3 The plaintiff relied upon two affidavits sworn on 21 October and 2 November 2011 by his solicitor, Gregory John O'Shannessy, as well as the affidavit of Darren Greenham of 2 November 2011. Yara relied upon an affidavit of David Michael Benson sworn 7 November 2008. Pankaj's wife, Radhika, relied upon an affidavit of her solicitor, Carolyn May Dearing, affirmed on 3 November 2011. None of the material in these affidavits presents as particularly contentious.

4 In addition, Pankaj's solicitors issued document subpoenas to one of the Receivers and Managers (Mr Theobald) to obtain access to a Gas Sale and Purchase Agreement between the third defendant (BFPL) and Apache Northwest Pty Ltd of 17 December 2001, a Contract of Guarantee and Indemnity between Apache Corporation and BFPL of December 2002 and a copy of an Information Memorandum that was mentioned in an advertisement that appeared in the Australian Financial Review in May 2011.

5 The document subpoenas were answered without objection (albeit they were irregular, in that they were not made returnable either before me or some other judicial officer). A solicitor attended on 9 November 2011 producing documents from the Receivers and Managers.

6 However, the three areas of documentation produced in answer to the subpoenas were the subject of objections to inspection on the basis of their extreme confidentiality made by legal representatives appearing on behalf of Apache, Tap (Harriet) Pty Ltd and Kufper (Australia) Pty Ltd. In the face of those objections, I ordered the documents provided by the Receivers and Managers be sealed, and not opened without my order and only then, on notice being given to the objecting parties' solicitors.

7 Background to the SD of 23 March 2008 and the relationships between relevant parties can be found in my reasons for decision in Oswal v Yara Australia Pty Ltd [No 3] [2011] WASC 255, delivered on 14 September 2011 (the September Reasons) in CIV 3078 of 2010. That decision is presently the subject of appeal by Yara and crossappeals in the Court of Appeal of WA. The appeal and crossappeals concern the answers I rendered upon a number of preliminary questions that had been formulated by the parties. As of now, the appeal and crossappeals have not yet been argued, let alone determined.

8 The September Reasons explain that the SD is applicable to shareholders in the second defendant (BHL), as well as to its subsidiaries, which includes BFPL, a wholly owned subsidiary of BHL.

9 BFPL is in receivership. Its Receivers and Managers were appointed in December 2010 by the ANZ Bank, which is a secured creditor for debts of approximately A$880 million owed by Pankaj and BFPL in aggregate. BFPL is the owner of a valuable operating fertiliser processing plant situate on the Burrup Peninsula of Western Australia.

10 The same Receivers and Managers appointed over the assets and undertaking of BFPL are also appointed by the ANZ Bank as Receivers and Managers over:

(b) over 37.5% of the shares in (BFPL's parent) BHL (which is not in receivership).

11 The shares in BHL are presently held across just three parties, namely:

(iii) Radhika, the asserted fourth defendant in this action, as to 35%.

12 The ANZ Bank holds security for its aggregate debt and has appointed the Receivers and Managers over all of Pankaj's 30% shareholding in BHL and over 7.5% of Radhika's 35% BHL shareholding.

13 In addition, as regards Radhika, the ANZ Bank holds the benefit of a deed of escrow over the balance of her BHL shares (i.e. 27.5%). Subject to the terms and conditions of the deed of escrow, Radhika is prevented from selling her residual (unencumbered) 27.5% BHL shareholding. The ANZ Bank is also empowered under the conditions of the deed of escrow to cause a sale, if it sees fit, of all Radhika's 35% BHL shareholding.

14 Essentially then, the Receivers and Managers look to be in a position to sell 65% of the shares in BHL. Pankaj suggests that a sale of BHL shares is the most likely course. He says that is a more commercially attractive path for the Receivers and Managers to realise funds to meet the debt than either directly selling the fertiliser plant itself, or selling 100% of the shares in BFPL (corporate owner of the fertiliser plant). Materials before me suggests the latter two options could result in such a sale attracting a significant capital gains tax exposure (said to be in the order of $240 million).

