
I turn then to consider whether the court should grant declaratory relief.

Declaratory relief

Applicable principles

The principles that apply to the exercise of the court's discretion to grant declaratory relief are well established. It is not necessary that I repeat them in detail.
The court has a discretionary power to grant declaratory relief under s 25(6) of the Supreme Court Act 1935 (WA) and O 18 r 16 RSC, which gives the ourt power to make a binding declaration whether or not any consequential relief is or could be claimed.[101] As a superior court, the court also has inherent power to grant declaratory relief.[102]
[101] Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2016] WASC 193 [24] (Le Miere J); QBE Insurance (Australia) Ltd v Lois Nominees Pty Ltd [2012] WASCA 186 (QBE v Lois Nominees) [18] (McLure P).
[102] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 (Ainsworth v Criminal Justice Commission), 581 - 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
As recently observed by Lundberg J in Mak v Juventus Pty Ltd,[103] the power of a superior court to make a declaration in the exercise of its inherent jurisdiction was described by Gibbs J in Forster v Jododex Australia Pty Ltd[104] as 'a very wide one' and 'almost unlimited'.
[103] Mak v Juventus Pty Ltd [2024] WASC 409 [41] (Lundberg J).
[104] Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 (Forster v Jododex) 438 (Gibbs J).
The requirements that must generally be met and have been consistently applied, before exercising the discretion in favour of making a declaration, are those stated in Forster v Jododex:[105]
The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.
[105] Forster v Jododex 437 - 438 (Gibbs CJ). See also Ainsworth v Criminal Justice Commission 581 ‑ 582; Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; (1996) 68 FCR 406, 414B-E (Lockhart J, Spender and Cooper JJ agreeing).
There must be some utility in making the declaration. It must have a legal or practical consequence for the parties.[106]

Should declaratory relief be granted in this case?

[106] QBE v Lois Nominees [19] - [20], referring to Ainsworth v Criminal Justice Commission 581 ‑ 582. See also QBE v Lois Nominees [170] (Murphy JA).

I am satisfied that the question raised is real, not theoretical. Each of the defendants, RIVI and RCA, have a real interest in raising the issue or question of whether cl 4(c) of the Purchase Deeds should, properly construed, refer to HGM, and not NQ, and whether the obligation under that clause should properly be stated as an obligation of HGM.
I am also satisfied that there is a proper contradictor who has a true interest in opposing the declaratory relief sought, in HGM and Pieman. HGM has an interest as the party sought to be declared as having the primary obligation under cl 4(c) of each of the Purchase Deeds and Pieman, having assumed the obligations of a Guarantor in place of NQ, Keen, and Ivy.
Having found that the reference to NQ in cl 4(c) of each of the Purchase Deeds is in error and one that the court can and should correct as a matter of construction, there is utility in making such declarations.
I am satisfied that the plaintiffs have complied with the procedural requirements for an application for summary judgment and have made out a prima facie case. The plaintiffs' primary case is one of construction and does not involve any contested issue of fact.
The defendants do not condescend to particulars. The affidavits and submissions relied upon by the defendants do not disclose a defence to the plaintiffs' claim for declaratory relief, establish that there is an issue or question to be tried in that regard, or some other reason why there ought to be a trial of that part of the plaintiffs' claim.
The White Affidavit does not bear upon the plaintiffs' claim for declaratory relief and the issue of construction of the Purchase Deeds. Mr White's evidence is in very general terms and goes no further than why there may be reasons that the rectification claim should proceed to trial.
As outlined, the Wilcox Affidavit attaches a copy of a letter from the defendants' lawyers to the plaintiffs' lawyers addressing why, in the defendants' view the plaintiffs' application for summary judgment ought to be withdrawn. The letter also sets out the defendants' contentions that there should be further discovery and cross examination in relation to the negotiation and drafting of the Purchase Deeds, and as to the alleged conflict of interest of the plaintiffs' lawyers. Those are not reasons that give rise to a defence, a triable issue or amount to some other reasons why the plaintiffs' claim for declaratory relief on the construction issue should proceed to trial.
As to the submissions that there should be cross examination and further discovery, whilst that may be so in relation to the alternative claim for rectification, it is not so in relation to the objective construction of the Purchase Deeds.
The just, efficient resolution of the dispute between the parties favours the exercise of the court's discretion to make a declaration to resolve the issue as to whether the obligation in cl 4(c) is an obligation of HGM or NQ. To permit the matter to proceed to trial, in circumstances where the ultimate outcome would not, in my view, be any different at trial, would only serve to incur further costs and would not be an efficient use of the parties' or the court's resources.
I am not satisfied that declarations should be made in the precise terms set out in the prayer for relief or the Application. I am unable to make declarations in terms that state as a fact that HGM has, and since the Effective Date, had a present obligation under cl 2(a), cl 2(b) and cl 4(c) of the relevant Purchase Deed to sell and deliver Refined Gold to RIVI and Refined Silver to RCA. That would require me to be satisfied, as a matter of fact on a summary basis, that Commercial Production has been achieved. That is not an issue that has been ventilated and upon which I am able to reach a view one way or the other on the material before me.
However, it is appropriate, in my view, that declarations be made in relation to each of the Purchase Deeds to the following effect (with corresponding amendments made to the wording of the declarations concerning the Silver Purchase Deed):
(a)the reference to NQ in cl 4(c) of the Gold Purchase Deed is a reference to HGM; and
(b)the obligations in cl 4(c) of the Gold Purchase Deed to deliver and credit to RIVI's designated bullion account Refined Gold in an amount equal to the number of Ounces or the Agreed Proportion of Payable Gold for or in respect of which payment had been received, or would have been received, or credits have been made to the gold bullion account of HGM, NQ or any other Related Bodies Corporate, as provided in cl 4(c) of the Gold Purchase Deed, are obligations of HGM, not NQ.
I will hear from the parties as to the terms of the declarations to be made.

