MINERALOGY PTY LTD -v- SINO IRON PTY LTD [No 16] [2017] WASC 340 (24 November 2017)

4 For all intents and purposes the two MRSLAs are identical in their terms (see ts 1,638). Sino Iron and Korean Steel are each individually allowed by Mineralogy to occupy and to mine for a fixed amount (one billion tonnes) of magnetite iron ore in a mining lease area (see MRSLA schedule, page 75). That mining lease area was granted to Mineralogy by the State of Western Australia (the State) and is in the north-west of Western Australia (in the area known as Cape Preston).

5 The two 2006 MRSLAs cover the same geographic area (see exhibit 1.17 and 1.20, Annexure 1, Plan B, page 78). That is the location for what in 2017 is now a massive iron ore mining, processing and export project that has been jointly constructed and operated by Sino Iron and Korean Steel (see exhibit 14, affidavit of Malcolm James Northey affirmed on 15 April 2017, par 28). Their joint approach effectively sees, as between the two MRSLAs, a total extraction limit of two billion tonnes of magnetite ore permitted to be mined over the long term duration of the two MRSLAs.

6 A third defendant, the overseas corporation CITIC Ltd (CITIC), became and is now, effectively, the ultimate parent holding corporation of Sino Iron and Korean Steel (see exhibit 1.76, annexure A). CITIC is a significant Hong Kongbased corporate entity that is listed on the Hong Kong Stock Exchange.

7 CITIC is pursued in this action by Mineralogy, effectively as a contended guarantor of Sino Iron and Korean Steel's royalty payment obligations (see Mineralogy's fifth further amended statement of claim of 24 January 2017 (fifth FASOC), pars 41 - 46).

8 CITIC's guarantee obligations arise under another (subsequent) written agreement known as the Fortescue Coordination Deed of 22 October 2008 (FCD) (exhibit 1.24).

9 I will refer to the three defendants in aggregate as 'the CITIC defendants'.

10 The essential question at issue and concerning all defendants at the trial is whether or not any amounts of royalty money are due and payable, as claimed by Mineralogy under the MRSLAs, in respect of quarterly periods commencing from the end of the December 2013 quarter and in all successive quarters thereafter, for a product volume royalty identified within each MRSLA at cl 8.2(a) as Royalty Component B (RCB).

11 Within each MRSLA a 'Mineralogy Royalty' is the expressed consideration payable to Mineralogy by Sino Iron and Korean Steel (see cl 8.1). It is seen to be comprised of two components - Royalty Component A (RCA) and RCB (see cl 8.2(a)).

12 The first component, RCA, is payable by reference to the assessed amount of magnetite ore that is 'taken' in a quarterly period: see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 194. RCA has been fully paid as the Mineralogy Royalty to date. No issues arise concerning the payment of RCA amounts due to Mineralogy in this trial (see Mineralogy's closing submissions, par 146).

13 The second Mineralogy Royalty component, RCB, is payable upon the volume of 'Product' (a term defined in MRSLA cl 1.1) as produced by Sino Iron and Korean Steel in each quarterly period (see MRSLA cl 8.2(a)).

14 The basis upon which RCB becomes payable to Mineralogy by Sino Iron and Korean Steel is most elaborately specified under cl 8.2(a) of each MRSLA. In short, RCB falls due to Mineralogy under each MRSLA by reference to a 'formula'.

15 The formula specified for RCB presents as something of a machinery provision in each MRSLA. It contains a number of distinct and combined ingredients - all to be ultimately applied as elements in a product volume royalty calculation. The monetary royalty amount calculation is to be made against the quantum of 'Product' that is produced by Sino Iron and Korean Steel in each quarter.

16 Two key elements in what will be seen to present as this elaborate RCB algebraic formula are called 'PP' and 'CP' (also defined in MRSLA cl 8.2(a)). Both PP and CP mention a US dollars price for two as referenced iron ore products.

17 PP and CP display what is suggested by the CITIC defendants to be a common problematic phrase.

18 PP and CP within the RCB calculation formula both refer to a 'prevailing published annual FOB price' which is expressed in US dollars per DMTU. I will refer to these words as 'the MRP phrase'. In both PP and CP, that phrase is used towards a species of iron ore reference product, namely, 'pellets' for PP and 'fines' for CP. Hence, the acronyms PP (meaning 'Pellet Price') and CP (meaning 'Concentrate Price' - but using fines as something of an analogue for iron ore concentrate as product) are found used in these parts of the RCB formula (see ts 1,666, 1,695, 1,999, 2,498).

19 The true meaning of the MRP phrase used in the definitions of PP and CP within the RCB calculation formula is at the heart of the parties' dispute at this trial.

20 Mineralogy began the current proceedings out of the Supreme Court of New South Wales on 18 March 2013 (see exhibits 1.75, 1.76). Mineralogy was claiming a liquidated amount allegedly due to it under cl 6.3 of each MRSLA and arising by reason of the alleged failure of Sino Iron and Korean Steel to produce six million tonnes of 'Product'. Those New South Wales proceedings were subsequently transferred to this court under the national State to State cross-vesting regime on 30 April 2013: see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] NSWSC 466.

21 Later, during 2014, Mineralogy attempted to refer a dispute over nonpayment of RCB amounts to an expert for a determination under MRSLA cl 8.6. That was Mineralogy's grievance over not receiving any payment at all for RCB at the end of the first quarter of 2014, notwithstanding an undoubted production by then and the export of significant quantities of iron ore concentrate as 'Product' by Sino Iron and Korean Steel in that quarter (see exhibit 1.28).

22 Mineralogy in 2014 was seeking to invoke an expert determination process provided for under MRSLA cl 33 in conjunction with cl 8.6 for its RCB non-payment disputes during 2014 against Sino Iron and Korean Steel (see exhibit 1.38).

23 However, Sino Iron and Korean Steel in 2014 both refused to join Mineralogy in the making of a joint request (as is required under cl 33.2(b) of each MRSLA) to the President of an identified nominating body to appoint the expert to perform the dispute resolution tasks under cl 8.6 (see exhibit 1.38). Consequently, no expert was appointed to determine RCB as Mineralogy had sought.

24 The trial was concerned with two main issues. The first issue concerned the true meaning of the MRP phrase used in the definitions of PP and CP in the MRSLA cl 8.2 RCB calculation formula. The second main issue was whether or not the parties' dispute concerning the non-payment of RCB to Mineralogy could properly be referred to an expert for a determination under cl 8.6 of the MRSLAs.

25 There are also multiple ancillary issues raised in the trial that must be addressed as well. These include the implications of this court's cross-vested jurisdiction (if any) via the Supreme Court of New South Wales and Mineralogy's claims against CITIC as guarantor of Sino Iron and Korean Steel's obligations under the FCD.

26 The CITIC defendants also contend for some terms to be implied ad hoc into the MRSLAs and, by their counterclaim, also contend that Mineralogy has breached the express good faith term that is found in the MRSLAs.

27 Mineralogy's basal claim at this trial is that it is due the agreed payment of the liquidated royalty amounts of roughly $US75 million by each of Sino Iron and Korean Steel (ie, $US150 million in aggregate), for the unpaid RCB amounts falling due to Mineralogy since January 2014 (see ts 1,639). Mineralogy says that these amounts are also fully guaranteed to it by CITIC under the FCD (see Mineralogy's fifth FASOC, pars 41 - 46). CITIC is therefore obligated to pay to Mineralogy the guaranteed amount of just over $US150 million (without interest) in respect of the unmet payment obligations of Sino Iron and Korean Steel.

28 Mineralogy's debt claim is ultimately grounded on its submission as to the true construction of the MRP phrase (ie, 'prevailing published annual FOB price') as used in the definitions of PP and CP within the RCB calculation formula.

29 Mineralogy contends that the MRP phrase is, in simple terms, just a pricing standard that was selected by the parties. It refers, correctly understood, to the market reference prices for the two market reference products that were prevailing from time to time (see Mineralogy's closing submissions, par 160). Mineralogy also submits that the MRP phrase, correctly understood, did not refer to the (former) annual benchmark pricing system (ABPS) as the exclusive source of market reference prices for the two chosen reference products used in PP and CP of the RCB formula (see Mineralogy's closing submissions, par 159).

30 Mineralogy next contends that Sino Iron and Korean Steel have breached cl 33.2(b) of the MRSLAs (see Mineralogy's fifth FASOC, pars 12 - 29). This is because Mineralogy says they failed during 2014 to co-operate with Mineralogy in the making of a joint request to the President of the Australasian Institute of Mining and Metallurgy (AIMM) for the President to appoint an expert to determine Mineralogy's claims concerning its entitlement to receive RCB from Sino Iron and Korean Steel (see Mineralogy's fifth FASOC, par 28). This is in the circumstance of there being an express obligation of good faith upon the MRSLA parties by cl 37.4 of the MRSLAs.

31 The President of the Law Society of Western Australia in 2014 had nominated the AIMM as the appropriate body to nominate an expert to resolve the dispute between the parties in relation to Sino Iron and Korean Steel's failure to make any RCB payments to Mineralogy (see exhibit 1.40).

32 The CITIC defendants resolutely reject all of Mineralogy's claims, as I will explain later in these reasons.

33 Under its Reply to the defence to the fifth further amended statement of claim and defence to the sixth further amended counterclaim of 10 February 2017 (Reply pleading), Mineralogy also rejects all the implied terms contended for in the MRSLAs as pleaded in the alternative by the CITIC defendants.

34 It should also be recorded at an early point in these reasons that the trial in June 2017 proceeded on the basis that the MRSLAs currently remain as valid, subsisting and binding contractual commitments as between all the parties. Mineralogy no longer contends, as it once did, that it terminated the MRSLAs for reasons of alleged serious breach by Sino Iron and Korean Steel (see exhibit 1.82, pars 107 - 110 compared to Mineralogy's fifth FASOC).

35 Hence, many formerly pleaded distracting issues, once raised during the interlocutory phases of the litigation (2013 - 2017), no longer remain relevant at trial. These departed issues include Mineralogy's claims for rectification of the MRSLAs (see exhibit 1.82, par 134; ts 1,639), claims for restitutionary relief (see exhibit 1.82, par 135) and the pursuit of payment of amounts arising as the subject of cl 6.3(b) under each MRSLA (see exhibit 1.82, pars 46 - 49) (being the amounts Mineralogy had then claimed were due when it commenced these proceedings out of the Supreme Court of New South Wales).

36 The CITIC defendants contend the problematic MRP phrase used in the definitions of PP and CP, when correctly understood in overall context, refers exclusively to the former ABPS published prices (for pellets or fines for export) (see the CITIC defendants' closing submissions, par 75).

37 The CITIC defendants argue that a consequence of an international iron ore industry evolution towards index based pricing, following China overtaking Japan as the largest international importer of iron ore, was that from April 2010 it became no longer possible, upon the demise of the ABPS at that time, to ascertain 'annual' market reference prices (for pellets or fines for export) (see the CITIC defendants' closing submissions, par 128).

38 Hence, the CITIC defendants say that PP and CP simply could not be ascertained after April 2010 upon the demise of the former ABPS.

39 As a result, it is argued by the CITIC defendants that the whole RCB formula became dysfunctional at that point. Thus the former ABPS could not be called upon when the RCB formula became potentially applicable with the commencement of the production of 'Product' at the Cape Preston project (ie, at the last quarter of 2013) (see Mineralogy's closing submissions, par 3; ts 1,726).

40 The CITIC defendants' related primary submission is that, in the post April 2010 circumstances of a now defunct ABPS, all references in the MRSLAs to RCB can simply be severed out of the MRSLAs. This still leaves, they submit, the residual terms of those MRSLAs as fully ongoing and functional in their future performances (see the CITIC defendants' defence to the fifth further amended statement of claim and sixth further amended statement of claim of 6 February 2017 (D and CC), par 25) - but, correlatively, would leave Mineralogy without the right to receive any 'Product' linked royalty component (ie, RCB) within its Mineralogy Royalty - and which was to be the 'enduring royalty' for Mineralogy (see cl 8.1(b) under each MRSLA).

41 Of course, that functional severance outcome submission only arises upon an acceptance of the CITIC defendants' advocated true construction of the problematic MRP phrase within the RCB formula in each MRSLA. Correlatively, if the CITIC defendants' advocated true construction of the problematic MRP phrase as used in PP and CP within the RCB formula is not ultimately accepted, then the CITIC defendants' severance arguments are not needed and must fall away.

42 The CITIC defendants resist all of Mineralogy's claims against them under their current pleaded defences in the litigation. However, the CITIC defendants advance further to counterclaim declaratory and other relief.

43 If the CITIC defendants are found to be correct on their primary construction argument about the MRP phrase's true meaning, but are then found to be wrong on their RCB severance contentions, they would contend, alternatively, that ad hoc implied terms should be found in the MRSLAs. The contended consequence of one such implied term would be that Mineralogy was not permitted to commence these proceedings - prior to first negotiating in good faith with the CITIC defendants to agree upon an appropriate replacement formula for the calculation of RCB (or for the whole Mineralogy Royalty) (see the CITIC defendants' D and CC, pars 26 - 27).

44 I must say at an early stage that I cannot accept this implied term. The MRSLAs do not say that, when they easily could have. And there has been ample time for talks between April 2010 and 14 January 2014 when, arguably, some RCB on product might first have been due to Mineralogy by Sino Iron and Korean Steel.

45 As a lesser fall-back alternative, the CITIC defendants would then contend for another implied term found in each MRSLA. This is to the effect that Mineralogy can be accepted to be entitled to receive under each MRSLA an (overall) royalty that is 'fair and reasonable', and which is then to be determined by this court, having regard to 'all relevant circumstances' (see the CITIC defendants' D and CC, par 28).

46 The CITIC defendants' further and final fall-back contention pleaded alternatively under their counterclaim prayers, albeit the lowest tier option, is that the MRSLAs were terminated for frustration - by reason of a problematic nonascertainment of RCB in the absence of the former ABPS (see the CITIC defendants' D and CC, par 29). A declaration sought towards that alternative termination by frustration outcome was the subject matter of prayer G of the CITIC defendants' counterclaim prayers in the D and CC.

47 However, the alternative frustration pleas were never pressed for at the trial by the CITIC defendants. During opening, senior counsel for the CITIC defendants, Mr Scerri QC, suggested as much (see ts 1,728). Frustration relief as regards the MRSLAs as a whole was later seen to be expressly abandoned under the CITIC defendants' closing submissions (see par 151).

48 In any event, on my assessment, a $US12 billion plus project investment to date made by the CITIC defendants and the confronting reality of what is now a busy, ongoing export operation by Sino Iron and Korean Steel from the project site at Cape Preston is simply not rationally reconcilable with a frustration conclusion. A contended frustration of the MRSLAs as a whole was always an untenable proposition - given what is currently still unfolding on a massive scale on a daily basis at the Cape Preston project site (see exhibit 1.184, the CITIC defendants' video explaining these operations).

49 The CITIC defendants also reject Mineralogy's claims that they breached a requirement under the MRSLAs to facilitate an expert determination (see the CITIC defendants' D and CC, par 47). Their position has been and remains that they will not join Mineralogy in making any request to the President of the AIMM to appoint an expert to determine an RCB dispute (see exhibit 1.38). [It looks to be accepted by the parties, and I would agree, that as a matter of the proper construction of MRSLA cl 33.2(b), a joint request to the President of the AIMM is needed to validly appoint such an expert.] The CITIC defendants reject the role of such an expert (under cl 8.6 and cl 33 of each MRSLA) because they contend, in effect, that:

(a) Mineralogy chose to commence these proceedings out of the Supreme Court of New South Wales on 18 March 2013 and so, from that time, a court became fully seized of resolving the parties' RCB dispute(s) whenever they arose; and

(b) the nature of the present RCB curial dispute is, in essence, over the true contractual meaning of aspects of the RCB formula as used in cl 8.2(a) of the MRSLAs. That controversy as to meaning raises a question of law which does not, they say, correctly characterised, relate to any dispute over an 'amount of Mineralogy Royalty'. Therefore, cl 8.6 of each MRSLA, they argue, is not enlivened. Such a legal dispute can only be determined by a court and so an expert acting under cl 33 of each MRSLA cannot be appointed to make the determination for the purposes of an RCB dispute (see the CITIC defendants' closing submissions, pars 165 - 166).

50 That, in broad terms then, is a simplified overview of the core issues that arise at this trial. I will now move to discuss this court's cross-vested jurisdiction over this matter, since that issue may carry procedural repercussions upon Mineralogy's liquidated claims for RCB amounts said to be due in quarters arising after Mineralogy first commenced the present litigation in March 2013.

The main issues concerning cross-vested jurisdiction and its significance**

51 The present litigation was commenced out of the Supreme Court of New South Wales on 18 March 2013 (see exhibit 1.75) and was then transferred on 30 April 2013 to this court under the Jurisdiction of Courts (Crossvesting) Act 1987 (NSW) (NSW Cross-vesting Act).

52 Two key questions arise from the transfer of the action under the crossvesting regime. First, is the chapeau to s 11(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) (the WA Crossvesting Act) engaged? Second, if the chapeau to s 11(1) is engaged, can procedural rules of New South Wales apply in the present action, albeit this is a proceeding conducted in the Supreme Court of Western Australia?

53 The significance of the answers to these two questions carries a potential impact towards the scope of the causes of action that may be determined in this trial. If the procedural rules of the Supreme Court of New South Wales can apply, then this court could resolve all the pleaded causes of action that are raised under Mineralogy's current pleading. Importantly, this would include Mineralogy's claims to receive RCB payments allegedly falling due to it at dates arising after the commencement of the present action out of the Supreme Court of New South Wales.

54 As I will explain below, I am, in the end, of the view that the answer to both questions posed above is in the affirmative.

Background facts concerning the transfer of the proceedings to this court

55 The action was commenced by Mineralogy in the Supreme Court of New South Wales under a summons filed in the equity division (commercial list), given case number SC 2013/82818 (see exhibit 1.75). Mineralogy's summons was accompanied by a New South Wales Commercial List Statement filed the same day (see exhibit 1.76).

56 As I earlier observed, the two MRSLAs (see MRSLA cl 38.4) and the FCD (see exhibit 1.24, cl 18.1) are expressly stated to be governed by Western Australian law. The Mineralogy mining lease area and the Cape Preston long-term magnetite processing project are geographically located in the northwest of Western Australia on mining leases granted to Mineralogy by the State under the Mining Act 1978 (WA) (see Mineralogy's opening submissions, pars 14 - 15; Mineralogy's fifth FASOC, par 5). Furthermore, there is an overarching written agreement of 5 December 2001 between the State, Mineralogy and six other parties, including Sino Iron and Korean Steel, concerning the project area (State Agreement) (exhibit 1.63).

57 Given all those facts and the ostensible absence of any otherwise identifiable link to the State of New South Wales, it is wholly unsurprising that Mineralogy's action was transferred to this court under s 5(2) of the NSW Crossvesting Act): see [2013] NSWSC 466 [30]. Stevenson J had observed 'the proceedings seem to have no connection at all with New South Wales' [24].

58 So, from May 2013 this court has dealt with Mineralogy's transferred action, now renumbered in this court as CIV 1808 of 2013. Since then, relevant case managers have included Edelman J, Chaney J and myself. Justice Tottle was called upon to urgently deal with Mineralogy's 2015 application. Mineralogy sought a mandatory interlocutory injunction to compel the CITIC defendants to remit amounts of RCB then said to have fallen due and claimed by Mineralogy on an interim basis before trial (see Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 8] [2015] WASC 473).

59 The CITIC defendants filed a counterclaim against Mineralogy in this court on 20 June 2013. The relief sought under the CITIC defendants' counterclaimed prayers has altered over time. So, indeed, have the claims advanced by Mineralogy under its pleadings.

60 The potential implications of crossvesting for the present trial really only emerged into focus late during closing submissions at the trial (see ts 2,387 - 2,400, 2,505 - 2,515). Even then, the potential ramifications of crossvesting were only touched upon rather indirectly. As a result, after closing submissions and the reserving of my decision, I decided to afford the parties a further opportunity to provide further written submissions addressing crossvesting and its possible implications.

61 I am grateful to the parties for the assistance provided under their further written submissions of 12 October 2017 and respective responsive submissions of 19 October 2017. It is apparent, however, that the parties remain in fundamental disagreement over the question of whether there is scope for a potential engagement of s 11(1) and thereby s 11(1)(c) of the WA Cross-vesting Act in the present trial.

62 The base submission of the CITIC defendants essentially is that following the transfer of Mineralogy's action to this court in 2013, there is no exercise of jurisdiction conferred under any crossvesting law (including, it would seem, they say, under the WA Cross-vesting Act) (see the CITIC defendants' submissions of 12 October 2017, par 11). Hence, the CITIC defendants contend that the chapeau to s 11(1) is not relevantly engaged. Consequently, there can be no viable path to s 11(1)(c).

63 The CITIC defendants contend that I am dealing essentially with a common law contract case - raising issues of contractual interpretation about the meaning of clauses within the parties' MRSLAs or in the FCD or, alternatively, Mineralogy's claim for damages for breach of terms in those agreements concerning RCB. They contend that no New South Wales legislation bears upon the subject matter of the present trial (see the CITIC defendants' submissions of 12 October 2017, par 11). It is a trial where the agreements at issue all expressly provide that Western Australian law is the parties' chosen law for the contracts. There is also a nonexclusive choice of forum clause for the courts of Western Australia under MRSLA cl 38.4(b) and in the FCD (exhibit 1.24, cl 18.2) (see the CITIC defendants' submissions of 12 October 2017, par 14).

64 But Mineralogy contends to the contrary as regards the application of the WA Cross-vesting Act. It submits that its regular commencement of this action in the Supreme Court of New South Wales and the CITIC defendants' ensuing submission to that curial forum, validly engaged New South Wales jurisdiction from the outset. Mineralogy says further that it is clear there was no writ or other originating process ever issued to commence the present litigation out of this court (see Mineralogy's submissions of 12 October 2017, pars 8, 11). To that end, Mineralogy invokes the High Court of Australia's observations in Flaherty v Girgis [1987] HCA 17; (1987) 162 CLR 574 (Mason ACJ, Wilson & Dawson JJ):

It is true to say, as was said by this Court in Laurie v Carroll, that where an action is in personam and transitory, the jurisdiction of a court of unlimited jurisdiction does not depend upon subject-matter but upon the amenability of the defendant to the writ expressing the Sovereign's command. At common law the writ does not run beyond the limits of the State (598). (footnote omitted)

65 See also Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310, 322 - 323 (Dixon CJ, Williams & Webb JJ).

Whether the chapeau to s 11(1) of the WA Cross-vesting Act is engaged or not

66 As I have said, the first question to be answered is whether the chapeau of s 11(1) is engaged. In other words, does it appear in this trial the Supreme Court of Western Australia 'will, or will be likely to' be exercising jurisdiction conferred on this court by the WA Cross-vesting Act or the jurisdiction that is conferred by a law of New South Wales relating to a cross-vesting of that court's jurisdiction to this court? Towards that enquiry, I turn first to the terms of the legislation itself.

67 It is convenient to set out the terms of s 11(1) and s 11(3) from the WA Crossvesting Act. They provide:

(1) Where it appears to a court that the court will, or will be likely to, in determining a matter for determination in a proceeding, be exercising jurisdiction conferred by this Act or by a law of the Commonwealth or a State relating to cross-vesting of jurisdiction -

(a) subject to paragraphs (b) and (c), the court shall, in determining that matter, apply the law in force in the State or Territory in which the court is sitting (including choice of law rules);

(b) subject to paragraph (c), if that matter is a right of action arising under a written law of another State or Territory, the court shall, in determining that matter, apply the written and unwritten law of that State or Territory; and

(c) the rules of evidence and procedure to be applied in dealing with that matter shall be such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external Territory.

...

(3) Where a proceeding is transferred or removed to a court (in this subsection referred to as the transferee court) from another court (in this subsection referred to as the transferor court), the transferee court shall deal with the proceeding as if, subject to any order of the transferee court, the steps that had been taken for the purposes of the proceeding in the transferor court (including the making of an order), or similar steps, had been taken in the transferee court.

68 Before reaching a final determination as to whether or not the chapeau to s 11(1) is presently engaged, it is necessary to render some preliminary observations.

69 First, this present issue looks to have been noticed by Gummow J in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400. In relation to the phrase 'exercising jurisdiction conferred', his Honour had said:

There is a question whether, in the circumstances of this case, where subject matter jurisdiction already subsisted in the South Australian transferee court and BHP was amenable to its processes by, at least, the use of the Process Act, the court, after the transfer, would have been exercising jurisdiction 'conferred by any cross-vesting law' [52].

70 His Honour then said that it was unnecessary to resolve that question of construction of the cross-vesting legislation: see [53]. The question left open by Gummow J in Schultz looks to be precisely the point of contention between the parties here.

71 Second, there is no dispute that Mineralogy regularly commenced this action out of the Supreme Court of New South Wales. There is also no issue over the regular service of the CITIC defendants of the action once it was commenced in New South Wales and their subsequent submission to that curial jurisdiction (see Mineralogy's submissions of 19 October 2017, par 33).

72 Consequently, prior to Mineralogy's action being transferred to this court by Stevenson J on 30 April 2013, the CITIC defendants were all then fully amenable to the jurisdiction of the Supreme Court of New South Wales to determine Mineralogy's action.

73 That position as regards regular service of the defendants may be contrasted strongly to a different controversy which arose over the regular service and the related extent of the in personam jurisdiction of the Supreme Court of the Australian Capital Territory over defendants in David Syme & Co Ltd v Grey [1992] FCA 479; (1992) 38 FCR 303; (1992) 115 ALR 247. In particular, I note Gummow J's extensive discussion within that decision between pages 327 - 333 concerning cross-vested jurisdiction and the scope to serve defendants not otherwise amenable to a court's jurisdiction. That appellate decision by the Full Federal Court preceded Gummow J's subsequent discussion in Schultz at passages previously indicated, where the present question was identified but not ultimately resolved.

74 Third, it should be noted in the cross-vesting context that I am dealing with a State to State transfer of superior court litigation. No federal jurisdiction bearing upon the transfer of proceedings is engaged here. [I note, however, that the published reasons of Stevenson J seem to have referred to s 5(2) of the Commonwealth cross-vesting legislation, Jurisdiction of Courts (Crossvesting) Act 1987 (Cth), in the decision to transfer the New South Wales proceedings to this court: see [2013] NSWSC 466 [2]. However, with great respect, that reference looks to be an error and it looks to me overwhelmingly more likely that his Honour had been referring to the same section in the NSW Cross-vesting Act.]

75 Fourth, it should be noted that s 4(3) of the NSW Cross-vesting Act invests a Supreme Court of another State (ie, here, the Supreme Court of Western Australia) with both the original and appellate jurisdiction of the Supreme Court of New South Wales for 'State matters'. The term 'State matters' is uniformly defined by s 3(1) of the Cross-vesting Act as a matter

(a) in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State;

76 As I have said, during March and April 2013 the Supreme Court of New South Wales held in personam jurisdiction over the CITIC defendants and so over the subject matter of the dispute raised then by Mineralogy in its own right, prior to Mineralogy's action being transferred to this court. Consequently, SC 2013/82818 was concerned with a New South Wales 'State matter', for the purposes of s 4(3).

77 Fifth, if a proceeding is transferred (as here) under the national crossvesting laws by one State Supreme Court to another State Supreme Court, the jurisdiction of the transferee State court to determine the transferred proceeding is found at s 9 of the transferee State court's cross-vesting legislation. I refer in particular to s 9(b) of the WA Cross-vesting Act.

78 Section 9 of the WA Cross-vesting Act was the global subject of Anderson J's observations rendered in this court in Reidy v Trustee of the Christian Brothers (1994) 12 WAR 583, 586. His Honour had said:

The jurisdiction of this Court to hear and determine an action commenced in the Supreme Court of Victoria and which by juridical act has been transferred to this Court is contained in s 9 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). That section provides:

'The Supreme Court or the State Family Court -

(a) may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Commonwealth or a State relating to crossvesting of jurisdiction; and

(b) may hear and determine a proceeding transferred to that court under such a provision.'

79 It is noteworthy that at page 586 of Reidy, Anderson J referred to all of s 9, not merely to s 9(b). That was under his Honour's observations as to s 9 being the source of the Supreme Court of Western Australia's jurisdiction to hear and determine that action - which had been commenced in the Supreme Court of Victoria and was later transferred from Victoria to the Supreme Court of Western Australia.

Even if there is room for debate about the question whether under the cross-vesting legislation this Court will be in truth exercising the jurisdiction of the Supreme Court of Victoria, the undeniable fact is that it will be exercising jurisdiction in respect of wrongs alleged to have occurred within its territory arising under the laws of its forum and involving people who at the time were domiciled here (586).

81 So, in the end, in Reidy Anderson J, with respect, like Gummow J in Schultz, did not need to authoritatively resolve whether or not the Supreme Court of Western Australia would be exercising any component of the Supreme Court of Victoria's jurisdiction in going about determining that transferred litigation in the Supreme Court of Western Australia. In Reidy, the issue was whether a relevant limitation of action provision from Victoria could apply in the transferred action heard in Western Australia. His Honour's preceding discussion upon whether limitation of action provisions were procedural or substantive laws seen at page 585 was, of course, conducted prior to the High Court of Australia's seminal decision upon that issue in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503. That changed feature, however, is not presently significant here.

82 What is more significant is that in Reidy, Anderson J proceeded further to evaluate and ultimately reject, a potential applicability of s 11(1)(c) of the WA Cross-vesting Act in going about determining what would be the applicable rules of evidence and procedure to apply in that transferred action. That was so albeit it was clear from the assembled facts that the underlying wrongs had all occurred in this State.

83 Sixth, s 9(a) of the WA Cross-vesting Act is clearly wider than s 9(b). It extends well beyond conferring the jurisdiction to hear and determine a transferred proceeding.

84 Section 9(a) presents as the local authorising counterpart provision where there is a utilisation of crossvested jurisdiction emanating from another Supreme Court, under s 4(3) of the other State's own cross-vesting legislation.

85 So it is that a conferral of one State's jurisdiction (over 'State matters') to a Supreme Court of another State is then seen to be locally sanctioned for that recipient State court via s 9(a).

86 That is still the authorising position even though there may not necessarily exist any allied transfer of an action from the other State.

87 But in either case, under s 9(a) and s 9(b), as Anderson J observed in Reidy at 586, the deciding court's jurisdiction will emanate from s 9 of the local cross-vesting statute - which locally authorises the exercise of the extra jurisdiction.

88 Seventh, after Anderson J noted that the subject matter of the transferred Victorian litigation in Reidy had been concerned with alleged wrongs occurring in Western Australian territory and with local laws and persons who had been domiciled in Western Australia, his Honour, nevertheless, still proceeded to conduct an evaluation as to the applicability or otherwise of the Victorian limitation of action law via s 11(1)(c). It appears to have been accepted in Reidy, therefore, that s 11(1) of the WA Cross-vesting Act had been engaged. Anderson J noted what was, in effect, a concession by the parties at page 587:

Accepting for present purposes, as all parties did, that in proceeding to determine these cases this Court 'will, or will be likely to ... be exercising jurisdiction conferred by ...' the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) ... the question is what rule of procedure relating to the limitation of actions this Court 'considers appropriate in the circumstances' to be applied in dealing with these cases. This is the question presented by s 11(1)(c).

89 Justice Anderson continued to observe whilst resolving ultimately not to apply the Victorian limitation of action provision:

I can see nothing in s 11(1)(c) of the Jurisdiction of Courts (Crossvesting) Act (Vic) or s 9 of the Jurisdiction of Courts (Crossvesting) Act (WA) to the effect that it is the intention of this legislation that the juridical advantages that might have been gained by the institution of proceedings in one forum should be kept and enjoyed upon a cross-vesting to another forum, although this is not to say that the potential loss of some such advantage may not be a relevant consideration in deciding whether or not to make a cross-vesting order (587).

90 Eighth, if in present circumstances within this trial the chapeau to s 11(1) of the WA Cross-vesting Act is engaged, then it follows by s 11(1)(a) that I should apply the contractual laws of Western Australia towards the MRSLAs and the FCD in resolving the present dispute. Section 11(1)(b) of the WA Cross-vesting Act would not be engaged as there is no relevant written law of New South Wales bearing upon the subject matter of the parties' presently pleaded disputes.

91 Nevertheless, it is also explicit that s 11(1)(a) and (b) of the WA Crossvesting Act are expressly made subject to s 11(1)(c) - as regards an applicability of laws of evidence and procedure considered by the transferee court hearing the proceeding to be appropriate in all the circumstances.

92 Ninth, exceptional care needs to be applied in any evaluation conducted under s 11(1)(c), if that is required, given a limitation upon appeals from such decisions as stipulated under s 13(b) of the WA Crossvesting Act.

Observations upon four 1988 articles about cross-vesting

93 In their exchanged written submissions and responsive submissions of October 2017, the parties referred me to a number of journal articles.

94 A series of four articles were published in the Australian Law Journal during 1988 when the national cross-vesting laws took effect on 1 July that year. The first of these articles is titled 'The Cross-vesting Scheme' (1988) 62 Australian Law Journal 328 by Keith Mason QC and Professor James Crawford. That article was followed by 'Choice of Law Under Cross-vesting Legislation' (1988) 62 Australian Law Journal 589 by David St L Kelly and Professor Crawford.

95 The third article about the new cross-vesting regime was a reply by Gavin Griffith QC, Dennis Rose and Stephen Gageler to certain specific points in Kelly and Crawford's article. It is titled 'Choice of Law in Cross-vested Jurisdiction: A Reply to Kelly and Crawford' (1988) 62 Australian Law Journal 698.

96 Lastly, there was a further article by Griffith, Rose and Gageler titled 'Further Aspects of the Cross-vesting Scheme' (1988) 62 Australian Law Journal 1016. That article responds to some further aspects of the cross-vesting scheme raised by Mason and Crawford in their first article.

97 The CITIC defendants' submissions upon this cross-vesting issue rely in particular upon aspects of the two articles co-authored by Professor Crawford. However, it is apparent that at the time, at least in certain respects, a wider view was taken of the cross-vesting laws by the then Solicitor General of Australia and members of the Commonwealth Attorney General's department. Of course, those 1988 articles need to be read in light of subsequent case law, including particularly the decision of the High Court in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 which invalidated aspects of the national crossvesting laws concerning any attempted vesting of State jurisdiction under such laws to Commonwealth courts.

98 There are several aspects of the Griffith, Rose and Gageler articles I find insightful towards my present task. In the first place, I would note the following observation from the first article at page 698:

The essence of cross-vesting is that the jurisdiction of any one court forming part of the cross-vesting scheme is vested in every other court forming part of the scheme. In this way no proceeding within the compass of the scheme can fail for want of jurisdiction, though proceedings commenced in an inappropriate court can be transferred in accordance with the detailed criteria set out in the legislation. Within the compass of the scheme, it will not be necessary for a court to determine whether it is truly exercising its ordinary federal, State or Territory jurisdiction, or whether it is exercising some cross-vested jurisdiction. It will only need to form opinions on these demarcation issues for limited purposes and to a limited extent [noting footnote 2 to those observations makes reference to decisions under s 5 as regards transfer of proceedings or decisions under [s] 11(1)(c)].

99 The same sentiment towards the hoped for general redundancy in needing to definitively define a source of jurisdiction in the future can be found at page 1,016 of their second article.

100 The sentiment towards a cross-vested amalgamation of jurisdictions avoiding all future need for courts to be side-tracked by fine demarcation disputes over their jurisdiction resonates for me, measured against the CITIC defendants' contentions that post a transfer of Mineralogy's action to this court in 2013, this court does not exercise even a residual morsel of New South Wales jurisdiction in this proceeding. To my mind, that submission overlooks the repercussions of the formative circumstances of March 2013 by which the present action was validly commenced by Mineralogy out of the Supreme Court of New South Wales under a regular exercise of that court's in personam jurisdiction.

101 A second aspect of Griffith, Rose and Gageler's articles I find instructive is the authors' observation at pages 701 and 702 of their first article concerning a cross-vested State jurisdiction being cumulative upon the normal jurisdiction of the cross-vested court. That point was expressed in the following terms:

The position of the Supreme Court of Victoria in relation to cross-vested New South Wales jurisdiction is that the Court may exercise the entirety of its own jurisdiction as well as the full jurisdiction of the Supreme Court of New South Wales. The two jurisdictions are separate and concurrent. There is no inconsistency, even as to enforcement (702).

102 The last observation by Griffith, Rose and Gageler which I find instructive is in their second article, where it was observed:

Although the term 'jurisdiction' is capable of being confined to the power of a court to determine an issue by reference only to its subject-matter, that is narrower than the ordinary connotation of the word. The scheme, on analysis, provides no warrant for excluding from the term, as used in the Acts, the power of a court to determine an issue by reference also to the parties, the kind of relief sought or any combination of these factors (1,022). (footnote omitted)

103 By my assessment, the broader approach advocated by Griffith, Rose and Gageler to the meaning of the term 'jurisdiction' is the more persuasive. This is in circumstances where the preamble to the cross-vesting legislation records the function of that legislative reform against the problems of inconvenience and expense that had been caused to litigants by the jurisdictional limitations of Australian courts and the desirability of achieving the three objectives in the preamble.

104 By reference to the terms of the chapeau of s 11(1) of the WA Crossvesting Act, I reach the end position that, although it is only strictly necessary to engage with one of the criteria stated there, for this case it 'appears' to me to be 'likely' that in determining this trial I will be exercising jurisdiction that is conferred on this court by both:

(ii) s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

105 in respect of Mineralogy's transferred action. I reach that view essentially for four reasons.

106 First, it is naive, in my view, to ignore how the present action was regularly commenced by Mineralogy out of the Supreme Court of New South Wales. By Mineralogy's written submissions of 19 October 2017 at par 15 it was said:

In the present case, no writ was issued by the WASC and so none was served. There was no issue about whether any of the parties could be made amenable to the WASC's command by an endorsement to any WASC process invoking the provisions of the Service and Execution of Process Act. When the transfer order was made, the parties, who then were amenable to the jurisdiction of the NSWSC because of the filing and service of process of that court, were made amenable to the command of the sovereign in Right of the State of Western Australia (exercised by the WASC) by the jurisdiction conferred by s 4(3) of the NSW Act and authorised by s 9 of the WA Act.

107 The force of that submission by Mineralogy must be accepted.

108 Second, on my assessment, that was the approach taken by Anderson J in Reidy at 586, where his Honour referred to the jurisdiction of this court to hear and determine an action commenced in the Supreme Court of Victoria which was then transferred to the Supreme Court of Western Australia - as being jurisdiction contained in s 9 of the WA Cross-vesting Act.

109 Here, there is a proceeding transferred from the Supreme Court of New South Wales to this court that must meet at least the description of s 9(b) of the WA Crossvesting Act. That gives rise to the necessary conclusion that, at least in some cumulative respect, it appears that this court will be likely to exercise an aspect of the cross-vested jurisdiction of the Supreme Court of New South Wales, the utilisation of which extra jurisdiction is then authorised by s 9 of the local Act.