15 The latter two options are also said to potentially create adverse consequences under provisions in two Gas Supply contracts and which may, it is said, jeopardise what is now a favourable gas price regime enjoyed by BFPL for the Burrup Plant.

16 For the purposes of this argument I will assume that a realisation of BHL shares (or at least 65% of those shares which the Receivers and Managers are in a position to sell) is presently the most commercially attractive and therefore very likely option for the Receivers and Managers to pursue. This course enables me to resolve the application without reference to the highly confidential documents obtained under subpoena from the Receivers and Managers.

17 Additionally, proceeding on that assumed basis already takes account of some further developments. Pankaj's legal advisers wrote to my Associate after the directions hearing on 9 November 2011 and requested I take account of further facts as set out in an affidavit of Mr Theobald sworn 1 September 2011 in CIV 2462 of 2011, access to which was obtained under leave given by Le Miere J. There was no objection to that course from anyone.

18 Mr Theobald, one of the Receivers and Managers, states at pars 24 25 of that affidavit:

1. On 9 May 2011, the Receivers and ANZ commenced a sale process in which they sought proposals to purchase Mr and Mrs Oswal's 37.5% shareholding in BHL, which is subject to Mr Oswal's share mortgage and Mrs Oswal's share mortgage, and/or proposals to purchase a combined 65% shareholding in BHL, comprising the 37.5% shareholding referred to above, together with Mrs Oswal's further 27.5% shareholding in BHL, which is subject to an escrow arrangement between Mrs Oswal and ANZ (Sale Process).
2. The sale process is continuing at the date of this my affidavit.

19 Given my assumed premise, this information does not advance matters.

20 The SD places restrictions (cl 9) upon the uninhibited transfer of BHL shares by shareholders. It grants rights of preemption to BHL shareholders where an existing shareholder seeks to sell some or all of its shareholding (cl 10).

21 Capacity for the Receivers to sell and realise the proceeds of 65% of BHL's shares must be qualified by the necessary observation that there are presently unresolved proceedings pending in the Supreme Court of Victoria. In that forum Radhika alleges the ANZ Bank is not entitled to the benefits of its share mortgage and deed of escrow over 7.5% of her 35% BHL shareholding because the security instruments are void or voidable. I was told those proceedings are still some distance from a trial.

22 In the September Reasons, I dealt with the SD's complex underlying arrangements as between BHL's shareholders, which are applicable to BHL's board management. My reasons canvassed facts surrounding how Pankaj and Radhika personally came to hold their respective personal 35% shareholdings in BHL and the effect and implications of a Share Sale Agreement of 19 September 2008 (SSA) (by which Pankaj sold 5% of his 35% personal holding of BHL shares to Yara). I resolved certain questions concerning whether or not Pankaj and Radhika held and could exercise SD rights, as well as being bound, from 19 September 2008, by the obligations imposed by the SD.

23 In short, I found that, subject to executing valid Assumption Deeds that accorded with the requirements of the SD, Pankaj and Radhika could exercise rights under the SD and were bound by the SD's obligations as from the time of the SSA.

24 One of the very significant BHL shareholder rights dealt with by the SD is the right to appoint a Nominee Director to BHL's board. Nominee Directors of BHL vote at a weighting that is set by reference to the number of shares held by the Nominee Director's appointor. This weighted board voting scenario resembles the voting power utilised by shareholders of a corporation at a general meeting. Presently, Yara, unquestionably, has one appointed Nominee Director on BHL's board (Mr Holba) who can vote at Yara's 35% BHL shareholding at BHL board meetings.

25 The proceedings resolved by the September Reasons had been commenced on 24 December 2010, after Radhika attempted to appoint Mr Sodum to BHL's board as her own Nominee Director in late 2010. I assessed her attempt to appoint Mr Sodum unilaterally, without reference to Pankaj, to be misconceived.

26 Under the provisions of the SD there is a right for a BHL shareholder who holds more than a 20% shareholding to 'veto' a very widely specified array of different management issues at a BHL board meeting (see annexure 1 to the SD). The veto power effectively gives each of the three existing blocks of BHL shareholders the capacity to veto BHL management decisions, thereby potentially creating something of a 'Mexican standoff' (absent tripartite consensus) as regards BHL's board management decisions.

