By application made by an Originating Motion filed on 19 June 2025, the plaintiff seeks leave for a writ to be issued out of this Court for service in the Federal Republic of Germany, i.e. outside of Australia, under Order 5 rule 9 of the Rules of the Supreme Court 1971 (WA).
The application is supported by affidavits of Andrew Lovat Frazer, made and filed on 19 June 2025 and made and filed on 2 July 2025, who deposes to being the sole director of the plaintiff and to being authorised to make the affidavits on the plaintiff's behalf.
In Citic Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd[1] at [18] - [31], I set out the principles which I understand apply to this Court's consideration of granting leave under O 5 r 9.[2]
The writ in respect of which leave to issue is sought appears as 'AF‑21' to Mr Frazer's second affidavit (Proposed Writ). The Proposed Writ is indorsed with a statement of claim (Proposed SOC).
The plaintiff's claim concerns a Put Option Deed in respect of CHESS Depository Interests in respect of units of beneficial ownership in fully paid common shares in the capital of Almonty Industries Inc (Almonty CDIs): Proposed SOC [7].
In the broad, the plaintiff alleges in the Proposed SOC that:
the plaintiff and putative defendant (from here the defendant) entered into the written Put Option Deed with respect to 2,494,118 Almonty CDIs; Almonty Industries Inc being a Canadian incorporated company which is registered as a foreign company in Australia: Proposed SOC [8];
by the Put Option Deed the plaintiff granted the defendant an irrevocable option to require the plaintiff to buy the Almonty CDIs: Proposed SOC [9(b)];
pursuant to the Put Option Deed, the defendant subscribed for the securities in Almonty and so satisfied a, or, the condition precedent of the Put Option Deed: Proposed SOC [9(a)];
the defendant gave the plaintiff a written notice which constituted an 'Exercise Notice' under the Put Option Deed: Proposed SOC [11]. As I understand it, the plaintiff contends that this was the exercise by the defendant of the Put Option: the document relied upon is 'AF-7' at page 97 to Mr Frazer's first affidavit;
the plaintiff and defendant varied the Put Option Deed on or about: 4 October 2022;[3] 21 December 2022;[4] 22 February 2023;[5] 5 April 2023;[6] 29 June 2023;[7] 15 September 2023;[8] 15 February 2024;[9] 9 July 2024;[10] and 20 February 2025.[11] The plaintiff relies on the recitals to the written documents it says vary the Put Option Deed which recite that the defendant exercised the Put Option.[12] In turn, those recitals are relied on for the plaintiff's (later) estoppel plea;
on about 4 June 2025, the defendant stated to the plaintiff that the defendant had not exercised the Put Option: Proposed SOC [39]; and
the plaintiff sought confirmation from the defendant that the Put Option had been exercised and was binding and would be performed, but the defendant did not materially respond: Proposed SOC [40] and [41].
The Proposed SOC alleges that by clause 9.11[13] the Put Option Deed:
is governed by the law 'applying in' the State of Western Australia: Proposed SOC [9(n)]; and
the plaintiff and defendant unconditionally submit to the non‑exclusive jurisdiction of the Courts of Western Australia: Proposed SOC [9(o)].
Pursuant to the Put Option Deed as varied, the plaintiff claims that following the defendant's exercise of the Put Option, it (the plaintiff) is to pay the defendant the defined Purchase Price of AUD $2,244,706.20: Proposed SOC [42], and the defined Interest Amount of AUD $304,419.06: Proposed SOC [43].
The Proposed SOC pleads that the plaintiff is ready, willing and able to complete the purchase of the Almonty CDIs: Proposed SOC [47]. And the plaintiff claims that it gave notice of that to the defendant on about 27 June 2025, including that it could pay the Purchase Price and the Interest Amount: Proposed SOC [45].
The plaintiff claims that the defendant has refused or neglected to complete the sale of the Almonty CDIs: Proposed SOC [46].
The plaintiff then claims in the Proposed SOC:
that the defendant is estopped from denying that the Put Option was exercised and is valid and effective: Proposed SOC [44];
declarations to that effect: Proposed SOC prayer for relief A;
orders in the nature of specific performance of the Put Option Deed: Proposed SOC prayers for relief B and C;
alternatively, damages in lieu of specific performance: Proposed SOC prayer for relief D.
Mr Frazer by his affidavits verifies the facts, matters and circumstances pleaded in the Proposed Writ.
The plaintiff submits, albeit through Mr Frazer's first affidavit, that the Proposed Writ may be served without leave outside of Australia pursuant to:
Order 10 r 5(b);
Order 10 r 5(c);
Order 10 r 5(e);
Order 10 r 5(k); and
Order 10 r 5(n).