110 It might be argued the New South Wales cross-vesting legislation by s 4(3) is, in truth, the source of the conferral of the additional cross-vested jurisdiction enjoyed by the Supreme Court of Western Australia. However, that is too fine a distinction in the circumstances - where it is plain that s 4(3) of the New South Wales's crossvesting law operates 'hand in glove' along with s 9 of the local cross-vesting law as regards a legitimised exercise of cross-vested jurisdiction (see Griffith, Rose & Gageler's first article, 700).

111 Third, I have set out observations from the articles by Griffith, Rose and Gageler which I have found instructive. In particular, I am moved by the force of the observation that it should now be unnecessary to definitively demark the sources of all jurisdiction in relation to a national cross-vesting regime of laws for Australia post 1 July 1988. By my assessment, a functional and pragmatic approach to the meaning of 'jurisdiction' is appropriate given the three objectives in the preamble of the cross-vesting legislation.

112 Fourth, although there are some differences, I believe it appropriate for me in all the circumstances at first instance to follow Anderson J's approach in Reidy as regards a fulfilment of the chapeau aspects of s 11(1) of the WA Crossvesting Act. Consistency in overall decision making would suggest that same approach should be adopted, unless I was persuaded that his Honour's decision was clearly wrong. I am not of that view. Furthermore, an engagement of s 11(1) of the WA Crossvesting Act would seem to be supported by Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 in respect of a matter that is transferred from one State jurisdiction to another State jurisdiction.

113 My view is that the chapeau to s 11(1) of the WA Cross-vesting Act is engaged within this proceeding. I conclude that this court is likely to be exercising some cumulative component of the jurisdiction of the Supreme Court of New South Wales in aggregate with this court's own jurisdiction over the parties' dispute as it proceeded to trial.

114 It also should be noted that the CITIC defendants (see the CITIC defendants' submissions of 19 October 2017, pars 16 - 17), by their submissions concerning cross-vesting, point to Mineralogy's asserted failure to ever plead that any question of crossvested jurisdiction arises or to comply with the provisions of O 81E of the rules of this court: see O 81E r 11(2) Rules of the Supreme Court 1971 (WA) (RSCWA) as regards pleadings needing to include a statement to that effect, if the rules of evidence and procedure applied in another court are sought to be applied under s 11(1)(c).

115 It is true that this rule would not yet appear to have been complied with by Mineralogy for present circumstances. But the underlying policy intent of that rule would seem to be directed towards avoidance of surprises and a giving of proper notice to all trial participants of such an issue. A failure to strictly meet that rule by Mineralogy to date, on my assessment, is an irregularity capable of being excused under O 2 r 1(2), were I otherwise to reach the view that it is appropriate via s 11(1)(c) of the WA Cross-vesting Act to apply New South Wales procedural rules in this trial. There is no issue as to surprise in present circumstances, as I will explain.

116 I will proceed to consider next whether or not it is appropriate to apply only New South Wales procedural rules in this trial via s 11(1)(c) of the WA Cross-vesting Act.

Whether procedural rules of New South Wales applies pursuant to s 11(1)(c)

117 Given the chapeau to s 11(1) is engaged, the potential for s 11(1)(c) to apply in the present trial is open. Section 11(1)(c) is the paramount subparagraph within s 11(1). However, its scope is narrow. It is confined to rules of evidence and procedure, rather than being directed at the substantive laws governing the cause(s) of action applicable to the particular subject matter under determination.

118 The need to assess which procedural rules to apply in this proceeding is stimulated by the potential consequences arising from the Court of Appeal's observations in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76.

119 At [26] and [73] of that decision, the Court of Appeal noted that Mineralogy's present RCB causes of action claiming debt and damages were to be viewed as accruing temporally after the commencement of this action.

120 Those observations eventually led to the CITIC defendants' submission to me at trial that Mineralogy was effectively non-suited as regards it presently pursuing any liquidated claims seeking RCB amounts which fell due only after the litigation had been commenced (or damages by reason of the nonpayments) (see ts 2,399 - 2,400).

121 The inability to pursue causes of action for debt and damages that only accrued after a commencement of an action emerges from Samuel JA's determinations in Baldry v Jackson [1976] 2 NSWLR 415, 417. His Honour's observations in turn refer back even further to the legal principle that was established and exemplified by Eshelby v Federated European Bank Ltd [1932] 1 KB 423. The so-called Eshelby principle was later confirmed in the High Court of Australia in Wigan v Edwards (1973) 1 ALR 497; (1973) 47 ALJR 586 - as regards a problematic pursuit of causes of action grounded upon events arising only after the commencement of litigation.

122 Samuels JA in Baldry v Jackson at 419 observed that the word 'matter', (as then used in the New South Wales equivalent to RSCWA O 20 r 10) did not include cause of action.

123 The Eshelby principle still applies with undiminished force in Western Australia. The principle has locally delivered continuing adverse procedural repercussions for many plaintiff litigants: see Water Authority of Western Australia v AIL Holdings Pty Ltd [No 2] (1992) 10 WAR 233 and Boase v Axis International Management Pty Ltd [No 2] [2012] WASC 334.

124 It should be noted that the problems for litigants caused by the Eshelby principle as explained in Baldry v Jackson in New South Wales were essentially redressed by a reform in New South Wales effected under s 64(3) of the Civil Procedure Act 2005 (NSW). It now provides:

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (my emphasis)

125 In CGS & Co Pty Ltd v The Owners - Strata Plan No 5290 [2010] NSWSC 1173 Bryson AJ observed, concerning the status of Baldry v Jackson that:

1. ... The judgment of Samuels JA clearly contemplates that the rule is no more than a rule of procedure, and cited a statement to that effect in Wigan v Edwards (1973) 47 ALJR 586 at 592 (Gibbs J); no important principle is at stake. The Civil Procedure Act 2005 s 64(3) makes a quite different rule to that applied and acted on in Baldry v Jackson. Amendment to add a cause of action which arose after commencement of proceedings is authorised by s 64(3), which also cures a principal ground upon which the previous rule was based, the anomaly of giving a litigant the benefit of an earlier date of commencement of proceedings than would otherwise be available for the purpose of defences relating to effluxion of time. The position was fully and clearly stated in Jericho Developments Pty Ltd v Garden Tower (NSW) Pty Ltd [2006] NSWSC 595 at [21] - [26] (Gzell J) and I follow that decision.

126 During closing arguments at the trial, Mr Bradley QC for Mineralogy had drawn my attention to s 64(3) of the Civil Procedure Act 2005 (NSW). That was in a context of Mineralogy's closing submission effectively attempting to address the CITIC defendants' non-suit arguments based on the Eshelby principle (see ts 2,509 - 2,510).

127 The question now then is whether s 64(3) of the Civil Procedure Act 2005 (NSW) applies in present circumstances, where this court is effectively exercising some aspects of the cross-vested jurisdiction of the Supreme Court of New South Wales. For such circumstances, this court is asked by Mineralogy to consider the procedural utility of s 64(3) in Mineralogy's action (see Mineralogy's submissions of 19 October 2017, par 22).

128 Section 11(1)(c) of the local crossvesting legislation, as now seen, effectively provides this court with a discretion to select from outside the forum appropriate procedural rules - as regards rules of evidence and procedure that may be applied from another State Supreme Court, such as the procedural rules of New South Wales in this case, for instance.

129 At this point, it is useful to recall Gibbs J's (as his Honour then was) observations in Wigan v Edwards. His Honour had said:

The principle that an amendment cannot be made which will introduce a new cause of action which arose after the commencement of proceedings is purely one of procedure and can be varied or abolished by statute (508).

130 For the present circumstances of this trial, I am of the view that the procedural rules of the Supreme Court of New South Wales should apply, via s 11(1)(c) of the WA Cross-vesting Act. Accordingly, s 64(3) of the Civil Procedure Act 2005 (NSW) will apply as regards pleaded causes of action. In the end, and with the benefit of the parties' post hearing written submissions on the point, I reach that position essentially for four main reasons.

131 First, the transferred action retains a commencement nexus to the jurisdiction of the Supreme Court of New South Wales. Mineralogy ought not suffer in terms of a very late realised constrained capacity in the transferee court to deal with the merits of all the pleaded issues squarely raised for determination at trial. Here the Eshelby constraint would not have inhibited the Supreme Court of New South Wales from dealing with the substantive merits of the causes of action raised under Mineralogy's amended trial pleadings. Procedural constraints of this temporal nature arising by the Eshelby principle would also appear to have been reformed and corrected elsewhere across the nation, as in Queensland, in Victoria and, as now seen, in New South Wales: see the Supreme Court (General Civil Procedure) Rules 2015 (Vic), O 36.01(3) and the Uniform Civil Procedure Rules 1999 (Qld), r 375(2).

132 The second reason is that since 2013 in this court, all previous case managers for this litigation at all times until trial and without the slightest of objections ever being raised - have proceeded on an open understanding that it was fully within the jurisdiction and power of this court to deal with all the pleaded claims raised by Mineralogy. For instance, on 6 August 2014, Edelman J directed Mineralogy to plead out its cause of action in respect of its attempt to refer the then dispute over unpaid RCB amounts to an expert for determination. No objection was raised by the CITIC defendants to that course on the basis of the Eshelby principle inhibiting that course. In fact, the course taken was positively advocated, it would appear, by the CITIC defendants at that time.

133 Further, the Court of Appeal of this State in [2017] WASCA 76 at [24] - [25] observed that Chaney J, at 27 November 2015, had granted a permanent stay of two actions which had been freshly commenced by Mineralogy, namely, the proceedings CIV 2203 of 2015 and CIV 2368 of 2015. The stay was on the basis that his Honour had assessed Mineralogy's actions in bringing those fresh actions as abuses of process. It was said that the proper course was for Mineralogy to seek leave to amend its pleading in the current proceedings to advance these fresh grievances: see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2015] WASC 454 [30]. Clearly, it could not have been an abuse of process by Mineralogy to commence fresh actions if application of the Eshelby principle carried the foreseen consequence that such causes of action arose too late in time in 2015 to be properly pursued in the present action commenced in 2013.

134 Additionally, in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14] [2017] WASC 17, I granted, over firm opposition from the CITIC defendants, leave for Mineralogy to amend its pleadings to plead out its current iteration of the statement of claim to be pursued at the trial. I also indicated at [27] that Mineralogy would be able to update its calculations in respect of its RCB claims as they continued to accrue subsequent to 1 April 2016. No Eshelby principle constraint was ever pointed to about that course being a wholly problematic grant of leave. Preparations for trial and the exchanged submissions on the causes of action to be evaluated all unfolded on that assumed unconstrained basis.

135 Third, the pleaded issues currently in dispute on all sides had been comprehensively prepared for and argued out on a basis that there was no Eshelby constraint on Mineralogy to inhibit this court's full consideration of all the pleaded issues. Many difficult and wide ranging trial issues have been squarely confronted by the parties under their exchanged opening submissions before the trial expressly concerning Mineralogy's claims in debt for RCB. This included Mineralogy's claims for RCB amounts in quarterly periods identified under Mineralogy's current pleadings for debt and damages for quarterly periods extending up to the end of the March 2017 quarter.

136 Fourth, the Eshelby principle implications of the Court of Appeal's observations at [26] and [73] in [2017] WASCA 76 were clearly not fully appreciated by the parties until after I directed attention at them during opening submissions on day one of the trial.

137 Eventually, the point was taken up by senior counsel for the CITIC defendants. But that was only on the seventh day of the trial (22 June 2017). At that time, Mr Scerri QC for the CITIC defendants candidly said:

It's a problem that we had not realised before, and none of - I can just say this with - as an excuse, none of the case managers have ever raised it and it wasn't raised by the first Court of Appeal. But it's really a matter for Mineralogy to see if they want to say anything to your Honour about it.

The reason I mention it now is that it might be a good idea to work out when that should be done (ts 2,198).

138 The Eshelby principle and its potential ramifications against Mineralogy's causes of action in this trial was only really confronted during the parties' closing submissions on the last two hearing days of the trial. That was when I received (on the penultimate hearing day) the CITIC defendants' written closing written submissions: see pars 36 - 41. Mineralogy then responded on the final day of the trial.

139 Given all of that, my end view is that it is overwhelmingly in the interests of justice at this trial that I should apply the rules of evidence and procedures of New South Wales. That approach does not affect or alter any of my rulings made to date during the course of the trial. Happily, most procedural rulings were uncontroversial save for my ruling in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 15] [2017] WASC 339. And that decision would be no different under the rules of evidence and procedure of New South Wales.

140 By that route then, s 64(3) of the Civil Procedure Act 2005 (NSW) is, in my view, applicable as regards it allowing Mineralogy's pleaded causes of action for debt or damages to be evaluated upon their merits at this trial. That is the position even though Mineralogy clearly does advance causes of action seeking RCB debts claimed as due from Sino Iron and Korean Steel and as against CITIC under the FCD that arose, if they did, well after this action was commenced in March 2013.

141 In the end, therefore, I have concluded it is appropriate and necessary in present trial circumstances to have recourse to s 64(3) of the Civil Procedure Act 2005 (NSW) to facilitate the ends of justice and a fair trial of the pleaded issues.

142 Two further things are clear. First, in this State, the effect of the so-called Eshelby principle has not been ameliorated by any reforming legislation, as has been the position in other States. The position in this State then is as indicated under decisions such as Boase [66] (Beech J) and the Court of Appeal's decision in [2017] WASC 76 [26], [73]. That position needs to be looked at.

143 Second, the clear insight arising from the recent Court of Appeal decision (post this trial's hearing) in Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341, as regards causes of action maturing after a commencement of these proceedings on 18 March 2013, is that Mineralogy cannot be assisted with its Eshelby problems by the provisions of RSCWA O 21 r 5(2) to (5). Nor could I, as was suggested at one point by Mr Bradley QC (see ts 2,513), treat Mineralogy's fifth FASOC (albeit I did grant leave to amend it in [2017] WASC 17) as a new proceeding commenced from the date of my leave. None of those suggested solutions by Mineralogy meet the underlying Eshelby problem on my assessment.

144 However, Mineralogy theoretically does hold an alternative relief pathway to the same outcome if I had concluded that s 64(3) of the Civil Procedure Act 2005 (NSW) does not apply.

145 Mineralogy could have, without leave being required, issued a further generally endorsed writ and sought under an endorsement of claim all RCB debt amounts or damages relating to RCB which have fallen due subsequently and up to the end of March 2017 quarterly period as currently claimed under Mineralogy's fifth FASOC.

146 If such a generally endorsed writ were issued and served by Mineralogy, it would then be open to Mineralogy to apply in the CMC list of this court for all pleadings and discovery in the fresh action to be waived and for that fresh 2017 action to be consolidated with the present action - pursuant to the terms of RSCWA O 83 r 1. Orders could be sought for all pleaded issues to be determined from the existing action, CIV 1808 of 2013, in the as consolidated action.

147 On the face of it, there look to be no limitation of action issues otherwise presenting. So it is presently difficult to see any prejudice to the CITIC defendants by a consolidation of actions course, if it was needed to be followed.

148 Upon such a consolidation, with the fresh 2017 action as the lead action, any judgment in Mineralogy's favour would then, for Eshelby purposes, effectively fall within the temporal scope of the newly consolidated 2017 action. If that were the consolidated course proposed to be followed by Mineralogy, then the parties would need to be heard beforehand and no doubt various other matters considered.

149 Nevertheless, if the s 11(1)(c) cross-vesting pathway to s 64(3) of the Civil Procedure Act 2005 (NSW) were found to be closed off, then I would indicate now a clear view that the interests of justice and the overall ends of sensible case management would, in my view, strongly support the making of consolidation of action orders along those lines.

PART C: BACKGROUND FACTS SURROUNDING THE MRSLAs

150 Until 31 March 2006, Sino Iron had been a 100% owned and fully controlled subsidiary corporation of Mineralogy. Mineralogy at all material times is and has been controlled by Mr Clive Palmer.

151 On 31 March 2006, Mineralogy sold its 100% shareholding in Sino Iron to a subsidiary entity of CITIC, Sino Iron Holdings Pty Ltd, for $US215 million under a share takeover agreement (the Sino Takeover Agreement).

152 On 1 November 2007, a similarly structured share takeover agreement (the Korean Steel Takeover Agreement) was entered to effect the sale of all the shares in Korean Steel for $US200 million to CITIC's subsidiary, Balmoral Holdings Pty Ltd.

153 Following the settlement upon CITIC's share acquisitions (through subsidiary corporations) to obtain control over all the issued shares in Sino Iron and Korean Steel, CITIC essentially became the Hong Kong-based controlling parent corporation of the two participating parties to each MRSLA with Mineralogy.

The State Agreement between Mineralogy, Sino Iron and Korean Steel

154 Since it is a relevant surrounding circumstance to the MRSLA relationships, something more needs to be said about the State Agreement. It was ratified by the Parliament of Western Australia on 24 September 2002 (see Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA)).

155 The State Agreement is addressed at some length in the decision of the Full Federal Court (Besanko, McKerracher & Beach JJ) in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55 delivered on 30 March 2017. Their Honours observed in terms:

The commercial and legal reality is that the State Agreement lies at the apex of a suite of agreements pertaining to the Sino Iron Project. The State Agreement is between Mineralogy, Sino Iron, Korean Steel, other subsidiaries or related companies of Mineralogy and the State [222].

156 In the course of those reasons their Honours noted that the State Agreement had been ratified by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA), then varied in 2008 by the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2008 (WA). It was observed at [28] that:

The State Agreement made provision for Proposals to be approved by the State and five Proposals were approved over the period from February 2008 and January 2010. The primary judge held that the Facilities Deeds did not give Mineralogy any right to operate any of the Company Facilities. He went on to hold that if that was wrong, nevertheless cl 7(6) of the State Agreement would have varied any such right in the Facilities Deeds so that Mineralogy no longer had a right to operate Company Facilities of Sino Iron and Korean Steel (at [577]) [referring to [577] of Edelman J's decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825; (2016) 329 ALR 1].

157 I note their Honours' observations concerning government agreements under the Government Agreements Act 1979 (WA) at [197]. See also the observations by the State on that appeal at [212] - [221] and which were accepted by their Honours at [222].

158 It is next convenient to assemble together something of a narrative towards what are the essentially uncontroversial and established facts leading to the parties entering into the two MRSLAs at 21 March 2006. I have worked to that end from the parties' chronology of agreed facts (exhibit 33) and the largely unchallenged trial evidence adduced by the CITIC defendants.

159 Around 1985, Mineralogy obtained rights to a number of mining leases over a total area of roughly 1,000 square kilometres in the Pilbara region of Western Australia, known as Fortescue Area A. Mining leases 08/123 to 08/125 were granted to Mineralogy. These areas have been assessed as containing very significant deposits of magnetite iron ore (see Mineralogy's opening submissions, pars 14 - 15; Mineralogy's fifth FASOC, par 5).

160 As the holder of those mining leases, Mineralogy thereby enjoyed rights to use, occupy and explore that land for mining purposes: s 85(2) and s 85(3) of the Mining Act 1978 (WA).

161 In 2001, Mineralogy entered sublease agreements with a number of its subsidiary corporations in respect of these mining lease areas. One of the subsidiaries was Sino Iron (then known as Bellswater Pty Ltd). Another of these 2001 sublease agreements was entered into with Korean Steel (see exhibit 33, page 2).

162 The subleases saw Mineralogy grant rights to mine magnetite ore in the mining lease areas - up to a nominated extraction limit volume set under cl 2.1 of each sublease. At the time, Sino Iron (as Bellswater) was a wholly owned subsidiary of Mineralogy. Korean Steel was then controlled by Mineralogy but through conjunctional arrangements with a number of other associate entities of Mineralogy.

163 As I have now said, the State Agreement was entered in December 2001. The State agreed to assist in an establishment of projects as proposed by Mineralogy, either by itself or in conjunction with one or more parties subject to that State Agreement.

164 The State Agreement provided for the paramountcy of the State Agreement provisions over so-called subsidiary agreements (which would relevantly extend to include the MRSLAs: see cl 28(1) and (2) of the State Agreement).

165 The State Agreement has a fixed duration period of 60 years (see cl 45(1)) but with a capacity for extensions beyond that. Clause 10(2)(a) provides that the duration of mining leases granted thereunder would be successive periods of 21 years each.

166 In May 2005, Mineralogy entered a first series of written MRSLA agreements with Sino Iron and Korean Steel. The 2005 MRSLAs were precursors to the eventual 21 March 2006 agreements which are the subject matter of the present trial. The terms of the 2005 MRSLAs say nothing at all about RCB (see exhibit 1.65, cl 9.1).

167 The 2006 MRSLAs varied and restated the grants of the original 2001 subleases as given by Mineralogy to Sino Iron and Korean Steel (see exhibits 1.17 and 1.20, cl 2.1). They also provided for an enjoyment of mining rights (see exhibits 1.17 and 1.20, cl 3.2). RCB as a concept was now introduced and provided for in the 2006 MRSLAs as a second component of the Mineralogy Royalty.

168 From the factual background perspective of the CITIC defendants, the third defendant, CITIC (then known as CITIC Pacific Ltd), had operated specialty steel manufacturing businesses in China long before 2005 - 2006 (see exhibit 9, affidavit of Chung Hing Lee (Peter) affirmed on 12 April 2017 pars 12, 15).

169 Unlike some other larger non-specialty Chinese steel manufacturers, CITIC had not been able to secure a long-term contract for the supply to it of iron ore from major iron ore producers like, say, from Rio Tinto or BHP. At this time, CITIC had obtained its iron ore supplies from the spot market (see exhibit 9, pars 17 - 18).

170 Consequently, CITIC began to explore supply opportunities with international iron ore producers in an effort to secure a long-term contract for the supply of iron ore for its steel manufacturing businesses in China. Some negotiations were conducted by CITIC around this time with Fortescue Metals Group. But they came to nothing (see exhibit 9, par 20).

171 In 2005, CITIC's then chairman, Mr Larry Yung, became aware of an iron ore supply opportunity from the north-west of Western Australia involving the mining tenements held by Mineralogy. That was the context for a first meeting between Mr Palmer for Mineralogy and representatives of CITIC, convened in early October 2005 at Hong Kong (exhibit 33, page 3).

172 At the 2005 Hong Kong meeting, CITIC was represented by Mr Yung and its then managing director, Mr Henry Fan. Mr Peter Lee, CITIC's deputy managing director, Mr Milton Law, director of CITIC's business development team, and Mr Wang Gong Cheng, then a consultant to CITIC, also attended that meeting (see exhibit 9, par 25; exhibit 10, affidavit of Law Ming To (Milton) affirmed 12 April 2017, par 12).

173 At that first meeting Mineralogy, through Mr Palmer, had proposed a joint venture arrangement between CITIC and Mineralogy under which CITIC would hold a minority 40% interest, leaving Mineralogy holding a majority 60% interest in a so called 'China First' joint venture (see exhibit 33, page 3).

174 That initially discussed joint venture deal would have seen CITIC and Mineralogy hold interests in various project companies. CITIC was to carry the entire financing responsibility for the proposed project (see exhibit 9, par 27).

175 At that time, there were four Mineralogy subsidiaries proposed - with each holding contractual entitlements to mine magnetite iron ore upon Mineralogy's tenements - to an extent of 160 billion tonnes of ore (see exhibit 9, par 28).

176 Under the 'China First' joint venture, CITIC's 40% joint venture interest in a holding company was to be acquired at a cost of approximately $US1.15 billion (see exhibit 9, page 136).

177 Part of the information Mineralogy provided to the CITIC representatives at that first Hong Kong meeting were some reports prepared for Mineralogy by its consultant, a Mr James King (see exhibit 33, page 4). Part of this was a financial analysis of a proposed project and various assumptions. The King report of October 2005 (see exhibit 9, annexure PCL3) referred to a 2005 price for iron ore pellets. It utilised DMTU prices as then used in the international iron ore industry for pellets sold FOB at the Port of Tubarao, Brazil (see exhibit 9, page 102).

178 After that first meeting, CITIC's personnel had prepared some internal preliminary modelling figures for a project, which addressed various issues including anticipated project establishment costs. They utilised inputs from CITIC's consultants, Investor Resources Ltd, with further assistance from Mr Wang (see exhibit 9, par 32).

179 CITIC had also engaged Australian lawyers Gilbert + Tobin to assist it in regard to those negotiations with Mineralogy. The principal lawyers engaged from Gilbert + Tobin were Mr William (Bill) Spain assisted by Ms Rachel Launders (see exhibit 11, affidavit of Lam Chun-Kit (Gordon) affirmed on 11 April 2017, par 18).

180 In that ongoing and evolving process of sophisticated and high level commercial negotiations with Mineralogy, some of CITIC's representatives then made a visit to Perth. From there, some, including Mr Lam Chun-Kit, travelled up to Karratha to inspect the Cape Preston magnetite ore tenements of Mineralogy (see exhibit 9, par 34; exhibit 11, par 22; exhibit 33, page 4).

181 But during this same trip CITIC, through Mr Lee, decided not to proceed any further with the 'China First' joint venture.

182 Nevertheless, CITIC continued to discuss alternate investment strategies with Mineralogy for a differently structured deal. That was after October 2005 (see exhibit 9, pars 35 - 36).

183 There was another meeting held between representatives for Mineralogy and CITIC convened around 3 November 2005. This time a possible 50/50 joint venture proposal was raised by Mr Lee. But this proposal was almost immediately rejected by Mineralogy (see exhibit 9, pars 37 - 38; exhibit 33, page 4).

184 Within the October and November 2005 proposals and negotiations the prospective purchase prices at which the CITIC manufacturing entities might acquire the produced and exported Western Australian magnetite iron ore product were, obviously enough, an important financial aspect of the discussions. This is hardly surprising. Such a massive start up mining project would need to be assessed to be economically viable in the long term.

185 At this time, CITIC, on behalf of its prospective purchasers, was also negotiating to obtain a discount on the acquisition prices of the ultimately produced and exported processed iron ore products from the project, once it was established. CITIC was then asking for a 4% price discount by reference to the socalled 'benchmark price' of the products produced by the project (see exhibit 9, par 43).

186 Around 29 January 2006 what were by then seemingly stalled negotiations between Mineralogy and CITIC were revived. Mineralogy made fresh contact with CITIC via Mr Wang to propose a differently structured but now smaller scale transaction - by which CITIC would acquire an 80% interest in one of the underlying Mineralogy subsidiary project companies for $US200 million.

187 The revised and evolved smaller proposal was now referred to as the '80/20' proposal (with Mineralogy being the minority interest party in the proposed venture holding only a 20% interest). To that end, there were some more discussions conducted in Brisbane involving Messrs Lee, Law and Wang (see exhibit 9, pars 48 - 50).

188 The Mineralogy subsidiary then under discussion as being an 80/20 venture vehicle was the entity, International Minerals Pty Ltd (IMPL). It was proposed that IMPL would hold the right to mine one billion tonnes of magnetite ore, with CITIC obtaining first option rights to gain further mining rights (see exhibit 9, pars 48, 50; exhibit 11, pars 32 - 33).

189 There followed a series of facetoface meetings to discuss the 80/20 proposal in Beijing across 12 and 14 March 2006. Discussions then ensued between Messrs Lee and Lam for CITIC, who met with Mr Palmer representing Mineralogy. Messrs Law, Wang and Spain were also in attendance (see exhibit 9, pars 60 - 75).

190 At some point in those revived 80/20 deal negotiations, the Mineralogy subsidiary that was proposed as being the venture vehicle was changed - from IMPL to Sino Iron (see exhibit 9, par 58). For the 80/20 proposal as then under discussion, CITIC, as had always been the case before, was again proposed to be the party responsible for all project financing (see exhibit 9, par 52).

191 As Mr Lee relates at par 55 of his affidavit (and as expected in the context of the then 80/20 project proposal under consideration), there was further discussion at this time about the price levels at which the project production company (ie, Sino Iron) would sell any ultimately processed iron ore product to the CITIC related Chinese purchasers. Mr Lee says that it was then proposed that CITIC would 'purchase or procure a purchaser for all product produced by the project company'. But then 'Mr Palmer proposed that concentrate would be priced at a premium to the published price of BHP Mt Newman fines, and that pellets be priced at a premium to the published price of Brazilian pellets'. Potential pricing formulas for product sold had earlier been discussed at Brisbane as well (see exhibit 9, page 139). Again, that is all hardly surprising, given the underlying project subject matter of the discussions.

192 A pricing formula for product sold can be seen used in a draft shareholders' corporation agreement (see exhibit 11, annexure LCK16) as then proposed between Mineralogy and CITIC for the 80/20 venture deal under negotiation. There was also a draft off-take agreement prepared containing an early version of a possible pricing formula for produced product by the project as then under consideration (see exhibit 9, par 56).

193 Again unsurprisingly, an end product pricing formula for the acquisition cost of the iron ore produced, processed and exported by a project entity was then subjected to an extremely careful financial evaluation by CITIC, particularly as regards the underlying assumptions in the pricing formula (see exhibit 9, par 57, page 140). These negotiating parties were sophisticated, experienced and high level commercial operators. Their respective predeal financial evaluations were only to be expected to be diligent, well informed and rigorous for a potentially long-term multibillion dollar commitment deal of this nature.

194 After about a day of negotiations at Beijing, Mr Lee relates that the parties seemed to have reached an impasse over the proposed 80/20 transaction. Discussions on that deal then effectively ended on 13 March 2006 (see exhibit 9, par 71).

195 Two further matters are contextually relevant. First, there then appears to have been some element of pressure emanating from the Western Australian government upon Mineralogy at this time concerning it needing to meet aspects of the State Agreement. On 9 March 2006, the then State Premier, the Hon Alan Carpenter MLA, wrote to Mineralogy advising that, on the information provided, the government was not satisfied Mineralogy and IMPL had demonstrated the availability of finance sufficient for them to be ready to proceed with a project that would accord with cl 6(6)(b) of the State Agreement (see exhibit 10, par 53(c), page 27; exhibit 33, page 6).

196 Secondly, on 9 March 2006, Ms Launders of Gilbert + Tobin had prepared and circulated revised drafts of various transaction documents. One of these was a draft shareholders' corporation agreement (see exhibit 11, pars 52 53, annexure LCK16). Her draft contained a product pricing formula (see exhibit 11, pages 727- 728) which displayed some structural similarities to an earlier pricing formula for product that Mineralogy had proposed in February 2006 (see exhibit 11, pages 545 - 546).

197 This product pricing formula seen in the Launders draft looks something like a very early iteration in evolution towards what ultimately manifested as the RCB calculation formula in the MRSLAs at cl 8.2(a). The product pricing formula seen in the Launders draft used a term 'BP' - described as the 'benchmark price', set annually (ie, the published FOB price of Mt Newman fines per DMTU). There followed a similar 'BP' reference for a benchmark price set annually for Brazilian pellets per DMTU (see exhibit 11, pages 727 - 728). That was an explicit reference to the then international ABPS for the prices of iron ore products.

198 As I will explain, as a matter of law for an exercise in contractual interpretation of words from an admissibility of evidence perspective, exceptional caution needs to be used regarding the use of what is found in anterior pre-contractual negotiations draft documents. That is particularly so here, as the 80/20 venture deal then under discussion at Beijing never eventuated.

March 2006: The 100% CITIC transaction ultimately entered

199 Almost immediately after the prospective negotiating parties realised that an 80/20 transaction structure was unworkable - particularly as CITIC was to carry a 100% financing obligation, Mineralogy and CITIC began to discuss a fresh transaction structure, this time a 100% CITIC acquisition proposal. It was now proposed that CITIC could purchase 100% of the shares in Sino Iron (the 100% transaction) (see exhibit 9, pars 75 - 76; exhibit 33, page 6).

200 Pricing formulas for iron ore product produced and sold, as canvassed by the parties in their earlier negotiations, now provided a starting platform for these further discussions at Beijing which had now evolved towards discussing possible royalty payments to Mineralogy. A royalty payment to Mineralogy was proposed to be calculated in part upon elements of the earlier drafted product sale pricing formulas.

201 Royalty payment discussions in the 100% transaction came to focus upon a royalty payment stream in the future now sought by Mineralogy that would in part be linked to the quantities of magnetite iron ore mined out of the ground at the project site. But a second aspect of the royalty payment as sought by Mineralogy was proposed by it to be linked to the volume of the iron ore product produced by the project - also taking into account the world market prices for concentrate and pellets, with Mt Newman iron ore fines being discussed and used as a rough sort of proxy for iron ore concentrate product (see exhibit 11, par 58).

202 A royalty calculated by using a sliding scale that was linked both to aggregate production volumes of product and then to the prevailing world market prices from time to time for concentrate (fines) and for pellets as products eventually emerged (see exhibit 9, par 78).

203 Mr Lee, again as would only be expected, instructed his sophisticated CITIC advisory team to run financial calculations concerning Mineralogy's demands for an additional payment of a future royalty calculated upon production volumes of product. That royalty payment amount concept was run through CITIC's project model (see exhibit 11, par 79). This, as would again only be expected, was a sophisticated financial modelling exercise undertaken at this time by CITIC.

204 In the course of the 100% transaction negotiations, the proposed acquisition purchase price for 100% of the shares in Sino Iron was increased upwards, from $US200 million to $US215 million (see exhibit 9, par 80).

205 Also discussed at this time was a related proposal for Mineralogy to hold an option to acquire (or, in effect, to re-acquire) a 20% shareholding interest in Sino Iron (after Sino Iron had been wholly acquired by CITIC) at a future time when, or if, or after, Sino Iron became a publicly listed corporation. This proposal subsequently changed to be a 19.9999% acquisition option for Mineralogy as regards Sino Iron (ie, being less than the 'relevant interest' cut-off threshold for a substantial shareholding declaration as applicable under Australian corporate law at the time). Mineralogy would need to relinquish its rights to receive the additional royalty on product volume (ie, to receive RCB) if it exercised that option in the future (see exhibit 9, par 81).

206 According to Mr Lee, it was Mr Spain from Gilbert + Tobin who had redrafted the parties' takeover agreement so as to update and reflect the evolution in the parties' negotiations towards the as now proposed 100% transaction.

207 Mr Lee related that the negotiations had seemed to be progressing well and were getting close to a culmination on the next day (ie, on 14 March 2006 at Beijing) (see exhibit 9, par 88). The additional royalty payment for Mineralogy, linked to production volumes had manifested in a schedule 5 of the draft takeover agreement, at a section headed 'Variations To Material Contracts' (see exhibit 11, par 58).

208 So after what had been months of evolved negotiations, CITIC and Mineralogy were finally very close to an anticipated sign-off upon 100% transaction documents at Beijing. Mr Lee called CITIC's chairman, Mr Yung, to advise him of a planned sign-off that afternoon. He had been seeking Mr Yung's in principle endorsement to sign off on the 100% transaction (see exhibit 9, par 87).

209 However, as something of a surprise to the CITIC representatives, at about 1.00 pm on 14 March 2006, Mr Palmer, they said, had simply packed up his papers and walked out of the conference room. He had left for the Beijing airport. Accordingly, despite some high expectations at that point, nothing was completed at that time (see exhibit 9, par 87; exhibit 33, page 7).

210 Despite that turn of events, further drafts for a proposed Sino Iron takeover agreement still continued to emerge post 14 March 2006, with drafts apparently emanating from Mineralogy (see exhibit 1.140, page 40 for a document of 15 March 2006, containing yet another version of a draft royalty payment clause referring to pellets and concentrate).

211 What had then occurred as between the parties is not fully clear. However, it does seem Mr Lee remained confident that Mineralogy still wanted to do a deal. Mr Lee had, therefore, instructed his CITIC team to continue working on assessing the potential economic repercussions to CITIC of it paying the requested additional royalty upon production to Mineralogy and contrasting that cost as against CITIC's assessed value of a 20% Mineralogy project venture interest, under the abandoned predecessor 80/20 venture transaction. That financial evaluation was commercially important to CITIC. CITIC wanted to ensure that it would receive a similar internal rate of return under the 100% transaction as compared to the 80/20 transaction (see exhibit 9, par 92). So further CITIC internal rate of return calculations were then run and were provided to Mr Lee for his assessment (see exhibit 9, par 93). Unsurprisingly, none of CITIC's behind the scenes internal financial evaluations and modelling looks to have been communicated to Mineralogy at the time.

212 Mr Lee, after receiving the financial evaluations carried out by his CITIC team who had run more calculations and updated their sophisticated financial modelling for the 100% project (see exhibit 9, annexure PCL14), concluded that the differences were essentially immaterial. However, a 100% CITIC acquisition transaction had the desirable advantage of providing CITIC with full control over Sino Iron, and hence over the Cape Preston project, once an acquisition was implemented (see exhibit 9, par 96).

213 The period following an ostensible breakdown in the Beijing negotiations of 14 March 2006 had afforded CITIC and, in particular, Mr Lee and his team the extra time to more thoroughly run their financial modelling - including to carefully evaluate all future implications of paying Mineralogy the additional royalty sought and the repercussions against CITIC's anticipated internal rate of return on the proposal.

214 In the wake of that further work, Mr Wang made contact with Mr Palmer in Australia. Further project negotiations between Mr Lee in Hong Kong and Mr Palmer in Brisbane now ensued, largely via telephone (see exhibit 9, pars 98 - 99).

215 In what proved to be a culminating period of negotiations between 15 and 19 March 2006, there had been some telephone conversations as between Mr Palmer for Mineralogy with CITIC's Australian lawyers, Gilbert + Tobin, in particular, Mr Spain. Mr Goldsmith from Gilbert + Tobin's tax group was also participating now from a tax perspective for the 100% deal. Discussions occurred in relation to the issue of the likely tax deductibility to CITIC of Mineralogy's additional product volume royalty (ie, RCB). In that tax context, it was mentioned that the additional royalty on product would need to be a part of the completed MRSLAs - before the takeover agreements for the shares in the MRSLA corporate subsidiaries of Mineralogy were completed. In other words, it was necessary, based on tax driven considerations, that the project corporate entities be a part of the Mineralogy tax consolidated group before any effective disposition of the shares in those subsidiary entities to CITIC (see exhibit 7, affidavit of Mr Spain affirmed on 11 April 2017, pars 17 - 19).

216 The additional royalty formula to that point had been found as a part of schedule 5 of the takeover agreements. However, in the period between 18 and 20 March 2006 the royalty formula now shifted location to relocate to cl 8.2 of a draft Sino Iron MRSLA (see exhibit 11, pars 62 - 64, annexures LCK22, LCK23).

217 CITIC had suggested changes to the draft Sino Iron MRSLA. Those changes were accepted and were incorporated by Mr Palmer into what became a final version of the MRSLAs. Those MRSLA instruments were finally signed and executed by him for all contracting MRSLA parties on 21 March 2006 (see exhibit 33, page 8). The MRSLAs' content at that time reflected the surrounding 100% takeover transaction then under discussion with CITIC (see exhibit 11, annexure PLC25).

218 CITIC's requests for MRSLA changes bore upon the final content of the MRSLAs as they were executed that day, albeit they were then executed on a basis of Mr Palmer representing and signing for all participant parties to the MRSLAs at that time.