27 These proceedings were begun by Pankaj and Radhika before CIV 3078 of 2010, sometime before the ANZ Bank appointed Receivers and Managers to BFPL, to BHL's shares in BFPL and over 37.5% of Pankaj and Radhika's shares in BHL.

28 By the original statement of claim, Pankaj and Radhika jointly contended as plaintiffs that cl 10, the provision in the SD setting preemptive rights and obligations for BHL shareholders, was void for uncertainty. The contention was grounded around arguments concerning an asserted inconsistent and dysfunctional interrelationship as between cl 10.2 and cl 10.10 of the SD, and more specifically, that the ordinary principles and processes of contractual construction (one of which is that the existence of ambiguity does not necessarily connote the presence of contractual uncertainty - see Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101 [29] and [30] (Ipp J; Pidgeon J agreeing); applying The Council of the Upper Hunter County District v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429, 436 437 (Barwick CJ)) cannot resolve the underlying difficulties and inconsistencies presented by cll 10.2 and 10.10 of the SD. Therefore, Pankaj contends that all of cl 10 falls.

29 Pankaj and Radhika's grievances about cl 10 in the SD envisage a trial aimed at determining the correct meaning of the subcll 10.2 and 10.10 provisions within cl 10 and within the surrounding clauses of the whole SD. A neighbouring and related clause of particular importance to that exercise is cl 9, which imposes restrictions on BHL's shareholders against the uninhibited transfer of BHL shares. Clauses 9 and 10 in the SD are obviously linked (see therein a commonly used definition of the term 'Transfer Notice').

30 In broad terms, cl 9 allows only a limited number of pathways (absent consensus) to escape the restrictions against a transfer of BHL shares to third parties. One sanctioned path in cl 9 is where a Transfer Notice that meets the requirements of cl 10 has been earlier given to other BHL shareholders (see cl 9.4 of the SD), but is not acted upon by other BHL shareholders within a period of two months. [All these clauses may be found set out in the Schedule to the September Reasons to be read in full there - see [455] of those reasons.]

31 The original statement of claim in this action proceeds from a premise that cl 10.2 stipulates that any Transfer Notice given to other BHL shareholders must be 'unconditional'. In contradistinction, cl 10.10 stipulates that where a valid Transfer Notice has been given and recipient BHL shareholders thereafter do not exercise preemptive rights in a two month window, a sale to a third party must not be on conditions more favourable to that third party purchaser than conditions earlier offered to BHL shareholder recipients under the (nonactioned) Transfer Notice. It is important that the BHL shareholder satisfies the requirement under cl 10.3 and cl 10.6(b) by making a statutory declaration about whether or not there has been a bona fide offer from a third party to buy BHL shares 'at or above' the price stipulated. If not, a compulsory valuation process can occur under cl 10.6(b) possibly resulting in a lower acquisition price.

32 Pankaj essentially says this preemptive right regime is commercially naïve and unworkable. He also argues it is fundamentally irreconcilable with a clear stipulation in cl 10.2 of the requirement for an unconditional Transfer Notice to BHL shareholders at first instance. The basal question for resolution that Pankaj raised is how can there be any question of possibly better sale conditions for a third party purchaser under cl 10.10, if the earlier Transfer Notice to be given to shareholders must be unconditional under cl 10.2?

33 This dispute concerning preemption rights was commenced in November 2010. It has not progressed quickly. I entered it in my CMC List on 17 February 2011, when I first encountered it, at the same time as I urgently dealt with a directions hearing for CIV 3078 of 2010. The action then essentially remained dormant whilst Radhika's action proceeded to a determination of agreed preliminary issues by my September Reasons.

34 On 4 October 2011, the action was listed for a directions hearing. A minute was submitted by Pankaj at that hearing, seeking to progress the action to a speedy trial. That course was opposed by Yara. It was apparent some procedural obstacles first needed to be addressed. First, Radhika's separate interests and discrete position needed to be corrected. She could not remain a coplaintiff. Radhika has become separately represented, albeit still supporting Pankaj. The action's present heading reflects that Radhika is a fourth defendant.

