CITIC LTD -v- MINERALOGY PTY LTD [No 2] [2020] WASC 252 (3 July 2020) - WASC 2020 case summary — Zoe

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CITIC LTD -v- MINERALOGY PTY LTD [No 2] [2020] WASC 252 (3 July 2020)

[2020] WASC 252

Supreme Court of WA|2020-07-03|Before: Martin J

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At a glance

Source facts

Court

Supreme Court of WA

Decision date

2020-07-03

Before

Martin J

Source

Original judgment source is linked above.

Judgment (88 paragraphs)

[1]

At a hearing across Monday, 22 June 2020, I dealt with the parties' disputes over categories of discovery for the purposes of this action in the context of the looming 10-day trial, fixed to commence before me on 7 December 2020. During the course of the day I was able to resolve, on an extempore basis, all but one of a dozen or so disputes over categories of mutual discovery - which categories are helpfully summarised in colour coded annexures provided by the parties - and which have been revised on an evolving basis. The latest iterations of those annexures emerged only on Monday morning, at about 6.00 am (WST) under the cover of Allens' (the solicitors for the plaintiffs) email.
During the course of the hearing I resolved all of the category disputes as regards documents requested by the CITIC Plaintiffs from Mineralogy and Mr Palmer. These were categories identified respectively as C11, C13, C14, C15 and C16. Extempore reasons delivered during the course of the day resolved such disputes.
As regards the categories of discovery requested by Mineralogy and Mr Palmer from the CITIC Plaintiffs and still resisted, there had been, essentially, disputes over seven categories or classes of documents which were requested, but resisted. Again, either by concession, or on extempore rulings made with the benefit of counsel's assistance through the course of the day, I was able to resolve, by reference to the last iteration of the parties' table of categories, the residual discovery disputes concerning categories - M1, M2, M5, M7, M8, M11 and M12. Issues concerning categories M14 and M18 have been put aside for the moment, on the basis of a foreshadowed and forthcoming reamended reply and defence to counterclaim to be filed by the CITIC Plaintiffs and which is said address an issue concerning the amount of measured and indicated magnetite ore, which the CITIC Plaintiffs could locate within mining leases M08/123 through M08/125. It is anticipated that the forthcoming amendment to the reply pleading is likely to resolve, or at least heavily truncate, the ambit of that document dispute regarding that category.

[4]

The date range of the request for M9 is for the period from 31 March 2006 to the present time.
The observed M9 end point references to D[77](d) and [144] is an intended reference to the pleadings, in particular, to pleas to be found within Mineralogy's current further amended defendant and counterclaim pleading - which was the subject of my grant of leave to so amend, on 27 May 2020.
I will return to discuss the wider context of those pleas in due course.
Discovery and inspection as regards this category is resisted by the CITIC Plaintiffs and not merely on the basis of relevance, but primarily on the basis of the oppressive burden said to be carried by assembling all the documents now sought (even allowing for the last sentence M9 truncation as presented).
A significant amount of affidavit evidence contends that the documents requested, if they could still be located, are likely to be voluminous. More significantly, it is said that the burdens in trawling back to 2006 to hunt for, unearth or relocate these documents, are said to be disproportionately burdensome at this time. That is said to be even more so where there has, it is also said, been more than ample past opportunities for Mineralogy to access or inspect all such documents in much earlier time periods. That was when they could all be located within a data room that had been assembled by CITIC Ltd and was made available to Mineralogy for inspection and verification purposes - albeit an opportunity not taken up then by Mineralogy at those earlier times.
The CITIC Plaintiffs say that this history and some other matters, when evaluated contextually, render the present request for the M9 class of document at this time as being disproportionately oppressive, in a context of the looming trial as a whole.
Bearing in mind the rival stances of the parties and a significant amount of evidence that was filed and relied upon by each side concerning the M9 documents, it became necessary for me to reserve my decision so as to take some more time to consider and weigh this residually disputed category of documentation.
Before I am able to render a decision, it is necessary to say something more about the background and litigation procedural history around which the present M9 category of discovery dispute arises in the present action. The action concerns the agreement known as the China Project Option Agreement (CPOA). I also note there was a predecessor action in this court over the same agreement, namely, CIV 3012 of 2012. Pursuant to the terms and conditions of CPOA, Mr Palmer and Mineralogy agreed to grant CITIC Ltd (under the previous name of CITIC Pacific Limited) options to acquire companies which have allocations of magnetite ore resources (or further allocations of resources).