219 There followed a deed of variation between Mineralogy and Sino Iron as regards the Sino Iron MRSLA on 31 March 2006 (see exhibit 1.18; exhibit 33, page 9). This was entered into on the same day as the Sino Iron Takeover Agreement for the agreed amount of $US215 million to Mineralogy. As will be seen, the Sino Iron MRSLA was then further amended on 8 January 2008 (see exhibit 1.19; exhibit 33, page 10). New directors were appointed for Sino Iron on 6 July 2006 to reflect the change in parent corporate ownership (see exhibit 33, pages 9 - 10).

220 On 1 November 2007, the Korean Steel takeover agreement was executed as between Mineralogy, Sino Iron Holdings Pty Ltd and CITIC. This provided for the sale of all the shares in Korean Steel to Balmoral Iron Holdings Pty Ltd (CITIC's subsidiary) for $US200 million (see exhibit 1.66; exhibit 33, page 10). The Korean Steel MRSLA was amended on 22 October 2008 (see exhibit 1.21; exhibit 33, page 10). New directors were appointed for Korean Steel on the same day (see exhibit 33, page 10).

221 None of the amendments made to the MRSLAs subsequent to 21 March 2006 altered the cl 8 product volume additional royalty formula (ie, RCB) in the MRSLAs (see exhibit 9, par 101).

222 It is also uncontroversial that to the date of trial in 2017 the CITIC defendants have now invested over $US12 billion to establish what is a massive magnetite ore processing project at Cape Preston - the largest of its kind in the southern hemisphere (see exhibit 14, par 26; see ts 2,193 for correction at trial). The volume of processed 'Product' (being only iron ore concentrate product produced to date) that has been produced and then exported to China by the Cape Preston project (since the last quarter of 2013, when production of iron ore concentrate began in earnest) up to the end of the March 2017 quarter, has been assessed by Mineralogy's expert, Mr Birkett, to carry a market worth of over $US1.3 billion (see exhibit 1.13, affidavit of Scott Birkett affirmed on 3 May 2017, page 27; ts 1,639).

Concluding observations upon the lead-up negotiations culminating at March 2006

223 The two ultimately finalised MRSLAs of 21 March 2006 and the takeover agreements with CITIC as eventually agreed on were structurally and significantly very different to the penultimate 80/20 venture proposal that had been negotiated over but, in the end, rejected.

224 The as completed MRSLAs of 21 March 2006 between Mineralogy and its then subsidiaries (Sino Iron and Korean Steel), I would accept, emerged slowly. They evolved in a wider surrounding context of the 100% acquisition and takeover by CITIC to thereby secure and control the valuable contractual MRSLA rights granted by Mineralogy to its then subsidiary corporate entities.

225 The additional product volume linked royalty formula that ultimately found its way into cl 8.2(a) of each MRSLA, may also be seen to have evolved out of a long and somewhat arduous back and forth negotiating process between commercially sophisticated parties. Ms Launders' draft of 9 March 2006 (see exhibit 11, annexure LCK16) for a then proposed 80/20 transaction, may ultimately be seen to carry some (limited) negative significance. That draft document's explicit reference to a benchmark price (ie, by using the terminology 'BP') (see exhibit 11, pages 727 - 728) was not ultimately used in the 100% end deal.

226 A lack of any end reference to 'BP' or to 'benchmark prices' might simply be deduced, of course, by just looking at the final text of the MRP phrase used within the definitions of CP and PP. It is easy to negatively verify that there is no visible mention there of benchmark pricing or of the ABPS. [For that matter, there is no mention of a use of, say, spot pricing in the royalty formula text.]

227 Ms Launders' earlier draft would really only confirm that obvious negative fact, namely that, objectively assessed, the MRSLA parties did not at the end of the day choose to set down any express reference to a required use of ABPS iron ore product prices within their RCB formula - where they otherwise might have easily done just that as, indeed, Ms Launders had done at an earlier stage in her draft.

228 In the end, a lack of any reference to a required use of benchmark product pricing within the MRSLA cl 8.2 text might also be a matter that falls under an allowed exception to the general inadmissibility of negotiation evidence towards the interpretation of contractual provisions, as was discussed by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352 - 353 and later by Hayne J in Esso Australia Ltd v Australian Petroleum Agents' & Distributors' Association [1999] 3 VR 642, 647. I discuss that principle and these cases at greater length later in these reasons.

229 From a documentary admissibility perspective, there was rather at this trial only minimal controversy. The parties' respective lists of tendered documents at trial are found under exhibits 29 and 30. The parties' electronic trial bundle comprised what were mostly agreed documentary materials. Documents within the electronic trial bundle were received as exhibit 1 and then sub-classified as exhibit 1 point something respectively.

230 Mineralogy's opening at the trial by senior counsel (see ts 1,632 - 1,633) proceeded on the basis of an acceptance of essentially all facts as identified by the CITIC defendants in the parties' responsively exchanged pretrial chronologies.

231 The parties' end chronology of agreed facts (see exhibit 33) usefully forms the basis of uncontroversial findings of fact in harmony with those facts I have now collected and related already. In a following section of the reasons I will set out parts of the parties' chronology of agreed facts for the period from December 1992 until July 2006.

232 It will be recalled that both MRSLAs were finalised and executed on 21 March 2006. A Sino Iron takeover agreement was entered very shortly thereafter on 31 March 2006 (see exhibit 33, page 9). CITIC's board of directors then made a significant announcement about the nature of the overall deal with Mineralogy to the Hong Kong Stock Exchange that day (see exhibit 1.58; exhibit 33, page 9).

233 For uncontroversial facts subsequent to July 2006, they are of lesser significance to issues relevant to meaning. So, I have collected and set them out from the same agreed chronology document in a Schedule A to these reasons for convenience.

234 At the trial, Mineralogy eventually only called as trial witnesses its two experts, Messrs Robert Brierley and Scott Birkett.

235 The CITIC defendants relied at trial upon evidence adduced from six expert witnesses and from six lay witnesses. The expert witnesses for the CITIC defendants were Messrs John Barkas, Damon Buckley, Richard Norris, Brian Morris, Liam Twigger and Dr Brian Fisher. I address the expert witnesses' evidence later at discrete sections of the reasons.

236 However, it is convenient now to note that four joint expert memoranda (exhibits 1.4 - 1.7) were consensually tendered at the trial. This was a consequence of my pre-trial case management direction for the parties' experts (in their respective fields of expertise) to confer without lawyers. I also directed that at the end of that expert conferral process, a joint memorandum identifying major issues agreed upon and the main issues remaining in dispute between the experts should be prepared and signed off by all the parties' respective experts.

237 In the end, Mineralogy, as I said, did not call any lay witnesses at the trial. The CITIC defendants adduced evidence from six lay witnesses, most of whom I have already mentioned in the previous section of these reasons. They were Messrs Bill Spain, Wang Gong Cheng, Chung Hing Lee, Law Ming To, Lam Chun-Kit and Malcolm Northey. In the end, Mr Wang and Mr Spain did not need to attend the trial. The affidavits of Mr Wang (exhibit 6) and Mr Spain (exhibit 7) were admitted into evidence by consent without need for them to be cross-examined (see ts 2,002 - 2,003).

238 Mr Lee was a deputy managing director of CITIC in the period leading up to the concluded 30 March 2006 Sino Iron takeover arrangements with Mineralogy (and the then projected and later completed Korean Steel takeover agreement). He was the person in charge of CITIC's business development department. At the relevant time, he was also head of the CITIC group's specialty steel business (see exhibit 9, pars 9 - 10, 12).

239 Mr Lee was an impressive witness. He was only mildly cross-examined at the trial and only upon some clarifying nuances of his evidence. I accept all of Mr Lee's evidence as reliable.

240 Mr Law is a former executive vice-president and director of CITIC. In March 2006 he was a director of the business development department where he reported to Mr Lee (see exhibit 10, pars 8, 10).

241 Mr Law gave his evidence at trial via a video-link from Hong Kong, mainly concerning the events I have now related about the lead up to the eventually completed March 2006 negotiations with Mineralogy. Mr Law's evidence as a whole was not seriously challenged. I accept it as reliable.

242 Mr Lam was also crossexamined via a video-link to Hong Kong. Mr Lam is currently a general manager of the business development department of CITIC. In March 2006, he was the assistant manager in that department. He was reporting to Mr Law (see exhibit 11, pars 1, 8 - 9).

243 Mr Lam also provided the evidence now discussed about the evolution of the parties' negotiations, including as to various drafts prepared for the 80/20 proposed transaction which ultimately, of course, did not ever eventuate. But that transaction did provide an evolutionary background and perspective to CITIC's eventually agreed upon 100% takeover of all shares in Sino Iron (see exhibit 11, pars 31 - 69). Sino Iron, whilst under Mineralogy's corporate control, had, of course, executed its MRSLA with Mineralogy at that time.

244 Essentially, the trial evidence adduced from five of the CITIC defendants' lay witnesses, namely, Messrs Lee, Law, Wang, Lam and Spain, uniformly addressed the somewhat stuttered and evolving October 2005 - March 2006 negotiations between Mineralogy and CITIC in the lead-up to the eventual completion of the two MRSLAs on 21 March 2006 and the Sino Iron takeover agreement of 31 March 2006. In the end, takeover agreements were completed by November 2007 in respect of the acquired shares in Sino Iron and Korean Steel from Mineralogy for $US415 million in total (see exhibit 33, pages 9 - 10).

245 This trial evidence from the CITIC defendants' five lay witnesses provides only contextual and evolutionary background circumstances towards the required exercise in this trial of interpreting aspects of the MRSLA clauses for their true meaning. The lead-up events form a part of the 'genesis' to what ultimately turned out to be a rather differently structured 100% acquisition transaction.

246 The utility of surrounding circumstances, when seeking to unlock the true meaning of the text used within clauses of the completed MRSLAs, is limited. The trial was no longer concerned with any rectification relief sought by any party as regards the MRSLAs.

247 Further, the two MRSLAs clearly express themselves to be entire agreements (cl 38.7) that were to supersede all previous negotiations. Such a declaration made as between well resourced and commercially sophisticated contracting parties needs to be acknowledged and respected as regards the parties' end text as settled upon in their hard won written agreement as finalised.

248 CITIC's other lay witness was Mr Northey. His trial evidence was globally objected to by Mineralogy as irrelevant. In the end, Mr Northey's evidence was admitted by me - on a very limited basis of it possibly being relevant if a fair and reasonable royalty ever needed to be calculated by the court, as the CITIC defendants contended under their alternative implied term argument.

249 Mr Northey is now a director of project planning and sustainability at one of CITIC's subsidiaries, CITIC Pacific Mining Management Pty Ltd. That entity presently manages the whole Cape Preston project on behalf of both Sino Iron and Korean Steel. At an earlier time, Mr Northey had been the project director of the Sino Iron project (see exhibit 14, pars 1 - 2).

250 Mr Northey's evidence essentially addressed the asserted feature of the overall nonprofitability of the Cape Preston project to date and its future economic viability.

251 Mr Northey's evidence provided Sino Iron Holdings Pty Ltd's financial statements of 31 December 2016 (see exhibit 14, annexure MJN09). The statements identify a loss for that financial year of over $US1 billion (and noting a previous US$1.7 billion loss in the contrasted 2015 financial year) (see exhibit 14, page 2,235).

252 The loss outcome appears to be significantly impacted by significant financing costs (net), impairment of assets and the administration expenses which are the subject of notes 5, 6 and 2(a) respectively in the financial accounts (see exhibit 14, pages 2,250 - 2,257, 2,265 - 2,266)

253 There are also related party transactions which are the subject of note 24(d) (exhibit 14, page 2,283). As I assess the consolidated balance sheet (see exhibit 14, page 2,236) for Sino Iron Holdings Pty Ltd, the ultimate parent corporation of both Sino Iron and Korean Steel, it suffers an exposure to borrowings of over $US5 billion. That level of debt exposure appears to generate significant annual financing costs (see exhibit 14, page 2,265) of over $US168 million, albeit some interest costs look to be capitalised.

254 The thrust of Mr Northey's evidence appeared to be to suggest that if the CITIC defendants' replacement of RCB by a fair and reasonable royalty ad hoc implied term obligation to Mineralogy were to be accepted, Mineralogy would very likely receive no money at all as a fair and reasonable royalty to date. This was because Mineralogy would be entitled (on that ad hoc implied term) to only a 20% dividend of any net profit after tax. The project's ongoing financing expenses would come 'off the top', before any bottom line net after tax profit project position was reached. Only then would Mineralogy be entitled to (possibly) receive a 20% dividend from not much residual profit, if anything.

255 The 20% net profit interest hypothesis would see Mineralogy rendered, in effect, responsible in that scenario to bear the financial consequences for a part of the project's ongoing financing costs. The implied term for a fair and reasonable royalty, in effect, would assimilate Mineralogy to the position of a 20% minority co-venturer in the Cape Preston project - who might only receive a share in potential net dividends post tax, were the project to be operating (post tax) 'in the black'.

256 Nevertheless, an uncontroversial fact did emerge with some clarity out of Mr Northey's evidence as seen at his par 26. This is for the acknowledged level of investment to date by the CITIC defendants of more than $US12 billion in their Cape Preston project. Towards that significant capital outlay, Mr Northey said:

The product exported is in concentrate form (not pellets). My understanding is that the Project represents the largest-ever overseas investment in the resources industry by a company of Chinese origin.

The Project is now the largest export magnetite mining and processing operation globally.

258 With that overview of the trial evidence, I will next collect together the agreed facts for the period up to 6 July 2006.

Agreed facts in the December 1992 - July 2006 period arising out of the parties' chronology of agreed facts

259 None of the facts that are set out below chronologically were in any dispute at the trial between the parties (see ts 1,632 - 1,633).

260 Using the parties' agreed chronology (exhibit 33) in this period, I have paused at places to supplement these collected findings with some further findings of fact, none of which also presented as being controversial.

261 Some of the collected facts traverse and repeat matters already canvassed in the background events I have now discussed or summarised. Nevertheless, it is necessary for an ordered completeness of found facts at this trial to collect all matters together in the one place chronologically and for ease of any future reference if required.

Sino Iron Pty Ltd, then known as Bellswater Pty Ltd, (Sino Iron) incorporated and Clive Frederick Palmer (Mr Palmer) appointed as a director.

Korean Steel Pty Ltd, then known as Tristrike Pty Ltd, (Korean Steel) incorporated.

Clive Theodore Mensink appointed as a director of Korean Steel.

Sublease made between Mineralogy Pty Ltd (Mineralogy) and Sino Iron (Bellswater).

(a) Fortescue Projects Consolidation Agreement between Mineralogy, Austeel Pty Ltd, Balmoral Iron Pty Ltd, Balmoral Mining Pty Ltd, Brunei Steel Pty Ltd, International Minerals, Korean Steel and Sino Iron; and

(b) Sino Iron Facilities Deed between Mineralogy and Sino Iron.

Iron Ore Processing Agreement made between State of Western Australia, Mineralogy and each of the Co-Proponents, including Sino Iron (then known as Bellswater) and Korean Steel (State Agreement).

Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 receives Royal Assent and comes into operation, ratifying the State Agreement and authorising its implementation.

Variation Deed to the Fortescue Projects Consolidation Agreement executed.

Mineralogy and Sino Iron execute Mining Right and Site Lease Agreement varying and restating the terms of the Sublease in item 5.

Mineralogy and Korean Steel execute Mining Right and Site Lease Agreement varying and restating the terms of the Sublease in item 5.

262 As seen above, within this period the corporations Sino Iron and Korean Steel were incorporated. Both were effectively controlled by their parent corporation, Mineralogy.

263 The 2002 State Agreement came into operation in this period. Also in this period Mineralogy, Sino Iron and Korean Steel entered the predecessor 2005 MRSLAs.

Mr Palmer on behalf of Mineralogy began negotiating with CITIC Limited, then known as CITIC Pacific Limited, (CITIC) representatives.

On or around 7 October 2005, Mr Palmer delivered a presentation, on behalf of Mineralogy, to representatives of CITIC, and proposed a jointventure structure whereby a company called 'China First' would be held jointly by Mineralogy (60%) and CITIC (40%), and would hold a number of project companies, including Sino Iron (China First Proposal).

Mr Palmer provided CITIC with copies of reports prepared by James King regarding the Sino Iron Project.

CITIC representatives visited Mineralogy's office in Perth and travelled to Karratha to visit and inspect the George Palmer Central Block ore body.

During a meeting with CITIC representatives, Mr Palmer, on behalf of Mineralogy, delivered a presentation and proposed a structure where a company called 'China First' would be held jointly by Mineralogy (60%), 'China First Holdings' (32%) and 'Resources Investment' (8%). China First would hold a number of project companies including Sino Iron.

CITIC proposed a 50/50 joint venture with Mineralogy (rather than a 60/40 joint venture, as contemplated by the China First Proposal). Mr Palmer rejected this 50/50 proposal.

Meetings took place between CITIC personnel and Mineralogy personnel to discuss the China First Proposal and CITIC's alternative 50/50 joint venture proposal. Mr Palmer did not accept CITIC's proposal.

Mr Palmer initiated contact with CITIC to discuss a new transaction structure where CITIC would acquire an 80% interest in one of the underlying project companies for $US200 million (the 80/20 Transaction).

CITIC representatives met with Mr Palmer in Brisbane to discuss the 80/20 Transaction.

Meetings occurred between Mr Law and Mr Palmer on the Gold Coast.

Gilbert + Tobin circulated revised drafts of the Proposed Transaction Documents to Mr Palmer.

CITIC's representatives (including Mr Lam, Mr Law and Mr Lee) attended meetings with Mr Palmer in Brisbane to discuss the 80/20 Transaction and the price at which the proposed project companies would sell the product.

During these meetings, Mr Palmer proposed a pricing formula for the sale of product by the project company.

Further drafts of transaction documents, including the Proposed Transaction Documents, were exchanged between the parties.

The Premier of WA, the Honourable Alan Carpenter MLA, wrote to Mr Palmer regarding the availability of finance to Mineralogy and International Minerals with respect to the 'International Minerals project'.

Mineralogy (represented by Mr Palmer) and CITIC (whose representatives included Mr Lee, Mr Law, Mr Lam, and Mr Spain) along with Mr Wang, attended a series of meetings at the China World Hotel in Beijing (Beijing Meetings).

During these meetings, the structure of the deal changed. Instead of acquiring 80% of Sino Iron, it was proposed that CITIC would now acquire 100% of Sino Iron, but would also pay Mineralogy a separate royalty in addition to Royalty Component A.

Email (and attachments - draft China Project Option Agreement and draft takeover agreement) sent from Mr Spain to Mr Palmer.

Mr Lee and other CITIC representatives met with Mr Palmer continuing the Beijing Meetings.

Mr Palmer departed Beijing without any concluded agreement between Mineralogy and CITIC.

Draft documents were passed between Mineralogy and CITIC and discussions occurred relating to the sale of shares in Sino Iron held by Mineralogy and the proposed Mining Right and Site Lease Agreement between Mineralogy and Sino Iron.

Mr Palmer and Mr Mensink were the only directors of Sino Iron and Korean Steel.

Mr Palmer was the sole director of Mineralogy Pty Ltd.

Mr Palmer receives an email from Mr Lam of CITIC, forwarding an email from Mr Spain of 7.59 pm on 21 March 2006 to which various documents, including the variation to the Sino Iron Facilities Deed, the Sino Takeover Agreement and the proposed Mining Right and Site Lease Agreement between Mineralogy and Sino Iron were attached.

Mr Palmer executes the Sino Iron MRSLA between Mineralogy and Sino Iron on behalf of Mineralogy and on behalf of Sino Iron in the presence of Mr Mensink (Sino Iron MRSLA), varying and restating the terms of the Sublease in item 5 as varied and restated by the Mining Right and Site Lease Agreement in item 10.

Mr Palmer executes the MRSLA between Mineralogy and Korean Steel on behalf of Mineralogy and on behalf of Korean Steel (Korean Steel MRLSA), varying and restating the terms of the Sublease in item 5 as varied and restated by the Mining Right and Site Lease Agreement in item 11.

Gilbert + Tobin on behalf of CITIC received a copy of the executed Sino Iron MRSLA dated 21 March 2006.

Gilbert + Tobin on behalf of CITIC forwarded by email to Mr Palmer marked up copies of a proposed Sino Iron Takeover Agreement, a proposed variation to the Facilities Deed and a proposed version of the Sino Iron MRSLA.

Mr Ellis on behalf of Mineralogy sent an email to Mr Spain advising that Mr Mensink had faxed through copies of certain documents to CITIC's Hong Kong office, including the executed Sino Iron MRSLA and stated that those documents represented the rights that were being offered for sale and stated:

'The 'These documents represent the rights of the projects. They are the rights that are being offered for sale. If your client is not interested in these rights, there does not appear to be anything more that we can do.'

Mr Spain replied to Mr Ellis' email above in item 37 advising that Gilbert + Tobin had provided a marked-up proposed Sino Takeover Agreement the previous evening and attached a proposed Balmoral Takeover Agreement (including the China Project Option Agreement).

Mr Ellis replied to Mr Spain's email above in item 38 advising that Mineralogy requested mark-ups against its most recent draft, not against Mr Spain's.

Mr Gong Cheng Wang sent an email to Mr Palmer and Mr Mensink regarding outstanding issues between the parties (Mineralogy and CITIC).

Mineralogy and Sino Iron enter into Deed of Variation of the Sino Iron MRSLA.

Takeover Agreement executed between Mineralogy and CITIC, which provides for the sale of all shares in Sino Iron Pty Ltd to Sino Iron Holdings Pty Ltd, a subsidiary of CITIC, for a total consideration of $US215 million to be paid by Sino Iron Holdings to Mineralogy (Sino Takeover Agreement).

CITIC Board of Directors makes an announcement to the Hong Kong Stock Exchange entitled 'Major Transaction - Acquisition of Magnetite Mining Rights in Western Australia' in respect of the Sino Takeover Agreement.

264 Pausing at this point, I need to add some greater detail to this last chronological finding by reference to the content of the actual announcement made to the Hong Kong Stock Exchange on 31 March 2006 by the CITIC directors (see exhibit 1.58), particularly as regards what was then said about royalty payments to Mineralogy for the future.

265 The announcement is, I would assess, contextually relevant for the as articulated commercial purpose and objectives of an overall wider 'deal' (ie, a surrounding deal extending beyond merely the MRSLAs of 21 March 2006) at this time and particularly for the publicly announced commercial objectives of CITIC for itself and for Sino Iron and Korean Steel.

266 The significant projected potential financial magnitude at that time of the RCB projected payments within the overall deal with Mineralogy can also be seen.

267 The announcement made to the Hong Kong Stock Exchange read:

CITIC PACIFIC

CITIC Pacific Limited

(Incorporated in Hong Kong with limited liability)

Stock Code: 267

MAJOR TRANSACTION

ACQUISITION OF MAGNETITE MINING RIGHTS IN WESTERN AUSTRALIA

Under the transaction agreed, the Company will have, potentially, mining rights over 6 billion tonnes of magnetite ore over the Mining Area in the western Pilbara region of Western Australia located near the mouth of the Fortescue River. The mining rights will be held through companies the Company may acquire which hold sub-leases (ie sub mining rights) from the Seller, an independent third party, which in turn holds the mining rights direct from the Western Australian Government.

On 31 March 2006, a wholly owned subsidiary of the Company agreed to acquire from the Seller the entire interest in Sino-Iron (which has the right to extract 1 billion tonnes of magnetite ore in the Mining Area) for US$215 million (approximately HK$1,677 million). On the same day, another whollyowned subsidiary of the Company agreed to, conditional upon addition 1 billion tonnes of magnetite ore resources being proven by the Company after it completes an agreed drilling program in the same area, acquire from the Seller the entire interest in Balmoral (which will have the right to extract 1 billion tonnes of magnetite ore in the Mining Area) for US$200 million (approximately HK$1,560 million), adjusted for Inflation.

...

Sino-Iron and Balmoral will arrange the financing of the construction of the infrastructure for the Project. The estimated capital expenditure payable for Sino-Iron (ie the first 1 billion tonnes of magnetite ore) is US$1,370 million (approximately HK$10,686 million), and the estimated capital expenditure payable for Balmoral (ie the second 1 billion tonnes of magnetite ore) will be US$1,100 million (approximately HK$8,580 million).

The Acquisition of Mining Rights enables the Group to explore for magnetite ore to ensure a constant and sufficient supply of raw materials for the furtherance of its special steel manufacturing business and also to invest in a magnetite ore mining business.

...

INTRODUCTION TO THE ACQUISITION OF MINING RIGHTS AND BACKGROUND IN RELATION TO MAGNETITE ORE MINING

Under the transaction agreed, the Company will have, potentially, mining rights over 6 billion tonnes of magnetite ore over the Mining Area in the western Pilbara region of Western Australia located near the mouth of the Fortescue River.

Magnetite ore is a ferromagnetic mineral form of iron ore, which can be further processed into concentrate, pellets or hot briquetted iron. These are the essential raw materials for the production of iron at the beginning stage of steel (including special steel) manufacturing process. It is estimated that the conversion ratio of magnetite ore to concentrate/pellets is 3.4 to 1 for this Project. There is no established open market value for magnetite ore.

The mining rights which the Company may acquire will be acquired by buying companies from the Seller, which companies hold sub-leases (ie, sub mining rights) from the Seller, which in turn holds the mining rights direct from the Western Australian Government.

The sub-leases will continue in force until, for each company the Group acquires from the Seller, the processing of its 1 billion tonnes of magnetite ore which has been taken from the Mining Area has been completed. After each sub-lease expires, the relevant company(s) that the Company has acquired will no longer have the mining rights in the Mining Area.

The magnetite ore will be processed into concentrate and pellets, hot briquetted iron or/and any other product produced from iron ore or magnetite. A royalty is payable to the Seller based on the quantity of magnetite ore extracted and products produced.

...

In order for Sino-Iron, Balmoral, or any other company the Group acquires from the Seller to export concentrate produced under the terms of the existing sub-lease, the approval of the Western Australian Government will have to be obtained from the amendment of the agreement between the Seller, the Western Australian Government and other relevant parties. Having made enquiries with the relevant entities (including entities within the Western Australian Government) on this matter, the Directors are confident of obtaining this approval.

...

THE SINO-IRON ACQUISITION AGREEMENT

Date

31 March 2006

Parties

(1) Mineralogy, as seller

(2) Sino-Iron Purchaser, as purchaser

(3) The Company, as guarantor of the Sino-Iron Purchaser's obligations under the Sino-Iron Acquisition Agreement

(4) Sino-Iron

...

Royalty

Sino-Iron agreed to pay to Mineralogy a royalty in respect of magnetite ore taken by Sino-Iron, quarterly during the term of the mining right granted by Mineralogy to Sino-Iron and other parties over the Mining Area.

Such royalty comprises two components:-

1st component (based on the quantity of magnetite ore taken) - A$0.30 (approximately HK$1.68) per tonne of magnetite ore taken by Sino-Iron (adjusted based on Inflation during the previous quarter).

2nd component (based on the quantity of products produced) - An additional royalty is payable quarterly to the Seller by Sino-Iron by reference to the market price of pellets and Mount Newman fines (as reference for the price of concentrate) and is calculated as follows:

(i) production volume multiplied by 50% and multiplied by the prevailing published annual FOB price (expressed in US dollars per dry metric ton unit) for pellets established by the largest supplier or seller of pellets in Brazil for export and multiplied by 68.1 and multiplied by an applicable rate in the range of 6% to 10% depending on the then prevailing market price for pellets; plus

(ii) production volume multiplied by 50% and multiplied by the prevailing published annual FOB price (expressed in US dollars per dry metric ton unit) for Mount Newman fines for export and multiplied by 68.1 and further by 1.05 and multiplied by an applicable rate in the range of 6% to 10% depending on the then prevailing market price for concentrates.

Notes:

(1) The applicable rate for pellets and concentrates is 6% to 10% depending on the prevailing market price for each of those product types.

(2) If there is a FOB price for Brazil pellets or Mount Newman fines applying for different destinations, the applicable price for use in the formula above will be the published price for shipments to China (if any), or to Asia.

Sino-Iron is required to produce not less than 6 million tonnes of product no later than seven years from 21 March 2006. If Sino-Iron fails to produce such quantity of products, it must, no later than one month following the end of the seventh year of 21 March 2006, pay to Mineralogy an amount equivalent to the royalty payable on the 6 million tonnes of products. The amount is estimated to be approximately US$42 million (approximately HK$327.6 million) if based on the 2005 market price. Such amount is in addition to the royalty that Sino-Iron shall pay to Mineralogy based on the actual product volume of the same year. The royalty will continue to be payable after the seventh year depending on the quantity of magnetite ore mined and the product volume. There will be no ceiling on such royalty.

The second component of royalty will cease to be payable if Mineralogy exercises the option granted to it to acquire shares in Sino-Iron in the event that Sino-Iron is listed on any stock exchange before 500,000 tonnes of product have been produced.

...

BASIS OF DETERMINATION OF CONSIDERATION AND SOURCE OF FUNDING

The basis for the determination of the consideration for Sino-Iron and Balmoral are that they will both be debt free on completion, with one major asset i.e. each with the right to extract 1 billion tonnes of magnetite ore from the Mining Area.

...

REASONS AND BENEFITS FOR THE ACQUISITION OF MINING RIGHTS

The Group is engaged in a diversified range of businesses, including manufacturing of special steel, property development and investment, basic infrastructure (such as power generation, aviation, tunnels and communications) and distribution of motor vehicles and consumer products.

Both Sino-Iron and Balmoral are principally engaged in the business of mining, extraction and processing of magnetite ore in the Mining Area.

Mineralogy, an independent third party, is principally engaged in the business of mining magnetite ore in Western Australia.

The Acquisition of Mining Rights enables the Group to explore for magnetite ore to ensure a constant and sufficient supply of raw materials for the furtherance of its special steel manufacturing business and also to invest in a magnetite ore mining business.

The Directors consider that the terms of the Acquisition of Mining Rights are normal commercial terms and are fair and reasonable and in the interests of the shareholders of the Company as a whole.

The Company intends to cooperate with partners of PRC background with expertise in mining and requiring constant supply of iron ore or related product to participate in the Project.

...

By Order of the Board

CITIC PACIFIC LIMITED

Alice Tao Mun Wai

Company Secretary

Hong Kong, 31 March 2006

268 This announcement is also relevant to assessing the CITIC defendants' first tier arguments concerning a mooted potential severance of RCB from the MRSLAs - but still leaving those contracts otherwise fully functional and operative with Mineralogy into the longterm future.

269 I will now return to finish collecting all these chronological findings of uncontroversial facts up to July 2006.

Mr KW Kwok of CITIC sent an email to Mr Palmer attaching CITIC's announcement of 31 March 2006 to the Hong Kong Stock Exchange referred to in item 43.

Gilbert + Tobin Lawyers (on behalf of CITIC) sent a letter to the Foreign Investment Review Board regarding the Sino Takeover Agreement.

CITIC releases a Circular to Shareholders entitled 'Major Transaction - Acquisition of Magnetite Mining Rights in Western Australia'.

Mr Palmer and Mr Mensink resign as directors of Sino Iron.

Mr Vernon Francis Moore, Mr Ming To Law, Mr Peter Chung Hing Lee, Mr Lesie Li Hsien Chang, Mr William Spain and Mr Gong Cheng Wang are appointed as directors of Sino Iron.

270 As I have said, the balance of the uncontroversially agreed facts as between the parties beyond 6 July 2006 from exhibit 33 can be found in Schedule A which is at the end of these reasons.

271 Having now collected these background facts leading up to the entry of the MRSLAs in March 2006, I can now commence to discuss the first main issue of the trial, namely the construction of the MRP phrase within the RCB calculation formula under MRSLA cl 8.2.

PART D: THE CONSTRUCTION OF THE MRP PHRASE USED IN 'PP' AND 'CP' IN THE RCB FORMULA IN MRSLA CL 8.2(a)

272 The true meaning of the MRP phrase lies at the heart of the parties' dispute.

273 The trial is concerned with cl 8 within each MRSLA, a clause which provides for the participant party to each MRSLA to pay to Mineralogy an enduring royalty called the Mineralogy Royalty. Royalty payments are to be made on a quarterly basis, at not later than the 14th day of the month of the next quarter (see MRSLA cl 8.1(c)).

274 The Mineralogy Royalty contains two components, namely RCA and RCB (see cl 8.2(a)). The major controversy at the present trial concerns the true meaning of the MRP phrase (ie, the prevailing published annual FOB price) used within the cl 8.2(a) RCB calculation formula text.

275 Mineralogy's base constructional argument can be gathered from par 161 of its closing written submissions of 29 June 2017. It first identifies the MRP phrase as a collection of multiple adjectives describing iron ore product prices.

276 Next it is put that a sensible, aggregate, commercial meaning needs to be given to this string of collected adjectives. Together they can be identified as an identification of a market pricing standard for iron ore products (to borrow the words of McLure P from Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [24]).

277 Mineralogy next discusses the literal meanings of each of the discrete adjectival ingredients as used in the MRP composite phrase (ie, 'prevailing', 'published', 'annual', 'FOB' and 'US dollars per DMTU') before submitting that they must then be afforded a sensible composite meaning used that way.

278 Mineralogy next submits (at par 160) that by assembling together and using such a composite text of adjectives, as regards the nominated reference products, namely pellets and fines, that

the parties intended to capture reference prices, which were not the actual price [ie, sale price] for Sino and Korean's ['Product'], but were [prices] widely known and accepted in the market and when combined would serve as a proxy for the likely market price of that product.

279 However, against that approach to meaning, the CITIC defendants' contended construction of the MRP phrase used within the RCB formula is very different. They submit at par 68 of their written closing submissions of 28 June 2017:

Taken together, these background facts support the inferences that can be drawn with regard to the object and purpose of the Transaction, and together with the object and purpose reinforce that the phrase 'the prevailing published annual FOB price (expressed in US dollars per DMTU)' should be given its technical meaning - the current Benchmark Price for the specified product. The background facts make clear that had the parties intended to refer to spot prices in clause 8.2 they would have chosen language other than 'prevailing published annual FOB price', which was plainly a reference to the Benchmark Price.

280 As seen above, the CITIC defendants rely upon evidence of surrounding circumstances for their contended constructional choice outcome. Yet as is also now seen, the RCB formula text that is used in cl 8.2(a) in each MRSLA does not mention the former ABPS regime.

281 Nevertheless, the CITIC defendants contend the MRP phrase as used in the RCB calculation formula must exclusively mean ABPS prices (see the CITIC defendants' closing submissions, par 75; the CITIC defendants' D and CC, par 18).

282 The MRP phrase (ie, 'prevailing published annual FOB price') manifests, the CITIC defendants say, an apparent lack of clarity as regards its true meaning. The MRP phrase could, as the parties' written submissions do exemplify, potentially carry more than one possible meaning.

283 The present interpretive clash of meanings scenario now presented towards the MRP phrase is one of potential constructional choice, to recall the terminology of French CJ, Nettle and Gordon JJ from Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [49].

284 In pragmatic terms, the parties' rival constructional choice interpretations for the MRP phrase result in significantly different consequences. If Mineralogy's constructional choice interpretation is accepted, no problematic issues arise as regards RCB. However, if the CITIC defendants' constructional choice of the MRP phrase is accepted, then it becomes necessary to consider what outcomes a dysfunctional RCB calculation formula might then deliver in relation to the Mineralogy Royalty and for RCB in particular for Mineralogy.

285 As to this premise, the CITIC defendants first contend that RCB should just be severed from the MRSLAs, leaving only RCA as the Mineralogy Royalty (see the CITIC defendants' D and CC, par 25).

286 Alternatively, they contend that a right to receive a fair and reasonable royalty for Mineralogy ought to be implied as an ad hoc term into the MRSLAs (see the CITIC defendants' D and CC, par 25).

287 By Australian contract law, the MRP phrase can bear only one true meaning.

288 Given that this issue ultimately concerns the proper construction of a clause within an agreement governed by Western Australian law providing for a royalty payment to Mineralogy, it is convenient to first examine the legal nature of what is a royalty.

289 After that, I will briefly canvass some now relatively well established principles of contractual interpretation.

290 It is helpful, contextually, to see what has been said about the true character of a royalty payment right.

291 In Stanton v Federal Commissioner of Taxation [1955] HCA 56; (1955) 92 CLR 630, Dixon CJ and Williams, Webb, Fullagar and Kitto JJ rendered joint observations concerning the concepts carried by the word 'royalty'. Their Honours observed:

In the same way in the case of things taken from the land the essential notion seems to be that the payment is made in respect of the taking of something which otherwise might be considered to belong to the owner of the land in virtue of his ownership. In other words it is inherent in the conception expressed by the word that the payments should be made in respect of the particular exercise of the right to take the substance and therefore should be calculated either in respect of the quantity or value taken or the occasions upon which the right is exercised (642).

292 In a subsequent High Court decision, Australian Tape Manufacturers Association Ltd v Commonwealth of Australia [1993] HCA 10; (1993) 176 CLR 480, 497, 518, Mason CJ and Brennan, Deane and Gaudron JJ applied those observations from Stanton to mineral royalties.

293 For the present case, it may be seen from cl 8.2(a) within each MRSLA that after the RCB formula is stated and following the word 'where', RCB is described again. Now it is expressed as '[t]he amount of the additional royalty payable for that quarter'.

294 RCB is required to be calculated according to the as specified algebraic formula. Scrutiny of the given formula indicates that the royalty payment due to Mineralogy is to be calculated by an initial linkage to the tonnage of 'product' that is produced by the relevant MRSLA participant party in each successive quarter. So, this is a product volume based obligation that is imposed 'regardless of the type of ... product'.

295 By reference to the Stanton formulation of characteristics inherent in the conception of a royalty, RCB can be seen to be a royalty to be calculated upon the quantity of product produced in a particular period, rather than a payment that is to be directly assessed upon the value of that product.

296 Ultimately, the royalty amount payable as RCB to Mineralogy as regards value is stipulated to be the subject of even further independent market reference factors, which together deliver product price rates and a sliding scale range of potential percentages to be utilised within the overall RCB calculation formula.

297 There was no disagreement between the parties at trial concerning the applicable contractual construction principles under Australian contract law. Their application, however, to the underlying dispute was quite another matter. Nevertheless, I need to briefly touch upon the relevant principles to highlight their application to the constructional task required to be undertaken here.

298 These days the Australian approach to the task of contractual construction can be distilled and captured under the crisp observation that a curial determination as to the true meaning of unclear words used within a written contract is to be undertaken by a consideration of the text, the context and the (objectively assessed) purpose of the words under scrutiny: see Mount Bruce Mining [46] (French CJ, Nettle & Gordon JJ) and authorities there cited.

299 So it is that the required task is a detached, clinical and objective exercise, focussed at the written words at issue in a written instrument that must be read and assessed as a whole. The parties' subjective views or understandings about the meaning of the words used in their written agreement is simply ignored in this interpretive process.

300 In Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 339 ALR 200 [78], the plurality (Gageler, Nettle & Gordon JJ) applied the objective approach to contractual construction, utilising the above shorthand of 'text, context and purpose'.