35 Second and more significantly, the statement of claim had to be corrected to show Pankaj and Radhika's true positions regarding their personal BHL shareholdings visàvis the SD.

36 Third, the stance of the Receivers and Managers needed to be clarified, given they are in a process of seeking to market, with a view to sale, Pankaj's, or Pankaj and Radhika's shares in BHL, to satisfy the debts owed by Pankaj and BFPL to the ANZ Bank, particularly in circumstances where Pankaj could not in his own right be a possible seller of his BHL shares given an unresolved receivership over his 30% BHL shareholding. I was informed at the time (at ts 5) that the Receivers and Managers were essentially content to let Pankaj do the 'heavy lifting' on this application - hence their nonparticipation was so explained at that time.

37 What is Pankaj's interest in an argument over the construction and validity of a preemptive rights clause in the SD? Pankaj is plainly not a prospective seller at present, given his debt to the ANZ Bank. Nor does he present as someone that would seem likely to be in a position to be a putative purchaser, upon a receipt of a Transfer Notice issued by the Receivers and Managers, of any of Radhika's BHL shares.

38 As further background I observe that the original statement of claim historically links these validity issues surrounding cl 10 of the SD to a Transfer Notice of 8 June 2010, then given by Pankaj to Yara (annexure GOS5 to Mr O'Shannessy's first affidavit) pursuant to cl 10.1 of the SD. Pankaj had by that Transfer Notice offered his fellow BHL shareholders (essentially, Yara and Radhika) 233,208,782 or 21.2% of (his) then 30% shareholding in BHL at a Prescribed Price of US$2.57 per share. By reference to requirements of cl 10.3, Pankaj indicated by his accompanying statutory declaration to the Transfer Notice of 2010 that he had received a third party offer from Kelso & Company (apparently a USA corporation) to buy his 233,208,782 BHL shares at US$2.57. In 2010 Pankaj was therefore offering this amount of his BHL shares first to other BHL shareholders at that same price by reference to cl 10.2.

39 After receipt of Pankaj's Transfer Notice, Yara did not take up the opportunity offered to it (open for two months) to acquire his BHL shares. Nor, it seems, did Radhika. If that Transfer Notice of Pankaj was validly given in 2010, the absence of fellow BHL shareholder interest for two months then allowed Pankaj, as a would be seller, a following period of three months to sell the same amount of BHL shares to external third parties at the price of US$2.57 or higher.

40 Nevertheless in 2010, a Mr Bill Terry for Yara communicated (see annexure GOS6) to Pankaj on 5 August 2010 that, in effect referring to cl 10.10, any sale by Pankaj must not be on terms 'more favourable' than those that had been offered to Yara in the 8 June 2010 Transfer Notice or Yara 'will take steps to enforce its preemptive rights'. A flurry of discordant correspondence between solicitors for Pankaj and Yara (see annexure GOS7) across October and November 2010 ensued. Pankaj's legal representatives eventually asserted, in effect, that cl 10 could not be complied with in practical terms and was therefore void (see Greg O'Shannessy's affidavit affirmed on 21 October 2011, page 155).

41 Prima facie, assessed by reference only to the known facts underlying the 2010 Transfer Notice at US$2.57 per share, I have some difficulty in ascertaining what the commercial obstacle was to Kelso's offer in that instance. An external sale of his BHL shares in 2010 by Pankaj at a price below US$2.57 a share to a third party would prima facie fall foul of cl 10.10. A sale to a third party at US$2.57 or higher, would not. If Kelso (or some other third party) purchased Pankaj's BHL shares at (say) US$2.58 a share or more, but on a basis of an accompanying advantage of a commercial kind (such as by favour of a delayed settlement, or perhaps with a benefit of vendor finance, or with some other 'sweetheart' condition that rendered the external sale a more attractive commercial proposition than the sale price earlier offered to fellow BHL shareholders under the Transfer Notice) then issues grounded on cl 10.10 over infringement and invalidity of such a third party sale of BHL shares would possibly arise. Clearly on such a controversy it would be essential to have a clear understanding of the precise terms and conditions offered to and accepted by the external purchaser. With that knowledge, some viable comparison exercise might be undertaken between an earlier 'deal' offered to the BHL shareholders holding preemption rights who received a Transfer Notice, as against the 'deal' ultimately attained with the external purchaser.

