Tribune Resources Ltd v EKJV Management Pty Ltd - [2020] WASC 47

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TRIBUNE RESOURCES LTD -v- EKJV MANAGEMENT PTY LTD [2020] WASC 47
CORAM:   KENNETH MARTIN J
HEARD:   24 JANUARY 2020
DELIVERED          :   24 JANUARY 2020
PUBLISHED           :   19 FEBRUARY 2020
FILE NO/S:   CIV 3171 of 2019
BETWEEN:   TRIBUNE RESOURCES LTD
First Plaintiff
RAND MINING LTD
Second Plaintiff
RAND EXPLORATION NL
Third Plaintiff
AND
EKJV MANAGEMENT PTY LTD
First Defendant
NORTHERN STAR (KANOWNA) PTY LTD
Second Defendant
GILT-EDGED MINING PTY LTD
Third Defendant
EKJV MANAGEMENT PTY LTD
NORTHERN STAR (KANOWNA) PTY LTD
GILT-EDGED MINING PTY LTD
Plaintiff by counterclaim
TRIBUNE RESOURCES LTD
RAND MINING LTD
RAND EXPLORATION NL
Defendant by counterclaim

Catchwords:

Practice and procedure - Interlocutory application - Mandatory injunction - Parties to Joint Venture Agreement - Whether a strong argument of breach of contract between parties - Consideration of the balance of convenience - Application dismissed

Legislation:

Corporations Act 2001 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Ms P Cahill SC & Mr C Beetham
Second Plaintiff	:	Ms P Cahill SC & Mr C Beetham
Third Plaintiff	:	Ms P Cahill SC & Mr C Beetham
First Defendant	:	Mr S Penglis SC & Ms C Pedler
Second Defendant	:	Mr S Penglis SC & Ms C Pedler
Third Defendant	:	Mr S Penglis SC & Ms C Pedler
Plaintiff by counterclaim	:	Mr S Penglis SC & Ms C Pedler
Defendant by counterclaim	:	Ms P Cahill SC & Mr C Beetham

Solicitors:

First Plaintiff	:	Quinn Emanuel Urquhart & Sullivan Llp
Second Plaintiff	:	Quinn Emanuel Urquhart & Sullivan Llp
Third Plaintiff	:	Quinn Emanuel Urquhart & Sullivan Llp
First Defendant	:	Ashurst Australia
Second Defendant	:	Ashurst Australia
Third Defendant	:	Ashurst Australia
Plaintiff by counterclaim	:	Ashurst Australia
Defendant by counterclaim	:	Quinn Emanuel Urquhart & Sullivan Llp

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

Leisure Co Pty Ltd v City of Bunbury [2006] WASC 209
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Ooranya Pty Ltd v ISPT Pty Ltd [2018] WASC 256
Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1

KENNETH MARTIN J:

Introduction

I am dealing with the plaintiffs' application made by amended chamber summons filed 14 January 2020 (plaintiffs' summons) seeking various interlocutory injunctive relief against the defendants. This matter has reached me on an urgent basis given the nature of the relief sought under the plaintiffs' summons.
In the afternoon of Friday, 24 January 2020, I heard the parties on the plaintiffs' application. At the conclusion of that hearing, having heard from senior counsel for both sides, it was necessary for me to deliver brief summary reasons as to my decision on the application to the parties. I indicated that I would not make the contested orders as sought under the plaintiffs' summons. However, as I will come to discuss, it was not necessary for me to make a determination as to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tribune Resources Ltd v EKJV Management Pty Ltd

Details

AGLC: Tribune Resources Ltd v EKJV Management Pty Ltd [2020] WASC 47
Case: [2020] WASC 47
Decision Date: 19 FEBRUARY 2020

CaseChat Overview and Summary

Tribune Resources Ltd brought an interlocutory application against EKJV Management Pty Ltd for a mandatory injunction, arguing there was a strong case for a breach of contract between the parties. The dispute arose from the parties' obligations under a Joint Venture Agreement, specifically concerning the anticipated volumes of ore advance notices required under the Ore Treatment Agreement (OTA). The Federal Court of Australia was tasked with deciding whether a strong argument for a breach of contract existed and if the balance of convenience favoured the grant of an injunction.

The court considered the principles outlined in Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia, where the High Court emphasised holding an entity to a course of business conduct. Additionally, the court referred to the decision of Le Miere J in Leisure Co Pty Ltd v City of Bunbury, where similar principles were applied. The court found that there were significant difficulties with the plaintiffs' application. Specifically, the court noted that the advance notice requirements under the OTA were met, as evidenced by the schedules attached to the court's reasons. The court highlighted that the advance notices given by both parties were consistent with the terms of the OTA, and there was no breach of contract on the evidence presented.

Consequently, the court dismissed the plaintiffs' application for a mandatory injunction. The court concluded that there was no strong argument for a breach of contract, and the balance of convenience did not favour granting the injunction. The plaintiffs' application was dismissed with no orders for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Further, I note observations of the High Court of Australia in Patrick Stevedores Operation No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 in holding an entity to a course of business conduct. To that same end, I mention the decision of Le Miere J in Leisure Co Pty Ltd v City of Bunbury [2006] WASC 209 at [32] where the observations in Patrick Stevedores were applied. Applying all those principles to the present application, there are, on my assessment, insuperable difficulties against the plaintiffs' application to which I now turn. The current dispute concerns the anticipated volumes of ore advance notices as required to be provided under cl 4.1 and cl 4.2 of the OTA. It is necessary to turn to these clauses in greater detail. For convenience, I will set out all of cl 4.1 and cl 4.2 of the OTA in full:4.EKJV MILL SCHEDULE4.1During the term of this Agreement, the EKJV Parties will advice Kanowna [ie, the second defendant] on a rolling quarterly basis of the projected EKJV Ore that is expected to be available to be sent to the Mill for processing (tonnage and source of ore). The report will provide these details for the upcoming quarter, as well as an estimate for the succeeding three quarters.4.2During the term of this Agreement, Kanowna must provide to the R&T Group at least two months in advance of the start of each quarter a calendar quarterly milling schedule which is consistent with the requirements of clause 5.7 and which details the estimated EKJV Ore tonnes and ore source that can be processed in the upcoming calendar quarter and the timing of that processing, and the estimated EKJV Ore tonnes and ore source that can be processed in the following three calendar months (the 'EKJV Mill Schedule'). For the purposes of better insights to the OTA parties' agreed regime of notification under cl 4.1 and 4.2 of the OTA in practice and the dispute between the parties, I will attach schedules 1 and 2 to these reasons. First as schedule 1, is DLE‑9 from the first Eaton affidavit. So seen, these are the quarterly, two months in advance notifications as given, commencing at 29 January 2019, with the last at 29 October 2019 - in terms of notifying an amount of EKJV Ore that the plaintiffs and third defendant had then advised the second defendant they sought, in effect, to have milled at the Kanowna Belle Mill. Second, correspondingly, I attach schedule 2 for the purpose of seeing the workings of cl 4.2 of the OTA, from DLE‑10 of the first Eaton affidavit. Schedule 2 includes a penultimate quarterly notice as given by the second defendant at 31 July 2019 (see DLE-10 page 305) (31 July 2019 notice). So seen, that notice nominated an amount of dry milled tonnes (DMTs) of ore that could be received for processing at the second defendant's mill over the October to December 2019 calendar quarter (292,773 DMTs). Thereafter, a following estimate is seen given for the ensuing three quarters of the 12-month period. It will be noted that by the second defendant's 31 July 2019 notice an amount of DMTs then estimated in advance for the January to March 2020 quarter, being then 260,360 DMTs.