301 Their Honours adopted what had earlier been said in Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35] in these terms:

1. There was also no dispute about those principles of construction. The proper construction of each Undertaking is to be determined objectively by reference to its text, context and purpose. As was stated in Electricity Generation Corporation v Woodside Energy Ltd:

'[T]he objective approach [is] to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean ... [I]t will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". As Arden LJ observed in Re Golden Key Ltd [2009] EWCA Civ 636 at [28], unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties ... intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience".' (footnotes omitted)

302 In the constructional exercise undertaken on that appeal, the plurality, applying Mount Bruce Mining, said:

The starting point is the language used by the parties in the ... Agreement [59].

303 The objective approach to the contractual construction of a written instrument was observed again by the High Court (French CJ, Kiefel, Bell, Keane & Gordon JJ) in Victoria v Tatts Group Ltd [2016] HCA 5; (2016) 328 ALR 564 [51], invoking reference (at footnote 23) to further observations from Mount Bruce Mining at [46] - [51].

304 In Western Australia, a convenient contemporary assembly of 11 applicable principles to be deployed in the objective exercise towards a proper construction of written instruments is found at [42] of the Court of Appeal's reasons in Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 (Newnes, Murphy JJA, and Beech J). That distillation of principles provides at [42]:

The principles relevant to the proper construction of instruments are well known, and were not in dispute in this case. In summary:

(1) The process of construction is objective. The meaning of the terms of an instrument is to be determined by what reasonable person would have understood the terms to mean.

(2) The construction of a contract involves determination of the meaning of the words of the contract by reference to its text, context and purpose.

(3) The commercial purpose or objects sought to be secured by the contract will often be apparent from a consideration of the provisions of the contract read as a whole. Extrinsic evidence may nevertheless assist in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding of the genesis of the transaction, its background, the context and the market in which the parties are operating.

(4) Extrinsic evidence may also assist in determining the proper construction where there is a constructional choice, although it is not necessary in this case to determine the question of whether matters external to a contract can be resorted to in order to identify the existence of the constructional choice.

(5) If an expression in a contract is unambiguous and susceptible of only one meaning, evidence of surrounding circumstances cannot be adduced to contradict its plain meaning.

(6) To the extent that a contract, document or statutory provision is referred to, expressly or impliedly, in an instrument, that contract, document or statutory provision can be considered in construing the instrument, without any need for ambiguity or uncertainty of meaning.

(7) There are important limits on the extent to which evidence of surrounding circumstances (when admissible) can influence the proper construction of an instrument. Reliance on surrounding circumstances must be tempered by loyalty to the text of the instrument. Reference to background facts is not a licence to ignore or rewrite the text. The search is for the meaning of what the parties said in the instrument, not what the parties meant to say.

(8) There are also limits on the kind of evidence which is admissible as background to the construction of a contract, and the purposes for which it is admissible. Insofar as such evidence establishes objective background facts known to the parties or the genesis, purpose or objective of the relevant transaction, it is admissible. Insofar as it consists of statements and actions of the parties reflecting their actual intentions and expectations it is inadmissible. Such statements reveal the terms of the contract which the parties intended or hoped to make, and which are superseded by, or merged into, the contract.

(9) An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ.

(10) An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation.

(11) Definitions do not have substantive effect. A definition is not to be construed in isolation from the operative provision(s) in which the defined term is used. Rather, the operative provision is ordinarily to be read by inserting the definition into it. (footnotes omitted)

305 The objective approach to the interpretation of the text of written agreements largely appears now to be uniform across Australia: see, eg, Fitness First Australia Pty Ltd v Fenshaw Pty Ltd [2016] NSWCA 207; (2016) 92 NSWLR 128 [32] (Leeming JA with McColl & Payne JJA agreeing).

306 Although the parties at this trial were in full accord as to the Australian approach to the construction of written commercial instruments, they differ, as now seen, very significantly in their application of the above principles. One key difference can be seen, for example, in the parties' application of principle 8 from Black Box Control above, as regards the trial admissibility of evidence of the earlier exchanged drafts prior to completion of the finalised MRSLA agreements on 21 March 2006. I turn briefly to that trial controversy.

Contractual construction: Admissibility of prior negotiation evidence

307 The process of determining a true meaning of the MRP phrase used in the definitions of PP and CP within the RCB calculation formula may be accepted as being within the ambit of the recognised class of case - where evidence of relevant surrounding circumstances can be admissible to (possibly) assist in the contractual construction exercise.

308 So the issue then is what might relevantly be gathered here from the mutually known surrounding background or notorious facts that were known to the parties at the time they entered each MRSLA in March 2006.

309 The evidence presented at the trial from the CITIC defendants' lay witnesses, as seen, canvassed all the preceding negotiations over different proposed deals as undertaken between Mineralogy and CITIC from about October 2005 to 21 March 2006.

310 Because of the emphasis the CITIC defendants placed upon the significance of prior iterations of incomplete deals as evolutionary background or 'genesis' towards the construction exercise, it is necessary to revisit the legal position as regards the evidentiary admissibility of such matters. I need to examine the Australian contract law position concerning the extent to which evidence of prior negotiations and of parties' actual intentions can viably be utilised in a contractual construction exercise.

311 It should also be remembered that in this trial the equitable remedy of a rectification of parts of the MRSLAs is no longer sought by any party to this litigation - at least by the time the trial had commenced in June 2017 (see ts 1,687).

312 Justice Mason in Codelfa (352) stated his 'true rule' towards the admissibility of surrounding circumstances evidence where there presents some ambiguous contractual language, or language susceptible to more than one meaning. His Honour then elaborated on the nature of the contractual construction process. In a well known passage, his Honour discussed the admissibility of prior negotiations evidence in an interpretation exercise. His Honour said:

Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

It is here that difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.

Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract (352).

313 Justice Mason's admissibility observations found in Codelfa still reflect the prevailing legal position concerning the receipt and use of precontractual negotiations evidence under Australian law.

314 His Honour's above observations concerning an expression of the parties' final positions by their ultimate contract is particularly relevant, I would respectfully observe, to present circumstances. Here the MRSLAs explicitly canvass that issue by an entire agreement clause, with MRSLA cl 38.7 providing:

38.7 Entire Agreement

This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.

315 The MRSLAs' text, with that explicit 'entire agreement' declaration which they unequivocally articulate, must be fully respected for present circumstances. Nevertheless, I accept that background or genesis surrounding facts, where relevant, could cast some interpretive light over unclear textual areas.

316 Accepting the need to assess a true meaning of the MRSLA text in the known surrounding commercial environment in which it was conceived, the parties' finalised text when clearly used in their agreement must not be collaterally undermined. A deployment of socalled background facts that, on analysis, are merely evidence of earlier nonconsummated negotiations over deal concepts that, for whatever reason, never emerged to see the light of day - is rarely likely to be probative towards interpreting the words of a different bargain.

317 But Mason J continued in Codelfa (352 - 353) to recognise a special situation, as a possible exception to the general exclusion of pure negotiation evidence in a construction exercise - where the actual expressed intentions of the contracting parties might then be considered as a relevant factor in a construction exercise. His Honour said:

There may perhaps be one situation in which evidence of the actual intention of the parties should be allowed to prevail over their presumed intention. If it transpires that the parties have refused to include in the contract a provision which would give effect to the presumed intention of persons in their position it may be proper to receive evidence of that refusal. After all, the court is interpreting the contract which the parties have made and in that exercise the court takes into account what reasonable men in that situation would have intended to convey by the words chosen. But is it right to carry that exercise to the point of placing on the words of the contract a meaning which the parties have united in rejecting? It is possible that evidence of mutual intention, if amounting to concurrence, is receivable so as to negative an inference sought to be drawn from surrounding circumstances. (citation omitted)

318 Some years later Mason J's observations from Codelfa as to the possible exception scenario came to be considered by Hayne J, then sitting in the Supreme Court of Victoria in Esso Australia (647 - 648). Observing on those remarks from Codelfa, his Honour said:

Thus, the first draft provided in terms that the trustees should be obliged to make a payment if there were a default. The wording was changed when the second draft was prepared and thereafter subsequent drafts of the deed provided for the trustee to have a discretion. The extent to which the deletion of words from a contract may be taken into account in construing it has been a matter of controversy giving rise to what Diplock J referred to as 'a pleasant diversity of authority': Louis Drefus & Cie v Parnaso Cia Naviera SA [1959] 1 QB 498, at 513. Some at least of those authorities have distinguished between the rejection of words put forward in drafts of a contractual document crafted for the occasion and deletion of words from a document serving as a precedent, that deletion being inadmissible as an aid to construction in the former case but admissible in the latter case: see eg NZI Capital Corporation v Child (1991) 23 NSWLR 481 at 490; Timber Shipping Co SA v London & Overseas Freighters Ltd [1972] AC 1 at 15 - 16). However, although Mason J expressed his view tentatively on this matter in Codelfa, I consider that the trend of authority is in favour of receiving evidence of the fact of deletion of an expression if to do so would negative an inference sought to be drawn from surrounding circumstances that the contract bears a meaning positively rejected by the deletion. See NZI Capital Corporation v Child; MCA International BV v Northern Star Holdings Ltd (1991) 4 ACSR 719; Brennan v Kinjella Pty Ltd (1993) 6 BPR 13,168. The application of that approach in the case of a deed poll is not without its difficulty. In the case of a contract it is possible to examine the facts to see whether there was an actual intention of the parties evidenced by their concurrence in rejecting the deleted words. With a deed poll, the bare fact of deletion of words may be equivocal: does it mean only that the draftsman had second thoughts about the manner of expression of his instructions or does it mean that the party concerned turned its mind to the issue and chose to reject the meaning conveyed by the rejected words [19]?

319 Justice Hayne, taking account of the evidence before him about changes in wording as between first and subsequent drafts, inferred that the change was deliberate. He then used that evidence of changed wording to reject a contended meaning which one of those trial parties had sought to assign to a deed - by reference to the surrounding circumstances evidence. His Honour continued:

In other words, I consider that the drafting history if it is proper to have regard to it at all can only reinforce the conclusion that I would otherwise reach, that the deed was not intended to oblige the trustee to make a payment in every case of a default, and it negatives any inference that might otherwise be drawn (whether from the words of the trust deed or the surrounding circumstances) that the trustee was bound to make a payment on every occasion a Class A member defaulted [20].

320 Whilst I am addressing Codelfa and construction principles, I should also revisit Mason J's further observations concerning presumed intention and the nature of the exercise of finding ad hoc implied terms within a written contract. His Honour characterised an (ad hoc) implied term evaluation as:

an illustration of the process of construction, though differing from the more orthodox ascertainment of the meaning of a contractual provision (353).

321 With those principles of contractual construction identified, I can now turn back to the parties' rival constructions towards the MRP phrase within the definitions of PP and CP in the RCB calculation formula under cl 8.2(a) in each MRSLA.

322 To that end, it may be helpful for me to first set down the full text of cl 8 from within each MRSLA.

323 The full text of cl 8 from each MRSLA reads in these terms:.

(a) Sino [Korean] will pay to Mineralogy a royalty ('Mineralogy Royalty') in respect of Magnetite Ore taken by Sino [Korean] pursuant to the exercise of its Mining Right.

(b) The Mineralogy Royalty is an enduring royalty, payable throughout the Term of the Mining Right.

(c) Sino [Korean] will pay the Mineralogy Royalty quarterly, based on the quantity of Magnetite Ore taken by Sino [Korean] and Products produced during the previous quarter. The Mineralogy Royalty will be payable not later than the 14th day of each quarter.

(a) The Mineralogy Royalty is calculated according to the following formula:

Mineralogy Royalty = Royalty Component A + Royalty Component B

Royalty Component A at the date of this Agreement is as specified in Item 5 of the Schedule; and

Royalty Component B is calculated according to the following formula:

Royalty Component B = The amount of the additional royalty payable for that quarter.

Product = The total aggregate tonnes of product (derived from iron ore) produced by the Sino [Korean] in that quarter for sale or supply, regardless of the type of that product.

PP = The prevailing published annual FOB price (expressed in US dollars per DMTU) for pellets established by the largest supplier or seller of pellets in Brazil for export multiplied by 68.1.

CP = The prevailing published annual FOB price (expressed in US dollars per DMTU) for Mount Newman fines for export multiplied by 68.1 and then further multiplied by 1.05.

(a) less than US$55 - 6% of the Pellet Price;

(b) greater than or equal to US$55 but less than US$65 - 8% of the Pellet Price;

(c) greater than or equal to US$65 but less than US$70 - 9% of the Pellet Price; or

(d) US$70 or greater - 10% of the Pellet Price.

CR = Where the Concentrate Price is:

(a) less than US$35 - 6% of the Concentrate Price;

(b) greater than or equal to US$35 but less than US$40 - 8% of the Concentrate Price;

(c) greater than or equal to US$40 but less than US$45 - 9% of the Concentrate Price; or

(d) US$45 or greater - 10% of the Concentrate Price.

(b) The rate of Royalty Component A will be reviewed on a quarterly basis from the date of this Agreement. On each review, the increase in the rate of the Royalty Component A will be a percentage equal to the CPI Movement between the date of review and the date of the previous review (or the date of this Agreement in the case of the first review).

If there is a FOB price for either Brazil pellets or Mount Newman fines applying for different destinations, the applicable price for use in the formula in calculating Royalty Component B under clause 8.2(a) will be the price for shipments to China, or, if there is no price for shipments to China, for shipments to Asia.

Each payment of Mineralogy Royalty will be accompanied by a statement, showing in detail the calculation of the Mineralogy Royalty for the month in question. The statement will include such information as Mineralogy may reasonably require for the purpose of confirming the correctness of the calculation.

(a) Mineralogy may at any time on reasonable written notice to Sino [Korean] inspect and copy Sino's [Korean's] books and records for the purpose of verifying the amount of Mineralogy Royalty payable by Sino [Korean].

(b) In exercising its right under clause 8.5(a), Mineralogy agrees to give to Sino [Korean] a minimum of 7 days written notice.

(c) Mineralogy may also, at its cost, have Sino's [Korean's] books and records audited. Sino [Korean] will make freely available its books and records for this purpose to Mineralogy or its auditors.

Any dispute as to the amount paid to Mineralogy shall be referred to an Expert, in accordance with clause 33, who shall make in the absence of agreement between the parties a final determination for any quarter of the amount to be paid to Mineralogy under this clause 8.

324 I next address components of the RCB calculation formula in cl 8.2(a) of each MRSLA that are largely not in dispute at the trial. This will hopefully assist in isolating what is truly in contest as to true meaning in the construction of the MRP phrase commonly used in PP and CP of the RCB formula.

Components of the RCB calculation formula not in dispute

325 Most components of the definitions of PP and CP within the RCB formula are not problematic as to their meaning.

326 For instance, it is not problematic to identify that 50% of the quarterly tonnages as volumes of 'Product' are to be used as base numerical factors within the two halves of the RCB calculation formula.

327 Obviously, there is no difficulty as well in ascertaining and applying the fixed multiplication factor of 68.1 seen used in PP.

328 Nor for CP is there difficulty in ascertaining and applying the first fixed multiplication factor of 68.1 and the extra fixed multiplication factor of 1.05.

329 There is no difficulty about the meaning of the shipping carriage terminology acronym, FOB. FOB means the free on board price of the product to be shipped without any further price augmentations, such as for an added freight charge or an insurance charge component.

330 Nor is there any difficulty of meaning over the definition of a DMTU (see the cl 8.7 MRSLA definitions). A DMTU is a unit of mass for only 1% of iron (Fe) in a tonne of dry ore. [I would at this point simply compare this 1% iron measure to the MRSLA's definition of magnetite ore as found specified in cl 1.1 of each MRSLA as 'at least 17% magnetite Fe'.]

331 So, as regards the RCB calculation formula used in cl 8.2(a) of each MRSLA, it is apparent that most of the formula's components assembled to deliver PP and CP, in what is demonstrably a very elaborately crafted overall RCB formula, are not at all problematic in their meanings, or in their ascertainments. Most elements in the RCB formula are clear enough.

332 Likewise, within the aggregate RCB calculation formula as a whole, the further input components PR and CR will be identified derivatively, once PP and CP are found. PR and CR are the sliding scale percentages (ranging only between 6% and 10%).

333 The applicable PR and CR percentage inputs will be crystallised after determining the relevant quarterly prices per DMT for the two as specified RCB reference products (for Brazilian export pellets and for Mt Newman export fines).

334 I need to note three more preliminary and uncontroversial things about the RCB formula in cl 8.2(a) in each MRSLA.

335 First, as was accepted by the parties at trial (see ts 1,666, 1,695, 1,999, 2,498), the acronyms PP and CP must mean 'Pellet Price' and 'Concentrate Price' respectively - even though that is not explicitly stated by an express definition in cl 8.2(a). The chapeau to the terms PR and CR renders that demonstrable conclusion, however.

336 Second, there is an accepted error in some words as used to describe PR and CR in each of the RCB calculation formula's (a) to (d) choices. The ultimate sliding scale percentage to be used as PR or CR will be just a bare percentage alone. It will not be a percentage 'of the Pellet Price' or 'of the Concentrate Price' as stated under each (a) to (d) option. That extra wording as seen after each potential (a) to (d) given percentage is only misleading surplusage and can be safely ignored. The surplus words are liable to mislead the casual reader - as again was accepted, in effect, by all parties at the trial (see ts 1,696, 2,478). What is to be used as PR or CR is simply the selected percentage alone, then to be globally multiplied at the very outside of the respective halves of the RCB equation formula.

337 Third, the applicable PR or CR percentage (within the given 6 - 10% range under (a) to (d)) to be imputed as either PR or CR is arrived at by reference to what must be a US dollars price rate level. This base, albeit unstated in the subparagraphs of PR and CR must be a price per DMT, not a US dollars price rate per DMTU in order to be workable and to make sense overall in the formula.

338 In other words, the base to drive an ultimate sliding scale percentage selection required must be the price for a dry metric tonne of iron - not the price for only a mere 1% iron unit in that tonne of ore, which would be a DMTU. Again this was not at all controversial between the parties (see ts 2,479).

339 That extra insight is needed in order to identify the percentage to apply as PR and CR at the outside of both halves of the RCB calculation formula.

General observations upon RCB within cl 8.2(a) of each MRSLA

340 In my December 2016 interlocutory reasons, Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [2016] WASC 403 [105] I offered 22 preliminary observations upon the Mineralogy Royalty term under MRSLA cl 8. Each remains relevant. But two now require further qualification or elaboration. Overall, however, this trial has only served to entrench for me those earlier observations.

341 I need, however, to augment those observations by some further considerations concerning RCB which have now moved into a clearer focus as a result of the trial. As just seen above, there are the three uncontroversial corrections or clarifications to be added as well.

342 Subject to some small clarifications along the way, I can repeat and now reconfirm on a final basis for this trial all those observations.

343 At [105] of the [2016] WASC 403 reasons I had said:

1. I can render the following preliminary observations about the royalty arrangements for Mineralogy from cl 8.
   1. The term 'Mineralogy Royalty' is found defined in aggregate terms - by reference to it being an enduring royalty payable throughout the term of the 'Mining Right'. As seen, it is the arithmetic summation of two royalty amounts: see cl 8.1(a) and cl 8.1(b) read with cl 8.2(a) in the MRSLAs.
   2. The 'Mineralogy Royalty' is payable to Mineralogy quarterly, based on the quantity of 'Magnetite Ore' 'taken' as regards the first component A. Component B is a royalty that is differently derived by reference to a different underlying quantum of subject matter, namely the quantity of 'Product' produced during the previous quarter (cl 8.1(c) of the MRSLAs).
   3. Some potentially problematic issues in respect of Royalty Component A have been earlier resolved: see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 194 (Edelman J), delivered 21 May 2013, and where his Honour concluded at [247]:

Although the word 'taken' in cl 8.1 is ambiguous, the best interpretation of that word, and the clause, is a construction similar to that proposed by Mineralogy. Clause 8.1 in the 2006 MRSLAs has the effect that a royalty becomes payable by either Sino Iron or Korean Steel or by them jointly when the relevant person takes possession or control of Magnetite Ore, either by stockpiling for the purposes of possible future processing or use (as opposed to placing it on waste piles) or by moving it directly to the primary crusher.

1. The underlying machinery for Royalty Component A can be seen via cl 8.2(a) to be tied to item 5 of the Schedule in both MRSLAs. There is also via cl 8.2(b) a regular review of the level of Royalty Component A. This is conducted on a quarterly basis, by reference to 'CPI Movement'.
2. Whilst item 5 of the Schedule shows that Royalty Component A is payable by reference to Magnetite Ore taken, the underlying referenced subject matter in respect of the other aspect of the royalty is differently constructed in terms of the underlying subject matter. Both the components A and B are necessary to in aggregate derive the 'Mineralogy Royalty'.
3. By cl 8.2(a) of the MRSLAs the Mineralogy Royalty is an amount of money which needs to be 'calculated'. An arithmetic formula is provided to complete this calculation. It is the summation of Royalty Component A and Royalty Component B.
4. The word 'calculated' is seen then to be used yet again later in cl 8.2(a), now in a context of defining the basis upon which the Royalty Component B is to be ascertained. A second mathematical formula is provided in order to perfect this calculation for RCB.
5. As seen, the formula provided for the calculation of the monetary quantum of what is referred to as Royalty Component B provides a more complex algebraic formula. As an objective assessment, the provision of that formulae and the calculations to be undertaken all suggest to me a laying down, at this point, of elaborate machinery - in order to derive with precision the royalty money amounts which are to fall due to Mineralogy, on a quarterly basis.
6. As now seen, certain pricing ingredients used within the Royalty Component B formula post 2006 have proven, or are said to be, problematic in terms of their ascertainment. That is the case particularly as regards the subject matter that is referred to by the acronym PP (which I assume for present purposes is meant to signify a reference to pellet price) and also a counterpart formulae acronym CP (which I assume for present purposes signifies concentrate price - although those conclusions concerning the meaning of the two acronyms are an inference I have drawn, rather than being matters that are explicitly stated).
7. It is apparent from the defined term 'Product' that it is the commencing point in the equation for both the PP and CP components in the formula specified to derive Royalty Component B. 'Products' is defined in the MRSLAs' early definition clause (cl 1.1) as:

Products means up to a combined aggregate total of 12,000,000 (twelve million) tonnes per year of a combination of Iron Ore Concentrate, and/or Pellets, and/or HBI for sale or export in such ratio as Sino [Korean] may decide from time to time and no more.

1. Other definitions in that definition clause at cl 1.1 in the MRSLAs also define the term 'Iron Ore Concentrates' to mean 'Magnetite Ore concentrated to at least 65% Fe'; 'Pellets' to mean 'high grade iron ore pellets produced from Magnetite Ore'; and 'HBI' to mean 'hot briquetted iron produced from Magnetite Ore'.

Ore mined from the Mine Area and containing a magnetite content of at least 17% magnetite Fe. Magnetite Ore also includes any Low-Grade Material used by Sino [Korean] to produce Iron Ore Concentrates.

Clause 1.1 also defines 'Mineralogy Royalty' to mean 'the royalty payable by Sino [Korean] to Mineralogy under this Agreement, as set out in cl 8.1'.

1. Hence, it may be seen that whereas Royalty Component A is a royalty amount payable to Mineralogy in reference to the subject matter of 'Magnetite Ore' 'taken', that Royalty Component B is to be distinctly calculated by reference to the quarterly amounts of the different subject matter, being 'Product'.
2. Whilst 'Products' is first defined in the cl 1.1 MRSLA clause that I have mentioned, there is within cl 8.2 a further and independent definition for 'Product', as regards its meaning within Royalty Component B and which it is necessary to assimilate.
3. Within the definition of the Royalty Component B formula, 'Product' is defined in terms:

Product = The total aggregate tonnes of product (derived from iron ore) produced by Sino [Korean] in that quarter for sale or supply, regardless of the type of that product.

Hence, it is seen that although the defined term 'Product' is capable of embracing a number of different derived iron ore products such as concentrate, pellets or HBI, in the end this does not matter for the purposes of qualifying as product in terms of a subject matter delivering the obligation to pay a royalty exposure to Mineralogy. All 'Product' will do that and the royalty payable is the same.

1. Expansive as the definition of 'Product' is now seen to be under cl 1.1, it would not appear to extend to include iron ore 'fines'.
2. For present purposes, it is significant that all argument before me has proceeded upon the basis that, to date, the only derived subject matter from the iron ore 'taken' at Mineralogy's Cape Preston mining leases as worked by Korean and Sino (from the magnetite iron ore which has been taken since 2013) is iron ore 'concentrate'. No other subject matter potentially capable of fulfilling the nominated MRSLA definition of 'Product' looks to have been derived to date. It would appear to be that to date no pellets or HBI has been produced, just concentrate.
3. The last negative observation is significant, once the dual halved parts in the RCB formula are examined, noting again that the acronyms PP and CP in that formula both envisage use of FOB (shipping) prices for the two distinct underlying subject matters that are chosen. The chosen subject matters in the formula are the price of iron ore pellets originating from Brazil, but in the other half of the formula the other distinctly chosen subject matter is of Mount Newman iron ore fines for export.

[And I would now add to observation 17 as regards the two chosen subject matters that the two independently chosen products used in the RCB formula can be identified as market reference iron ore products - chosen to draw in their US dollars market reference prices into the RCB calculation.]

1. The Royalty Component B formula on close examination is seen first to halve the overall quantum of produced Product (as defined). Relevantly, for present purposes, since 2013 this has been only iron ore concentrate which has been produced from the extracted magnetite ore. Having halved the quantum of the produced Product, the RCB formula then proceeds to multiply that halved amount of Product by an FOB shipping price for each of the two chosen underlying subject matters, across the distinct halves of the formula. Hence, taking half the tonnage of the iron ore concentrate product (as Product), that tonnage amount is then multiplied, in the case of PP, by a shipping price in US dollars per dry metric tonne [unit] for Brazilian sourced iron ore pellets. The same methodology is used in respect of the other half of the calculation taking the halved Product tonnage and applying the [DMTU] US dollars shipping price (FOB), this time for the subject matter of Mount Newman fines for export (noting as dual curiosities that, first, fines would not appear to fall within the definition of 'Product' and, second (and in passing) that Mount Newman fines are actually derived from hematite ore, not magnetite ore: see ts 1412).
2. For each of PP and CP the [DMTU] FOB price nominated for either subject matter (pellets or fines) is indicated to be the annual shipping price for the subject matter.
3. Further, that annual nominated shipping price is identified as having been 'published' - indicating prima facie that the price used is in the international public domain, rather than being pricing information that is kept confidential.
4. A further aspect in each of the PP and CP price definitions is that these annual prices to be used are specified to be 'prevailing' - indicating prima facie a specification of a market price which may change over time - and presumably here, annually.

[Paragraph 21 requires some qualification as I explain in the next section of these reasons (see point 27 below).]

1. Each half of the specified Royalty Component B formula is then to be multiplied by a percentage for PR and CR. This percentage proceeds to manifest on a sliding scale, depending upon the level of the price for pellets or, in the case of CR, Mount Newman fines (albeit referred to as Concentrate Price in CR).

344 I add that at [106] of my [2016] WASC 403 reasons I said and would reiterate again now on a final basis:

1. Summarising the position then, the RCB formula that is found under cl 8.2 is expressed to be the monetary royalty amount payable to Mineralogy which is the result of a calculation that is implemented by reference to necessary inputs of Product tonnage, a percentage applicable on a sliding scale (as explained under PR or CR) and then by a US dollars price ([DMTU] FOB shipping price) under PP or CP, followed by further factors of multiplication (68.1 in the case of PP but 68.1 in the case of CP, then a further 1.05). The application of the RCB formula generates a calculated amount of money in US dollars payable quarterly in arrears as RCB. It is the other half of the Mineralogy Royalty as defined, which is to be paid, along with Royalty Component A. Clearly, RCB forms a significant part of the legal consideration anticipated to be flowing to Mineralogy in respect of the mutual rights and obligations of the parties over time under the MRSLAs.

Some further observations on the RCB formula in cl 8.2(a) of each MRSLA

345 With the benefit of the trial and the extensive further arguments concerning cl 8.2 of the MRSLAs, I can now add some extra surrounding observations about this clause.

346 For utility, I will continue the numbering of these observations beyond 22, working from the original numbers taken from [105] of my [2016] WASC 403 observations.

1. In amplification of the points made under observations 6 and 7 at [105], I would recognise a strong force in the word 'calculated' in the construction exercise towards RCB. That word assumes an even greater significance, as it is seen to be used twice (see cl 8.2(a)).

One of the CITIC defendants' trial arguments against a deployment of an expert to settle the RCB disputes in 2014 was that the RCB interpretation issue at hand presents exclusively as a question of law. Clause 8.6 was argued to task a cl 33 expert to only perform relatively perfunctory tasks such as resolving a quantification dispute over royalty amounts - but not for that expert to resolve issues of the legal meaning of the text of the MRSLAs (see the CITIC defendants' closing submissions, pars 154 - 158).

That demarcation argument of the CITIC defendants rests particularly on the word 'amount' seen used in the first and third lines of cl 8.6. Reliance is also put on the comparatively limited and expressly permitted utilisation of the expert determination process - under a few other scenarios as found in the MRSLAs: see MRSLA cl 10.1(e) as regards disputes over measurement procedures, cl 10.2(e) as regards sampling and assay procedures, and cl 10.3 as regards application of assay procedures or measurement procedures.

Taken together, the CITIC defendants suggest that these expressly sanctioned expert determination involvement scenarios in the MRSLAs are not consistent with allowing an expert to reach a determination of RCB in the present circumstances - where the true meaning of the MRP phrase they say needs to be resolved first by this court as a question of law (see CITIC defendants' closing submissions, pars 158 - 160).

On my view, the interpretive force of the word 'calculated' seen used in MRSLA cl 8.2(a) is a strong textual 'clue' along the way that stands against the CITIC defendants' argument that an expert determination can only be deployed for quantification disputes over RCB amounts. Whatever the whole RCB task might involve for an appointed expert under cl 8.6 and cl 33, an amount of RCB under cl 8.2(a) ultimately needs to be 'calculated'.

A 'calculation' task, perfectly fits the role and function for an expert determination made under cl 8.6 and cl 33 as regards RCB, even if the dispute is ascertained by the expert at the end to be a nil RCB payment outcome.

1. Next, the interpretative significance of the parties using a DMTU price rate, as is seen in PP and CP, should have received more emphasis than it did in my [2016] WASC 403 reasons. As now seen, the chosen DMTU measure is a relatively small one numerically - being only 1% of iron as a measurement.

An upward RCB multiplication of that low commencing platform of 1% iron basis (by 68.1 for PP and by 68.1 then by 1.05 for CP), is significant. Applying those multiplication factors pushes upwards a resultant amount of US dollars - up towards a level of iron percentage DMT price that is truer for a produced iron ore reference product when sold. This is because the reference products (pellets or fines) when sold will consist of a great deal more than 1% of iron content. Therefore, the fixed upwards multiplication factors deliver, in effect, what is a simplifying and fixed assumption in the formula about the end level of notional iron content in the referenced pellets and fines (see ts 2,479 - 2,480).

That insight is more revealing where it is also understood that the market price of a tonne of a reference iron ore product, such as these pellets or fines, may not be linear in its greater US dollars market worth - as against the increasing percentage levels of iron content at levels between 62% to 68% of iron content (see ts 2,136 - 2,138)

A use of fixed multiplication factors in the RCB formula removes a level of fluctuating market price uncertainty arising from the varying market worth of different and higher percentages of iron ore in the sold products, once the base of a 1% iron US dollars per DMTU price is chosen for PP and CP.

1. Some greater clarification needs to be added to my preliminary observation 15 concerning 'fines' falling outside the definition of the term 'Product'. With the benefit of the trial evidence, it is now clear that in 2006 the MRSLA parties had then selected Mt Newman export fines in CP as a reasonable proxy for another product, namely, for iron ore concentrate. That was so albeit Mt Newman fines are processed out of hematite ore (not magnetite ore) (see ts 1,669). Iron ore concentrate was the likely 'Product' Sino Iron and Korean Steel might potentially produce in the future (see MRSLA cl 6.3(b)) when production eventually began at the Cape Preston project. Iron ore concentrate (a product then viewed as being akin to Mt Newman fines) stood in some contrast to the second chosen, and more refined (and hence more valuable) reference product selected in the other half of the RCB formula equation, namely pellets, the reference product whose DMTU price was to be used under PP.
2. It was accepted by the parties as uncontroversial at trial that the reference made in PP to pellets sold by the largest supplier or seller of pellets in Brazil was a reference to the international Brazilian iron ore producer and exporter Vale SA (formerly known as Companhia Vale do Rio Doce, or CVRD) (see ts 1,816).
3. Observation 21 also needs a further qualification as regards the term 'prevailing' and my indication of a prima facie specification of a market price - which might change over time, presumably annually. That arises out of the fact that the composite MRP phrase commences by using the adjective 'prevailing', then deploys the adjective 'annual' after the word 'published', as regards describing a US dollars per DMTU FOB price for PP or CP.

Each adjective within the composite MRP phase must first be individually evaluated, as I have earlier observed, for its meaning. However, what is, in the end, seen as a composite phrase must carry a sensible aggregate commercial meaning overall - from each assembled adjectival component contributing harmoniously, as far as is possible.

Under the former ABPS, the yearly negotiations conducted between the major iron ore suppliers and Japanese iron ore purchasers generated a series of published US dollars per DMTU prices for iron ore products at the end of those sometimes drawn out yearly negotiations. The as announced ABPS prices would then necessarily prevail under the ABPS, until the next financial year's negotiations (see exhibit 1.6, Joint Memorandum by Expert Witnesses Robert Brierley, Brian Fisher, Damon Buckley and John Barkas of 2 June 2017, page 3). Hence, the announced ABPS prices each year were necessarily an annual price - under the inherent nature of that former world price fixing system of negotiations for iron ore products in the world market.

But assessed post April 2010, for the MRP phrase to carry a sensible commercial meaning, might a series of US dollars prices for product sales achieved in the world market for the same iron ore reference products over a preceding 12month period be collected, then averaged to derive an annual US dollars FOB price for the two reference products? The question arising post April 2010 (but with an eye back to 21 March 2006 when the MRSLAs were perfected), is whether that approach would be harmonious with the textual use of the adjective 'annual' in the MRP phrase.

In that context it may be of interest to recall that McLure P in [2016] WASCA 105 at [24] had observed:

The fact that (unlike the ABPS) the market price changes during the relevant period does not make the standard legally uncertain. (my emphasis)

By my assessment, what is seen as the composite aggregation of adjectives assembled together within the MRP phrase in RCB to describe US dollars per DMTU FOB prices for the two reference products must require a sensible overall commercial meaning.

The word 'annual' in the MRP phrase is but one component of PP and CP used in the overall RCB calculation formula.

At the end of the day, RCB and PP and CP therein objectively present as machinery provisions that were used to deliver a market referenced product pricing input (or 'standard') for this volume based additional royalty payment to Mineralogy that was ultimately settled upon.

347 Given all these RCB formula inputs and insights assembled so far, including corrections and clarifications, and the resulting complexities in making an RCB calculation under MRSLA cl 8.2(a), it may be of some utility, before I embark too much further on a construction exercise of the MRP phrase to pause and try to provide a degree of conceptual 'flesh' towards the performing of an RCB calculation. I shall attempt that using a hypothetical calculation example I have adapted from the trial materials.

348 To that end, I have selected for use only as an illustrative RCB calculation Annexure B of Mineralogy's 18 March 2013 commercial list statement as filed in the Supreme Court of New South Wales (exhibit 1.76).

349 I use Mineralogy's calculations seen in that document to illustrate the multiple steps in an RCB calculation.

350 The RCB calculation is, of course, contextually different, being based back in 2013 on Mineralogy's assumption that Sino Iron and Korean Steel should have produced 6 million tonnes of iron ore concentrate as 'Product' (being the minimum product as referred to by MRSLA cl 6.3(b)).

351 I have also added some extra adjustments for clarity sake to the RCB example calculation along the way.

[Mineralogy's MRSLA cl 6.3(b)] Royalty B Calculations on 6 million Tonnes of [Iron Ore] Concentrate

(PR x ([1/2 x Product) x PP]) + CR x ([1/2 x Product] x CP)

total aggregate tonnes of product (derived from iron ore) produced by Korean or Sino for sale or supply or processing regardless of the type of that product

prevailing published annual FOB price (expressed in US dollars per DMTU) for Pellets established by the largest supplier or seller of Pellets in Brazil or export multiplied by 68.1

10% of the Pellet Price (i.e. where pellet price is US$70 [per DMT] or greater)

prevailing published annual FOB price (expressed in US dollars per DMTU) for Mount Newman fines for export multiplied by 68.1 and then multiplied by 1.05

10% of the concentrate price (i.e. great[er] than US$45 per [DMT])

Platts records that [the] annual FOB price per DMTU for Pellets in Brazil being 244 US cents (US$2.44) ...

Platts records that the annual FOB price per DMTU for Mount Newman fines for export is 204 US cents (US$2.04) ...

10% x [[1/2 x 6,000,000] x (US$2.04 x 68.1) x 1.05]

352 As seen, both PR and CR are bare percentages of either the pellet price or the concentrate (fines) price (respectively). PR and CR were both reached at 10% on the above calculations by Mineralogy.

353 The end result from those calculations was a claim by Mineralogy for $US93,609,000 under MRSLA cl 6.3(b) (which by its content had incorporated the RCB calculation approach) at that time (see exhibit 1.76, annexure B).

354 Of course, I must stress again that I am not accepting those calculations. At the time the calculations were submitted they were based on Mineralogy's then claim, only advanced under cl 6.3(b) of each MRSLA. That cl 6.3(b) claim is no longer pursued in Mineralogy's currently formulated pleadings in this trial (see Mineralogy's current claim in the fifth FASOC, page 15).

355 Clause 6.3(b) only remains relevant at this trial contextually as one part of each MRSLA. But clearly, it was a clause internally aligned to the RCB calculation formula used under cl 8.2(a).

356 Clause 6.3(b) might be seen objectively as something of an attempt to compensate Mineralogy by incorporating the machinery of the RCB formula, if the production of those minimum specified levels of 'Product' were not achieved within a fixed period of seven years of each MRSLA being entered - objectively thereby displaying something of a protective effort to counter a possible future non-receipt of RCB by Mineralogy in seven years' time from 21 March 2006 (ie, by March 2013).

357 The RCB calculation illustration shows the use of US dollars per DMTU FOB prices (more accurately now seen as US dollars price rate(s) per DMTU of reference product).

358 The US dollars per DMTU FOB price rate, of course, is the key MRP phrase input (ie, the prevailing published annual FOB price) in the RCB formula that is said by the CITIC defendants to be problematic - in terms of its ascertainment post April 2010 and the true meaning of which sits at the heart of the RCB formula construction dispute arising at the trial.

Contended relevant surrounding circumstances as submitted by the parties as relevant context towards the interpretation of the MRSLAs

359 As regards facilitating or supporting the rival contractual choice interpretations of the MRP phrase in the RCB calculation formula, Mineralogy identifies in its pleadings three facts it says were either known to Sino Iron and Korean Steel at the time the MRSLAs were entered into on 21 March 2006, or were notorious to the parties at that time.