[7]

One of the resistance arguments, as I had summarised at [20(a)] of CITIC v Mineralogy, is that the CPOA is said by Mineralogy to have been repudiated by CITIC Ltd. It is pleaded that this repudiation and breach (as alleged) of the CPOA led to a termination consequence, namely, that Mineralogy and Mr Palmer had then elected to terminate all further obligations of performance under the CPOA and so, the CPOA came to an end. That plea by Mineralogy of a repudiatory breach by CITIC Ltd being duly accepted by them is found particularly in par 77 through par 88, but see particularly par 78 of the further amended defence and counterclaim of Mineralogy filed (by leave) on 9 June 2020 of Mineralogy (FADAC).
Before further addressing the issue of an accepted repudiatory breach of the CPOA under Mineralogy's FADAC (as presently relevant to discovery issues and relevance), it is necessary to see the text of some of the CPOA's express provisions - around which the breach and repudiation arguments are made by Mineralogy.
Even before that, however, in a context of arguments about alleged and disputed repudiatory breaches of the CPOA by CITIC Ltd, it is important to remember that there has been preceding CPOA alleged termination litigation between all of the present parties (save for the fourth plaintiff) that came to be resolved the day before a listed trial under the consent orders of the parties and which were made by Chaney J on 30 September 2015 in that previous action, CIV 3012 of 2012. Chaney J had made the declarations as seen set out in [11] of my reasons in CITIC v Mineralogy to effectively circumvent the trial listed before him the next day. By consent, costs, as seen, were ordered against Mineralogy.
Those orders should be understood in the context of Mineralogy and Mr Palmer filing a fourth further amended defence in that proceeding (by leave of Edelman J granted 24 February 2015) on 16 February 2015. By the fourth amended defence, Mineralogy and Mr Palmer had made admissions to the effect of order 2 of Chaney J's 30 September 2015 orders, namely, that earlier purported terminations of the CPOA, as had been communicated to CITIC Ltd by Mineralogy by its letter of 4 October 2012 and by Mr Palmer, under his letter of 17 October 2012, were 'invalid'.
None of that is in contention in the present litigation as a matter of history concerning that prior litigation under CIV 3012 of 2012 and its, in the end, consensual earlier resolution under the declarations made by Chaney J on 30 September 2015 (and extracted by the court's order on 1 October 2015).
Consequently, present arguments (in this proceeding) as to necessarily later (than 30 September 2015) alleged repudiatory breaches of the CPOA by CITIC Ltd, by which Mineralogy or Mr Palmer, they say, have elected to accept, emerge within that historic CPOA litigation environment. That environment, of course, is of the prior Mineralogy (and Mr Palmer) assertions as to accepted repudiatory breaches of the CPOA by CITIC Ltd which, after commencement of the CIV 3012 of 2012 litigation by CITIC (on 13 December 2012) were later consensually declared as 'invalid' at 30 September 2015. The present consequence of this CPOA litigation history is in its consequence from a repudiatory breach of the CPOA perspective to CPOA events unfolding after 30 September 2015.
I can turn back then to some of the express terms of the CPOA that manifest as being presently relevant to the disputed M9 discovery category sought by Mineralogy.

[8]

As seen from CITIC v Mineralogy at [33], the text of CPOA cl 3, by cl 3.2 and cl 3.3, provides for a time frame within which CITIC Ltd might exercise its 'First Option'. It is not in contention that CITIC Ltd did that on 13 April 2012 - within one day of the as was extended time for the 'First Option' to be exercised by CITIC Ltd (remembering, of course, that the CPOA itself had been entered into as between CITIC Ltd, Mineralogy, and Mr Palmer on 22 October 2008 and that a draft version of the CPOA had been appended to even earlier agreements perfected between the essential protagonists at the end of March 2006).
I turn briefly to consider some history preceding the ultimate perfection of the CPOA at 22 October 2008.
On 21 March 2006, Mineralogy and each of Sino Iron and Korean Steel entered into agreements (the MRSLAs) granting Sino Iron and Korean Steel mining rights and leases. It is from this time that the CPOA had been in contemplation as a further future agreement between Mineralogy and CITIC Ltd, effectively deploying the same methodology as had been used around the entering of the two original Sino Iron and Korean Steel MRSLAs.
CITIC Ltd entered the Sino Iron Takeover Agreement on 31 March 2006. Subsequent to acquiring Sino Iron in July 2006, CITIC Ltd commenced negotiations in relation to a takeover of Korean Steel.
At the M9 issues hearing on 22 June 2020, counsel for Mineralogy, Mr Byrne, submitted that a draft version of the proposed future CPOA had been appended as an attachment to the Korean Steel Takeover Agreement of 1 November 2007 (see ts 146). That envisaged takeover was completed on 22 October 2008 and CITIC Ltd then became the ultimate holding company of Korean Steel.
It is therefore clear that the CPOA had enjoyed at least a two and a half year gestation period prior to being perfected at 22 October 2008.
And so, I return to examine in more detail other clauses of the CPOA.
Next, I need to refer to CPOA cl 3.3. It designates that 'the exercise price for the First Option will be the Purchase Consideration' (my emphasis).
The terms 'First Option' and 'Purchase Consideration' are both defined terms under the CPOA.
'First Option' is defined in the CPOA as:

