Hillam v Ample Source International Limited

THE COURT 1 In the course of address in reply, the appellants sought leave to adduce further evidence on the hearing of the appeal. We accept that the matter was raised at this stage through inadvertence, rather than through any deliberate decision to leave it until address in reply. It may be arguable that the appropriate course would have been to include, in the grounds of appeal, a ground that the primary judge wrongly refused to grant leave to the present appellants to reopen at first instance. However, in view of the conclusions we have reached, namely, that the application to adduce fresh evidence should be refused, the process does not matter. 2 Two separate pieces of evidence are sought to be adduced as additional evidence on the hearing of the appeal. The first piece of evidence, being material along the lines sought to be adduced before the primary judge, concerned a report (the Report) provided by Carpentaria Exploration Limited (Carpentaria) to its members. The Report included a statement that, in May 2011, a positive pre-feasibility study for a large-scale magnetite mine had been announced. The Report stated that the pre-feasibility study estimated a positive net present value after tax of $2.8 billion and a potential mine life of at least 20 years. 3 Associated with that evidence was an announcement made by Carpentaria to the Australian Stock Exchange (ASX), on 21 November 2011, that the net present value of the mining project (the Project) had been increased by 14 per cent to $3.2 billion. In addition, on 29 February 2012, another announcement was made to ASX, on behalf of Carpentaria, concerning Carpentaria's attitude to the orders made by the primary judge in February, and in particular the order that Bonython Metals Group Limited (the Company) be wound up. 4 The evidence as to the value of the Project was said to be relevant as indicating the substantial value of an asset of the Company, being a value considerably higher than some of the values referred to by the primary judge in his Honour's reasons. However, our attention has been drawn to the fact that the existence of the pre-feasibility study was known to the valuation experts who gave evidence at the trial. A report by Mr Victor Rudenno of 31 May 2011 referred expressly to such a study. There was an opportunity for evidence to be adduced from the valuers concerning those matters in the course of the trial. Further, the attitude of Carpentaria to the result of the proceeding, which was the subject of the announcement of 29 February 2012, could have been explored with Mr Nicholas Sheard, the executive chairman of Carpentaria, who gave evidence at the trial. We are not persuaded that any of that material has sufficient cogency to justify receiving it, either as additional evidence on the hearing of the appeal, or as a basis for granting leave to amend the notice of appeal to rely on the ground that the appellants were wrongly refused leave to reopen before the primary judge. 5 The second piece of evidentiary material concerns the possibility of an offer being made to the Company to acquire its interest in the Project. The evidence proffered consists of an undated document received by the Company on 11 April 2012. The basis for the tender of the material is that it is evidence that there is a proposal available to the Company that may result in the disposition of its interest in the Project for a very substantial sum. 6 However, the document on its face is inoperative. It is expressed to be subject to the receipt of a formal offer no later than 3 April 2012. It also refers to a number of conditions, including that due diligence to the satisfaction of the proposed investor should commence on delivery of a formal written offer and terminate within 21 days thereafter. It is also expressed to be conditional upon approval by the Foreign Investment Review Board being granted within 90 days of the date of acceptance, and that the consent or approval of Carpentaria, if required, be given under the joint venture agreement that was in place. The document states that it is to be a term of any offer that the sum of $25,590,000 be paid to an escrow account, on or before 1 May 2012, for purposes specified, and that the sum of $20 million be paid to an escrow account, on or before 1 May 2012, for other purposes specified. The document is signed on behalf of Jai Bhairavi Energy Pte Limited. There is no evidence to indicate the standing of that company, or its capacity to make the very substantial payments that would be contemplated by the proposal, if it were to proceed. 7 Senior counsel for the appellants indicated that he was in a position to call oral evidence to the effect that some steps had been taken, following receipt of the document on 11 April 2012. However, he did not suggest, and specifically disavowed any suggestion, that there was any legally binding obligation, arising under the document, on any party to proceed with any proposal involving the disposition of the Company's interest in the Project. 8 The significance of the proposal in the document is related to the circumstances surrounding the expedition of the hearing of this appeal. Under the terms of the joint venture agreement between the Company and Carpentaria, the Company may make a payment of some $25 million, by 15 May 2012, in order to increase its interest in the Project. The appeal was expedited on the basis that, if it were successful, and thus no winding up order were to be made, there was a possibility that an arrangement might be made by the Company that would enable $25 million to be generated by 15 May 2012. 9 However, the terms of the document that the appellants now seek to put before the Full Court are such that it is pure speculation as to whether or not there might be a proposal that would generate a payment of $25 million by 15 May 2012. In the circumstances, we do not consider that the material has sufficient cogency to justify the grant of a further indulgence at this stage to enable it to be put before the Full Court. 10 This matter was foreshadowed before the primary judge at a hearing on 11 April 2012. At that stage, the document had not been received by the Company, although it was foreshadowed to his Honour that such a document was expected in the reasonably near future. It was received by the Company after his Honour reserved judgment on 11 April 2012. On 13 April 2012, his Honour rejected the application that had been made to him for further interlocutory relief pending the hearing of the appeal. His Honour observed that he did not consider that there was any realistic proposal that would involve the receipt by Carpentaria of $25 million by 15 May 2012. His Honour considered that the material before him was too uncertain, particularly as to timing. His Honour had a draft of the document, but, at that stage, no signed version had been received. 11 The considerations taken into account by his Honour are much the same as those that persuade us to conclude that there is no realistic prospect that the proposal evidenced by this document is likely to come to fruition by 15 May 2012. For those reasons, we would also reject the tender of that proposed additional material. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, Jacobson and Buchanan.