Bathurst Resources Limited v L&M Coal Holdings Limited

[2020] NZSC 73

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

 SC 29/2020
 [2020] NZSC 73

BETWEEN	BATHURST RESOURCES LIMITED First Applicant
AND	BULLER COAL LIMITED Second Applicant
AND	L&M COAL HOLDINGS LIMITED Respondent

Court:	Winkelmann CJ, Glazebrook and Ellen France JJ
Counsel:	J E Hodder QC and R J Gordon for Applicants A R Galbraith QC and D R Kalderimis for Respondent
Judgment:	27 July 2020

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted (Bathurst Resources Ltd v L&M Coal Holdings Ltd [2020] NZCA 113).

BThe approved question is whether the Court of Appeal was correct to dismiss the appeal.

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REASONS

1. To assist counsel in preparing for the appeal, the Court notes the following points:

   (a)The principles of contractual interpretation have been set out by this Court in Firm PI 1 Ltd v Zurich Australian Insurance Ltd (Zurich).[1]  We will not revisit those principles on this appeal.

   [1]Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60]‍–‍[63], [77]–[79], [84] and [88]–[93] per Arnold J for the majority (Elias CJ and William Young J reserving their positions).

   (b)Zurich did not deal with the admissibility or otherwise of evidence of prior negotiations or subsequent conduct.[2]  We will hear argument on these issues. 

   [2]On subsequent conduct, counsel should also address the comments of Thomas J in Gibbons Holdings Ltd v Wholesale Distributors Ltd [2007] NZSC 37, [2008] 1 NZLR 277 at [113].

   (c)We will hear argument on the distinction between interpretation and implication and the appropriate test for the latter.  

Solicitors:
MinterEllisonRuddWatts, Wellington for Applicants
Chapman Tripp, Wellington for Respondent