[31]

I conclude, with little difficulty, that FADAC par 77(d) provides no basis at all in potential relevance to support the M9 requested category of documents which Mineralogy seeks and the CITIC Plaintiffs reject.
The Mineralogy FADAC plea under par 77(d) on its terms relates only to an issue as to a bright line temporal border arising from the CPOA itself and against accepting any drilling costs spent by CITIC Ltd post 31 March 2011 as set off amounts against the Purchase Consideration. As seen, CPOA cl 2.4 by its introductory sentence displays reference to CITIC Ltd carrying out this CPOA drilling obligation for up to five years from, in effect, 31 March 2006. Hence, a 31 March 2011 cut-off date for accepting CITIC Ltd's expenditure presents as a cut-off date as a matter of the bare interpretation of CPOA cl 2.4.
The FADAC par 77(d) argument by Mineralogy, which it will be remembered is relied upon as effectively being at the level of a repudiatory breach of the CPOA by CITIC Ltd, looks to be capable of ready resolution at a trial simply by reference to the temporal time cut-off expenditure line of 31 March 2011 either being engaged or not. The present range of M9 discovery as is called for by Mineralogy is thus not supported by any issues over or around FADAC par 77(d). That plea provides no basis at all to support the scale of a discovery exercise sought to be undertaken to assemble all the documents the subject of the present request made under category M9.
Moreover, in order to advance the FADAC par 77(d) plea and indeed to elevate it to a level of conduct by CITIC Ltd which might constitute conduct sufficient to be assessed at a level of a potential repudiatory breach of the CPOA, Mineralogy is expected to already hold some basis for it pleading that repudiation by conduct CPOA conclusion. That may well be identifying certain of CITIC Ltd's drilling costs as falling temporally well beyond the contended 31 March 2011 expenditure cut‑off time line, so as then not to be legitimately included within a quantification of the Drilling Obligation 'amount', by which CITIC Ltd would then set it off against the CPOA $US200 million Purchase Consideration that is otherwise to be paid for the first option acquisition.
Thus, to support M9, par 77(d) of the FADAC can essentially be put aside as not supporting what is asked. That leaves just par 77(c).

[42]

(i) By letter dated 6 December 2011 from CITIC Pacific Mine Management Pty Ltd (CPMM) on behalf of CITIC and its attachment, CPMM asserted that CITIC had spent $93,494,223 up to that date.

(ii) By letter dated 2 May 2012 from CPMM on behalf of CITIC and its attachment, CPMM asserted that CITIC had spent the Australian dollar equivalent of US$100,183,958 up to that date, while failing to state how much it had spent in Australian dollars.

(iii) By letter dated 27 September 2012 from CITIC and its attachment, CITIC asserted that it had spent US$135,562,053 up to that date, while failing to state how much it had spent in Australian dollars.

(iv) In a meeting held by telephone on 18 November 2011, attended by Helen Dillon, Rickard Walkland, Gavin Maclaren and Ben Strate on behalf of CITIC and by Mr Palmer and Geoff Smith on behalf of Mineralogy, Helen Dillon said that CITIC's preliminary estimate of its costs of fulfilling its Drilling Obligation was about $80,000,000.

(v) In October 2012, on the information then available to it, Mineralogy calculated that CITIC had demonstrated the expenditure of no more than $91,888,129 in costs of fulfilling its Drilling Obligation. Those costs are summarised in attachment A to a letter from Mineralogy to Allens dated 20 July 2018.