42 The June 2010 Transfer Notice of Pankaj became stale in November 2010. No sale of Pankaj's BHL shares to a third party is said to have ensued in the three month window. Nor is it said that there is now any looming prospect of Pankaj selling his BHL shares at US$2.57, or higher, to any party. I distinguish the distinct scenario of the Receivers taking steps to sell Pankaj's shares. Until the Receivers and Managers are removed, Pankaj is in no position to sell any of his shares in BHL (see cl 5.7(b) of his Share Mortgage, annexure GOS1 at page 21). Nor, subject to possible outcomes in unresolved Victorian litigation, can Radhika sell her BHL shares.

43 At present, there was no live issue over potentially more favourable terms of sale to an external purchaser of BHL shares, or identifiable and supposedly unworkable conditional terms in a Transfer Notice, or a likely sale pending of BHL shares by Pankaj to anyone.

44 Any cl 10 Transfer Notices involving Pankaj and Radhika's BHL shares (or combinations of their BHL shares) is (until the ANZ debt is discharged) only likely to issue at the behest of the Receivers and Managers. Any Transfer Notice would likely issue by the Receivers exercising security rights as attorneys for Pankaj and/or Radhika. Likely Transfer Notice recipients would (undoubtedly) be Yara (an acknowledged 35% shareholder in BHL) and (possibly) Radhika.

45 Pankaj (supported by Radhika) argues that, while personally he is in no position himself to sell or to issue a Transfer Notice concerning his (30%) BHL shares, nevertheless, he is interested in any share sale process involving his BHL shares. He says that he is of course interested in any residual funds that may flow back to him after a sale of his BHL shares by the Receivers after the debt has been met. He says that any outcome in this litigation that found that the cl 10 preemptive provisions were void would render the Receivers' likely sale of his BHL shares easier, more commercially attractive and more marketable. That of course is bare assertion. It is not supported by evidence at this time.

46 Pankaj says he is surprised the Receivers and Managers are not taking the same steps he is in order to maximise (as he would see it) the value in his BHL shares. He also says he is concerned about the sale process for his 30% holding in BHL by the Receivers, but does not elaborate. In my view, the current forum in which Pankaj raises those sort of general concerns, is not appropriate. If he wishes to continue with claims about the integrity of the sale process by the Receivers and Managers, he should do so in an orthodox fashion, rather than by side wind in this action.

47 Pankaj argues he must be allowed to prosecute this action to a speedy determination. He says that if he is right and cl 10 is assessed to be void by reason of uncertainty, that would be a positive outcome if the preemption obligations of cl 10 do not apply to a looming sale of his (or Radhika's) BHL shares by the Receivers and Managers. Not only that, it is said by Pankaj that the assessed voidness of cl 10 then impacts on cl 9 of the SD because of cl 9's restrictions imposed against uninhibited transfer of BHL shares. It is said that a fall of cl 10 negates one of the limited options available to the BHL shareholders to effect a share sale transfer, thereby rendering cl 9 overall as an unlawful restraint against trade and competition. With cl 9 also being void, it is further said by Pankaj that not only do cll 9 and 10 fall but now, the whole of the SD is rendered void. The end result of invalidity of the SD follows, apparently, because cll 9 and 10 are said to be such integral components of the SD that their dual excision reverberates against the validity of the whole of the SD.

48 With global avoidance of the SD the shareholders of BHL would then revert to being governed by the orthodox corporate governance regime of a board elected at a general meeting, in accord with provisions of BHL's Constitution.

49 Pankaj's argument towards a global voidness of the SD as a whole, is seen under more recent amendments to his statement of claim. It is necessary to recite the last paragraphs of that pleading and as well, Pankaj's amended prayer for relief:

1. Clause 10.2 is ambiguous in that at least the following constructions are arguable:

18.1 A Transfer Notice must specify the price per Share expressed in Australian Dollars or US Dollars ('Prescribed Price') at or above which the sale is to proceed and contain no other terms and conditions ('No Terms' construction);

18.2 A Transfer Notice must be unconditional, in the sense that the obligation to Transfer the Shares must not be conditional upon the occurrence of an event, but may otherwise contain terms and conditions of the proposed Transfer ('Terms' construction).

