BULLION MINERALS LTD -v- FEWSTER & ORS [2007] WASC 100 (4 May 2007)

BULLION MINERALS LTD -v- FEWSTER & ORS [2007] WASC 100 (4 May 2007) - WASC 2007 case summary — Zoe

[181]

"Mr Bantock outlined that, as he had explained to Mr Fewster in their previous telephone discussion earlier in the morning, the Board of Bullion had met to consider the deal put by Mr Fewster. He then summarised the deal put by Mr Fewster this morning, as outlined above.

Mr Bantock stated each principal point to the deal and sought and received for each point Mr Fewster's understanding and agreement of the point. He also confirmed that the above comprised the principal points of the deal. It was then clarified that the basis of future dealing was that if Mr Bantock telephoned Mr Fewster later in the day saying that Bullion accepted his deal, then the deal outlined above would be done.

The Board explained to Mr Fewster that it awaited a further conversation with Mr Stewart, before this confirmation would be made. Mr Fewster agreed and the Board assured Mr Fewster that Bullion looked forward to working as his partner to optimise the project and develop an outstanding uranium business.

Mr Bantock then summarised the process from here, being that subject to Mr Bantock confirming Bullion's acceptance of the deal, Bullion would request a trading halt on the ASX from Monday 8 August 2005, which under the Listing Rules could last for two days. It was expected that the agreed deal would be summarised in a bulletpoint list, which Messrs Bantock and Fewster would review by Monday lunchtime, after which the Heads of Agreement embodying the agreed deal would be prepared, concurrent with the relevant stock exchange announcement, over the course of Monday afternoon and Tuesday. On this basis, it was hoped that Bullion's ASX trading halt would cease on Tuesday, with the public announcement of the deal being released on the Wednesday morning. Mr Bantock stated that he would work on the bullet points over the weekend, and Mr Kiernan stated he would update the previous draft Heads of Agreement to incorporate today's changes pursuant to the agreed deal.

Each party wished the other well and Mr Fewster left the teleconference."

[264]

"In a case where a court is required to make a judgment concerning the intention of the parties in relation to what might broadly be described as a Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 dispute, it will normally be of importance that the court have an understanding of the commercial context in which the dispute arises, and a most significant feature of that context will relate to the subject which the parties regard, or would ordinarily be expected to regard, as matters to be covered by their contract. In some cases, such as transactions involving the sale and purchase of land, or leases, courts may properly feel well equipped to form a view on such matters without the need for much evidence. In many cases, however, of which the present is a good example, there is a need for evidence in one form or another as to what subjects would be regarded as requiring agreement between the parties. In this case the best evidence on that subject is to be found in the actual communications between the parties and, in particular, in the issues which they in fact addressed when they set about drafting their detailed contract.

It is to be noted that the question in a case such as the present is expressed in terms of the intention of the parties to make a concluded bargain: see, eg, Masters v Cameron (at 360). That is not the same as, although in a given case it may be closely related to, the question whether the parties have reached agreement upon such terms as are, in the circumstances, legally necessary to constitute a contract. To say that parties to negotiations have agreed upon sufficient matters to produce the consequence that, perhaps by reference to implied terms or by resort to considerations of reasonableness, a court will treat their consensus as sufficiently comprehensive to be legally binding, is not the same thing as to say that a court will decide that they intended to make a concluded bargain. Nevertheless, in the ordinary case, as a matter of fact and commonsense, other things being equal, the more numerous and significant the areas in respect of which the parties have failed to reached agreement, the slower a court will be to conclude that they had the requisite contractual intention."

[476]

358 The plaintiff and Eaglefield entered into a confidentiality agreement on 22 June 2005. The confidentiality agreement concerned "the Information" which was defined to mean all and any information, knowledge and know-how not in the public domain of any nature whatsoever and in any form of expression whatsoever in any way relating to the subject matter described in Schedule C and all parts and aspects thereof, and includes any reports, studies or other analysis prepared by any servant or agent of the plaintiff. Schedule C specified exploration licences 39/876 and 39/877, applications for exploration licences 39/1091, 39/1092 and 39/1114 (collectively described as the Tenements) and an area extending five kilometres beyond the boundaries of the Tenements. The agreement states that in consideration of the disclosure of the Information by Eaglefield to the plaintiff, the plaintiff made the covenants and agreements contained in the agreement. Clause 3 provides that the plaintiff shall at all times during the term of the agreement keep the Information and cause the Information to be kept strictly confidential and shall not cause or permit the disclosure of any of the Information to any person other than employees and consultants of the plaintiff or employees and consultants of Associates of the plaintiff. Associates is defined in a way which includes GER. Clause 6 provides that the plaintiff shall not at any time during the term of the agreement in a personal capacity or by or through an Associate make use of the Information in any manner whatsoever or derive any personal benefit from the Information from its use or application except as otherwise agreed by Eaglefield. The clause further provides that the plaintiff and any Associate agree not to obtain or seek to obtain any interest or right in ground contained within the area described in Schedule C during a two year period while Eaglefield is the holder or one of the holders of an exploration licence or exploration licence application in relation to that ground except with the written permission of Eaglefield.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (489 paragraphs)

BULLION MINERALS LTD -v- FEWSTER & ORS [2007] WASC 100 (4 May 2007)

A. Inclusion or exclusion of Reserve Minerals

G. Time and costs of negotiating joint venture agreements

Cases Cited (9)