(vi) Additionally, CITIC claimed costs incurred after 31 March 2011 as pleaded in par 77(d) below. The actually expenditure in fulfilling the Drilling Obligation will have been less, as those sums included expenditure incurred after 31 March 2011.

(vii) By the letter dated 1 November 2013 from Allens to Mineralogy, and by the letter dated 17 December 2014 from Allens to Mineralogy, CITIC asserted that the sum identified in its letter dated 27 September 2012 [ie, the letter referred to in (iii) above and identifying expenditure of US$135,562,053 up to 27 September 2012] ought to be the basis for calculation of the Purchase Consideration.

(viii) Further particulars will be provided following receipt of expert evidence prior to trial.

[45]

To attempt to summarise the FADAC par 77(c) plea at this point, it will by now have been noticed that save for particulars seen under par 77(c)(vi) (which would seek to align that plea to that made later under par 77(d), as regards a temporal cut-off expenditure date of 31 March 2011 for CITIC Ltd drilling expenditure costs), the essence of the par 77(c) plea looks to be over an allegation of CITIC Ltd seeking to wrongly reduce the CPOA Purchase Consideration amount on the First Option by too much - on a basis of a set-off that claimed for amounts of CITIC Ltd drilling costs alleged by Mineralogy as being in excess of what CITIC Ltd had 'actually spent'.
The character of that par 77(c) contention by Mineralogy still presents as somewhat 'murky' overall. The essence, on paper at least, would appear to be raising a grievance against CITIC Ltd over it claiming (by proposing) to Mineralogy that it had spent greater amounts of money in complying with its CPOA cl 2.4 Drilling Obligation than it 'actually' had spent. But a basis to support a seriously pejorative contention as to CITIC Ltd falsely claiming to have expended an amount claimed, but not in fact actually having spent all of the as claimed amount as cl 2.4 drilling costs does not emerge out of any of the letters or statements that are presently identified by the eight particulars to par 77(c) of the FADAC.
So I am driven, in the end, to an assessment that the vice to be observed as being complained of by Mineralogy under FADAC par 77(c) is over an allegation as to CITIC Ltd seeking to reduce the amount payable as Purchase Consideration due under the CPOA for the First Option, illegitimately, by CITIC Ltd falsely claiming to have spent greater drilling costs sums than it actually spent.
Were such a complaint proven by Mineralogy, then I could accept as a matter of potentiality that such deliberately deceitful alleged conduct could, arguably, provide a basis to support a finding of repudiatory CPOA conduct by CITIC Ltd. Of course, Mineralogy would carry the evidentiary burden of proof to establish that serious charge.
On the other hand, if what is really in dispute is some lesser grievance over only a timing or characterisation argument for CITIC Ltd expenditure money as actually spent by it, then the force of proposal conduct by CITIC Ltd as regards that potentially providing a foundation to ascertain repudiatory conduct of the CPOA, look to diminish rather significantly.
I now turn to the respective written submissions as exchanged by the parties insofar as they bear upon the disputed discovery category M9 by way of elaboration of the issue landscape around category M9 as now related.

[47]

The parties adduced a considerable body of evidence as regards their contested discovery categories for the hearing of 22 June 2020.
For Mineralogy, it relied upon evidence from an affidavit of Kane Christopher Jones sworn 19 June 2020 and, specifically, as regards category M9, upon what is found under par 8 through par 11 of Mr Jones' affidavit and its relevant attachment. I return to that evidence in due course.
The CITIC Plaintiffs read and rely upon an affidavit of Michelle Elise Dunn affirmed 19 June 2020. Ms Dunn is a Project Co-ordinator -Special Project, with CITIC Pacific Mine Management Pty Ltd (CPMM), a subsidiary of CITIC Ltd. I will return to elaborate upon what she says, particularly at par 4 to par 8 of her affidavit as regards CITIC Ltd's cl 2.4 CPOA drilling expenditure, supporting material and as to the drilling costs data unavailability at the present time.
The CITIC Plaintiffs also relied upon the affidavit of Jeremy Peter Rich (a solicitor for the CITIC Plaintiffs), affirmed 19 June 2020. Mr Rich's affidavit essentially contains passing correspondence between the parties and their legal advisers stretching across the period 6 December 2011 through to 17 December 2014. I will refer to some of the aspects of that correspondence in due course.
The CITIC Plaintiffs also relied upon a communication found within an affidavit of Tania Cini (a partner of the CITIC Plaintiffs' solicitors) sworn 24 October 2018 as regards a communication in this action of 4 July 2018 sent by Allens on behalf of the CITIC Plaintiffs to the lawyers for Mineralogy, including to Mr Kane Jones, legal counsel, and to a Mr Danny Jacobson, solicitor. That 2018 communication essentially complained about a lack of proper particulars from Mineralogy as regards the then iteration of the defence par 77 pleas, and particularly under par 77(c) and par 77(d), as they were then fashioned. The communication led to a Mineralogy response of 20 July 2018 providing further particulars (see par 77(c) FADAC particular (v)).