1. Under the No Terms construction, an inconsistency arises between the provisions of Clauses 10.2 and 10.10 in that:

19.1 By Clause 10.1 a Proposing Transferor may only include in a Transfer Notice a condition specifying the Prescribed Price at or above which the sale is to proceed;

19.2 By Clause 10.10 the Proposing Transferor may transfer all or any part of the Offered Shares to any third party at any price per Share not being less than the Prescribed Price and on other terms and conditions not more favourable to the third party than the terms and conditions contained in the Transfer Notice;

19.3 Consequently, Clause 10.10 assumes the existence of a number of terms and conditions in the Transfer Notice whereas clause 10.2 assumes the existence of a single condition in the Transfer Notice being a condition nominating the Prescribed Price;

19.4 In those circumstances it is not possible to conduct a comparison between:

(a) the single condition nominating the Prescribed Price contained in the Transfer Notice; and

(b) the terms and conditions of a Transfer of all or any part of the Offered Shares to a third party

so as to ascertain whether the latter terms and conditions are not more favourable to the third party within the meaning of Clause 10.10.

1. Further, an inconsistency arises between Clauses 10.1 and 10.2 in that:

20.1 By Clause 10.1 a Transfer Notice may include a condition that if not all the Shares are sold then none will be sold;

20.2 By Clause 10.2 a Transfer Notice must be unconditional other than a condition as to the Prescribed Price at or above which the sale is to proceed.

1. By reason of the matters pleaded in paragraphs 19 to 21 Pankaj contends and Yara denies, or does not admit, that Clause 10 of the Shareholders Deed is, or parts of it are, void for uncertainty.

...

Consequential Invalidity of Clause 9.1 of Shareholders Deed

1. Further to the foregoing, Clause 9.1 of the Shareholders Deed provides:

9.1 A Shareholder must not Transfer Shares it holds or to which it is entitled except:

(a) as set out in clauses 9.2, 9.3 or 9.5;

(b) either pursuant to or for the purposes of an initial public offering in relation to a listing of [BHL] on a stock exchange ('IPO'); or

(c) where all the Shareholders otherwise agree.

9.3 Subject to clause 9.1, a Shareholder must not Transfer, directly or indirectly, its Shares unless it first issues a Transfer Notice to the Board in accordance with clause 10 and complies with clauses 10 and 11 inclusive in respect of that Transfer.

1. If Clause 10 of the Shareholders Deed is void for uncertainty, then:

25.1 [sic] Clause 9.1 is void as an unlawful restraint on the alienation of property;

25.2 [sic] alternatively, Clause 9.1 is void as a contract in restraint of trade.

1. By reason of the matters pleaded in paragraphs 22 to 25, the whole of the Shareholders Deed is void for uncertainty.

1. A declaration that the whole of the Shareholders Deed is void for uncertainty.
2. Alternatively, a declaration that Clause 10 or parts of it are void for uncertainty.
3. Further or alternatively, a declaration that Clause 9.1 is void:

(a) as an unlawful restraint on the alienation of property;

(b) alternatively, as a contract in restraint of trade.

1. Alternatively a declaration as to the proper construction of Clause 10 of the Shareholders Deed.

50 Yara's position at the 9 November 2011 directions hearing was that Pankaj, in seeking to progress this action to a trial under his recently amended statement of claim to pursue a global voidness outcome for the SD, was acting inconsistently with a position he and his wife took in the preliminary issue proceedings in CIV 3078 of 2010. This it is said was a clear abuse of process.

51 In CIV 3078 of 2010, Pankaj as second defendant filed a defence of 23 March 2011 and a defence to Yara's counterclaim on 28 March 2011 by which he supported Radhika, who was sole plaintiff in those proceedings. Radhika sought, by reason of the combined and enforceable workings of the SD and the SSA, to establish she and Pankaj were both bound by the obligations of the SD and so, entitled to exercise rights and enjoy all benefits under the SD (such as to appoint Nominee Directors to BHL's board).