The alternative claim for rectification

As I have determined that declaratory relief should be granted, it is not necessary for me to address the plaintiffs' alternative claim for rectification.
However, for completeness, had I been required to do so, I would not have made orders for rectification by way of summary judgment.
The principles that apply to rectification are well established. They were summarised by Buss JA (as his Honour then was) in Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd:[107]
[164]The object of the equitable doctrine of rectification is to reform an instrument where it is established, by clear and convincing proof, that when the instrument was executed the relevant party or parties, as the case may be, had an actual intention (if more than one party, a common intention) that was mistakenly expressed in the instrument. Equity may and does rectify instruments. It does not rectify bargains or transactions. SeeMackenzie v Coulson (1869) LR 8 Eq 368, 375 (Sir William James VC).
[165] Rectification therefore corrects a disconformity between an instrument, on the one hand, and the actual intention of the relevant party or parties (if more than one party, a common intention), as the case may be, when the instrument was executed, on the other, so that the instrument contains the provisions which the relevant party or parties actually intended it to contain. See Bacchus Marsh Concentrated Milk Co Ltd (in liq) v Joseph Nathan & Co Ltd [1919] HCA 18; (1919) 26 CLR 410, 427 (Isaacs J); Maralinga Pty Ltd v Major Enterprises Pty Ltd [1973] HCA 23; (1973) 128 CLR 336, 350 (Mason J, Menzies J agreeing); Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 346 (Mason J, Stephen J relevantly agreeing).
…
[171]The general rule, subject to some exceptions, is that rectification of an instrument made by two or more parties is not permitted on the ground of a unilateral mistake by one party as distinct from a common mistake by both or all of the parties. There are, however, exceptions to the general rule. See the discussion in Meagher, Gummow and Lehane's Equity Doctrines & Remedies (5^th ed, 2015) [27-125] - [27‑140].
[107] Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21 [164] - [166], [171]. See also Simic [103] - [104].

The plaintiffs have not established by clear and convincing proof that when the Purchase Deeds were executed the parties had the common intention alleged, and which was mistakenly expressed in the Purchase Deeds. Mr Puil deposes to his intentions on behalf of RIVI and RCA and to what he states as a conclusion was agreed in conversations between him and Mr Doyle, but the evidence adduced does not go so far as to establish the parties' common intention.
It is not a sufficiently clear case to order rectification on a summary basis. Nor am I able to conclude on the material before me, at this stage, that there is no question to be tried in relation to the rectification claim.

Conclusion and orders

For these reasons:
(a)the plaintiffs have leave to bring the Application, the time for which is extended to the date of filing; and
(b)the Application should be, and is, allowed in relation to the plaintiffs' primary claim for declaratory relief, although with some variation to the terms of the declarations sought.
I will hear from the parties as to the final form of the orders and the declarations to be made, and in relation to costs.
Subject to hearing from the parties, the plaintiffs having succeeded in relation to their application for summary judgment on their primary claim for declaratory relief. There does not appear to be any reason why costs should not follow the event, and the defendants pay the plaintiffs' costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FP
Associate to Master Russell
24 MARCH 2025