360 Mineralogy identifies and contends for the following facts to be found by par 18(b) of its Reply pleading, namely:

1. [the MRSLAs] would continue, unless terminated earlier, until the Total Extraction Limit was reached [ie, 1 billion tonnes of magnetite ore under each of the MRSLAs - 2 billion tonnes of ore in total];
2. the amount of the Total Extraction Limit meant that, practically, [Sino Iron and Korean Steel's] mining and production operations pursuant to the [MRSLAs] would, unless those agreements were terminated early, continue for as long as the State Agreement ... remained in force;
3. that [RCB] would be the most substantial component of the Mineralogy Royalty payable [by Sino Iron and Korean Steel] to Mineralogy;

1. The Total Extraction Limit was defined by clause 1.1 of the [MRSLAs];
2. The State Agreement expired 60 years from the commencement of the agreement unless extended (clause 45).

361 The first two matters contended for above by Mineralogy are not really facts. They are essentially conclusions or arguments directed at the functional implications of each MRSLA when performed. If Mineralogy is simply contending the MRSLA parties (objectively assessed) likely knew they were embarking on a longterm commercial relationship under each MRSLA, then so much is rather obvious. Beyond that, however, contentions 1 and 2 are essentially arguments.

362 Mineralogy's third contended fact above is different. A likely future prediction concerning the quantum of RCB amounts for Mineralogy, once RCB became payable upon 'Product', was well captured by CITIC's proximate announcement to the Hong Kong Stock Exchange on 31 March 2006 (exhibit 1.58), set out earlier.

363 Whether or not the quantum of future RCB payments would turn out to be more substantial than RCA could, of course, only be a predictive assessment by the MRSLA parties as at March 2006. But the Hong Kong Stock Exchange announcement was relatively contemporaneous with the perfection of the MRSLAs and an entry of the Sino Iron Takeover Agreement. The MRSLA parties and CITIC had then projected RCB as a substantial and valuable future income stream for Mineralogy, as in effect was also very obvious to all at that time.

364 The CITIC defendants, via par 38 of their opening submissions, also contend for a number of mutually known background facts as being relevant to the MRP phrase construction exercise at hand.

365 Those contended facts by the CITIC defendants are:

(a) Benchmark pricing was the predominant method of iron ore pricing at the time of entry into the MRSLAs, accounting for more than 85% of seaborne-traded iron ore [see exhibit 26, affidavit of John Pallister Barkas sworn on 2 May 2017, page 886]. [I would accept that fact as established on the trial evidence.]

(b) The benchmark pricing system had been in effect since the 1970s [see exhibit 26, page 864]. [Again I would accept that as established - noting Mr Barkas was not required to be crossexamined on his expert reports at trial.]

(c) A Benchmark price for Mt Newman fines was published [see exhibit 26, pages 884, 914; exhibit 1.6, par 13].

(d) A Benchmark price for Brazilian pellets was published [see exhibit 26, pages 884, 914; exhibit 1.6, par 12].

(e) The Benchmark price was an FOB price [see exhibit 26, pages 886, 893, 900, 905, 912; exhibit 1.6, pars 12 - 13].

(f) The Benchmark price was expressed in cents/DMTU [see exhibit 1.6, pars 12 - 13].

(g) The Benchmark price was an annual price [see exhibit 26, pages 891, 913; exhibit 1.6].

(h) The Benchmark was the only annual price [then] published [see exhibit 26, page 916].

(i) CITIC (or entities related to it) would purchase the entire output of the project or otherwise facilitate its sale [see exhibit 9, pars 53, 55; exhibit 11, pars 37, 39, 46].

(j) the economic modelling of the Project was based upon forecast Benchmark prices [see, eg, exhibit 9, annexure PCL3].

366 The CITIC defendants' contended facts (a) to (h) above are, I would find, established upon the trial evidence. But, of course, their end significance towards the basal contractual construction task of this trial as regards the true meaning of the MRP phrase used within the definitions of PP and CP in the RCB formula is another matter altogether.

367 Subject to my following qualifications below, the CITIC defendants' contended facts (i) and (j) can also be accepted.

368 Contended fact (i) is, in my view, in the character of an asserted future event, possibly projected by the MRSLA parties as at the end of March 2006. I would accept that one of CITIC's underlying, and mutually known, commercial objectives in the acquiring of all the shares in Sino Iron and Korean Steel was to gain the valuable MRSLA rights to exploit significant and reliable Western Australian longterm sources of magnetite iron ore. Such iron ore could be mined, processed into iron ore 'Product(s)' (of some kind) and then exported to China for use in CITIC's related entities' specialty steel mills (see exhibit 9, pars 18 - 19).

369 Whether CITIC's commercial objective above, in relation to what was then essentially a greenfields scenario at Mineralogy's mining leases at Cape Preston, would turn out to be realised or not, all remained to be seen. It would be obviously appreciated in March 2006 by these sophisticated commercial parties that much time, effort and vast capital expenditure would need to be outlaid by CITIC and its entities in order to bring such an ambitious mining project from scratch to the stages of significant product production.

370 Moreover, CITIC in March 2006 had clearly accepted that it, and not Mineralogy, would be the party responsible for the financing all of this project expenditure in future.

371 The iron ore product sale prices which the CITIC related entities would likely pay for the exported iron ore product from the Cape Preston project, once production phase of the project was reached, would obviously bear upon the commercial viability of such a project. An interrelationship as between CITIC and its related entities as the specialty steel purchasers was also obvious, particularly to Mineralogy. The product purchasers in China would, naturally enough, want the lowest prices they could secure for purchased products and possibly seek subsidised prices. A lack of a fully arm's length future seller/purchaser party negotiation position over future sale and purchase prices for product was commercially obvious to all in March 2006 as well (see, eg, exhibit 9, par 53).

372 Contended fact (j) can be accepted from Mr King's reports. They had been produced and circulated as a part of Mineralogy's sales documents over the 2005 - 2006 negotiations with CITIC. However, Mr King's reports to Mineralogy were not the only pre-deal economic modelling undertaken.

373 As earlier discussed, CITIC, during and throughout phases of negotiations before the March 2006 Sino Iron takeover agreement, had conducted its own internal and highly sophisticated financial modelling as the negotiations with Mineralogy had evolved (see exhibit 9, pars 32, 79, 93). This was only to be expected. Mr Lee's CITIC team (see exhibit 9, par 96, annexure PCL14) predicted that Mineralogy's claims for RCB would reduce CITIC's future internal rate of return on the Cape Preston project's earnings by 0.7% only. That was evaluated by CITIC's financial modelling as acceptable. Cautious and sophisticated precommitment financial modelling is to be expected of a multinational commercial entity like CITIC when it came in 2006 to assess the utility of committing possibly billions of dollars in future to a greenfields, long-term overseas resource acquisition and long-term mining project.

374 It was not explicitly clear to me from the trial evidence whether or not all CITIC's (October 2005 - March 2006) financial modelling as conducted in that period had exclusively used ABPS input product prices. Parts of it obviously had. Certainly Mineralogy through Mr Palmer knew in 2006 of the ABPS and of its widespread international use in the iron ore product industry at that time.

375 Subject to those qualifying observations, the surrounding facts as contended for by the CITIC defendants are, I would find, also established.

376 The CITIC defendants, of course, ultimately contend that their assembled background facts 'support the inferences that can be drawn with regard to the object and purpose of the Transaction, and together with the object and purpose reinforce that the phrase "the prevailing published annual FOB price (expressed in US dollars per DMTU)" should be given its technical meaning - the current Benchmark Price for the specified product' (see the CITIC defendants' closing submissions, par 68). But the reference to the 'object and purpose of the Transaction' requires closer examination.

377 The CITIC defendants contend, and I would accept, that the two MRSLA agreements need to be read and evaluated in what is, overall, the wider surrounding commercial context presenting at that time in 2006. The wider context included not only the State Agreement, but also the as proposed almost settled upon terms for the takeover agreements (see ts 1,694 - 1,695). A takeover agreement was entered into on 31 March 2006 as regards all the shares in Sino Iron and a second takeover agreement was reached later on 1 November 2007, as regards the acquisition by CITIC (indirectly) of all the shares in Korean Steel (see exhibit 33, pages 9 - 10).

378 The two as proposed and anticipated takeover events for all the shares in the two MRSLA participant entities would, in their implementations, render those corporations to become wholly owned and fully controlled corporate subsidiaries of CITIC (albeit achieved structurally via somewhat complicated underlying subsidiary holding corporate entity arrangements) (see exhibit 1.76, annexure A; exhibit 9, par 74).

379 The Sino Iron takeover agreement was committed to with the parties appreciating then that the 21 March 2006 MRSLAs had been finalised and signed off by Mr Palmer both for Mineralogy and for its then subsidiary corporations, Sino Iron and Korean Steel, that day. But Mr Palmer had acted and committed them to those 2006 MRSLAs on a basis that those Mineralogy subsidiary entities would likely soon be acquired and then be newly and independently controlled by CITIC (see the CITIC defendants' opening submissions, par 9; Mineralogy's closing submissions, pars 61 - 63).

380 Clearly, all these looming events were a significant part of the surrounding context to what was then under negotiations, which had evolved over the period October 2005 - March 2006 as discussed earlier in these reasons.

381 The purpose and object of a wider commercial takeover transaction from the CITIC defendants' perspective is then articulated at par 37 of their opening submissions as:

The MRSLAs form part of a suite of agreements, the Project Agreements, that together form the contractual framework to give effect to the Project. At the highest, and most obvious level, the object and purpose of the Transaction was and is to develop the Project and for each party to earn a return on the Transaction.

382 Correlatively, it might also be said, objectively speaking from Mineralogy's MRSLA commitment perspective in March 2006, that a significant object and purpose of the wider commercial transaction was profit and future revenue motivated - to capture a healthy long-term financial return from Mineralogy's mining leases. The end objective for Mineralogy of achieving significant future wealth must also be fully respected as being in the finest of capitalistic tradition.

383 Returning to CITIC's objectively assessed commercial perspective, given the established surrounding background fact that CITIC was closely associated with the future China-based specialty steel purchasers of the Cape Preston project's products (see exhibit 9, pars 12, 16), it may also be objectively assessed that another purpose of the overall 2006 transaction was an accessing and securing of significant long-term offshore supplies of magnetite iron ore (see exhibit 9, par 63).

384 In light of what would obviously be a multibillion dollar future capital investment in a Cape Preston mining project, it can easily be inferred that another object of the transaction was for CITIC to fully exploit this longterm source of iron ore and to obtain future favourable product prices for its related specialty steel entities in China in the process. Absent a sale product pricing advantage, CITIC's related entities in China might otherwise have just as easily sourced their future iron ore supply needs in the world iron ore product spot market, paying the market level spot prices as CITIC, in effect, had done prior to acquiring control of Sino Iron and Korean Steel (see exhibit 9, pars 19, 55).

385 In other words, from a commercial object perspective, assessed in March 2006, CITIC would likely be seeking for the future, once significant product production began, to recoup some of its capital outlays upon such a large overseas investment to the advantage of its related specialty steel producers in China to secure an advantage for them longer term.

386 Hence, on my assessment, multiple, and not necessarily harmonious, rival commercial objectives were present here on each side. They may be broadly accepted as part of the objectively ascertained object and purpose within a broader surrounding CITIC takeover transaction as almost perfected at 21 March 2006 and of which the two MRSLAs were one component.

387 From Mineralogy's perspective in March 2006, viewed again in the objective prospect of CITIC's looming 100% takeover and future control of Sino Iron and Korean Steel, another purpose of the wider transaction, as the Sino Iron and Korean Steel shares were acquired, would be to protect as far as possible Mineralogy's future MRSLA royalty revenue stream which was tied to the volumes of 'Product' to be produced longer term at Cape Preston. Commercially speaking, Mineralogy would very understandably seek to maximise its wealth out of an economic opportunity as far as possible. The future iron ore extraction and export project which Mineralogy would have no shareholder control over (absent exercising a possible 19.9999% option upon listing by surrendering its entitlement to RCB) would be run and controlled by a powerful foreign multinational corporation.

Surrounding conclusions on the MRP phrase environment

388 I can now offer some deeper surrounding conclusions about the MRP phrase environment from the trial evidence, before I can conclude upon a true meaning of that phrase, assessed by reference to the RCB text, context and (objectively assessed) purpose:

1. The composite MRP phrase 'prevailing published annual FOB price', used in the definitions of PP and CP within cl 8.2(a) in each MRSLA is not, I would conclude from all the trial evidence, a term of industry custom and usage which carries any special meaning on that basis. The trial evidence from the lay witnesses and experts simply does not establish that to be the case. The standard of proof to show a term of industry custom and usage is high: see Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Aust) Ltd [1986] HCA 14; (1986) 160 CLR 226, 236, proposition 2 (Gibbs CJ, Mason, Wilson, Brennan & Dawson JJ); Shire of Rodney v Vibert [1915] ArgusLawRp 60; [1915] VLR 388, 393 (Madden CJ); and Dovuro Pty Ltd v Wilkins [2000] FCA 1902; (2000) 105 FCR 476 [149] - [150] (Finkelstein J) and case authorities there assembled.

No other iron ore contractual relationship perfected at or around 2006 was pointed to that contains the same or similar terminology to the MRP phrase, which presents as unique.

The CITIC defendants' arguments to that end (see the CITIC defendants' opening submissions, par 30; the CITIC defendants' closing submissions, pars 52 - 58) must be rejected.

1. On the trial evidence, the security of a royalty recipient's rights to reliably receive a promised future ongoing revenue can easily turn out to be problematic in reality over the long term. A book that was referred to heavily within Mr Twigger's report explains the many commercial risks and the exposed commercial vulnerability of a royalty recipient in rather explicit terms. If a party is simply a royalty income beneficiary without any level of input or control over a project that generates the future revenues (as looked to be the case here in March 2006 for Mineralogy), the potential commercial pitfalls in continuing to receive that payment in the future on a reliable basis are many. They are pitfalls somewhat notorious to parties who have any level of commercial sophistication (see exhibit 22, pages 125, 127 - 128).
2. The MRSLA parties, objectively assessed, went to elaborate lengths within the text of the MRSLAs in 2006 to secure Mineralogy's future royalty income streams from the Cape Preston project. RCA was required to be reviewed on a quarterly basis. It would be regularly adjusted for CPI (Consumer Price Index) movements (see cl 8.2(b)). For RCB, the elaborate RCB calculation formula under MRSLA cl 8.2(a) is seen to be complex and multifaceted. This was a volume (tonnage) based quarterly future royalty income stream payment obligation to Mineralogy.

As now seen, RCB was to be paid by a volumetric reference to the total aggregate quarterly tonnages of 'Product' (regardless of the type of products actually produced at Cape Preston in the future). The aggregate volume tonnage of 'Product' was then arithmetically halved within the RCB calculation formula equation. Each half of the quarterly volume of tonnage was made the subject of world market directed pricing input calculations by the RCB formula. At the end of the day, Mineralogy was to receive as its 'additional royalty' a percentage (fixed at between 6% to 10%) share of the aggregate market worth (prevailing market price) for two independent (of what was actually produced at Cape Preston) iron ore products sold in world export markets. Some more fixed multiplication factors were then injected for PP and CP (ie, 68.1 and 1.05), as previously discussed.

1. There is nothing at all commercially unusual or untoward in a putative longterm future royalty recipient seeking to protect and to secure their future revenue payments in their written bargain. A commercial objective of securing a future revenue stream from an export product arising out of a long-term contract to the greatest extent possible presents squarely as a sensible commercial objective.
2. Here, as we have seen, the underlying subject matter (ie, noun) as specified within the composite MRP phrase is the word 'price'. Even closer analysis shows that what is actually being textually described is a price rate - given the associated proximity and significance of the accompanying term 'per DMTU'.
3. Taking 'price' as the operative noun with the composite MRP phrase's multiple preceding composite adjectives 'prevailing', 'published', 'annual' and 'FOB' (without commas), assembled together within the definitions of PP and CP, adds a descriptive content and colour to the underlying subject matter of a US dollars per DMTU price rate applied to the two independent reference products as identified in the formula. However, at the end of the day, those multiple adjectives assembled together in a composite phrase cannot alter the essential underlying character of the price rate subject matter which they describe.

The parties' approach to the favoured meaning of the MRP phrase within the RCB calculation formula

389 At the trial, Mineralogy and the CITIC defendants, as I have now related, each presented their rival constructional choice positions concerning their suggested true meanings for the composite MRP phrase as used within PP and CP.

390 It would be conceptually unhelpful and potentially misleading, on my assessment, for me to approach the rival constructional choices exercise by seeking first to ascertain what the composite MRP phrase does not mean, then advancing to select from some other residual meaning.

391 The MRP phrase interpretation task should instead be approached by simply asking (by reference to text, context and purpose) what the composite MRP phrase means, recognising, of course, that under Australian contract law there can, at the end, be only one true meaning.

392 The objectively assessed commercial purposes of the global RCB formula can now be seen to be multifaceted.

393 The RCB formula uses two external reference products as a reference pricing standard and, with that, draws in their external reference prices applicable from time to time in the world iron ore market for such products. That was an attempt by Mineralogy, objectively assessed, as the royalty recipient to isolate and to distance itself from the actual product purchase price amounts that might be paid in the future by the related Chinese specialty steel purchasers of the Cape Preston iron ore products as actually produced and exported by Sino Iron and Korean Steel.

394 Future product prices to be paid by the CITIC related entities as purchasers presented a strong future risk of not then reflecting the true market worth of the products being exported (see exhibit 9, par 53). A selection of an independent pricing standard, by using reference products with their reference prices applicable from time to time, would obviate that commercial risk.

395 Therefore, there was a detectable and underlying commercial sense in a use in the RCB formula of the prices for two external reference iron ore products. It would capture the published and prevailing world market price inputs for the two reference products over time - so that the actual sale prices for 'Product' sold to the CITIC related Chinese specialty steel entities would then be less relevant.

396 The type of iron ore processed product actually created at Cape Preston in the future would essentially also be rendered irrelevant.

397 The RCB calculation formula would neutralise, to some extent, a risk of CITIC's possible future failure to maximise the commercial opportunity to produce the more valuable iron ore products (such as pellets) in future at Cape Preston - for whatever reason. This was particularly pertinent in March 2006 as, objectively speaking, Mineralogy would soon have no future control or influence over the project under 100% takeover proposals.

398 Hence, the commercial objectives of wealth, price, independence and protective security for the royalty recipient are discernible in the RCB calculation formula.

399 In construing the composite MRP phrase, the adjectives 'prevailing', 'published' and 'FOB' pose no real difficulties towards working out their meanings. 'Prevailing' is clearly directed at identifying current market prices for the two chosen iron ore reference products from time to time (see the CITIC defendants' opening submissions, par 35; Mineralogy's opening submissions, par 72). This would distance RCB from the actual prices paid and received in future for 'Products' at the Cape Preston project.

400 The adjective 'published' also carries no difficulties for its meaning. Another obvious commercial objective from using that word would be to capture what would be a transparent, publicly accessible and, therefore, independently verifiable and credible source of market pricing data for the true world market worth from time to time of the two chosen reference products (see the CITIC defendants' opening submissions, par 34; Mineralogy's opening submissions, par 72).

401 As I mentioned, a deployment within the MRP phrase of the shipping carriage terminology acronym 'FOB' is also straightforward as regards meaning.

402 That leaves the residual further adjective 'annual' in the MRP phrase and which, viewed by itself, carries a clear temporal meaning.

403 But the interpretive challenge is to assess, at the end, a sensible, commercial meaning for that word when used within the greater context of the aggregate and composite MRP phrase as a whole, as regards the underlying subject matter (noun) of a 'price per DMTU'.

Mineralogy's contended construction of the MRP phrase

404 The constructional choice advocated by Mineralogy towards the composite MRP phrase contends that the word 'annual' merely describes market reference prices for the two chosen referenced products at a particular point in time (see Mineralogy's opening submissions, par 73; Mineralogy's closing submissions, pars 167 - 169).

405 Mineralogy says that a US dollars (per DMTU) price for each reference product can be determined by applying the fixed multiplication factors (ie, 68.1 and 1.05) of the RCB formula to ultimately derive PP and CP and, from there, via PR and CR, to derive a quarterly US dollars RCB amount.

406 Mineralogy argues that whilst the MRP phrase used in PP and CP would have captured the ABPS prices at 2006, the true meaning of the MRP phrase encompasses a lot more than only the former ABPS prices.

407 Mineralogy says the MRP phrase is wide enough to capture the prevailing world market reference prices for the two chosen RCB referenced products from time to time ascertained from using reputable sources of world market product sale pricing data (see ts 2,476; Mineralogy's closing submissions, par 159).

408 To that functional end, Mineralogy invokes cases such as Big River Paradise Ltd v Congreve [2008] NZCA 78; [2008] 2 NZLR 402 in support. Upon that appeal, Young P of the New Zealand Court of Appeal had said:

The courts sometimes have to determine whether a particular word or phrase has a static or mobile meaning (see Bennion, Statutory Interpretation: A Code (4th ed, 2002), pp 1,000 - 1,004). This arises most commonly with statutory provisions which incorporate standards (for example, 'fit for habitation'), the practical implications of which are likely to evolve over time [25].

Where a court has a choice between a static or a mobile interpretation, the result of adopting a mobile interpretation is not to change the scope of the underlying contract [28].

410 So, Mineralogy contends the MRP phrase used for RCB embodies a use of the concept of an independent reference world pricing standard or, more accurately, two reference product price rates (ie, US dollars per DMTU price rates for first, Vale SA pellets for export and, second, for Mt Newman fines for export) (see Mineralogy's closing submissions, par 160). As such, Mineralogy contends that the RCB calculation formula was not rendered dysfunctional in its application in this commercial relationship due to the ABPS falling into disuse. Mineralogy says instead that annual prices can be reliably calculated in each quarter for these two iron ore products used as standards, by compiling and then averaging spot prices across a preceding 12month period (see Mineralogy's closing submissions, part K, pages 47 - 64).

411 Mineralogy's RCB arguments (see Mineralogy's closing submissions, part I, pars 143 - 175) are directed at advocating what it says is an objectively ascertained commercial meaning towards a US dollars per DMTU price rate (ie, the chosen pricing standard) which is used to deliver publicly verifiable and independently ascertained world market prices for the two external iron ore reference products (being independent iron ore products sold in world markets and distinct from the actual iron ore products that could, but do not have to, be produced in the future by Sino Iron and Korean Steel at Cape Preston).

412 No-one would be surprised by the legal principal that within the framework of an exercise in commercial contractual construction, a court, where possible, will seek to ascertain a sensible and workable commercial meaning towards an uncertain term found within a written contract. In other words, a court will generally adopt a commercial approach to interpretation where it can towards a commercial contractual relationship. Nevertheless, that inclination must not be pushed to extremes, to the detriment of the parties' chosen text and their underlying bargain.

The CITIC defendants' contended construction of the MRP phrase

413 The CITIC defendants direct emphasis at the word 'annual' as a part of the composite adjectival MRP phrase (see the CITIC defendants' closing submissions, pars 105 - 109).

414 They contend the former ABPS had delivered prices announced annually and thus the ABPS is a better fit for 'annual'.

415 As regards true meaning, they argue the former ABPS was, in effect, a 'perfect match' for all elements of the composite MRP phrase.

416 Correlatively, they contend Mineralogy's approach by, in effect, engaging an internationally focused iron ore product industry expert to compile daily, weekly, monthly or quarterly spot product prices, and then to average them all out across a preceding 12-month period each quarter, does not fairly meet a description of being an 'annual price' (see the CITIC defendants' closing submissions, par 107).

417 But I must, at the end, respectfully reject that base submission. I evaluate it as an unduly technical criticism, measured against the chosen template in the RCB formula of the independent market standard pricing qualities which the MRP phrase was obviously seeking, from a protective perspective, to assemble and to capture as a whole.

418 The CITIC defendants also rendered multiple further criticisms of Mineralogy's RCB calculation approach going beyond that 'annual' meaning aspect (see the CITIC defendants' closing submissions, pars 83 - 128).

Evaluation of the parties' contended construction of the RCB phrase

419 The former ABPS ceased at about April 2010, as is fully accepted (see exhibit 33, page 11). However, the two reference products chosen within PP and CP, namely pellets and fines, both still exist and continue to be sold and traded in the world iron ore market post April 2010. Persons with knowledge of the global iron ore product industry and of the world trading market for iron ore products readily know all that.

420 So the two RCB formula reference products did not disappear. They are still produced and carry a market worth. They are still traded and remain capable of being identified and assessed in terms of their market prices when purchased and sold from time to time - by persons with exposure to the functioning of the world iron ore industry.

421 To argue then, as the CITIC defendants do, in effect, that it is not possible to reliably determine any prevailing world market prices for these two reference products from time to time by collecting reliable pricing data about them over a 12month period from respected and reliable industry sources and then averaging them out to obtain an annual price for each quarter presents to me as a commercially unreal proposition.

422 That contention of the CITIC defendants also presents to me as a rather selfserving outcome from a nonpayment to Mineralogy perspective and generally repugnant to commercial common sense. This is particularly as massive tonnages of iron ore concentrate product have, since the December 2013 quarter, continued to be produced and exported from the now well established Cape Preston project (see Mineralogy's fifth FASOC, par 35; exhibit 1.26). Sino Iron and Korean Steel are exploiting to the fullest extent, as would be expected, contractual rights they hold under the long-term MRSLA contracts.

423 Viewed objectively, the RCB component of the Mineralogy Royalty was a valuable and, indeed, indispensable part of the overall MRSLA bargains. Sino Iron and Korean Steel's clearly expressed promise to pay RCB as an 'additional royalty' as a part of an enduring future royalty stream to Mineralogy, founded upon the quarterly tonnage volumes of produced product, was unequivocal.

424 Here, I would evaluate what happened upon the demise of the ABPS post April 2010 as, essentially, a mere commercial 'wrinkle' against conveniently finding out the two US dollars per DMTU price rates calculation input elements for use within PP and CP of the RCB formula. 'Wrinkles' such as this are sensibly overcome on a daily basis in the international commercial world.

425 Moreover, a so called loss of the pricing data source remains, I consider, a 'wrinkle' more than capable of being addressed under the MRSLA expert determination process - as is expressly envisaged under MRSLA cl 8.6 - to resolve any future disputes about amounts of royalty for Mineralogy.

426 From a holistic MRSLA construction perspective to the RCB calculation formula, what is a very proximately located cl 8.6 (within MRSLA cl 8 as a whole) provides for the remedial help of an expert in this neighbourhood. That combination aligns more than harmoniously with the notion of the parties selecting a pricing standard calculation to be performed on a quarterly basis for RCB (and for RCA), and which is annualised by using a 12-month rolling average of reliably collected reference product prices for the two reference products.

427 Nor can the commercial consequences of the CITIC defendants' constructional choice towards the MRP phrase be entirely overlooked. There has been, on any view, very significant production of Product at Cape Preston by Sino Iron and Korean Steel since the last quarter of 2013. Yet there has been no payment whatsoever to Mineralogy for RCB (see Mineralogy's fifth FASOC, par 36). That is an outcome that ought to grate with some force against the conscience of the fair minded.

428 Of course, a task of contractual construction does not look at possible end results and then work backwards to see the result achieved or avoided. But it is surely permissible to be commercially alive to the end consequences of a constructional choice in going about evaluating potential rival meanings for a clause in a commercial contract. Sometimes, of course, an unpalatable commercial outcome may be textually unavoidable. But here it is not.

429 The constructional choice advocated by Mineralogy towards the composite MRP phrase circumvents what is otherwise a commercially repugnant RCB outcome. The CITIC defendants' constructional choice facilitates a self serving no payment outcome.

My end construction of the MRP phrase within the RCB calculation formula

430 In the end, I am of the view that the MRP phrase, viewed as a composite adjectival phrase, when sensibly read together and applying a commercial approach, favours Mineralogy's constructional choice over that of the CITIC defendants. The overall commercial sense and utility of Mineralogy's constructional choice towards the MRP phrase operating within what presented in March 2006 as a longterm future contractual arrangement only reinforces that textual assessment.

431 I do not assess the composite MRP phrase used within PP and CP to be rendering an exclusive reference to the former ABPS prices for Brazilian export pellets or Mt Newman export fines. But I repeat that I have not approached the search for a true meaning of the MRP phrase on a basis of first rejecting the proposition of an ABPS prices only meaning and then seeking to ascertain what other meaning, as a matter of residue, the composite MRP phrase can have.

432 In the process, I have also not lost sight of a theoretical potentiality that there may be further possible meanings of the MRP phrase which the parties have not canvassed at this trial. None are readily apparent at present. And to advance too far down such an uncharted path searching for other possible meanings would be a dangerous course to follow, not to mention unfair, to these parties.

433 In the end, I reach my conclusion as to true meaning chiefly by the force of six principal factors which interrelate. In short, these are:

(1) Demonstrably, there is no textual use within the MRSLAs of a term such as 'benchmark', or use of an acronym such as 'ABPS' or even 'BP' (suggesting 'benchmark price') found within the definitions of PP and CP or, for that matter, found anywhere else within the MRSLAs. That much is all, negatively, very clear. There is no direct reference made to the ABPS in cl 8 when that pricing system could in March 2006 very easily have been explicitly mentioned by the MRSLA text.

(2) Mineralogy and the CITIC defendants in the relevant negotiating periods prior to and during March 2006 were commercially sophisticated parties and were fully cognisant of and well familiar with the ABPS, as it then subsisted. Again there was ample opportunity to explicitly adopt and to incorporate such world market product pricing terminology within the parties' written bargain within the MRSLAs, or in the surrounding takeover agreements. Yet simple drafting work to that end was not adopted, as it might so easily have otherwise been.

(3) To the extent it is permissible to look at an evolution of the drafts prepared in earlier iterations of what were unconsummated CITIC/Mineralogy Cape Preston project deal negotiations (an approach that I would, for the record, reject as regards unconsummated different deals to the deal that was ultimately completed) to align with an admissibility exception referred to by Mason J in Codelfa at pages 352 - 353 (as regards rejected provisions the parties have refused to incorporate) and later by Hayne J as earlier discussed, there is some limited evidence of this rejection phenomenon at this trial.

As late as 9 March 2006, on CITIC's side of the negotiations, Ms Launders, in then a different deal negotiation, had made an explicit reference to the APBS by her use of the term 'BP' in her draft (exhibit 11, annexure LCK16) circulated for the (in the end, unconsummated) 80/20 venture proposal. Her clause using that 'BP' terminology had been prepared (cl 2.13) as a part of a revised draft shareholders' corporation agreement in an incomplete pricing formula for iron ore concentrate (see exhibit 11, pages 727 - 728). But Ms Launders' 'BP' terminology did not survive at the end. Nor, of course, did the 80/20 venture deal ever eventuate as then proposed at that stage of negotiations. That 80/20 proposal was discarded and was overtaken by the 100% acquisition takeover agreements as I discussed earlier (see exhibit 33, page 6).

(4) Mineralogy's wider construction that the composite adjectival MRP phrase picks up market reference product prices as prevailing from time to time for the two chosen RCB reference products, is an interpretation that is more respectful to the text displayed and assembled within the composite MRP phrase. It also delivers a sensible commercial aggregate meaning for what is a composite adjectival phrase as regards the required US dollars per DMTU prices for use as inputs into PP and CP within the RCB calculation formula.

(5) The composite MRP phrase within PP and CP and within the RCB formula cannot, on my assessment, mean only one US dollars per DMTU FOB price for each reference product. That is so notwithstanding an introductory use of 'The' as the definitive article seen at the commencement of the definitions of PP and CP. That assessment is supported by the typical boilerplate provisions of the MRSLAs (see cl 38.8(b)) allowing a singular term to include the plural or vice versa in a particular context.

More significantly, however, the explicit terminology of a proximately located cl 8.3 explicitly recognises a potential for there to be more than one possible US dollars per DMTU FOB price in existence for either pellets or fines as the RCB reference products. Clause 8.3 addresses that hypothesis. It sets down a basis for a selection of the appropriate prices, upon that contingency of a choice between more than one price being required. Necessarily then, by its existence and function, cl 8.3 sits at odds with a notion that there can only ever be one existing potential PP or CP price - as the CITIC defendants would contend towards their rival meaning of the MRP phrase.

(6) On my assessment, the meaning of the composite MRP phrase as advocated by the CITIC defendants is uncommercial and self serving in its outcomes. It delivers a nil payment RCB outcome, which has been experienced by Mineralogy to date since the last quarter of 2013. That nil payment outcome grates against a legitimate expectation created by the express promise to Mineralogy that it would receive a regular quarterly payment of royalty income, calculated by an algebraic linkage to the actual volume tonnages of Product as produced by Sino Iron and Korean Steel at the Cape Preston project into the future.

434 Consequently, I do prefer, at the end, the constructional choice towards the composite MRP phrase as contended for by Mineralogy, namely, that the MRP phrase captures market reference prices for the two RCB chosen referenced products from time to time. There is nothing commercially offensive or methodologically incongruent in the deriving of quarterly prices for the two RCB referenced iron ore products traded in world markets, through the collecting and averaging of reliable product pricing data across a 12-month period for those two chosen reference products.

Consequences flowing from the CITIC defendants' constructional choice interpretation

435 Given my end acceptance of Mineralogy's constructional choice towards the MRP phrase, it is not strictly necessary to address the CITIC defendants' arguments concerning consequences of a dysfunctional RCB formula upon the Mineralogy Royalty. However, for completeness, I will briefly set out my reasons for why I would also reject the CITIC defendants' arguments on severance and also of their fair and reasonable royalty ad hoc implied term arguments - even if I had accepted the CITIC defendants' construction choice towards the MRP phrase.

436 It is not suggested at this trial that the MRP phrase utilised within PP and CP was, at 21 March 2006, a term that was void by reason of its uncertainty of meaning. That the composite phrase might deliver at a later time some elements of ambiguity would not, as a matter of law, thereby indicate an existence of a vitiating element of legal uncertainty as regards the composite phrase. As a matter of law the contractual ambiguity of a clause within an agreement does not equate to a vitiating legal uncertainty of the whole agreement.

437 The CITIC defendants' submissions at trial did not contend that the MRP phrase within PP and CP of each MRSLA was a term that was void for a lack of certainty as an essential term of each MRSLA. Rather, it was only put that the RCB calculation formula became dysfunctional after the demise of the ABPS in April 2010. That was at a time some four years after the two MRSLAs were perfected (see ts 2,357 - 2,358, 2,411).

438 Again, assuming for the present my acceptance of the CITIC defendants' advocated constructional choice towards the true meaning of the composite MRP phrase, the CITIC defendants would then seek to extend from that platform to invoke cl 38.5 within each MRSLA (see the CITIC defendants' D and CC, pars 24 - 25; the CITIC defendants' closing submissions, par 129). Clause 38.5 permits a severance of any part of the MRSLA that is 'void, voidable, illegal or unenforceable'.

439 No issue presently arises or could arise at this trial as to any part of the MRSLAs possibly being void, voidable or illegal. So the CITIC defendants' severance arguments are seen to rest exclusively, in the end, upon the word 'unenforceable' as used in cl 38.5 (see the CITIC defendants' closing submissions, par 130). That, they argue, would capture the dysfunctionality of the RCB calculation formula following the 2010 demise of the ABPS. Consequently, PP and CP cannot now be ascertained, they say. Nor, accordingly, can any RCB amounts for Mineralogy ever be ascertained. From there, they contend the whole RCB formula is unenforceable and should be severed but leaving the rest of the MRSLAs fully operative and functional into their long-term futures (see the CITIC defendants' D and CC, pars 23 - 25; the CITIC defendants' closing submissions, par 129).

440 As now seen, the CITIC defendants essentially reach that constructional choice of the MRP phrase based on the support of surrounding circumstances evidence towards the MRSLAs - as to the notorious knowledge held in March 2006 by both Mineralogy and the CITIC defendants of the former ABPS, which was operative at that time. They contend the MRP phrase will tolerate no other meaning. Hence, they say that the composite MRP phrase for PP and CP became operatively dysfunctional and incapable of any practical use after April 2010.

441 Consequently, from the time iron ore concentrate products began to be significantly produced and exported from the Cape Preston project from the last quarter of 2013, the CITIC defendants argue that it has always been impossible to ascertain the PP and CP inputs of the RCB formula and so the RCB formula failed.

442 So, the CITIC defendants contend that their obligation to pay RCB to Mineralogy on a quarterly basis, calculated on the quantity tonnages of 'Product' produced, can be 'severed' from the MRSLAs. They argue that such a severance can be viably implemented without doing any undue harm to the underlying residual MRSLA bargain or to the ongoing workings of a longterm future relationship in the otherwise fully functional MRSLAs - albeit leaving Mineralogy without RCB revenue.

443 In my [2016] WASC 403 reasons, I offered some observations at [123] [133] about other MRSLA clauses and as to why I viewed them as factors going against the CITIC defendants' contended RCB payment severance proposition. I must revisit and repeat those reasons as still reflecting my assessment, but now on a final basis. I had said:

[123] Clause 7.1 to cl 7.8 of the MRSLAs deal with the ownership and processing of Magnetite Ore and aspects of the production, processing and sale of Iron Ore Concentrates, Pellets and H[B]I. Relevantly, cl 7.2 provides that 'Sino [Korean] must process [all] Magnetite Ore taken by Sino [Korean] from the exercise of Sino's [Korean's] Mining Right into either Iron Concentrates, Pellets or HBI'. On that basis, it can be seen that Sino and Korean are obliged to process all Magnetite Ore that each has taken into one or, a combination of, the three product forms falling within the defined term 'Product' in the RCB formula. On the face of it, it would appear then, in view of cl 7, that the MRSLAs proceed on a basis that, at least at some point after the extraction of Magnetite Ore has commenced (and been 'taken'), the tonnage value for Product in the RCB formula in cl 8.2(a) will not be a nullity.

[124] In that context, it can be seen that cl 6.3 provides a temporal framework for when the production of Product is to commence. Clause 6.3, manifesting in each of the MRSLAs, says:

Commencement of production

(a) Unless prevented from doing so by an act, matter or thing outside of Sino's [Korean's] control, by the doing of, or failing to do, an act by Mineralogy under this Agreement or otherwise, or a failure to obtain all Government Approvals necessary for it [to] do so (provided it has used its best endeavours to obtain such approvals in a timely manner) Sino [Korean] must produce no less than 6,000,000 (six million) tonnes of Product no later than 7 years from the date of this Agreement [ie, by 20 March 2013].

(b) If Sino [Korean] fails to comply with paragraph (a) then it must, no later than one month following the date by which compliance [was] required, pay to Mineralogy an amount equivalent to the Mineralogy Royalty payable on the amount of Magnetite Ore required to produce 6,000,000 (six million) tonnes of Iron Ore Concentrate.

[125] This subclause forms the basis of a discrete field of further conflict in this action between the parties, under Mineralogy's contention that cl 6.3(b) has now been affirmatively engaged in its favour, against Korean and Sino's countercontention that the clause has not been engaged - since they have been prevented under cl 6.3(a) from achieving the production of 6 million tonnes of Product, for various reasons said to be outside their control.