As became apparent at the hearing, the plaintiff more specifically relies on O 10 r 5(b)(iv) by reference to cl 9.11 of the Put Option Deed as noted above.
As to O 10 r 5(c), the plaintiff has pleaded that the completion of the sale and purchase of the Almonty CDIs is to take place at the offices of the plaintiff: Proposed SOC [9(i)].
Further, if it be necessary, that the securities in question are listed on the ASX suggests strongly that, at the least, what is alleged is an act or decision outside of Australia on the part of the defendant but which rendered impossible the performance of the contract to be performed in Australia (being the delivery of the off market transfers to the plaintiff in a registrable form: Proposed SOC [9(k)(i)]).
As to O 10 r 5(e), it appears to me that the subject matter of the claim is situated in Australia because the securities are listed on the ASX.
The plaintiff relies on cl 9.11 of the Put Option Deed referred to above to satisfy O 10 r 5(k).
The plaintiff submits that O 10 r 5(n) is satisfied by its claim that the Put Option Deed was effectively breached in Australia. The matters identified by the plaintiff going to O 10 r 5(c) above are also material to this head.
For present purposes, I am satisfied that if leave to issue the Proposed Writ is granted, then the plaintiff would be sufficiently and arguably within each of the heads of O 10 it has nominated.
Further, the plaintiff, via Mr Frazer's first affidavit, deposes to not being aware of any matters which may impact on the exercise of the Court's discretion to grant leave.
That must be viewed in light of Mr Frazer's second affidavit which annexes as 'AF-22' ‑ 'AF-27' correspondence passing between the plaintiff's solicitors and those representing the defendant. That correspondence post-dates this application being made.
By that correspondence the plaintiff's solicitors gave notice of the hearing on this application and sought to confer on the application.
The correspondence from the defendant's solicitors, effectively, accepts many of the core matters alleged by the plaintiff in the Proposed SOC but, centrally as I read it, disputes that the plaintiff was ready willing and able to perform. These are obviously matters which go to the merits of the case, rather than the question before the Court on this application.
It is hard to know exactly what to make of the correspondence from the defendant's solicitors as to the defendant's position on this application. I do not know if it was intended to be obfuscating as to whether this application remained necessary, but that is its effect.
With one exception, that correspondence does not raise any matter which seems to go to this Court's determination of the application. The exception may be the letter dated 1 July 2025 which is part of 'AF‑27' at page 50. The defendant there contends that the application was made prior to amended Completion Date under the Put Option Deed and was filed prematurely.
The plaintiff submitted that the application sought leave to issue a writ which would factually happen after the amended Completion Date (of 30 June 2025). The plaintiff submitted it had filed the application because it had apprehended that it may need to seek injunctive relief to restrain an anticipated breach of the Put Option Deed.
I do not consider that the filing of the application as described materially affects the Court's consideration of the application. As submitted, any leave granted now would be for a writ where the pleaded causes of action would appear to be complete before the issue of the writ.
For the avoidance of doubt I will grant the plaintiff leave to bring its application from 19 June 2025.
Having considered the Proposed Writ as verified Mr Frazer's affidavits, I consider, in line with the principles I outlined in Citic Pacific that I should make orders in terms of Order 1 sought by the plaintiff in the originating motion.
That is, that the plaintiff should have leave under O 5 r 9 to issue the Proposed Writ for service outside of Australia.
The plaintiff seeks in the Originating Motion an order that the costs of this motion be in the cause of the proceedings to be commenced. I consider that is an appropriate order.
Further, I consider that when my reasons for granting leave are published, they should also be served upon the defendant as soon as practicable after their publication.
[2]
I order that:
leave be granted, if necessary, nunc pro tunc from 19 June 2025 for the plaintiff to bring this application;
leave be granted to the plaintiff pursuant to O 5 r 9 of the Rules of the Supreme Court to issue the writ of summons which was annexed as 'AF-21' to the second affidavit of Mr Frazer made and filed 2 July 2025 amended as needs be to comply with O 5 r 2 and Form 3 (Writ);
the Court accept the Writ for filing;
the Proper Officer of the Court issue the Writ;
the costs of the Originating Motion and the application be in the cause of the proceedings to be commenced pursuant to the leave granted above; and
a copy of these reasons be served on the defendant as soon as practicable after their publication.
[3]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[4]
[1] Citic Pacific Mining Management Pty Ltd v Joy Global (Aus) Surface Pty Ltd [2024] WASC 254 (Citic Pacific)
[5]
[2] See also Re Veolia Water Technologies (Australia) Pty Ltd [2025] WASC 46 [9] (Lundberg J); Perpetual Corporate Trust Ltd v Kottalewala [2025] WASC 250 [29] (Gething J).