52 In addition, Pankaj's defence plea in CIV 3078 of 2010 (par 2(b)) was that he enjoyed and could exercise rights as a BHL Nominee Director (having earlier been nominated pursuant to cl 4.1(c) of the SD) and having remained on the board of BHL, in accordance with terms of the SD.

53 In the end, Pankaj did not participate by counsel in the hearing of the preliminary issue in CIV 3078 of 2010. He relied on his pleading and advised that he abided by the outcome of the preliminary issue hearing.

Decision on Pankaj's inconsistent positions in the two actions

54 I was of the view that Pankaj's contention that the SD is globally void would be advancing a case fundamentally inconsistent with the position he and Radhika mutually advanced in the preliminary issue proceedings. A brief review of the September Reasons clearly demonstrated that to be so. The conclusion was hardly contested on this application.

55 To now advance a contradictory position, at least until the appeal and crossappeals are resolved and produce different outcomes, is a real abuse of process in my assessment. I accepted all Yara's submissions in that respect. However, there are other obstacles for Pankaj.

56 Yara also raised objections grounded upon Pankaj's lack of standing to pursue the declaratory relief he seeks regarding cl 10 and the SD. This submission must be assessed against some key considerations I have already mentioned, namely:

(a) At present, by reason of the Receivership, Pankaj is not in a position to sell his (30%) BHL shares;

(b) Yara, the likely recipient of any Transfer Notice from the Receivers in the event of a proposed sale of Pankaj's or Radhika's BHL shares at the instigation of the Receivers, tells this Court in clear terms that there are no difficulties over the workings of cl 10 of the SD;

(c) a presently unresolved litigation in Victoria concerning Radhika's 35% holding of BHL shares (and the Receivers' control and rights to deal with those shares); and

(d) the unheard and unresolved appeal and crossappeals of my September Reasons concerning the SD and the SSA.

57 Allied to those considerations is a fifth significant factor. Just before the directions hearing on 26 October 2011, in response to my further enquiry as to whether or not the Receivers and Managers (as putative sellers) wished to personally participate in the resolution of this matter (as they had in the preliminary issue), the Receivers advised the court through solicitors (Freehills) (see annexure GOS9 to affidavit of Gregory John O'Shannesy sworn 2 November 2011):

The Receivers and Managers consider that the Shareholders Deed is operative and confers rights and obligations upon the respective shareholders. This was the position which they adopted in CIV 3078 of 2010 and it remains their position. The Receivers and Managers are unaware of any dispute in respect of the operation of clause 10 of the Shareholders Deed and accordingly consider that the issue raised in this current proceeding is entirely hypothetical.

(my emphasis in bold)

58 That stance was expressly confirmed by counsel for the third defendant (BFPL - to whom the same Receivers and Managers have been appointed) at the directions hearing on 26 October 2011 (ts 54). Mr de Kerloy said:

As your Honour was aware, in the earlier proceedings involving the Shareholders Deed we disavowed uncertainty for obvious reasons, and that matter is now on appeal and we're not going to be blowing hot in one case and cold in another. The short point is that unless and until there is a dispute about a transfer notice, which there is not, the matter is hypothetical, and there may never be a dispute about the transfer notice that is given.

59 The stance of the Receivers and Managers is relevant to assessing whether or not there is at present a live dispute and, if so, whether it is viably susceptible to any early resolution at Pankaj's behest.

60 Yara raised additional concerns as to a need to join the Receivers personally to this action (see the expressed position by counsel for those Receivers and Managers at ts 55). Yara also says that the position concerning Radhika's change in status from a coplaintiff at the outset of this action with her husband to now being fourth defendant was irregular. But I am not influenced by either of these considerations. The Receivers may be joined as defendants to the proceedings in future, if any party truly believes that to be necessary. Even then, joinder does not connote active participation. It is clear that the Receivers are well apprised of these proceedings and of their potential implications. Further, given Radhika's separate legal representation, after commencement of this action on 9 November 2010, it is clearly appropriate Radhika be a party, but that she can no longer be a coplaintiff. I will grant leave for the change in Radhika's participatory status from coplaintiff to fourth defendant.