[126] Whatever is ultimately to be made over that cl 6.3 dispute (with the CITIC parties also contending that the clause is, in any event, unenforceable as a penalty) the internal reference as seen in cl 6.3(a) to 6 million tonnes of Product and the specified payment to Mineralogy under cl 6.3(b) of an amount equivalent to the Mineralogy Royalty payable on the amount of Magnetite Ore required to produce 6 million tonnes of iron ore concentrate, on the face of it looks to me to carry a strong resonance to the RCB royalty, as defined under cl 8.2(a). On the face of it, cl 6.3 looks to have been framed, objectively assessed, with an eye to secondarily shoring up for Mineralogy an amount towards the royalty sum which it would otherwise have received under cl 8.1 and cl 8.2 to a plateau level - should there prove to be a failure to generate 6 million tonnes of concentrate as Product by March 2013, after seven years of the MRSLAs being on foot.

[127] Whilst the precise workings and implications of this clause, which looks at first blush to be something like a longer term minimum performance guarantee by Korean and Sino, will need to be settled later, it does for necessary purposes at present look to be a clause that is derived from and linked to the underlying consideration by way of royalty for Mineralogy which is specified as RCB.

[128] A second wider feature of the MRSLAs which I would also note was remarked upon by Newnes JA in his reasons at [92]. This is cl 14.1(b) in each of the MRSLAs. Pursuant to this provision, a future surrender of RCB by Mineralogy will be the 'exercise price [of] an option Mineralogy [had] under the MRSLAs to acquire up to just under 20% of Sino Iron and Korean Steel'.

[129] To that end, the clause identifies the 'Exercise Consideration' for 'Option Shares', on a basis that the option would be 'exercised for the sole consideration of Mineralogy surrendering and releasing Royalty Component B as set out in clause 8.2(a)'. The proviso to cl 14.1 identifies that no other price or consideration is payable by Mineralogy for the issue of the Option Shares other than the Exercise Consideration.

[130] Once again, therefore, there appears to be a further function for Royalty Component B to possibly play within the MRSLAs as a whole, effectively as surrendered option consideration that might in the future be given up by Mineralogy, in order for it to obtain significant levels of shareholding in Korean and Sino, up to the level in each case of Mineralogy just under a substantial shareholder.

[131] Given those wider roles played by RCB in the MRSLAs in the two aspects I have just identified, it presents to me as again, prima facie, being very difficult to see at present how, given all that, it could be possible to blue pencil sever RCB out of the MRSLAs, on a basis that this calculation formula is uncertain and unenforceable as the CITIC parties contend - but leaving, nevertheless, an otherwise fully intact long-term future ongoing relationship for the MRSLAs, post that severance surgery. Such an amputation would, on the face of it, seem to render a significant violence to the nature of the initial bargain, not only as regards the legal consideration to be received by Mineralogy as a royalty payment over time, but also as regards the role to be played by RCB in relation to a plateau sum which is sought to be reinforced under cl 6.3 and also as potentially surrenderable option consideration to operate under cl 14.1.

[132] The blue pencil amputation advocated by the CITIC parties would appear to do a significant violence to the character of the residual bargain that is left subsisting as between the parties to the MRSLAs.

[133] These observations are of course only rendered on a prima facie basis, but the two wider MRSLA features which I have now noted (non-exclusively) suggest to me at present that the role and function of RCB within the MRSLAs extends a considerable way beyond its bare manifestation at cl 8.2. A consequence, correlatively, is that the severance of Royalty Component B might presently be viewed as more akin to the amputation of a human limb, rather than to the trimming of an inconvenient overgrown fingernail. There are, of course, numerous severance authorities canvassing these principles but, on my assessment, the law in this area is well settled: see generally MacKinlay v Derry Dew Pty Ltd [2014] WASCA 24; (2014) 46 WAR 247 [75] - [76], [135]; Wallis Nominees (Computing) Pty Ltd v Pickett [2013] VSCA 24; (2013) 45 VR 657 [98].

444 By my trial assessment, MRSLA cl 38.5 adds little, if anything, to the well settled common law contractual severance principles concerning the amenability to excision from a contract of provisions within an otherwise a fully operative bargain.

445 As said, the PP and CP ascertainment problem which presently is said by the CITIC defendants to manifest as regards the composite MRP phrase used therein is not, on my assessment, a real problem of 'unenforceability' which might support legal severance outcomes.

446 The presenting PP and CP price input factor problem is, on my assessment, only one of logistics. As said, the two chosen RCB reference products still exist. They are products which are still traded. They hold a tradeable value or worth in the world iron ore market on an ongoing basis. Their product prices fluctuate over time within that world market like most internationally traded commodities.

447 The real problem is only the asserted inability to ascertain current market reference prices for the two RCB reference products (ie, for pellets and fines) without having the assistance of the former ABPS as a pricing data source for those products post 2010.

448 The asserted logistical problem mirrors in limited respects, but clearly is not, a more general frustration of a contract or a force majeure problem - typically based on some disrupting event(s) - emerging subsequent to a contract being entered.

449 Here the relevant disruptive event (namely, the falling into disuse of the former ABPS and the repercussions of that post April 2010) overall, is a relatively minor one. The lack of an ABPS is not and could not sensibly ever be contended to be an event that frustrated the ongoing future performance of the longterm MRSLAs to a point of their discharge by termination.

450 But a severed removal of the RCB payment obligation from the MRSLAs, on my assessment, would deliver seismic adverse repercussions to the objectively intended future workings of the MRSLAs - including a complete non-viability in the envisaged use of RCB as a potentially surrenderable component by Mineralogy under the workings of MRSLA cl 14.1(b) in the event of a listing of Sino Iron or Korean Steel.

451 By cl 14.1(b) Mineralogy might have elected to surrender its ongoing entitlement to receive RCB payments in return for it receiving a 19.9999% shareholding in Sino Iron (or Korean Steel) if those corporations came to be listed in the future. In fact, as things turned out, no such listing has eventuated (see ts 1,671). But that nonlisting post contract outcome is not to the point. I am evaluating the potential severability of RCB within the March 2006 MRSLA bargains as a whole. Viewed at March 2006, the RCB payment obligation could never sensibly be then viewed as a trivial or insignificant obligation whose removal would do little or no overall harm to the parties' residual bargain post severance.

452 The important role, place and function of RCB within the MRSLAs as a whole, and objectively assessed, is overwhelmingly clear from a commercial perspective. It is not a sufficient answer for the CITIC defendants to say that it is now too late, over a decade post contract, for Mineralogy to make the elections open under MRSLA cl 14.1, as Mr Scerri QC, in effect, submitted (see ts 1,808).

453 The point is that for this MRSLA bargain, viewed as a whole in 2006 when it was perfected, RCB was a vital concept and performed a wider strategic function in the MRSLAs going beyond merely delivering likely very substantial future royalty income to Mineralogy.

454 Beyond that repercussion, the RCB payment concept seems to underlie the workings of cl 6.3(b).

455 The RCB concept within the MRSLAs is not then, by my overall objective assessment of the MRSLAs as a whole, anything close to being a safely inconsequential, or a potentially disposable element within the underlying MRSLA bargain. In truth, it is quite the contrary.

456 On my assessment, there is, as I have found, no issue of unenforceability to sustain a viable severance of RCB from the MRSLAs.

457 The notion of a severance of RCB out of the MRSLAs whilst leaving those two bargains otherwise operative into the longterm future is commercially repugnant. That would see Mineralogy receive for the future only RCA as its 'enduring' Mineralogy Royalty. There would be a seismic negative alteration to the underlying MRSLA bargain by the excision of RCB - which would strike at the essence of what was obviously a most carefully worked out and hard bargained future revenue stream of legal consideration for Mineralogy and which was closely evaluated under both Mineralogy's and CITIC's sophisticated preMRSLA financial modelling.

458 So, on my assessment, a severance of RCB from the MRSLAs, upon whatever rival construction of the MRP phrase is ultimately arrived at, would always be a wholly untenable outcome.

459 Hence, I reject now as completely untenable the CITIC defendants' first tier RCB severance solution. It would be, I conclude, a 'solution' utterly destructive to the essential underlying MRSLA bargain and a proposition that was always thoroughly misconceived.

460 Once it is determined that any postulated severance of RCB from the MRSLA must be 'off the table', the resulting position (still assuming the CITIC defendants' construction of the MRP phrase is accepted) is that Mineralogy is seen then to hold valuable MRSLA rights to receive 'something' by way of 'additional royalty' on product. The 'something' as an ongoing quarterly royalty payment by Sino Iron and Korean Steel is to be assessed and calculated by reference to ongoing quarterly production volumes of the produced 'Product' at Cape Preston into the longer term. This is particularly so, remembering the parties' former contentions that the MRSLAs were terminated due to either breach or to frustration have all fallen away before or at trial (see Mineralogy's fifth FASOC; ts 2,434, 2,456).

461 The residual question then is how, in such circumstances, might a royalty payment, assessed against the volume of 'Product' produced, be calculated for Mineralogy in circumstances where the CITIC defendants' contended meaning of the MRP phrase prevails, but the RCB obligation to Mineralogy under MRSLA cl 8.2(a) is assessed as not being severable out of the MRSLAs? I turn to that puzzle below.

A contended fair and reasonable royalty for Mineralogy

462 Absent a viable prospect of a severance of RCB or a contractual termination of the future performances of the MRSLAs, the CITIC defendants next contend for some lesser tier outcomes as regards RCB (see the CITIC defendants' closing submissions, pars 136 - 150). They advance that under a series of pleaded alternate ad hoc implied terms contended to be ascertainable within the MRSLAs.

463 One of the CITIC defendants' lesser tier contentions is that Mineralogy should receive, overall, a 'fair and reasonable royalty'. That, in all the circumstances, they submit, would be at the level of a 20% share of net profit after tax earned by the Cape Preston project (see the CITIC defendants' closing submissions, par 142).

464 It will be remembered, of course, that the situation at hand concerning a future enduring royalty payment promise over the life of a mining project is not that of a more typically seen restitutionary scenario of a quantum valebat (awarded in quasi contract as a fair price for the benefit of goods received) or a quantum meruit as the fair value for services provided to a recipient who would otherwise be unjustly enriched - if there were no correlatively imposed legal obligation to pay a fair amount for that freely received benefit, be it a good or a service.

465 The present case is not a situation of the rendering by quasi contractual relief of a fair or just consideration for a party's benefit from freely received goods or services. This case is something completely different - a product volume based royalty payment promise.

466 The CITIC defendants contend that a fair and reasonable royalty for Mineralogy would be arrived at on a basis of assuming Mineralogy's overall royalty entitlement position is essentially akin to that of Mineralogy being a 20% coventurer or coparticipant alongside Sino Iron and Korean Steel (as the other 80% dominant parties) in the Cape Preston project (see ts 2,431 - 2,432).

467 But the CITIC defendants advance to explain that a so called fair and reasonable royalty ad hoc implied term contention would, to date, deliver no royalty funds at all to Mineralogy. That, they say, is because, according to the uncontradicted trial evidence from the CITIC defendants' witness, Mr Northey, no net after tax profits have yet been achieved from the Cape Preston project (see ts 1,833 - 1,834). Further, Mr Northey relates the prospect of there being future net after tax profits, at least in the short term, presents at trial as being decidedly bleak on his evidence. Mineralogy would therefore, in practical terms, be entitled only to 20% of nothing on this implied term's implementation (see ts 2,505).

468 Sino Iron Holdings Pty Ltd's financial statements (see exhibit 14, annexure MJN09) grounding Mr Northey's bleak news over the lack of any net after tax profit for the Cape Preston project participants to date present, as I have said, as somewhat inscrutable accounts. But, in part at least, much of the project expenditures as outlaid to date by CITIC related entities looks to be attributable to loan and interest repayments - made to fund the overall construction of this Cape Preston project (see exhibit 14; ts 2,265) - and which has required to date over $US12 billion in outlaid capital expenditures from CITIC entities (see exhibit 14, par 26; ts 2,193).

469 Yet it also seems clear enough from other evidence adduced at the trial that it was always CITIC that was to fully finance this project and not Mineralogy.

470 That was always the position overall under the various iterations of possible deals canvassed in negotiations between 2005 and 2006 (see exhibit 9, pars 27, 52).

471 I do not really pretend to understand then why, somehow, the CITIC defendants' advocated (ad hoc implied term) alternative of a fair and reasonable royalty receivable by Mineralogy (assessed by the court) would depart from that 100% CITIC funding responsibility premise - so as to convert Mineralogy to what would be, on this hypothesis, a 'below the line', rather than an 'above the line', coventure participant.

472 An aggregate so-called fair and reasonable royalty entitlement for Mineralogy under this ad hoc implied term would effectively transform Mineralogy to become a risk taking venture participant - instead of a secure royalty income recipient of fixed quarterly royalty payments by Sino Iron and Korean Steel, assessed on future volumetric production levels of the project - met out of their pretax revenues (ie, as an operating expense of the project) (see ts 2,432).

473 Transforming Mineralogy from an above the line longterm royalty income recipient, to be a 20% coventure risk participant, as is suggested by this implied term, is ultimately untenable. On my assessment, such a transformation would be wholly alien to the essential character of holding a royalty entitlement, as was discussed earlier by reference to Stanton and Australian Tape Manufacturers.

474 As a result of that finding, Mr Northey's evidence, which was all directed to this ad hoc implied term hypothesis, is irrelevant.

475 Had I accepted the CITIC defendants' rival MRP construction but then rejected their severance and all their implied terms and fair and reasonable royalty arguments (as I do), there nevertheless would still be available, in my view, a workable solution to the demise of the ABPS post April 2010 vis-à-vis RCB. The solution lies in the remedial function of the expert determination by an expert engaged under cl 8.6 and cl 33.

476 This is tied to the second main issue at trial concerning whether the RCB dispute can be referred to an expert for determination, given this pending litigation. I now turn to examine that question.

477 Each MRSLA contains a cl 33, allowing certain limited disputes arising as between the MRSLA parties to be referred to an expert for determination.

478 Not all disputes arising between the MRSLA parties fall within the scope of cl 33. The terms of the MRSLA at a particular location need to specifically permit the cl 33 expert determination process to be used (see MRSLA cl 33.1).

479 It has been seen already that the text of cl 8.6 within each MRSLA is one instance where cl 33 is expressly invoked to resolve disputes about the amount paid (or not paid) to Mineralogy for the Mineralogy Royalty (and thereby encompassing any future disputes over RCA as well as about RCB).

480 As a matter of history, it will be remembered that the text of cl 33 was a part of the earlier (2005) versions of the MRSLAs (see exhibit 1.65, cl 32). However, cl 8.6 was only introduced in the March 2006 MRSLAs (see exhibit 1.65 and the different cl 8.6 there). Clause 8.6 therefore accompanied the introduction of RCB in the MRSLAs in 2006. These cl 8 provisions which were newly included in the 2006 MRSLAs together, in my view, complement each other, objectively assessed.

481 It must be noted that the MRSLA expert determination provisions manifest in a context of a potential 25year plus long-term commercial contractual relationship between the MRSLA parties. A potential for disputes to arise over that timespan as between commercial parties would have been obvious to the MRSLA parties (again, objectively assessed).

482 Moreover, each MRSLA party expressly promised to act in good faith towards each other in the performance of their respective MRSLA obligations (see MRSLA cl 37.4).

483 The MRSLA parties nevertheless remain in fundamental dispute about the scope of and role for cl 8.6.

484 Mineralogy contends for a broad application of cl 8.6, particularly arising from its use of the wide phrase 'any dispute' (see Mineralogy's closing submissions, par 271).

485 On the other hand, the CITIC defendants argue that the word 'amount' (ie, paid to Mineralogy) suggests a narrow application for the clause. The CITIC defendants essentially seek to confine the role of cl 8.6 to resolving quantification disputes over future RCA or RCB payment amounts to Mineralogy (see the CITIC defendants' closing submissions, pars 154 - 157).

486 Further, the CITIC defendants argue that any exercise in the construction of the MRP phrase to ascertain its true meaning raises a pure question of law. That task they say is exclusively an issue for a court to resolve, not for an expert. Correlatively, they add that an issue over true meaning is not a matter within the scope of an MRSLA cl 33 expert's powers to resolve as a dispute (see the CITIC defendants' closing submissions, par 158).

487 Even further, the CITIC defendants say that by commencing this present action, Mineralogy thereby effectively waived any rights it might otherwise have held to engage a cl 33 expert to ascertain the amount(s) of disputed RCB due to Mineralogy then and in any particular ensuing quarter thereafter (see the CITIC defendants' closing submissions, pars 160 - 162). The CITIC defendants also contend the President of the Law Society of Western Australia's decision in nominating the AIMM pursuant to cl 33.2(a) was invalid (see exhibit 1.41), though that validity challenge was not argued at the trial.

488 In the present case, it is necessary to closely consider the precise words of MRSLA cl 8.6 and cl 33. Of course, that text must be assessed within the context of the contractual instrument as a whole and within the overall surrounding context.

489 Hence, it is necessary here to return again to the text of cl 8.6. I will also set out the entirety of cl 33 from each MRSLA. In the process, I direct particular attention to the phrases 'Any dispute' as seen within cl 8.6 and to the subsequent terms 'amount paid' and 'final determination for any quarter'. I also note, as the CITIC defendants reminded me, that the term 'the amount' is used twice within cl 8.6.

490 As we have already seen, cl 8.6 in each MRSLA says:

8.6 Disputes

Any dispute as to the amount paid to Mineralogy shall be referred to an Expert, in accordance with clause 33, who shall make in the absence of agreement between the parties a final determination for any quarter of the amount to be paid to Mineralogy under this clause 8.

33.1 Referral of certain disputes to an Expert

If any dispute or difference arises between the parties in respect of any matter which, under the terms of this Agreement, is to be referred to an Expert for determination, then the party may by notice in writing to the other, specify the nature of the dispute and call for submission of the dispute to an independent expert (Expert).

33.2 Appointment of Expert

The Expert to be appointed will be as agreed between the parties or failing agreement within 7 days after receipt of the notice aforesaid, determined as follows:

(a) Based on the nature of the matter in dispute, the parties will agree which of the following bodies is best qualified to nominate the Expert: (1) Institution of Engineers, Australia; (2) Australasian Institute of Mining and Metallurgy (3) another industry or professional body. If the parties cannot agree on the nominating body, either party may request the President of the Law Society of Western Australia to decide the nominating body.

(b) The parties will as soon as practicable request the President or most senior officer of the nominating body (or the most local division of that body) to nominate the Expert.

(a) The Expert will be required to have appropriate technical, commercial and practical experience and expertise in the area of dispute.

(b) Any person nominated to act as an Expert will be required to fully disclose any interest or duty prior to that person's appointment. If that person has or may have any interest or duty which conflicts with his appointment as Expert, that person may not be appointed.

33.4 Powers of Expert

The Expert will have the following powers:

(a) to inform himself independently as to facts and if necessary technical matters to which the dispute relates;

(b) to receive written submissions and sworn and unsworn witness statements and to photocopy documents and to act upon the same;

(c) to consult with such other professionally qualified persons as he in his absolute discretion thinks fit;

(d) to take such measures as he thinks fit to expedite the completion of the dispute resolution.

33.5 Timing of dispute resolution

It will be a term of the Expert's appointment that he will be required to make a determination of the dispute within 3 months of his appointment or such further period as the parties to the dispute may agree.

33.6 Written determination

The Expert will be required to deliver a written determination which sets out the reasons for the determination and the findings of fact on which the determination is based.

33.7 Expert's finding is final

The Expert will act as an expert and not an arbitrator. The findings of the Expert will be final and binding on the parties except in the case where there has been a manifest error.

33.8 Costs of Expert

The costs of the Expert will be borne equally by the party unless the Expert finds that either of the parties has acted unreasonably in relation to the dispute in which case that party will bear all of the costs of the Expert.

33.9 Referral to Expert does not affect the obligations of the parties

The referral of any matter to an Expert does not in any manner relieve any party from performing its obligations under this Agreement pending the determination of the dispute.

492 Wide express terminology, namely, 'any dispute or difference', is found within cl 33.1. Equally, the phrase 'in respect of any matter' is a phrase of considerable breadth.

493 The MRSLA parties, objectively assessed, when entering the MRSLAs in March 2006, explicitly nominated only four areas that they would mutually accept as being within the scope of an expert's determination function to resolve finally - where an unresolved dispute had arisen and had perpetuated.

494 The three other instances of the MRSLA parties agreeing to refer a dispute to an expert for final determination are found in MRSLA cl 10.1(e), as regards 'measurement procedures', then in MRSLA cl 10.2(e), as regards 'sampling and assay procedures', and finally in MRSLA cl 10.3, as regards 'the application of the assay procedures or measurement procedures, or as to the results of any assay or as to the magnetite content of material mined'.

495 Elaborate measures are displayed in cl 33 of the MRSLAs - to assist in the breaking of deadlocks between the parties inhibiting an engagement of an expert when that recourse is open. By cl 33.2(a) if the MRSLA parties cannot agree on a nominating body, then either party is entitled to request the President of the Law Society of Western Australia to decide the nominating body for them. That is what occurred here on 8 July 2014 at Mineralogy's behest, but over the strong objections of the CITIC defendants.

496 Eventually, however, the AIMM was selected by the President of the Law Society of Western Australia as the chosen nominating body to nominate an expert for the MRSLA parties (see exhibit 1.40).

497 Clause 33.2(b) requires the parties to request the President or most senior officer of the nominating body to nominate the expert. Regrettably, the text 'The parties will' in cl 33.2(b) has proven problematic in its implementation here. Unlike cl 33.2(a), cl 33.2(b) requires the MRSLA parties to make this genre of request jointly.

498 Sino Iron and Korean Steel from 9 July 2014 have refused to join Mineralogy (see exhibit 1.41) in making a joint request to the President of the AIMM to appoint the expert, notwithstanding that the President of the Law Society of Western Australia had decided the AIMM would be the nominated body.

499 Thus, an appointment of an expert under cl 8.6 and cl 33 of the MRSLAs has been effectively thwarted from then by the CITIC defendants' unwavering refusal to make a joint request with Mineralogy to the President of the AIMM to appoint the expert.

500 Clause 33.3 sets out the required technical, commercial and practical experience and expertise that a chosen expert must hold.

501 Clause 33.4(c), as regards the powers of the expert, usefully enables the expert to 'consult with such other professionally qualified persons' as the expert in the expert's absolute discretion thinks fit. The empowerment to take measures to expedite completion of the dispute resolution process that the expert thinks fit should also be noted (see cl 33.4(d)).

502 To expedite resolution of MRSLA disputes, cl 33.5 requires the expert to render a determination upon the dispute within three months of being appointed (unless the parties agree to allow a further period beyond that).

503 By cl 33.6 the MRSLA parties' expert is required to deliver a written determination setting out the expert's reasons and findings of fact. To that extent, there is a delineated and observable measure of required procedural fairness within the expert determination process that was agreed upon, although it is clear that process undertaken is non-curial in its character.

504 Clause 33.7 identifies that the chosen expert does not act as an arbitrator. Findings by the expert are final and binding on the parties, except where there has been a 'manifest error'.

505 Clause 33.8 provides that the costs of the expert will be prima facie borne equally by the MRSLA parties.

506 Clause 33.9 says that an invocation of the expert determination process by the MRSLA parties does not relieve any party from performing their obligations under the MRSLAs while the dispute is pending determination by the expert.

507 Having reviewed those aspects of cl 33, it is next convenient to address some legal principles in the area of expert determinations. I will then turn to the parties' rival submissions over the utilisation of the expert determination clause and process (ie, cl 33 and cl 8.6 in conjunction) to determine the present RCB disputes raised in this litigation.

508 Earlier, I noted that the objective process of contractual interpretation is applied towards unlocking the scope and meaning of an expert determination clause in its unique contractual context. Hence, the evaluation must be conducted on a bespoke basis for each contractual relationship.

509 It is clear that an expert rendering an expert determination does not proceed as, say, would a judge or an arbitrator. The expert determination process is noncurial: see Shoalhaven City Council v Firedam Civil Engineering Pty Ltd [2011] HCA 38; (2011) 244 CLR 305 [25]; Australian Mutual Provident Society v Overseas Telecommunications Commission (Australia) [1972] 2 NSWLR 806, 825.

510 In Savcor Pty Ltd v State of New South Wales [2001] NSWSC 596; (2001) 52 NSWLR 587, 599, Barrett J observed that it was incorrect to say that every dispute involving questions of law should be dealt with by means of litigation, rather than by arbitration or expert determination. Later, it was observed in Cable and Wireless PLC v IBM United Kingdom Ltd [2002] EWHC 2059 (Comm); [2002] 2 All ER (Comm) 1041, 1052, that if parties (objectively assessed) had meant to avoid certain issues being determined by an expert, then the scope of their expert determination clause must be drafted more narrowly.

511 In Straits Exploration (Australia) Pty Ltd v Murchison United NL [2005] WASCA 241; (2005) 31 WAR 187, Wheeler JA (with Murray AJA & McLure JA agreeing) took a broad view of the scope of the expert determination clause used in that contract. Wheeler JA observed:

The tendency of recent authority is clearly in favour of construing such contracts, where possible, in a way that will enable expert determination clauses to work as the parties appear to have intended, and to be relatively slow to declare such provisions void either for uncertainty or as an attempt to oust the jurisdiction of the court [14].

512 I note as well her Honour's observations at [30] concerning a grant of a potential stay of an expert's work by the court.

513 In Australian Vintage Ltd v Belvino Investments (No 2) Pty Ltd [2015] NSWCA 275; (2015) 90 NSWLR 367, the New South Wales Court of Appeal rendered what I assess to be some insightful observations towards the present rival contentions concerning the scope of MRSLA cl 8.6 and cl 33.

514 That appeal was concerned with the scope of the expert determination clause in that particular contractual relationship. Bathurst CJ (with Beazley P and McColl JA agreeing) referred to multiple earlier case authorities in the expert determination clause area, including Downer Engineering Power Pty Ltd v P & H Minepro Australasia Pty Ltd [2007] NSWCA 318 [79], AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd (formerly Txu Networks (Gas) Pty Ltd) [2006] VSCA 173 [53], WMC Resources Ltd v Leighton Contractors Pty Ltd [1999] WASCA 10; (1999) 20 WAR 489, 494 - 497.

There will be cases, such as the present case, where the expert, for the purpose of performing his or her task, will be required to consider objective matters, including the construction of a contract [77].

516 Bathurst CJ at [78] then discussed the (dissenting) reasons of Hoffmann LJ in Mercury Communications Ltd v Director General of Telecommunications [1994] CLC 1125, 1140.

517 By my assessment, Bathurst CJ's reasons in the Australian Vintage decision render it explicit that a task, which may include a task of contractual construction or interpretation, may legitimately be performed by an expert where necessary - even though that task involves what might traditionally have been viewed as the resolving of a question of law, rather than a disputed question of fact.

518 There remains, of course, a key distinction as between two different things in this area of expert determinations. First, is the conceptual permissibility of an expert determination that involves (if the expert clause permits) the expert interpreting the contract along the way to reach a determination. Second is a distinct issue, if it ever arises, over whether an interpretation as to meaning that the expert has reached in carrying out their function, might later be capable of being reviewed by a court - upon a basis of an alleged manifest error in reaching that meaning. The two things are quite distinct. It is the first that I am concerned with at present.

519 In Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160, 166 the Supreme Court of New South Wales then noted a suggested 'modern' policy of encouraging various forms of alternative dispute resolution which courts should facilitate, rather than impede. The observation was rendered in an appeal concerning the private resolution of 'all forms' of dispute in that agreement.

520 Finally in this area, I would note some observations by the Canadian Supreme Court in Sport Maska Inc v Zittrer [1988] 1 SCR 564, 610. The reasons insightfully explain that the work of an appointed expert can best be seen to 'complete' a contract, rather than seen as merely to settle disputes.

521 In that appeal, L'Heureux-Dubé J (with whom the other members of the court agreed) said:

However, the parties may agree to be bound by an expert's decision without his necessarily being an arbitrator. Various reasons may prompt the parties to act in this way. In the case at bar, for example, the necessity for speed imposed by the situation in which CCM found itself may have forced the parties to sell the inventory quickly. This may have created a necessity to ensure that the setting of the price, which in the circumstances was a complex operation, should be done so as not to prejudice completion of the contract within the agreed time limits.

Although appellant had an opportunity to make representations, there is nothing in the contract to indicate that respondents' function here was to exercise a judicial authority by choosing between several opposing positions: they were simply required to determine the accuracy of the valuation to be made by the parties, which as Chevalier JA stated (at p. 388), was in fact made by CCM. Far from settling a dispute, respondents, indirectly it is true, completed the contract of sale concluded between the parties by approving the valuation of the inventory so that the price payable could be determined (610).

522 The Canadian insight above presents, I respectfully suggest, as being particularly pertinent to present circumstances as regards RCB and cl 8.6.

523 In [2016] WASCA 105 [25] McLure P rendered this obiter observation:

Alternatively, it is arguable that the agreement to refer disputes to an expert under cl 8(6) of the MRSLA extends to both the standard and the quantification of the RCB. See Foley v Classique Coaches Ltd [1934] 2 KB 1; F & G Sykes (Wessex) Ltd v Fine Fare Ltd (1967) 1 Lloyd's Rep 53.

524 That observation was expressly agreed with by Corboy J at [118] of his Honour's reasons in that appeal. I will briefly mention the two cases mentioned by McLure P.

525 In Foley v Classique Coaches Ltd [1934] All ER Rep 88; [1934] 2 KB 1, Scrutton, Greer and Maugham LJJ unanimously dismissed an appeal from Lord Chief Justice Hewart - who had held that a provision of a contract of sale as regards the purchase and sale of petrol remained a valid and binding contract. Page 6 of that decision sets out the Lord Chief Justice's reasons to the effect:

If nothing had been said, or if the parties failed to agree the price of the petrol the law would imply that a reasonable price should be paid; and if any dispute arose as to what was a reasonable price that was to be determined by arbitration pursuant to clause 8.

526 On the appeal from that decision, Scrutton LJ noted that the parties' arbitration clause related to the subject matter of their agreement as to the supply of petrol and then observed:

[I]t seems to me that this arbitration clause applies to any failure to agree as to the price ... there was an effective and enforceable contract, although as to the future no definite price had been agreed with regard to the petrol (10).

527 See also page 10 of that decision and further observations by Maugham LJ at 16.

528 In my [2016] WASC 403 reasons I set out some observations taken from Lord Denning MR's reasons in the second case mentioned above, F & G Sykes (Wessex) Ltd v Fine Fare Ltd [1967] 1 Lloyd's Rep 53, 57 - 58. In relation to the validity of an arbitration clause seeking to remedy contractual uncertainty in that contract, Lord Denning MR had observed:

In this case there is less difficulty than in others because there is an arbitration clause which, liberally construed, is sufficient to resolve any uncertainties which the parties have left.

...

You can either imply a term that, in default of agreement, the number shall be a reasonable number, with a subsequent provision that in case of any dispute as to what is reasonable, it should be determined by arbitration: or alternatively, run the two terms together and say 'such reasonable figures as the arbitrator may determine'. Whichever is adopted, it all comes to the same thing. The provision that figures were to 'be agreed' does not nullify the contract. It can be made certain by reasonable figures being ascertained by an arbitrator (58).

529 Lord Denning MR's liberal construction of that arbitration clause was driven by his earlier observations concerning partially performed commercial agreements. He had said that '[w]hen much has been done, the Courts will do their best not to destroy the bargain' (57).

530 I also note from F & G Sykes (Wessex) the observations by Danckwerts LJ at page 59 as regards matters of machinery which, in default of agreement, can be settled by a reasonable process - in that case under the arbitration clause concerning the parties' 'differences' (see also page 60).

531 For Australia, a similarly sanctioned contractual rehabilitation function for an arbitration clause in parties' agreements was recognised and applied by Tadgell J in Hawthorn Football Club Ltd v Harding [1988] VicRp 6; [1988] VR 49, 55 applying the High Court decision Booker Industries Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600, 605. I note that at page 57 Tadgell J also applied Danckwerts LJ's observations (at page 59) from F & G Sykes (Wessex) concerning the parties' 'differences'. The word 'difference' in context was thought to be 'apt to cover a failure to agree to terms and conditions' - as regards a use of the arbitration procedure if available.

532 By parity of reasoning, there is no sensible reason here, on my assessment, to think that the MRSLA parties' nomination of an expert determination process set down to resolve specific future differences arising between themselves over a failure to agree terms and conditions could not be equally as apt as an arbitration clause, in a remedial deployment.

533 To similar remedial effect is Lord Wilberforce's observation in Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520; [1975] 2 WLR 1, 11, who then had said:

Their Lordships consider that, in modern times, the courts are readier to find an obligation which can be enforced, even though apparent certainty may be lacking as regards some terms such as the price, provided that some means or standard by which that term can be fixed can be found (cf Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; (1932) 147 LT 503; Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699; and Godecke v Kirwan [1973] HCA 38; (1973) 47 ALJR 543).

534 The nomination of a 'means' or 'standard' by the contracting parties was the key in that appeal. See also Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD [2001] 2 All ER (Comm) 193; [2001] EWCA Civ 406 [69] (Rix LJ).

535 As to the scope of this expert determination clause, the CITIC defendants in their closing submissions (footnote 393) contend that the observations by McLure P in [2016] WASCA 105 were obiter, premised on an interlocutory basis of bare arguability. Strictly, that is so. But it does not detract from their insights towards the present problem.

536 The CITIC defendants remind me as well (see the CITIC defendants' closing submissions, footnote 393) that Edelman J in an earlier interlocutory decision in this action, Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2013] WASC 375 [37], had observed in regard to the term 'amount paid' used in cl 8.6, that it was

not clear if this clause, on its proper construction, would extend to disputes concerning the particular prevailing published Brazilian price or prevailing published Mount Newman price which should apply from time to time.

On the other hand, against these possible arguments about certainty, a reasonable person in the position of the parties might consider that clause 8.2 should have some degree of flexibility in the context of a long term contract [38].

538 I will now turn to address Mineralogy's submissions as to the expert determination clauses.

539 Mineralogy contends that cl 8.6, operating in conjunction with cl 33, has an expansive remedial role to perform in the long-term MRSLA bargains. It enables the expert, where necessary, to make a contractual interpretation of the MRSLAs in order to reach a final determination in an RCB dispute (see Mineralogy's closing submissions, par 270). Mineralogy puts particular emphasis on the introductory words 'any dispute' used in that clause (see Mineralogy's closing submissions, par 271).

540 At par 272 of its closing submissions Mineralogy submits:

On a proper construction, 'any dispute as to the amount paid to Mineralogy' extends to all controversies and processes under clause 8 of the MRSLAs or which flow from it, including the construction of clause 8.2 and calculation of the Mineralogy Royalty.

541 Mineralogy also relies on Morrow v Chinadotcom Corporation [2001] NSWSC 209 [17] for its contention (see Mineralogy's closing submissions, footnote 320). That decision was concerned with construing the broad phrase 'any dispute in relation to this agreement'.

542 Mineralogy also supports its broad overall suggested interpretation of the scope of the expert determination clause cl 8.6 (with cl 33) from the text 'in the absence of agreement between the parties'. It is pointed out that since the MRSLA parties are capable of agreeing to any matter relevant to their relationship, by that conjunction, the expert should be permitted to render a determination for a similarly wide range of matters under cl 8.6, in the absence of the parties reaching an earlier agreement over the issue (see Mineralogy's closing submissions, par 273). That is something, however, of a 'bootstraps' approach, in my opinion.

543 As a matter of evolutionary chronology, Mineralogy notes that cl 8.6 was included in the MRSLAs at the same time (ie, 21 March 2006) as the addition of RCB (see Mineralogy's closing submissions, par 274).

544 Consequently, Mineralogy contends the MRSLA parties, objectively assessed, clearly turned their minds in March 2006 to an inclusion of a widely phrased expert determination dispute resolution mechanism - made specifically applicable to any future disputes over the Mineralogy Royalty (as is evident from the insertion of cl 8.6 with the addition of RCB) (see Mineralogy's closing submissions, par 274).

545 As the CITIC defendants point out (see ts 1,686 - 1,687), Mineralogy currently does not seek in this litigation any orders from the court compelling a referral of any RCB dispute to an expert under MRSLA cl 8.6. I am told that such a claim had once been pursued under Mineralogy's former fourth amended statement of claim (see exhibit 1.82 and the deletion of such a claim on pages 52 - 53).

546 Notwithstanding that, Mineralogy's fifth FASOC can be seen to retain, from pars 12 through 29, express pleas which essentially recite a series of facts concerning Mineralogy's grievances about the non-appointment of an expert to determine the RCB disputes. These pleaded grievances all arise from Mineralogy's unsuccessful efforts with Sino Iron and Korean Steel in 2014 to jointly appoint an expert under cl 8.6 and cl 33 of the MRSLAs to determine a 'dispute' over the nonpayment of RCB from Sino Iron and Korean Steel to Mineralogy - for the quarter ended 31 March 2014.

547 There is a further plea seen under par 28 of Mineralogy's fifth FASOC as regards Sino Iron and Korean Steel's alleged breach of MRSLA cl 33.2(b) or, alternatively, an implied term of good faith.

548 However, Mineralogy's ultimate prayer for relief at the end of its current statement of claim for trial is seen to be confined (relevantly against Sino Iron and Korean Steel) to Mineralogy seeking from the CITIC defendants either payments of RCB amounts or, alternatively, 'damages for breach of the MRSLAs' against them under prayer A(2).

549 Mineralogy's alternative prayer seeking 'damages' has to be read and evaluated in light of the earlier pleading amendments by Mineralogy - by excising former pleas.

550 The CITIC defendants say that Mineralogy's plenary damages prayer needs to be read as only seeking damages in the alternative against Sino Iron and Korean Steel by reason of them not rendering any payments of RCB to Mineralogy when the RCB amounts are otherwise contended to have fallen due (see ts 1,686 - 1,687). In other words, Mineralogy's prayer for relief for damages adds nothing much more than an alternative damages for breach claim, being effectively the obverse of Mineralogy's primary claim seeking unpaid RCB liquidated amounts fallen due to date - if that case is made out.

551 The end result is that Mineralogy, I must accept, by its pleadings, cannot be presently seeking via prayer 2 any further relief under a damages cause of action for a suggested breach of the MRSLA - arising out of the alleged failures of Sino Iron and Korean Steel to co-operate with Mineralogy in 2014 in the making of a joint request to appoint an expert to resolve the RCB non-payment dispute.

552 But although Mineralogy does not seek any relief as regards the failure to co-operate in appointing an expert, all the pleas under pars 12 - 29 of Mineralogy's current statement of claim stood for the trial. And, as we will see, the CITIC defendants then raise these same issues from their perspective on their counterclaim.

553 I next address the CITIC defendants' arguments concerning the expert determination clauses.

The CITIC defendants' submissions on cl 8.6 and cl 33

554 As mentioned, the CITIC defendants raise three main arguments against an MRSLA cl 33 expert interpreting the MRP phrase whilst determining a dispute over unpaid RCB.