[60]

Mr Jones' relayed response as regards Mr Spielvogel's suggested 2020 views as now communicated by him to Mr Jones indicates a fairly significant 'volte face' against the position as stated in Mineralogy's letter to Allens of 20 July 2018.
It should also be noted that the 20 July 2018 response then communicated by Mineralogy to Allens was no casual communication. It saw Mineralogy responding to a formal request made in this action for better particulars following Ms Cini's communication for Allens of 4 July 2018. That request for better par 77(c) and (d) details had issued then on a basis that the pleas, particularly made under FADAC par 77(a) through (d) and (g), were suggested then as being liable to be struck out, on a basis they failed to state the defendant's (ie, Mineralogy's) case with reasonable particularity. The 20 July 2018 response provided by Mineralogy then, seen within the framework of this action, was a formal answer to the demand for better particularity of those FADAC par 77 pleas. It ought not to be casually resiled from.
Moreover, the 20 July 2018 Mineralogy response adopted, in effect, at then the results of a six years earlier assessment exercise as had been conducted by Mineralogy in October 2012 as regards Mineralogy's then either accepting or not accepting drilling costs expenditures as claimed by CITIC Ltd. That was for the money spent by CITIC Ltd, on Mineralogy's case, over a five-year period spanning from the end of March 2006 to the end of March 2011.
The (2006 - 2011) CITIC Ltd drilling expenditure under CPOA cl 2.4 events were long enough distant at the time of Mineralogy's 20 July 2018 response to Allens. They are even further distant now, in a context of a looming December 2020 trial, as regards a potential trawling exercise over expenditures by CITIC Ltd of, in most cases, over a decade ago being explored again, effectively, to be reconducted from scratch. That prospect, even in concept, now presents as repugnant unless it is essential to trial issues. That is the question.
I can turn now to the position as identified under the CITIC Plaintiffs' written submissions concerning the requested category of documents by Mineralogy as M9.

[70]

Under a heading 'Drilling Cost Data Availability', Ms Dunn continues:
1. During the project construction phase the accounts and procurement functions relating to the Sino Iron project were largely based in Beijing and the material made available to Mineralogy was compiled by personnel in Beijing. That function in Beijing has since been shut down. I have made enquiries of CITIC's finance teams in Australia, Hong Kong and Beijing regarding the continued availability of the previously‑compiled supporting documents and data room material. Based on my enquiries to date, I cannot confirm the content, composition or continued existence of the data set that was previously compiled and made available to Mineralogy at CITIC's Perth office from 2011.
2. Further, the drilling cost financial data was located across three databases, MYOB, AX and SAP. Based on my enquiries to the finance department in Perth, I understand that the MYOB and AX databases are legacy databases which are no longer operational. CITIC no longer has licenses to access these legacy databases. Even if new licenses could be obtained, that does not mean that the data in the legacy MYOB and AX databases would be accessible due to database software changes.
3. In addition, I understand from members of CITIC's finance teams that underlying transaction data (such as invoices, purchase orders and other drilling cost documents) related to the MYOB and AX databases is inaccessible.
4. Even if it were possible to seek to replicate the supporting material compiled and made available to Mineralogy in 2011, the time, cost and effort required to do so would be very significant given the large number of individual transactions involved in the total drilling costs figure and the time that has passed since those transactions occurred.
The burden of this evidence from Ms Dunn goes towards a contended unacceptable oppressiveness to the CITIC Plaintiffs of them reassembling again, to the extent it can be accessible in 2020, all of the M9 documents as sought and notwithstanding Mineralogy asserting therein (last sentence) that it is not seeking all invoices for CITIC Ltd's drilling expenditures.