555 First, they say that the expert can only determine disputes as to the US dollars quantum of RCB due to Mineralogy (see the CITIC defendants' closing submissions, pars 154 - 157). Second, they say that the interpretation of the MRP phrase is a pure question of law that cannot be determined by an expert and is instead an issue that must only be determined by a court that is seized of that very issue (see the CITIC defendants' closing submissions, par 158). Lastly, the CITIC defendants say that Mineralogy has waived any rights it may have once held to engage an expert to resolve a dispute as to RCB by commencing this litigation (see the CITIC defendants' closing submissions, pars 160 - 162). I will address the CITIC defendants' waiver arguments separately.

556 By their counterclaims the CITIC defendants seek declaratory relief in respect of their rejection of Mineralogy's pleaded case concerning an RCB nonpayment dispute in the March 2014 quarter and Sino Iron and Korean Steel's refusal to refer that quarter's RCB dispute to an expert (see the CITIC defendants' D and CC, par 215). But the CITIC defendants' counterclaim goes further. It advances to take issue against Mineralogy over similar efforts by Mineralogy to refer an asserted non-payment of RCB dispute over the June 2014 quarters to an expert (see the CITIC defendants' D and CC, pars 215 - 234).

557 I next note the CITIC defendants' counterclaim prayers H through K (as regards the RCB issue in the March 2014 quarter) followed by further counterclaim prayers for relief AA through DD (in respect of the RCB nonpayment issue in the June 2014 quarter).

558 Towards RCB in both the March and June 2014 quarters, the CITIC defendants can be seen to seek counterclaim relief declarations as to their assertions that Mineralogy's notices seeking an engagement of an expert under MRSLA cl 8.6 and cl 33 to resolve RCB disputes were invalid (see the CITIC defendants' D and CC, prayer H and AA). They also seek permanent stays over those two notices (see prayer I and BB).

559 The challenged notices issued by Mineralogy attempting to refer RCB amount disputes to an expert for the March and June 2014 quarters were, of course, issued a long time after Mineralogy commenced these proceedings out of the Supreme Court of New South Wales on 18 March 2013. As has now been seen, back then the essence of Mineralogy's monetary claim was rather different. Mineralogy was not in 2013 seeking something, strictly speaking, which was an alleged amount of RCB said to be due and unpaid to it. Rather, Mineralogy was then seeking money payable to it under MRSLA cl 6.3(b), over a failure alleged against Sino Iron and Korean Steel to produce 6 million tonnes of product by 21 March 2013 (see exhibits 1.75, 1.76). However, Mineralogy's claim was then qualified by utilising an attempted RCB calculation. So, in 2013 the true meaning of the RCB calculation formula arose, only indirectly, in that foundational cause of action.

560 Via par 153 of their closing submissions, the CITIC defendants assert that if this court eventually does issue declarations in respect of the proper construction of the MRP phrase within the RCB calculation formula, 'doubtless that will inform the future calculations of the Mineralogy Royalty'. I do hope so.

Conclusions on the parties' arguments on cl 8.6 and cl 33

561 It may be accepted that the court's determination upon the true meaning of the MRP phrase as used in the RCB calculation ought to ameliorate against future objections against referring an RCB dispute to an expert for determination for quarterly periods after the March 2017 quarter (ie, the temporal subject matter scope of Mineralogy's RCB claimed amounts at this trial).

562 Nevertheless, I am of the view, applying the observations concerning expert determinations summarised earlier (and particularly what was said by Bathurst CJ in Australian Vintage), that upon the breadth of the cl 8.6 text here, it was always within the province of a properly appointed expert to interpret the words used within the RCB calculation formula. That exercise would have been one necessary aspect of the expert's task in arriving at an RCB amount (if any) that the expert assessed as either due or not due to Mineralogy for a quarter under scrutiny.

563 Having ascertained the meanings of the words used in the RCB calculation, the cl 33 expert would remain empowered to derive a calculation for any amount of RCB (if any) ascertained as then payable to Mineralogy in the referred quarter.

564 As we will see, the expert's process would, in effect, align with Mr Brierley's approach in ascertaining US dollars per DMTU FOB world market price rates prevailing in each quarter (collected and averaged over the preceding 12month period) for the two chosen reference products (pellets or fines) to input as PP and CP in a quarterly calculation of RCB (see exhibit 1.12, affidavit of Robert Brierley affirmed on 29 April 2017, annexure RB01).

565 Once the PP and CP inputs of the RCB formula are ascertained, the cl 33 expert could then proceed akin to how Mineralogy's accounting expert, Mr Birkett, advanced his calculations of RCB amounts (see exhibit 1.13, annexure SB02).

566 In reaching my conclusions on the MRSLA expert determination process, I would reject the CITIC defendants' arguments:

(a) that the scope of cl 8.6 and cl 33 in each MRSLA does not encompass disputes requiring a construction of cl 8.2; and

(b) that a dispute over the true meaning of words used in MRSLA cl 8.2, or what to do if some inputs to cl 8.2 were perceived to be unavailable, was not a dispute about an amount (of RCB) to be paid, or that a use of the past tense phrase 'amount paid' would support that narrow construction of cl 8.6.

567 By my assessment, the parties, objectively assessed at 21 March 2006, explicitly invoked a possible recourse to cl 33 to resolve any future RCB disputes arising by then including cl 8.6.

568 The MRSLA parties also committed to express ongoing obligations of good faith to each other. Objectively assessed, they would, I consider, be most unlikely to have attempted to limit the functional scope of any properly nominated cl 33 expert under cl 8.6, once they decided to use a cl 33 expert for any cl 8 Mineralogy Royalty dispute. It was to be expected that a future royalty recipient with possibly no control over future mining operations would reasonably anticipate the receipt of timeous and ongoing quarterly royalty payments that had been promised. Future problems over that royalty payment would be expected in this particular environment to be addressed efficiently. The expert determination process under cl 33 was perfectly suited to do just that. Clause 8.6 picked it up. The locational proximity of cl 8.6 to cl 8.2 cannot be downplayed.

569 Clause 8.6, evaluated in overall objective context, on my assessment, (putting aside a quite distinct issue in terms of the extent to which a decision by an appointed expert upon the meaning of a term used in the MRSLAs might later be reviewed for manifest error) was essentially another attempted future royalty revenue protection mechanism to secure Mineralogy's position. Specific deployment of cl 8.6 within the cl 8 Mineralogy Royalty environment as a whole was commercially logical and sensible. It would be a process available once production began for use as a flexible future circuit breaker, in the event of any future intractable dispute(s) arising over future RCA and RCB payments to Mineralogy.

570 At 21 March 2006, the MRSLA parties (then being Mineralogy's subsidiaries and under its control - but with the proposed takeover by CITIC and looming change of control in mind) chose such a cl 8.6 circuit breaker machinery in the event the parties could not resolve a future royalty dispute between themselves - notwithstanding the ongoing mutual obligations of good faith to one another.

571 A sensible commercial approach to the interpretation of the royalty arrangements in each MRSLA (which were undoubtedly projected to be potentially long term and were elaborately crafted), requires a conclusion that there is no reason to limit the breadth of the function of the proximate (to RCB) words as used under cl 8.6.

572 Resolving a future RCA or RCB dispute informally and quickly under cl 8.6 and cl 33 would keep royalty amounts flowing to Mineralogy, if due. It would also deliver an application of specialist (expert) industry knowledge towards the complex workings of the international iron ore industry as regards prevailing product prices in that market.

573 The commercial advantages of an appointed expert reaching a final determination within three months, applying their specialist industry knowledge and being able to obtain independent professional advice (including, say, specialist legal advice towards the interpretation of any unclear provision within the MRSLAs), is self-evident.

574 I will next deal with the CITIC defendants' residual arguments that Mineralogy waived any rights it may have otherwise held to invoke the expert determination process by commencing this action (see the CITIC defendants' closing submissions, pars 160 - 166). But, in short, I would also reject the CITIC defendants' waiver contentions.

The CITIC defendants' waiver arguments concerning the expert determination clauses

575 By pars 160 - 164 of their closing submissions, the CITIC defendants contend (in the alternative) that if cl 8.6 of the MRSLAs is wide enough to encompass the appointment of an expert to interpret the MRP phrase (as I do), that, nevertheless, Mineralogy in the prevailing circumstances has waived its right to have RCB determined by an expert in the quarterly periods at issue in this trial. That is contended to be so because, as I understand the CITIC defendants' arguments, it is said that Mineralogy chose to have the true meaning of the MRP phrase determined under the curial process of litigation, rather than anywhere else.

576 Mineralogy's act of waiver is said to arise 'by commencing this proceeding more than four years ago' (see the CITIC defendants' closing submissions, par 160).

577 The CITIC defendants also contend Mineralogy made an 'election' by commencing and continuing the present litigation. They argue that such conduct precludes Mineralogy from relying on the expert determination invocation notices it issued in respect of the March 2014 and June 2014 quarters (see the CITIC defendants' closing submissions, pars 162 - 168). [Those notices are the subject of the CITIC defendants' counterclaim for declaratory relief under prayers H - K (for Mineralogy's 2 June 2014 notices) and under prayers AA DD (for Mineralogy's 4 August 2014 notices).]

578 The CITIC defendants also contend the issue of an expert determination upon Mineralogy's challenged notices in respect of the March and June 2014 quarters is a 'relevant cause of action' and 'must have arisen after the commencement of the proceeding' - ie, after 18 March 2013 (see the CITIC defendants' closing submissions, par 167). I would also reject that contention based on my application of the New South Wales procedural rules to this trial, which allow me, as previously discussed, to evaluate Mineralogy's pleaded case in all respects. That outcome is reached by reason of the contribution of some cross-vested jurisdiction from New South Wales to this court, as I explained earlier.

579 The CITIC defendants' first defence and counterclaim was filed in this court on 20 June 2013. At that time, Mineralogy had not raised any attempt to invoke the cl 33 (and cl 8.6) MRSLA expert determination process for RCB. That did not happen until 2014 (see the CITIC defendants' closing submissions, par 162). Unsurprisingly, the CITIC defendants' first counterclaim did not in 2013 contend for any relief, declaratory or otherwise, concerning cl 8.6 of the MRSLAs as regards RCB.

580 Amendments to the CITIC defendants' counterclaim then followed, after ongoing amendments to Mineralogy's pleadings into 2014 and onwards thereafter.

581 Strictly speaking, a cause of action giving rise to the CITIC defendants' causes of action for relief under its counterclaim as regards Mineralogy's expert determination notices would suffer in this State at the hands of the Eshelby principle: see LexisNexis Australia, Civil Procedure Western Australia vol 1 [20.10.1] and, in particular, as regards repercussions for relief under counterclaims, see Servcorp (Aust) Pty Ltd v Abgarus Pty Ltd (1995) 38 NSWLR 281, 283.

582 Nevertheless, the CITIC defendants pressed at trial for the declaratory relief seen under their prayers for relief. The question raised for determination was whether it was open, in all the circumstances, for Mineralogy to seek an expert determination where there was pending litigation raising the very MRP phrase construction question which the appointed expert would also need to determine to resolve the dispute.

583 A perfection of the cause of action at the time of the commencement of an action as a pre-requisite to a valid suit is less inhibiting where declaratory relief is sought: see Young PW, Declaratory Orders (2nd ed, 1984) [306], referring to a 1970 decision of the Privy Council in Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) [1970] AC 1136. In that case it was said:

His application for a declaration of his right is not to be refused merely because he cannot establish a legal cause of action. (Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536.) As Bankes LJ said in that case, there would be the limitation that the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction (1167).

584 See also in this context extra-curial observations in the essay by WS Martin, 'Declaratory Relief Since the 1970s' in Dharmananda et al (eds) Perspectives on Declaratory Relief (2009) 8, 9.

585 This counterclaim issue has been fully argued. It seems appropriate then, at least on the CITIC defendants' counterclaimed prayers for relief, that I should direct attention to the issue of construction concerning cl 8.6 of the MRSLAs and the question of expert determination that arises in that context.

586 By my assessment, Mineralogy's notices given as regards RCB it claimed for the March and June 2014 quarters were not, of themselves, invalid merely because the present litigation was by then well on foot.

587 The notices were, on my assessment, vulnerable to being the subject of temporary stay orders, issued out of this court, had that been sought by the CITIC defendants. Such a stay would have allowed, if thought appropriate, the RCB related issues of contractual interpretation to first be resolved within this court, prior to a completion of any expert determination process that needed to address the same interpretation task as a component of resolving an RCB dispute between the MRSLA parties.

588 There would have been, on my assessment, a lot to commend such a temporary stay of an expert determination process, had an application ever been brought by the CITIC defendants. That would also have alleviated the exposure of the expert determination process to being later challenged for alleged manifest error of law as regards the expert's interpretation of the MRP phrase.

589 But I must repeat that as a matter of principle I can see no general difficulty with the expert, when required, interpreting the meaning of a clause in an agreement, in a wider context of the expert going about discharging the overall task of determining the issue referred. Here, the complexity and uniqueness of the current interpretation dispute over the MRP phrase as regards RCB, renders the convenience of a temporary stay as a reasonable consideration once the court was seized of the dispute.

590 Nevertheless, by cl 8 of the MRSLAs the Mineralogy Royalty falls due, if it does, quarterly. Hence, there is from now, as I see it, a full scope for ongoing future quarterly RCB payment disputes to be referred to an expert under cl 8.6, now that this court has delivered its assessment towards the true meaning of the MRP phrase in the RCB formula.

591 As regards the CITIC defendants' contentions of waiver and election, my view, as I have said, is that neither contention is made out.

592 When Mineralogy commenced this action in the Supreme Court of New South Wales on 18 March 2013, the Cape Preston project had then not produced any 'Product'. That was then the main issue of dispute as regards the contended engagement of MRSLA cl 6.3(b). At that time, Mineralogy did not hold any stand alone claim to receive RCB then due, but unpaid. That all came later in 2014. From those originating circumstances, there can be no relevant waiver or election by Mineralogy, as to future unpaid RCB amount claims pursued by Mineralogy via the cl 8.6 (and cl 33) MRSLA process at times after the production of 'Product' finally commenced in earnest at Cape Preston from the last quarter of 2013.

593 By law, acts of waiver always must be clear and unequivocal in their objectively communicated meaning to a recipient. A commencement and pursuance of this litigation, first in New South Wales and then, after its transfer, in Western Australia, was not conduct by Mineralogy meeting that high standard, in my view. At worst, Mineralogy was vulnerable to an application by the CITIC defendants for a temporary stay of an expert determination process that had been commenced, until this court rendered its determination over the true meaning of the MRP phrase in cl 8.2, but nothing beyond such limited potential temporary relief.

594 Consequently, I have evaluated but, in the end, would decline to issue as unjustified the declaratory relief as sought by the CITIC defendants concerning Mineralogy's notices issued in attempting to refer the non-payment of RCB to an expert during 2014 (see the CITIC defendants' D and CC, prayers H - K, AA DD).

595 In a pragmatic sense, my reasons will, of course, now render my assessment upon the true meaning of the composite MRP phrase as used in PP and CP of the RCB calculation formula. Given that, I could not see any legitimate basis from now for any temporary stay of future expert determinations sought in respect of fresh (cl 8.6 and cl 33) related notices if issued by Mineralogy for quarterly periods after the March 2017 quarter where RCB is in dispute. This trial, of course, only addresses Mineralogy's claims on its pleadings as regards seeking RCB amounts in dispute and claimed by Mineralogy in the trial up to the end of the first quarter of 2017 (ie, 31 March 2017).

596 Mineralogy's attempts to utilise the cl 8.6 (and cl 33) MRSLA expert determination process to date have been effectively thwarted by the refusals of Sino Iron and Korean Steel to participate alongside Mineralogy in the making of a 'joint' request to the President or most senior officer of the chosen nominating body, as required by MRSLA cl 33.2(b). Once these reasons are published, there could then be, prima facie, no legitimate basis for Sino Iron and Korean Steel not to cooperate with Mineralogy in the making of such a joint request as regards claims for RCB (or RCA) for quarters subsequent to March 2017. The CITIC defendants' arguments to date against making a joint request have now become redundant once the true meaning of the MRP phrase is determined by these reasons.

597 A sensible level of commercial co-operation is obviously called for and dictated by the express obligation of good faith that is mutually owed between the MRSLA parties via cl 37.4. That obligation must surely 'bite' as regards RCB disputes in future quarters.

598 Allied to MRSLA cl 37.4, there is also the implied term of law that requires commercially contracting parties to co-operate - to afford to each party the respective benefits promised to each other under the terms of their commercial contract, as explained by Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596.

(a) it does fall within the scope of the expert's function and powers under cl 8.6 (and cl 33) to render any necessarily required interpretations towards the true meaning of words used within the MRSLAs where that is necessary to discharge the expert's function in determining a dispute; and

(b) I have in these reasons determined the true meaning of the composite MRP phrase used in PP and CPP within the RCB formula in cl 8.2(a) of each MRSLA

there will not be (and I doubt that there ever was before) any future basis for Sino Iron and Korean Steel not to fully cooperate with Mineralogy by participating in a joint request under cl 33.2(b) of each MRSLA to facilitate an expert determination of future quarterly Mineralogy Royalty disputes.

600 Absent co-operation on such future joint request under cl 33.2(b), Sino Iron and Korean Steel would render themselves open to a future claim by Mineralogy to compel co-operation by participating in such a joint request. Otherwise, they expose themselves prima facie to a damages claim by Mineralogy for breach of MRSLA cl 37.4 or, alternatively, for the breach of the implied term of law requiring their cooperation to confer upon Mineralogy the benefits of the MRSLAs, in accord with Secured Income (but noting such relief is not presently sought by Mineralogy by par 28 of the fifth FASOC).

601 These determinations are now rendered upon the CITIC defendants' prayers for relief on their counterclaim.

602 Correlatively to the above conclusions, it follows necessarily that I would not grant to the CITIC defendants the relief they seek under prayer II in the alternative to prayers H(a), prayer I, AA(a) and BB of the counterclaim for damages under s 236 of the Australian Consumer Law (see the CITIC defendants' D and CC, pars 255 - 257).

603 The position reached to date is that I have now accepted Mineralogy's constructional choice offered towards the true meaning of the MRP phrase used in the RCB formula found in cl 8.2(a) of each MRSLA. But, if I had (hypothetically) accepted the rival constructional choice of the CITIC defendants, then I would still have rejected their allied submissions as to the severance of RCB from the MRSLAs. I would also reject all their lesser ad hoc implied term alternatives, including the so called 'fair and reasonable royalty'.

604 That residual position was, however, amenable to the work of an expert determination under MRSLA cl 8.6 for the cl 33 expert to determine for the parties the appropriate market reference standard to be used in that situation - absent the ABPS. On Mineralogy's construction of the MRP phrase there is far less disputation. But whatever the residual nature of an RCB dispute, it may still be referred to and resolved by the expert appointed under cl 33.

605 From this point I can turn to discuss the parties' rival expert evidence adduced at the trial. The court, of course, is required in the trial to assess the RCB amounts due to Mineralogy, not the expert - as would otherwise be the case under an expert determination conducted under cl 8.6 and cl 33 of each MRSLA.

606 Nevertheless, I will assess the expert evidence as it may provide assistance to the approach to be taken in an expert determination of RCB in a future quarter.

607 As said, Mineralogy called two expert witnesses at this trial, Messrs Brierley and Birkett.

608 In his reports, Mr Brierley derived quarterly US dollars per DMTU FOB prices for pellets and fines for use as the input components for PP and CP in the RCB calculation formula (see exhibit 1.12, annexure RB01; exhibit 1.14, affidavit of Robert Brierley sworn on 17 May 2017, annexure RB04; and exhibit 13 for his corrected calculations).

609 Mr Birkett then adopted the quarterly US dollars per DMTU FOB prices, as derived by Mr Brierley, in order to calculate the amounts of royalty money claimed by Mineralogy for RCB in successive quarters from December 2013 up to March 2017 (see exhibit 1.13, annexure SB02).

610 The CITIC defendants led evidence at trial from six expert witnesses, Messrs Barkas, Buckley, Norris, Morris, Twigger and Dr Fisher.

611 The CITIC defendants' experts directed a host of conceptual criticisms at Mr Brierley's work in their reports. But the CITIC defendants' experts did not provide any rival calculations towards any suggested lesser RCB amounts due to Mineralogy or contend for any rival US dollars per DMTU price rates for pellets or fines to be used in lieu of Mr Brierley's rates.

612 Instead, the opposing stance of the CITIC defendants' experts was, in effect, that it was impossible to ascertain any market reference price rates as inputs for CP and PP in the RCB calculation formula following the demise of the ABPS from April 2010.

613 Essentially then, it can be seen that the thrust of their criticisms of Mr Brierley's work was tied to and based on the CITIC defendants' rival constructional choice position regarding the MRP phrase - a constructional choice which, as seen earlier, I have not accepted.

614 As will be seen, Mineralogy's experts were instructed differently to the CITIC defendants' experts.

615 In assessing the experts' evidence, I will first collect and summarise the CITIC defendants' experts' criticisms of Mr Brierley's work. I then discuss Mr Brierley's work in light of those criticisms. Finally, I address Mr Birkett's RCB calculation evidence.

616 Two of the CITIC defendants' experts, Mr Barkas (see exhibit 26, annexure JPB5; exhibit 27, affidavit of John Pallister Barkas sworn on 16 May 2017, annexure JPB10 for his reports) and Mr Buckley (see exhibit 24, affidavit of Damon John Buckley affirmed on 3 May 2017, annexure DJB4; exhibit 25, affidavit of Damon John Buckley affirmed on 17 May 2017, annexure DJB9 for his reports), were ultimately not required for crossexamination at the trial (see ts 2,199). Their reports were simply tendered and accepted (see ts 2,340 - 2,341). Considerable respect is consequently required to be afforded towards their essentially uncontradicted opinions, at least by crossexamination. Messrs Norris, Twigger, Morris and Dr Fisher were all crossexamined at the trial. I address each of the six CITIC defendants' experts' evidence in turn.

617 Mr Barkas has 25 years' experience as a mining industry analyst and consultant with a special focus towards the iron ore industry (see exhibit 26, par 3). Mr Barkas holds a master of science in geology and geophysics from the University of Sydney (see exhibit 26, par 2). He is currently the managing director of Metalytics, a resources and economics consultant specialising in the analysis of commodity markets and project evaluation in the mining and metals industries (see exhibit 26, par 1).

618 Mr Barkas' first report explains the international workings of the ABPS up to April 2010 and the subsequent adoption of index based pricing for the sale of iron ore products (see exhibit 26, pages 900 - 904).

619 Mr Barkas explains the key underlying features and pricing methodology of the ABPS by contrast to the current index based system (see exhibit 26, pages 905 - 908). This is all essentially uncontroversial. Mr Barkas confirms that there is no contemporary equivalent system to the ABPS (see exhibit 26, page 916).

620 Mr Barkas then explains difficulties in estimating or deriving a sufficiently accurate or reliable analogue to the former ABPS (see exhibit 26, pages 917 - 918). That may also be accepted as an outcome of the ABPS demise and the lack of any equivalent pricing system since then. Mr Barkas says that trying to replicate the ABPS would be effectively unachievable at this time (see exhibit 26, page 917).

621 Mr Barkas' instructions (see exhibit 26, pages 927 - 932) mirror the CITIC defendants' constructional choice of the MRP phrase in the RCB calculation formula in that it refers exclusively to the ABPS. That interpretation of the MRP phrase, however, is now redundant given I have accepted Mineralogy's wider construction of the MRP phrase.

622 Mr Barkas gave evidence about the industry or customary meaning of the phrase 'prevailing published annual FOB price' for Vale SA pellets or Mt Newman fines for export (see exhibit 26, pages 911 - 915).

623 To the extent that Mr Barkas by that evidence may be trying to suggest (it is not clear to me that he is) an industry or customary meaning for the MRP phrase was used in the MRLSAs, I do not find that to be established by his evidence or out of the trial evidence as a whole. Mr Barkas does not point to any other contract deploying the same MRP terminology at or around 2005 - 2006 in order to sustain a contention of a widespread industry or customary meaning for such an MRP phrase in March 2006 or even in or around 2006.

624 The composite MRP phrase, I have found, is quite unique to present MRSLA circumstances. It emerged in the bespoken present circumstances between Mineralogy and CITIC. No doubt the prevalent ABPS, in March 2006, was one part of the surrounding international circumstances for the iron ore industry that was very well known to the parties. But that is a very different issue to proving an industry or customary meaning for the MRP phrase as used in the RCB formula.

625 Mr Buckley holds considerable experience in the field of freight management, in particular for commodities including iron ore, coal and liquefied natural gas (see exhibit 24, par 2).

626 Mr Buckley has been responsible for the formulation of shipping and freight strategies and for freight pricing concerning such commodities for many clients (see exhibit 24, par 2). He is currently a director of Beechwood Consulting Pty Ltd, a consulting business providing services in relation to the marketing, shipping and trading opportunities in the bulk commodity and energy markets (see exhibit 24, par 1). Mr Buckley has been involved in commodity trading transactions, including the shipping and freight aspects of those transactions, for many institutions and organisations, including for banks and major iron ore suppliers such as BHP Billiton (see exhibit 24, par 2).

627 Mr Buckley's reports deal with the nature of the international freight market for iron ore and the freight indices used in the iron ore industry, including those published by the Baltic Exchange.

628 Mr Buckley's expressed opinion is that it is not possible to accurately estimate the cost of freight using publicly available information in an attempt to convert an aggregated CFR (cost and freight) shipping price into an FOB price for an iron ore product (see exhibit 24, page 82).

629 The key to Mr Buckley's conclusion is the word 'accurately'.

630 On my assessment, there is ambiguity in Mr Buckley's report concerning the cost of a freight service and a freight price that is levied or charged from time to time by a transporter (shipper) upon bulk goods such as iron ore.

631 Notwithstanding Mr Buckley's reports, I can see no good reason, in pure principle, why an FOB shipping price for an iron ore product cannot be derived when starting from the position of having only a CFR shipping price - if the freight charge component of the CFR aggregate shipping price can also be ascertained with reasonable reliability to then be deducted from the aggregate CFR price (ie, CFR minus FR equals FOB). It is necessary to look more closely at Mr Buckley's report in this respect.

632 In Mr Buckley's first report, his executive summary concludes at par 22(e) to the effect there are and can be 'significant differences in a single market perception of freight prices' (see exhibit 24, page 72).

633 Further, Mr Buckley at par 22(e) says that it is

extremely difficult to determine a single FOB price for an iron ore product as that would require several commercial and freight factors to be considered (often not transparent due to confidentiality) to calculate an accurate prices from a CFR reference (see exhibit 24, page 72).

634 Earlier Mr Buckley noted under his par 22(c) that there are

often several assumptions that would need to be made to be able to accurately determine the freight price to calculate the FOB value of iron ore product from a CFR reference price (see exhibit 24, page 72).

635 At par 50 Mr Buckley identifies 10 factors he says must be 'normalised' in order to derive an accurate FOB price as a matter of conversion from a CFR price for an Australian iron ore product (see exhibit 24, pages 81 - 82). This leads Mr Buckley to his conclusion at par 52 that

it is not possible to accurately estimate freight for an Australian producer to convert a CFR reference to a FOB price (see exhibit 24, page 82).

636 In his second report (exhibit 25, annexure DJB9), Mr Buckley comments on Mr Brierley's work for Mineralogy (see exhibit 25, pars 11(c) - (e) on page 20). Mr Buckley notes in part at par 11(c) that:

While Mr Brierley's calculation may be sufficient for the purposes of an analyst attempting to estimate trends of net earnings, I am of the opinion that this is not a reliable methodology for the purpose of calculating an iron ore producer's net return on sales when taking into account actual cost of freight. (my emphasis)

637 Mr Buckley renders a critical observation against Mr Brierley's socalled unreliable methodologies and his generalising assumptions implemented to calculate freight estimates as they are 'not sufficiently accurate to provide a calculation of actual FOB revenue to an iron ore producer' (see exhibit 25, par 11(c) on page 20).

638 As I read Mr Buckley's two reports, he does not explicitly say it is not possible to convert a CFR price to an FOB price by making the appropriate deduction adjustment to remove the freight component charge from within the aggregate CFR shipping price. Rather, the thread of his expert opinion is that this is an extremely complex task and potentially inaccurate - given many multiple assumptions that need to be made and a potential for error by reason of factors such as a lack of access to highly confidential information, hedging decisions, different vessel types and capacities and a general overall difficulty by not comparing like with like. I accept that the task may be difficult to execute, but that this is what experts sometimes have to do.

639 In the end, Mr Buckley did not ever himself attempt to derive FOB prices from aggregate CFR prices as was undertaken by Mr Brierley.

640 In a 2 June 2017 pre-trial joint expert memorandum signed off as between the parties' experts, including Messrs Brierley and Buckley (exhibit 1.6), an agreed position by the experts as regards ocean freight rates was expressed by them in these terms:

1. The Baltic Exchange is a reliable supplier of published spot ocean freight rates, quoted in US$/wmt.
2. Spot freight rates, including those published by the Baltic Exchange and Platts, may not necessarily represent the actual freight costs incurred in transporting particular cargoes of iron ore. This is because exporters or importers are free to contract for freight services in a number of different ways and also because some major exporters or importers own and operate bulk carriers whose operating costs will not necessarily be reflected by spot freight rates.

641 Key differences as between these experts can then be found in exhibit 1.6 under par 36 as regards freight costs for pellets and at par 47 as regards freight costs for Mt Newman fines (see also pars 49 - 51).

642 Mr Buckley's perspective as regards freight may be seen at par 51, referring to Mr Buckley's first report at par 43 (exhibit 24, page 80):

The methodologies that index providers use in developing reference prices for freight are complicated by several factors (see Buckley Report, ( 43) which lead to significant differentials between the actual cost of freight paid by iron ore producers to an index level for freight.

643 I detect something of a distinction drawn upon Mr Buckley's approach as between the 'cost' of providing a freight service to an ocean carrier, contrasted with the index spot price for freight that would be charged as FR to the owner of goods being shipped and expressed as an aggregate price along with the cost price of the goods as CFR.

644 On my assessment, freight levels and charges are the sort of adjustments that appropriately qualified experts might usefully debate over, from their differing perspectives. But at the end of the day there should be a reasonable adjustment for a freight component charge capable of being settled upon out of an aggregate CFR price and with a reasonable measure of accuracy - working from a premise of principle that what is being ascertained within an aggregate CFR price for an iron ore product is a charge and is not the 'cost' to the shipper of the goods of providing the freight service at any particular time. No doubt there will be an economic interrelationship as between these concepts, albeit they are unlikely to be the same. The state of the world shipping freight market from time to time would no doubt influence the component charge for the freight service.

645 In the end, I conclude that it is simply not persuasive to contend, in effect, as Mr Buckley does, that a derivation exercise of an FOB price is all too difficult, unreliable and inaccurate to be performed. If the true construction of the MRP phrase permits this derivation of an FOB price to be done, then it may be done. So also if an appointed expert under cl 8.6 and cl 33 needs to reach an assessment of the freight charge within the CFR pricing data to derive an FOB price, then it may be done and the experts can argue over its level.

646 Mr Norris provided two affidavits (see exhibit 18, affidavit of Richard Charles Norris affirmed on 2 May 2017; exhibit 19, affidavit of Richard Charles Norris affirmed on 10 May 2017). Exhibit 18 contains his 1 May 2017 report (see annexure RN6). By his second affidavit he corrected his tables 8 and 10, found within annexure B to that first report.

647 Mr Norris is a chartered accountant and director of Leadenhall Corporate Advisory Pty Ltd. He holds over 20 years' professional experience, including 16 years on business valuation work (see exhibit 18, pars 1 - 2).

648 Mr Norris' evidence is largely directed at calculating the amount of RCB payable annually under a range of assumptions he then compares to the expected net profit after tax of the project.

649 Mr Norris' calculations were historically based on the modelling and forecasts concerning the expected net profit after tax and value of RCB prior to the parties entering the MRSLAs (see exhibit 18, pages 119 123).

650 In the process, Mr Norris worked from excel models and applied various assumptions (see exhibit 18, par 12 on page 119, par 19 on page 121). Mr Norris did not really provide his own opinions by his reports - rather, he only conducted the displayed calculations as reflected in his tables (see exhibit 18, pages 119, 121) - based upon the information and assumptions provided to him that were tied back to the parties' original pre-contractual financial modelling (see ts 2,250).

651 Mr Norris also participated in a pretrial expert conferral with Mineralogy's accounting expert, Mr Birkett. Their joint expert memorandum became exhibit 1.4 at the trial. The crossexamination of Mr Norris at trial clarified that par 2.4 of that memorandum under a heading 'Agreed View' (as regards reliance on models) was not an agreed view (see ts 2,253 - 2,254). Rather, it was Mr Norris' statement based upon information given to him by his instructors concerning the financial models Mr Norris had used in his calculations (see ts 2,253). Mr Norris was advised that financial model A had been prepared at or close to the negotiation of the MRSLAs by or for Mineralogy. He was informed model B was prepared by or for CITIC in the same period (see exhibit 1.4, par 2.4).

652 Exhibit 1.4 at par 3.1(a) records that it is not in dispute that Mr Norris' calculation of RCB as a percentage of net profit after tax was correctly calculated.

653 With no adverse reflection intended towards the work of Mr Norris, at the end of the day, the utility of all this evidence adduced by the CITIC defendants is problematic. It is tied to the CITIC defendants' alternate fallback arguments concerning the finding of an ad hoc implied term for a fair and reasonable royalty to Mineralogy in each of the MRSLAs, following the demise of the ABPS.

654 A lack of any real utility for this evidence from Mr Norris is linked to my rejection of the CITIC defendants' contended fair and reasonable royalty.

655 Dr Fisher's report of 27 April 2017 is annexure BF5 in exhibit 17, affidavit of Dr Brian Stanley Fisher sworn on 1 May 2017.

656 Dr Fisher is an economist based in the Australian Capital Territory (see exhibit 17, page 3). Dr Fisher has enjoyed a distinguished career in excess of 30 years as an economic adviser and publisher of numerous articles in international journals (see exhibit 17, par 1). He was previously the executive director of the Australian Bureau of Agricultural and Resource Economics (see exhibit 17, page 5).

657 Dr Fisher's report was directed towards three key areas, namely:

(1) the market structure of the global iron ore industry;

(2) economic characteristics of the ABPS and of subsequent index-based pricing methodologies; and

(3) the volatility in iron ore pricing under these respective systems.

658 All that evidence may be accepted for what it is worth in this trial.

659 Dr Fisher was essentially tasked with opining on whether it would be possible now to accurately replicate from an economic perspective the prices that would have been determined by the former ABPS (see exhibit 17, page 165). That exercise, of course, reflected his instructions to answer, from an economic perspective, if it was possible

to use published iron ore indexed prices and actual cargo freight rates to accurately estimate an equivalent annual FOB price (expressed as US$/DMTU) for Mt Newman fines which replicates the price that would have been determined under the annual benchmark pricing system (see exhibit 17, page 165)? (my emphasis)

660 A further question 2.4(b) was similarly posed to Dr Fisher in respect of published iron ore index prices and actual cargo freight rates to 'accurately estimate' an equivalent annual FOB price (for Vale SA pellets) which 'replicates the price that would have been determined under the annual benchmark pricing system' (see exhibit 17, page 165).

661 The problematic term in both questions asked of Dr Fisher, on my assessment, is the phrase 'replicates the price' (see also exhibit 17, pages 164 - 165).

662 Dr Fisher presented at trial as a measured, persuasive and obviously very knowledgeable economic expert witness. At par 46 and par 47 of his report (exhibit 17, page 176) he rendered these observations, which I would fully accept:

1. China's importance as an importer grew strongly from about 2000. The iron ore benchmark price remained relatively flat throughout the 1990s and early 2000s but started to increase significantly in real terms from 2004 as growing Chinese demand outpaced growth in supply.
2. The emergence of spot trades brought a new degree of price discovery and transparency into the market. Highly visible and significant deviations between benchmark and spot market prices then created strong incentives for both customers and producers to deviate from their contractual arrangements.

663 Dr Fisher then referred to figure 3.5 in his report which contrasted iron ore contract and spot prices over the period from 2002 to 2012 using information provided by the Reserve Bank of Australia in August 2012 (see exhibit 17, page 177).

664 Dr Fisher continued with further observations concerning the period leading up to and after the 2008 Global Financial Crisis at par 47 (see exhibit 17, page 176).

• in 2007, when a particularly large gap opened up between the spot price and the benchmark price, producers had a strong incentive to divert contracted iron ore volumes into the spot market; and
• conversely, when the spot price fell below contract prices in mid 2008, some customers defaulted on their contract purchases and instead bought iron ore in the spot market.

665 At par 50 (see exhibit 17, page 177) Dr Fisher observed, in reference to the ABPS and the world's three major iron ore producers, namely BHP Billiton, Rio Tinto and Vale SA, that:

1. The three major producers increasingly came to the view that negotiations had become too politically fraught to be viable, and in February 2010, they declared that they would no longer participate in the annual benchmark price negotiations.

666 In lieu of that former system Dr Fisher observed (at par 51 on that same page):

1. An iron ore price indexing system was instead proposed and, in many cases, reluctantly accepted by customers whereby prices for contractual sales would be settled using an index determined on the basis of average daily prices of iron ore trades.

667 As regards Mt Newman fines, Dr Fisher provided (at par 113) a negative response to a replication question posed to him under his instructions (see exhibit 17, page 199). He answered in these terms:

1. In my opinion, it is not possible to accurately estimate an equivalent annual FOB price for Mt Newman fines that would accurately replicate the price that would have been determined under the annual benchmark pricing system. I reach this conclusion on the basis that key features of the benchmark pricing system are not able to be replicated after the fact by any means except by conducting actual negotiations in private between the key iron ore exporters and their major customers. Such negotiations no longer take place for the purposes of establishing an iron ore benchmark price. (my emphasis)

668 I also note Dr Fisher's similar answer, as provided under par 115, concerning Brazilian pellets (see exhibit 17, page 200).

669 At par 114 of his reasons Dr Fisher elaborated on those negative answers:

1. I reach the above conclusion on the basis that:
   • Iron ore benchmark prices were negotiated annually by the most significant players (representatives of the major producers and a representative of large customers for a reference product), with the first producer and steelmaker to reach agreement in the course of the annual negotiations effectively fixing the benchmark for the whole market. By contrast, there are multiple indexes developed by different PRAs, built from samples of daily spot trades from across the relevant seaborne market, which therefore represent average actual prices. These price assessments are now available on a daily basis.
   • Once fixed, the iron ore benchmark price was applied to settle all contractual iron ore transactions of a comparable specification during the relevant year. The three major producers and large steelmakers thus committed to trade at the benchmark, irrespective of whether economic circumstances changed during the course of the year. Hence the volatility of the benchmark within any given Japanese fiscal year was zero. By comparison, index prices vary depending on the time period selected, and can be quite volatile. For example, using the Platts index for 62 per cent iron ore delivered China the price fell from $65.75/t on 10 June 2015 to $38.50/t on 15 December 2015, rose to $70.50/t on 21 April 2016, fell to $49.30 on 2 June 2016 before rising to trade at around $80/t at the end of calendar year 2016.
   • Benchmark prices were negotiated at a particular point in time for the subsequent year and could only reflect the historical information available to the respective parties at the time of the negotiations, and their expectations about economic conditions in the coming year formed on that basis. Negotiations were conducted in private with only those participating knowing how demand and supply conditions were ultimately factored into the final iron ore benchmark price. This is a key difference with index prices. In the absence of face-to-face negotiations taking place each year, it is impossible to know the many factors that might have come into play in reaching final agreement on the benchmark. Time pressure is another important feature of the benchmark system that is absent from the formation of index prices, since the first parties to reach agreement set the benchmark conditions for other market participants (see exhibit 17, pages 199 - 200).

670 The observations by Dr Fisher above are insightful in terms of contrasting the former ABPS to the current index pricing system.

671 But plainly there is still an active world market for the trading of iron ore and iron ore products as commodities. Clearly pellets and fines continue to be purchased and sold internationally on an almost daily basis and in significant volumes as valuable product commodities. What has occurred with the demise of the ABPS is only that a pricing system for iron ore and iron ore products has changed after April 2010. The contemporary pricing system for iron ore products has evolved internationally to become more flexible, contemporary and genuine, at least as regards a delivery of swifter market price ascertainment and regular adjustments to world market prices.

672 Dr Fisher was only briefly questioned under crossexamination (see ts 2,231 - 2,239). He had also participated in the exhibit 1.6 pre-trial joint expert memorandum of 2 June 2017.

673 Under crossexamination Dr Fisher, in effect, confirmed his views about the inability to presently replicate ABPS prices. He said:

Basically what I'm saying here is that the benchmark system was a particular system that generated a particular price from a process. That process no longer exists, and therefore unless you recreate the process, it's impossible to replicate that particular outcome (see ts 2,239).

674 So much I would have thought really goes without saying.

675 Impressive as Dr Fisher's report and his trial evidence was, his conclusions concerning a contemporary inability to replicate the former published US dollars per DMTU FOB prices as generated under the ABPS, in circumstances where the essential feature of that former system has now disappeared (ie, the annual price fixing negotiations between the major global iron ore sellers and Japanese purchasers) is, and was always, selfevident.

676 Dr Fisher has by his reports and trial evidence addressed in very precise terms a specific question about potential 'replication' that was put to him by the CITIC defendants. Where his negative responses provided to that posed question fit within the context of the true meaning of the MRP phrase within each MRSLA now ascertained is, of course, a distinct issue.

677 Mr Twigger's affidavit affirmed on 3 May 2017 (exhibit 21) contains his report of 2 May 2017 (annexure LT4).

678 Mr Twigger's field of expertise is in investment banking and in corporate finance, particularly towards projects in the mining and resources sector (see exhibit 21, par 2).

679 Mr Twigger is the managing director of a corporate advisory business based in Western Australia that specialises in advising clients in the resources sector in relation to mining and exploration activities, project financing and the like (see exhibit 21, par 1). Mr Twigger's evidence concerned private royalty structures and royalty rates in various mineral projects, including iron ore projects.

680 In his report Mr Twigger sets out to answer a series of questions posed to him by the CITIC defendants concerning the diverse types of potential royalty agreements that have been entered at times as between parties both in Australia and worldwide (see exhibit 21, annexure LT2 for Mr Twigger's instructions).

681 Through crossexamination at trial, it was revealed that numerous passages of Mr Twigger's report were transposed without sufficient attribution from an international text on royalties that he had used (see ts 2,292 - 2,310). This was a book by James Otto et al, Mining Royalties: A Global Study of Their Impact on Investors, Government and Civil Society (2006) (Royalties Book) (exhibit 22).

682 The Royalties Book provided what I later assessed independently as an extremely helpful and comprehensive insight towards the different types of royalties and especially towards the many insecurities and potential pitfalls present for royalty recipients associated with expected returns under a contractual royalty promise.

683 I should note two points mentioned in the Royalties Book both arising during the crossexamination of Mr Twigger. First, a royalty recipient is regarded as being exposed to higher risks of not getting paid their promised royalty where their right to receive ongoing royalties has been tied to the concept of profit from a project, such as a mining project. Conversely, a royalty recipient is viewed as being exposed to lower levels of risk of disappointment where the ongoing royalties are grounded upon production. Where there is a net profit royalty, a royalty recipient can run a serious risk that they may never see any royalty payments (see exhibit 22, page 125; ts 2,293 - 2,297).

684 The second point was that net profit interests are difficult to monitor in practice. That difficulty can leave a royalty recipient at the mercy of a mine operator's accounting practices (see exhibit 22, pages 127 - 128; ts 2,308).

685 The Royalties Book notes that an 'NPI royalty', which is a net profit interest, is sometimes facetiously referred to by the industry as 'no payment intended' (see exhibit 22, page 128). Presumably, these risks are well understood by commercially sophisticated parties in the mining industry as regards royalty payments.

686 The intended utility of Mr Twigger's evidence looked to be directed at the CITIC defendants' contended fair and reasonable royalty arguments. Given that I have now rejected that argument as untenable, I do not need to discuss Mr Twigger's evidence in any greater detail.

687 Mr Morris provided an affidavit sworn on 2 May 2017 (exhibit 20) containing his expert report of 1 May 2017 (annexure BM5).

688 Mr Morris is a forensic accountant based in Adelaide (see exhibit 20, page 3). Mr Morris has specialised for many years in providing expert accounting and valuation services (see exhibit 20, pars 1 - 2).

689 Mr Morris' report is based on the assumption he was asked to accept that RCB under the MRSLAs equates to the value for Mineralogy of a 20% shareholding in Sino Iron (see exhibit 20, par 4.3 on page 5,879).

690 Mr Morris makes expected value calculations for RCB yielding a lump sum value in cents per DMTU (see exhibit 20, pages 5,885, 5,897 - 5,898). He also provides some evidence about the expected net present value of RCB at the time of entry into the MRSLAs (see exhibit 20, pages 5,895 - 5,896).

691 The key assumption Mr Morris was asked to make is set out at par 4.3 of his report (see exhibit 20, page 5,879):

[T]he value of Royalty Component B was equal to the value of the 20% shareholding in Sino that Mineralogy would have retained under the Proposed 80/20 Transaction having regard to the terms of the draft Shareholders Corporation Agreements referred to in items 2(b) and 2(c)(i) of Schedule 1 to [Allens'] letter of instruction.'

692 That assumption is the context in respect of which Mr Morris was asked to provide supporting reasons and calculations for the value of RCB as at 21 March 2006 (see exhibit 20, par 4.1, page 5,878).

693 Within the context of those assumptions Mr Morris offered his views at par 4.13, page 5,880 - 5,881, to the effect that:

[T]he acquisition of an 80% interest for US$200 million indicates that 100% of Sino Iron was valued at US$250 million and that the 20% interest in Sino retained by Mineralogy would have a value of $50 million.

694 Under par 4.47, page 5,885 of his opinion, Mr Morris provides a table of calculations for the value of 20% of the issued shares of Sino Iron and the 20% free carried interest as at 21 March 2006, based on alternative assumptions about the construction period duration. See also his observations at pars 4.48 and 4.49 on page 5,885.

695 Exhibit 1.7 is a joint expert memorandum of 5 June 2017 arising out of the conferral between Messrs Birkett and Morris. Both experts agreed that they had not been instructed as to why the proposed 80/20 transaction was not completed (see exhibit 1.7, par 2.11).

696 Otherwise, they disagreed upon the conceptual permissibility of using an incomplete transaction as a basis to value RCB.

697 In that clash of views, Mr Birkett made a rather selfevident point against the approach (referring to par 5.5 of his second report, exhibit 1.15) which I would accept, to this effect:

The terms of completed transactions may be materially different from those proposed at any point during the negotiation process (see exhibit 1.7, par 2.7.4).

698 I am, in the end, more persuaded by Mr Birkett's opposing arguments as found collected within exhibit 1.7 concerning the conceptual opposition to any use of the 80/20 incomplete transaction to determine a value for RCB for all the reasons Mr Birkett provides.

699 In the end, however, this debate matters little, since again the intended role and significance of Mr Morris' evidence would only appear to go to arguments tied to the CITIC defendants' alternative ad hoc implied term argument of a 'fair and reasonable royalty' payable to Mineralogy. Since I cannot, in the end, accept any such implied term, Mr Morris' expert work, with no disrespect intended to him, is of no functional utility at this trial.

700 I can now address the evidence of Mineralogy's two trial experts, Messrs Brierley and Birkett.

701 Mr Brierley is an analyst with Patersons Securities Ltd. He is the head of research within that organisation (see exhibit 1.12, par 1).

702 It is a matter of record that Mr Brierley has provided a number of earlier reports for Mineralogy used in the interlocutory phases of this litigation.

703 However, for the purposes of the trial Mr Brierley's evidence is found in his exhibit 1.12 affidavit, containing his report of 28 April 2017 (annexure RB01).

704 Mr Brierley is a qualified mining engineer with senior executive management experience in mining services, mine production, mineral exploration and financial services industries (see exhibit 1.12, page 43).

705 Under crossexamination, Mr Brierley was asked by senior counsel for the CITIC defendants to explain what part of his curriculum vitae (see exhibit 1.12, pages 43 - 47) qualified him to write his report (see ts 2,092). The open ended invitation led to what I assessed as Mr Brierley's rather impressive response:

First of all, my most recent role as the head of research of Patersons Securities, where I've been analysing iron ore companies for a long period of time, and a part of analysing iron ore companies is to actually is to look at the iron ore markets and the iron ore prices. I also think that my experience as a director of several iron ore development and exploration companies that I've had over the years, with the likes of Brockman Resources, also gave me experience in looking at the iron ore markets. And, obviously, analysing future directions of those iron ore markets and making or contributing to the strategic decisions of those companies. And also as a way back in the 1990s, when I was actually - was in the operational role in iron ore mines, means that I've got that experience of actually being managing mining operations of iron ore and going through things like blending product to make sure that you produce an iron ore product that is marketable. And not only from an iron content but also from an impurity content point of view. So I personally think I've got experience that is broadranging, a lot more broadranging than most people in that in the iron ore industry, because I've worked operationally, I've worked as a director of iron ore companies, and I've worked analysing iron ore companies (ts 2,092).

706 As said, exhibit 1.14 contains Mr Brierley's responsive report (annexure RB04). By that report Mr Brierley responds to multiple criticisms from the CITIC defendants' experts. In particular, Mr Brierley comments by that response upon aspects of the lengthy reports of Messrs Barkas, Buckley and Dr Fisher - which were critical of his work in respects (see exhibit 1.14, pages 6 - 8).

707 Mr Brierley also swore a clarifying further affidavit of 11 May 2017 (exhibit 13). It contains his correspondence of 10 May 2017 (RB03) by which Mr Brierley made some perfunctory corrections to earlier input errors that he realised he had made. Mr Brierley said that the errors were due to transcription errors relating to historical data when he adopted slightly revised assumptions relating to the moisture content of iron ore pellets and fines product (see exhibit 13, page 6).

708 Exhibit 12 is a letter containing further corrections that Mr Brierley effected on 19 June 2017 in his primary report. At the trial Mr Brierley was very closely crossexamined by senior counsel for the CITIC defendants about those late corrections in effect, on the basis of Mr Brierley then correcting more errors that had been pointed out in Mr Barkas' report, but which had not been corrected by Mr Brierley until the very last minute before the trial began (see ts 2,086 - 2,092).

709 Those corrected errors essentially distilled to Mr Brierley having used only estimated figures instead of the actual Platts IODEX 62% (Fe) figures for seven days from 23 to 31 March 2017. Mr Brierley had only used estimated figures when he was initially asked by Mineralogy to render his computation at a time that was prior to the end of that March 2017 quarterly period. Later Mr Brierley omitted to revisit, collect and incorporate what had emerged as the actual Platts data for that week. Therefore, Mr Brierley needed to make his late corrections by exhibit 12 at the trial using the actual Platts data rather than what he had estimated.

710 My assessment at the end, and despite much ado at the time, is that there was nothing sinister in what occurred on this issue. There was an accepted oversight by Mr Brierley which was most regrettable, but which Mr Brierley frankly accepted and then openly corrected, albeit late.

711 Mr Brierley explained that he had essentially missed or not appreciated Mr Barkas' point within the overall voluminous amounts of expert materials provided to him from all the CITIC defendants' experts (see ts 2,150). I assessed that, after reflection, as a plausible explanation. It resonated for me in a context of what are indeed the voluminous amounts of expert material generated and exchanged for the purposes of this trial.

712 In the end, I draw no adverse inferences against Mr Brierley by reason of that exhibit 12 correction issue concerning his use of estimated figures at the time for that period in March 2017.

713 Overall, however, I assessed Mr Brierley to be an appropriately qualified, direct, honest, measured and thoughtful expert witness.

714 Mr Brierley's approach to the tasks asked of him by Mineralogy was, I thought, overall logical, methodical, conservative and reasonable upon my assessment of his work.

715 Mr Brierley also impressed me as a knowledgeable expert from the many perspectives earlier mentioned by him in the world iron ore product export industry.

716 Mr Brierley's methodology towards ascertaining reliable sources of pricing data for pellets and fines and then performing adjustments and averaging calculations based upon the reasonable assumptions he made and his estimations, all presented to me as commercially sound and sensible.

Mr Brierley's approach to deriving annual DMTU FOB prices

717 To derive an annual US dollars per DMTU FOB price for Mt Newman export fines, Mr Brierley essentially used Platts IODEX 62% (Fe) prices, averaged back over a 12month period, as the reference prices for iron ore fines. The Platts IODEX 62% (Fe) provides CFR prices (ie, shipping prices which include the cost of the freight service as well and not just the cost (ie, FOB) of the purchased iron ore product) (see exhibit 1.12, page 6).

718 Mr Brierley then set out to convert those Platts CFR prices to FOB prices by calculating and then deducting the freight charge component of that price. To calculate a reasonable freight charge component, Mr Brierley used the Baltic Exchange's spot iron ore freight rates for Western Australia to Qingdao, China (see exhibit 1.12, page 6).

719 The Baltic Exchange provides freight rates in wet metric tonnes (ie, WMTs as opposed to DMTs) (see exhibit 1.12, page 6).

720 Mr Brierley adjusted WMT freight rates to DMT freight rates by assuming that the average moisture content was 8% (see exhibit 1.12, page 6). (I note that there were some interlocutory disputation back and forth concerning the level of moisture content that Mr Brierley adopted initially which led to Mr Brierley applying a higher percentage discount: see Mineralogy's closing submissions, par 232.)

721 Mr Brierley then deducted his derived DMT freight rate from the CFR prices from the Platts IODEX 62% (Fe). The process provided an FOB price per DMT for fines (see exhibit 1.12, page 6).

722 The derived FOB price per DMT then was 'divided' by 62 to derive an FOB price per DMTU for fines (see exhibit 1.12, page 6).

723 Mr Brierley undertook a similar approach in determining FOB prices per DMTU for pellets. He accessed the published average sale prices in each quarter found in Vale SA's published earnings results and then averaged those prices over a 12-month period. CFR prices were converted to FOB prices by using and deducting the freight rates provided by Vale SA. The WMT freight rates were adjusted into DMT freight rates by assuming the average moisture content was 3%. This process derived an FOB price per DMT (see exhibit 1.12, pages 7 - 8).

724 Mr Brierley next proceeded on the assumption that there was 66.5% iron content in the Vale SA pellets (see exhibit 1.12, page 9). He divided his FOB price per DMT by 66.5 to derive an FOB price per DMTU (see exhibit 1.12, pages 7 - 8).

725 The crossexamination of Mr Brierley by senior counsel for the CITIC defendants was focused heavily on the exhibit 1.6 joint expert memorandum of 2 June 2017 (see ts 2,117 - 2,150).

726 Exhibit 1.6 is a useful tool to distil what is, in all, an almost overwhelming level of very complex and highly technical information provided under the reports of the four experts.

727 The memorandum begins with a recitation of matters as agreed between the four experts (pars 4 - 17). It proceeds to identify what is the fundamental area of disagreement. It then sets out the rival expert perspectives. Mr Brierley's perspective is provided under pars 21 - 26. The rival perspectives of the CITIC defendants' experts are found under pars 27 - 29 upon what is their identified major area of disputation.

728 Further sections of the joint memorandum then collect rival perspectives of the experts, broadly speaking, across five subject areas - in the areas concerning the pricing of pellets (pars 30 - 40), the pricing of fines (pars 41 - 48), ocean freight (pars 49 to 51), the area of annual average prices (pars 52 to 55) and of DMTU pricing (pars 56 to 60).

729 To fully appreciate the crossexamination of Mr Brierley it is first necessary to hold a deeper appreciation of the joint expert memorandum. Consequently, I need to collect significant components of that memorandum. I commence at pars 4 to 17. This section addresses matters which the four experts agreed upon. I shall provide some observations at the end of these extracts.

1. The experts agreed on the statements set out in paragraphs 5 to 17 below.

1. After April 2010, it was no longer possible to accurately replicate the prices that would have been determined under the annual benchmark pricing system. This is because benchmark prices were no longer set beyond April 2010.
2. Daily spot prices for iron ore fines commenced being assessed and published by Platts in June 2008. The Platts IODEX 62% fines price has been the principal iron ore price reference since April 2010. These prices are published in US$/dmt, CFR Qingdao.
3. Iron ore price indices are not dimensionless index numbers such as are common in economics and finance as statistical measures of price variation or value, but assessments calculated by commercial providers and priced in US$/dmt.

Inputs to the formula for calculation of Royalty Component B under clause 8.2(a) of the MRSLAs

1. Vale SA (Vale, formerly known as CVRD) is, and has been at all relevant times, the largest supplier and seller of pellets in Brazil for export.
2. The words 'Mount Newman fines for export' refer to iron ore fines produced by the Mt Newman Joint Venture and exported from Port Hedland, WA.
3. In this context, a prevailing price is one that exists at a level or rate that is widely recognised or accepted as acting as a pricing reference in a particular market over a stated period.
4. In this context, a published price is one that has been reported or promulgated by an appropriate reliable source in a publicly accessible way, including subscription services such as those provided by Platts and the Baltic Exchange.
5. Before April 2010, the prevailing published annual FOB price for pellets established by the largest supplier or seller of pellets in Brazil for export was the CVRD/Vale Blast Furnace Pellets (BFP) benchmark price to Asia (FOB Tubarao) annually agreed under the benchmark pricing system. This price was published in US cents/DMTU.
6. Before April 2010, the prevailing published annual FOB price for Mount Newman fines for export was the Hamersley/Newman fines benchmark price annually agreed under the benchmark pricing system. This price was published in US cents/DMTU.

1. The Baltic Exchange is a reliable supplier of published spot ocean freight rates, quoted in US$/wmt.
2. Spot freight rates, including those published by the Baltic Exchange and Platts, may not necessarily represent the actual freight costs incurred in transporting particular cargoes of iron ore. This is because exporters or importers are free to contract for freight services in a number of different ways and also because some major exporters or importers own and operate bulk carriers whose operating costs will not necessarily be reflected by spot freight rates.

1. In discussing demand and supply conditions and economic parameters related to the iron ore market, 'short term' refers to periods of 12 months or less.
2. With respect to comments in the Responsive Brierley Report on specific paragraphs of the Fisher Report, Mr Brierley and Dr Fisher agreed that differences of opinion between them regarding the issues raised by Mr Brierley on paragraphs 42, 45, 61, 64, 66, 74, 106, 107, 109, 111 and 112 of the Fisher report were not sufficiently substantive to be outlined in this document.

730 Pausing at this point, I would note that par 6 concerns iron ore fines prices generally, rather than for Mt Newman fines, which is the reference product identified as the component of CP in the MRP phrase within the RCB formula.

731 All four experts identified the Platts IODEX 62% (Fe) prices as the principal iron ore product price reference source since April 2010. The prices are published in US dollars per DMT (ie, not per DMTU) (par 6). The US dollars prices are also CFR prices (par 6), which is understood as meaning the price paid (ie, 'C') for the cost of the purchased and shipped product (here, iron ore fines) plus a further element attributable to a freight charge component (ie, 'FR') within the overall aggregate CFR price.

732 Paragraphs 9 to 11 indicate the experts' joint agreed views about the meaning of various terms within the MRP phrase. Matters of the true meaning of contractual terms ultimately do raise legal questions of contractual construction that are solely for this court to address. In the end, however, there is little basis to cavil with the commercial and common sense observations about those adjectives found within those paragraphs.

733 Finally, I do observe as regards par 11 of the joint expert memorandum that the subscription services as provided by Platts and the Baltic Exchange were uniformly identified by all experts as being appropriate and reliable sources of data. That was a factor significant to my decision made during the trial as now revisited and published as Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 15] [2017] WASC 339.

734 The next part of the joint memorandum (pars 18 - 29) proceeds to identify what was the fundamental issue in dispute as identified between these four experts. Paragraphs 21 to 26 reflect Mr Brierley's view and pars 27 to 29 collect rival views of the CITIC defendants' experts on that fundamental issue.

1. The experts identified a fundamental area of disagreement in respect of iron ore pricing as set out in paragraph 20 below and followed by statements of opinion on specific points of difference.
2. Specifically with respect to the Fisher Report, Mr Brierley and Dr Fisher remain in disagreement regarding the opinions expressed in paragraphs 113, 114 and 115 of the Fisher report, principally because the points raised in paragraph 114 of the Fisher report are consistent with arguments raised in the Barkas and Buckley Reports with which Mr Brierley remains in disagreement.

1. The experts recognised that the fundamental difference of opinion between them relates to the ability to calculate prevailing published annual FOB prices after April 2010 for Mount Newman fines and Brazilian pellets for export.

1. Whilst the benchmark pricing system for iron ore, based on annual bilateral negotiations, was the prevailing published price in all relevant years prior to 2010 for iron ore products (including iron ore fines and pellets), all sales contracts moved to an indexbased pricing system on or before April 2010. This was due to a push by both major steelmakers and major iron ore suppliers to increase market transparency. Prior to this transition in pricing system for iron ore products, transactions on a cost and freight (CFR) basis had increased and a spot market for iron ore had developed, expanding continuously from around 2002 to reach an estimated share of 40% of global seaborne trade in 2009.
2. At no time do I look to replicate the benchmark pricing system in calculating a prevailing published price for iron ore fines or pellets for the period Q1/2013 to Q1/2017 inclusive.
3. The prevailing published price for specific iron ore products after 2010 became the iron ore fines price, with other products (such as lump ores, blast furnace pellets and direct reduction pellets) earning price premia over that price. As agreed in paragraph 6 above, the Platts IODEX 62% fines price has been the principal iron ore price reference since April 2010. The Platts prices are quoted in US$/dmt, CFR Qingdao and are published on most weekdays of the year.
4. From the daily published prevailing prices (quoted in US$/dmt, CFR), a netback calculation using the published ocean freight rates from specific origins (Pilbara region, WA for Mount Newman fines equivalent product; and Tubarao for Brazilian pellets) can be used to convert this price to FOB. These netback calculations are widely used in the iron ore market by industry participants and have been for a period of time that predates April 2010 to the present.
5. The daily prevailing FOB prices can then be averaged on a quarterly and annual basis to derive prices over these periods. Indeed, Rio Tinto (widely known as the second largest producer of iron ore in the world) publishes an average FOB Platts price per dry metric tonne for 62% iron Pilbara fines in its halfyear and fullyear financial results.
6. The annual average prevailing FOB prices (quoted in US$/dmt) can then be converted to prices quoted in US cents/DMTU by applying the average iron grade for that product, which in the case of Platts IODEX 62% fines is obviously 62%.

1. The methodologies and generalising assumptions that Mr Brierley has used are not sufficiently valid or reasonable to enable the accurate calculation of iron ore producers' actual FOB prices and revenues. As explained in our individual Expert Opinions (eg see Buckley Report, 23) Mr Brierley's calculation methodology may be sufficient in the context of an analyst attempting to estimate trends of net earnings, but the methodology and assumptions in the Brierley Report regarding the use of iron ore and freight index data are not sufficiently reliable or robust to accurately estimate the FOB price inputs required for definitive calculation of Royalty Component B.
2. In our opinion, there are/have been no published annual FOB prices (expressed in DMTU terms or otherwise) for Brazilian pellets or Mount Newman fines since the benchmark pricing system was abandoned in 2010. Further, it is not possible to calculate, derive or accurately estimate annual FOB prices that 'prevailed' in the internationally traded market for these products because the necessary inputs either do not exist or are not publicly available, and because annual indexaveraging periods are not used under the indexbased pricing system now used in international seaborne iron ore trade.
3. In addition, as explained in paragraphs 54 and 55 below, the defendants' experts do not agree that rolling fourquarter averages such as those derived in the Brierley Report for Brazilian pellets and Mount Newman fines constitute 'published prevailing annual FOB prices'.

735 The balance of the joint memorandum continues to summarise the major discrete clash areas and the different perspectives of the parties' experts as regards these discrete areas.

736 Clearly, the parties' rival constructional choices upon the true meaning of the MRP phrase within the RCB calculation formula underlies many of the CITIC defendants' experts' criticisms directed at Mr Brierley's work.

737 Mr Brierley's work, in accord with his instructions from Mineralogy, is focused on deriving an annual DMTU FOB price for pellets and fines that can later be used as inputs to reach and then calculate PP and CP. Mr Brierley at par 22 explicitly acknowledges he does not seek to 'replicate the benchmark pricing system'.

738 Conversely, the CITIC defendants' experts assert that it is now impossible to replicate the former ABPS. Accordingly, they globally dismiss Mr Brierley's methodologies and simplifying assumptions as inappropriate (see pars 27, 34 - 40).

739 The CITIC defendants' experts opine that Mr Brierley's use of iron ore and freight index data was 'not sufficiently reliable or robust to accurately estimate the FOB price inputs required for definitive calculation of Royalty Component B' (par 27). They also complain that Mr Brierley's use of rolling four quarter averages to obtain FOB prices per DMTU for pellets and fines does not constitute 'published prevailing annual FOB prices' (par 29).

740 The consequence of the parties' rival constructional choices over the true meaning of the MRP phrase is that the CITIC defendants' experts have not attempted as between themselves to calculate a US dollars per DMTU FOB price for pellets or fines in order to calculate PP or CP. This is because their approach, to accord with their instructions from the CITIC defendants, is that this simply cannot be done. Their reports are therefore all directed at criticising Mr Brierley's work, rather than attempting to reach figures to calculate PP and CP themselves.

741 To the extent, therefore, that he did attempt the exercise, Mr Brierley painted himself as something of a target. In undertaking to derive DMTU FOB prices in order to calculate PP and CP, Mr Brierley exposed himself to conceptual challenges from those experts, who would seek to criticise his work, but not undertake the task for themselves. Criticisms emanated from an iron ore pricing market perspective (by Mr Barkas), against his ocean freight price determination assumptions (by Mr Buckley) and also from the economic analysis perspective (by Dr Fisher).

742 From my perspective, the derivation task undertaken by Mr Brierley presented challenges akin to that of the illuminated climber seeking to scale a mountain whilst being shot at by multiple wellpositioned snipers on all sides - with unlimited ammunition. That is not a criticism of the CITIC defendants' experts' work. As I have said, it was undertaken fully in accord with their instructions, which were in turn based on the CITIC defendants' contended meaning of the MRP phrase.

743 Rather, my sniper analogy is an attempted reflection upon what proved, in the end, regrettably, to be a disengaged expert process overall, largely arising out of the experts' rival instructions and their instructor's rival constructional choices towards the MRP phrase, dictating their end positions, in effect, from inception.

744 My analogy also highlights the exposures for Mr Brierley, in that it would only take one 'round' from one weapon to inflict a level of potentially mortal conceptual harm to his expert work.

745 But as I explain, at the end, only one of the many conceptual criticisms of Mr Brierley's work really troubled me for a time. This was in relation to Mr Brierley's use of Vale SA's published pellet prices as a preferred source of pricing data. Aside from that area, I would otherwise reject the balance of the CITIC defendants' experts' criticisms against Mr Brierley's work as, essentially, either answered or were misdirected.

Mr Brierley's use of the Vale SA pellet pricing data

746 In his earlier reports prepared during the interlocutory phases of this action, Mr Brierley had used Umetal pricing data to source, work upon and then to determine the annual DMTU FOB prices for pellets for export. But Mr Brierley related after that he was shown the RCB formula in cl 8.2 of the MRSLAs in the 2017 period before the trial, Mr Brierley then changed to use Vale SA's published pellet prices in the derivation task, instead of Umetal prices (see exhibit 1.12, page 7; ts 2,113 - 2,117).

747 One of the criticisms then directed at Mr Brierley's work was that the Vale SA's pellet pricing data included prices for both internal (ie, Brazil) and external (ie, international) sales of pellets. This was concerning to me initially, given that the MRP phrase seen used in the definition of PP clearly refers to the annual DMTU FOB price for pellets for export.

748 However, Mr Brierley explained in his evidence at trial that he had also used the Umetal pricing data as a pricing cross-check for his trial report (exhibit 1.12, revised appendix A; ts 2,112). The use of the Umetal data as a cross-check for the Vale SA pellet pricing information was, in the end, harmonious in the results produced. That, in the end, supports and ultimately overcomes my initial concerns over the suitability of using the domestic pellet prices from the Vale SA pellet pricing data as a first choice data in the derivation exercise for pellets.

749 I had no such concerns as regards Mr Brierley's use of the Platts IODEX 62% (Fe) pricing data to derive annual DMTU FOB prices for Mt Newman fines. That was so notwithstanding that the Platts data was collected generically for world traded fines prices and not specifically only as the prices for Mt Newman fines.

750 Mr Brierley expressed the opinion that the Platts index was an appropriate analogue as a pricing reference for Mt Newman fines (see ts 2,168). He responded in re-examination that the valueinuse formulas for Mt Newman fines meant that they were very similar to the Platts IODEX 62% (Fe) price (see ts 2,168). He said:

So what happens is that there's credits for higher Fe content, there's downwards adjustments for silica and phosphorous and sulphur and alumina contents. Up and down it goes, and then you do a valueinuse thing which puts it into what they would actually get. So the pluses and the minuses, depending on whether they get a discount or a premium to the index, then gives them where their valueinuse lies (ts 2,168).

752 Reexamination also clarified that Mr Brierley's methodological approach in dividing the Platts prices by the figure of 62 to derive a US dollars per DMTU price (being 1% iron) was a conservative approach. That approach would tend to underestimate price, given a straight line assumption reflected in the process. That assumption did not reflect the likely nonlinear price premium where there are higher percentages of iron in products at levels beyond 62% iron (ts 2,169). The approach, if anything, favours the CITIC defendants.

753 For the avoidance of future doubt, I will say that I detect no manifest errors in the work of Mr Brierley under his trial reports, if they are assessed for the purposes of cl 33.7 of the MRSLAs.

754 I also repeat that Mr Brierley's methodology in his derivation of the annual DMTU FOB prices for pellets and fines for export is fully in accord with the approach that I would expect to be taken by an MRSLA cl 33 appointed expert to undertake in an expert determination, once such a person is properly engaged via cl 8.6 of the MRSLAs.

755 I can now proceed to explain some conclusions I reached in preferring Mr Brierley's expert evidence and his approach. It is convenient within that process to try and crystallise at somewhat greater length the parties' perspectives in discrete areas of expert disagreement.

The CITIC defendants' criticisms of Mr Brierley's work

756 The CITIC defendants' closing submissions at pars 115 to 125 explain their criticism of Mr Brierley's use of the Vale SA pricing data for Brazilian pellets in these terms:

(g) Mr Brierley's derived prices are not prices expressed in US Dollars per DMTU for Mount Newman fines or Brazilian pellets

1. Under the Benchmark Pricing System, prices were determined and quoted on an FOB basis in US dollars per DMTU. Quotation on a DMTU basis inherently accounted for variations in Fe grade as it established a system by which the price per physical tonne of ore varied consistently and proportionately with the iron grade. By contrast, index prices are quoted per dry tonne at a reference iron grade that is specific to each index. As a result, index prices may require adjustment to reflect the actual Fe content of iron ore sold under particular contracts, or even the Fe content of individual shipments.
2. Mr Brierley has sought to convert available prices published on a DMT basis to DMTU by simply dividing the referenced DMT price by the assumed % Fe content, to arrive at a purported DMTU. However, Mr Brierley's methodology ignores the fact that, as he accepted, the relationship between Fe content and price is not linear, ie an increase in Fe content will not necessarily carry with it a proportionate increase in price. Mr Brierley's methodology for converting prices quoted in DMT to DMTU is thus imprecise and unreliable. Additionally, the specific Mount Newman fines and Brazilian pellets grades are not publicly available and are unknown, making any conversion arbitrary.
3. Index pricing recognises this lack of linearity, as reflected by the fact that Platts assesses and publishes the value of each 1% in the range 60% to 63.5% as a separate index. The value of this differential varies significantly from the purported 'equivalent perDMTU' price that Mr Brierley's methodology assumes can be obtained simply by dividing a perDMT Platts 62% Fe fines index price by 62. The same is true of Vale's pellets, the FOB pricing of which is not proportional to iron content. Vale's product mix, which includes the more valuable direct reduction pellets (which attract a disproportionately higher premium than simply their higher Fe content would imply), means that it is not possible to derive with sufficient accuracy a DMTU price for Vale's pellet exports by simply dividing an estimated average sale price by an assumed average iron grade.

(h) Reliance by Mr Brierley on prices in Rio Tinto financial reports

1. Mr Brierley sought to find support for his netback calculations for Mount Newman fines by referring to 'FOB Platts price per dry metric tonne for 62% iron Pilbara fines' published by Rio Tinto in its halfyear and fullyear financial results.
2. However, there are differences between what Rio Tinto and Mr Brierley state that this data represents. Mr Barkas' evidence was that Rio Tinto uses the Platts IODEX 62% Fe fines index as a market reference for prices and price movements, as opposed to an indicator of average sales or realised prices for any particular brand or product.
3. The prices reported by Rio Tinto cover a variety of iron ore products, beyond just Pilbara fines, and the quotation periods in respect of which such prices are reported vary, leading to significant differences in the netback estimates undertaken by Mr Brierley and those undertaken by price reporting agencies such as the Tex Manual.
4. Whereas Mr Brierley equates his calculated quarterly Platts 62% Fe netback averages with the actual average price that prevailed in each quarter for BHP Billiton's Mount Newman fines and Rio Tinto's Pilbara Blend fines, Mr Barkas' evidence was that this conclusion is not justified.
5. Further, the prices published by Rio Tinto are not prices for Mount Newman fines, they are neither 'annual' nor 'FOB' prices, and nor do they 'prevail'.

1. While Vale's reported data is the primary source relied upon by Mr Brierley in relation to Brazilian pellets, he also purports to use spot blast furnace 65% Fe CFR prices sourced from Umetal, as a 'cross check'. Mr Brierley purports to use spot ocean freight rates sourced from the Baltic Exchange (along with a moisture correction) to calculate an FOB price, which he then averages to calculate what he describes as 'a calculated blast furnace pellet annual average' price in US cents per DMTU FOB.
2. However, Mr Barkas, Dr Fisher and Mr Buckley gave evidence that this methodology does not produce valid or accurate estimates of prevailing published annual FOB prices, because of 'uncertainties related to the freight rates used, the market tonnages represented and the status of the price quotes (ie rather than confirmed transactions) on which the calculations are founded. Mr Barkas, Dr Fisher and Mr Buckley also noted that the use of this alternative methodology changes the purported value of RCB by US$6.442 million over the period 2013 Q4 to 2017 Q1 inclusive.
3. In addition, the prices published by UMetal are not prices for (only) Vale pellets, they are neither 'annual' nor 'FOB' prices, and nor do they 'prevail'. (footnotes omitted)

Mineralogy's responses to the CITIC defendants' criticism of Mr Brierley's work

757 Mineralogy's closing submissions (see part K between pars 189 and 266) respond to the CITIC defendants' criticisms above at some length. I have preferred and accepted those responses as the more persuasive in the end. Given their magnitude and complexity, I have included them as a separate Schedule B to these reasons. That enables me to explain them with less clutter and in more general and less technical terms, as I attempt below.

758 As I have said, I accept in large measure Mineralogy's responses to the criticisms of Mr Brierley as now collected in Schedule B to these reasons.

759 Mr Brierley's work towards essentially deriving annual DMTU FOB prices for pellets and fines for their input into PP and CP of the RCB calculation formula is, on my assessment, methodologically sound and reliable. It should be accepted. Specifically, his MRP phrase analysis towards US dollars per DMTU prices for Brazilian export pellets and towards Mt Newman export fines, on my view, is conservative (ie, favouring a lower RCB end outcome) in areas it needs to be.

760 My reasons for reaching these conclusions can be summarised:

1. Because of the approach taken by the CITIC defendants' experts (Messrs Barkas, Buckley and Dr Fisher), their reports do not directly or effectively engage against Mr Brierley's work. They do not, in the end, present any rival or more credible calculations towards DMTU FOB prices for input into PP and CP for comparison. There presents then, as between these rival experts, in effect, a scenario of 'ships passing in the night'.
2. The CITIC defendants' experts display a trait of rendering sweepingly dismissive global criticisms of Mr Brierley's expert work such as, for instance, on a basis of it displaying an insufficiently valid methodology, or of it using unreasonable generalising assumptions. Again, this is hard to engage with at a level of specificity and, in my view, this is no accident. Once the CITIC defendants' constructional choice towards the composite MRP phrase is rejected, such sweepingly dismissive responses to Mr Brierley's work are seen as residually unhelpful to the CITIC defendants' opposing case.
3. Crossexamination of Mr Brierley only entrenched the logical, commercial and conservative approach he used in his work.

There were some instances highlighted in this process where assumptions that Mr Brierley had made and were in the data that he utilised, proceeded on conservative assumptions that did not favour Mineralogy numerically. This was pointed out by Mineralogy's closing submissions (see pars 211, 248, 252, 263), particularly as regards the criticism of using pellet pricing data from Vale SA.

Multiple other criticisms directed at Mr Brierley's US dollars per DMTU calculations based upon the average realised prices he used, the freight rate he used in his netback calculation of the CFR/FOB adjustment and his average iron ore content assumptions, were all persuasively responded to (see Mineralogy's closing submissions, pars 245 263).

1. As said, on my assessment, Mr Brierley sufficiently answered all the strong challenges put to him in cross-examination concerning his late corrections to his earlier calculations using the March 2017 Platts prices, where he had initially used estimated figures when the actual data was not then available.
2. Mr Brierley frankly acknowledged that Mr Buckley held the greater experience in the area of ocean freight (ts 2,094). But, as I have now said, I do not accept the CITIC defendants' position that it is just not possible to reliably derive an FOB shipping price when starting from a CFR price by deducting the freight charge component from the CFR price. Given that CFR comprises of a product cost charge plus a freight charge component, it is axiomatic that a subtraction of the freight charge must derive the cost of the product price (ie, the FOB component price for the product). Mr Barkas' issue of concern here would seem to be more one of pragmatism rather than principle.