[80]

Weighing all the materials which have been assembled as regards documentary category M9 as sought by Mineralogy for the purpose of the CITIC Plaintiffs giving their discovery and inspection in this litigation, I am of the end view that the Mineralogy request as framed presently must be refused as being grossly disproportionate to the presenting trial issues measured against the volume of the vast document assembly task and thus, unduly oppressive.
I do accept that in mid-2020, for reasons essentially as explained in Ms Dunn's affidavit, it must now be very burdensome for the CITIC Plaintiffs to try to provide the category M9 documents as currently formulated and, in particular, for over a period sought spanning 14 and a quarter years from 31 March 2006 to June 2020.
I also bear in mind a history of the prior CPOA litigation, by CIV 3012 of 2012, ultimately resolved the day before its scheduled trial under consent declarations of Chaney J of 30 September 2015, as extracted on 1 October 2015. The task and issue of calculating the drilling obligation expenditure of CITIC Ltd as spent by it under cl 2.4 of the CPOA, in order to to calculate the residual amount of the Purchase Consideration payable to the Seller under the CPOA for the First Option has been live since at least 13 April 2012. It was live in the earlier proceedings, CIV 3012 of 2012 begun on 13 December 2012 as resolved on 30 September 2015. That being the case, Mineralogy must surely have directed its attention to this drilling costs set off issue in the past as to what was due under the CPOA as the end Purchase Consideration payable to the Seller. That is readily apparent from the evidence, including in the 2012 exchanges between the parties and their lawyers collected under passing communications as found assembled in Mr Rich's affidavit spanning December 2011 to December 2014.
Moreover, FADAC par 77(c) as regards CITIC Ltd's contended repudiatory CPOA conduct, in terms of it proposing amounts as seen, carries along with it a side wind of alleged impropriety against CITIC Ltd, for it claiming moneys over and above what CITIC Ltd had 'actually spent'. It is for Mineralogy to make good upon that contention of impropriety. It is not for Mineralogy to be allowed carte blanche in mid‑2020 to demand and conduct a documentary fishing expedition to try and find some support for serious charges. That should have been work done at the time the allegation of impropriety was pleaded out.
The five-year period as is envisaged under CPOA cl 2.4 as regards CITIC Ltd's drilling obligation, looks to have ended at the end of March 2011. So the exercise of reconstructing, in effect, a CITIC Ltd drilling expenditure data room that had once existed, in order to provide a 2020 further opportunity for Mineralogy to 'verify' for itself afresh CITIC Ltd expenditures is, I accept, a proposition that emerges too late. In any event, it is no longer feasible based on Ms Dunn's evidence - which I accept.
The disproportionality of ventilating all these as proposed drilling costs verifications, in effect, de novo in mid-2020, in a context of Mineralogy's plea of repudiatory conduct by CITIC Ltd as regards the 'proposal' exercise of quantifying ultimately the Purchase Consideration by working out the amount of the drilling obligation expenses of CITIC Ltd to perform the required subtraction, looms as overwhelmingly disproportionate to the worth of the M9 exercise.
Just under eight years ago, at October 2012, it appears the same parties were then a long way apart in terms of the as demonstrated drilling expenditures of CITIC Ltd by their then different positions of $US135,562,053 claimed by CITIC Ltd - with Mineralogy then not accepting more than (on the information then available to Mineralogy) of $AUD91,888,129.
To allow eight years on what looms as a quasi Royal Commission into Mineralogy's proposed verification of all the drilling costs as claimed by CITIC Ltd in set off from the Purchase Consideration, effectively as a fresh exercise in 2020, for the purposes of the trial, is unrealistic to the presenting issues at trial. It is clearly disproportionate in its likely magnitude and cost. On my assessment, such a diversion would likely derail any prospect of completing a trial within a 10‑day period, in a context of asserted CPOA repudiation - which, on its face, presents as somewhat less than overwhelming (by making of a proposal that is said to be repudiatory conduct) and for circumstances where CITIC Ltd is now seeking performance of the First Option promises made to it under the CPOA and in that context proposing to pay the as ascertained end amount of Purchase Consideration to the CPOA Seller.
The proportionality of the as proposed M9 exercise as currently framed by Mineralogy is simply not justified.
My negative conclusion against M9 is particularly illustrated from the September 2012 and October 2013 communications, to be found as JPR-11 and JPR-12 respectively to Mr Rich's affidavit. Then CITIC Pacific Ltd director, Mr Vernon Moore, on 27 September 2012 had written to the deputy chairman of Mineralogy, in the following terms (JPR-11):