61 As fourth defendant Radhika might in future get to a position to eventually seek relief herself, under a counterclaim concerning her 35% BHL shareholding, or as a potential recipient of a Transfer Notice (from the Receivers) applicable to some component of her husband's (30%) BHL shares. None of that has happened. Possible ramifications of her unresolved Victorian litigation also need to be kept in mind. On this application, through senior counsel, Radhika supported her husband's position to progress the action to an early trial, pointing to the jurisdiction of the court to grant the declaratory relief in circumstances where future events may arise that need to be evaluated as against cl 10 of the SD.

Determination of the application for a temporary stay prior to 13 December 2011

62 I was of the view that the present action must be stayed. Apart from the fundamental abuse of process consideration already mentioned, I have no doubt that the potential jurisdiction of this Court could extend to a grant of declaratory relief in appropriate circumstances by reference to a future event or contingency. In many instances an exercise of this jurisdiction will be appropriate, but this is not such a case. There are simply too many complicated, distracting and unresolved uncertainties bearing upon the SD construction and validity exercise that is advocated by Pankaj. In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 582, Mason CJ, Dawson, Toohey and Gaudron JJ observed:

It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' [Forster v Jododex Aust Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437 per Gibbs J] However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions [See In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257]. The person seeking relief must have 'a real interest' [Forster (1972) 127 CLR at 437 per Gibbs J; Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 per Lord Dunedin] and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' [University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 at 10 per Gibbs J] or if 'the Court's declaration will produce no foreseeable consequences for the parties' [Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188 per Mason J; see also 189 per Aickin J; 18 ALR 55 at 69, 71 respectively].

(my emphasis in bold)

63 Those observations present to me as directly on point. The High Court's reasoning was recently applied in a contractual context by Murphy JA in Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2011] WASCA 219 at [216]. The difficulties may be briefly recalled.

64 First, Pankaj as plaintiff is now advancing a position that cannot be reconciled with a stance he and his wife took in CIV 3078 of 2010.

65 Second, Pankaj is not able to sell any of his 30% BHL shareholding. The likely seller (the Receivers and Managers) clearly tells the court there is no dispute, rendering questions Pankaj would seek to ventilate about cl 10 as hypothetical. The position is echoed by Yara as a prime recipient of a Transfer Notice from the Receivers and Managers.

66 Third, following from the second point, there is the real and pragmatic difficulty over how a construction of cll 9 and 10 of the SD could viably or usefully be undertaken in an absence of an underlying edifice of surrounding facts concerning a likely external share sale sufficient to test the workings in practice of cl 10. In my view, construction arguments over possible workings of conditions of sale and transfer notices (within a framework of cll 10.2 and 10.10 of the SD) cannot usefully or viably proceed in a 'fact vacuum'.

67 When it comes to assessing arguments about the commerciality or workings of preemptive right related conditions in a share sale, there is a virtually limitless array of different potential sale conditions that could be hypothesised. Each could carry its own unique ramifications. For example, sale conditions could be hypothesised concerning:

(i) settlement of a purchase price within three business days on a Transfer Notice in cleared funds (cl 10.7), measured against a subject to finance condition, a scenario of vendor assisted finance or even, delayed settlement to an external purchaser;

(ii) a conditional external sale on the basis of the required entry into of the Assumption Deed (cll 9.7(a) and 11) as required by the SD; or

(iii) an external sale subject to the satisfactory completion of a due diligence provision in favour of the purchaser, or the approval(s) of relevant authorities (e.g. FIRB, ACCC, Treasury etc).

68 A task of constructing the cl 10.2 requirement for an unconditional Transfer Notice, as against expressed constraints in cl 10.10 against a sale of BHL shares to a third party at not less than 'Prescribed Price', presents to me as unreal and unachievable without a sufficient underlying framework of facts. Absent that, the attempted construction process essentially would run the risk of degenerating into an oppressive exercise examining virtually limitless postulated theoretical sale conditions that could be as open ended as a vivid imagination would sustain. That is especially so where proposed arguments asserting the irreconcilability of cl 10's internal provisions are advanced on a basis of asserted uncommercial implications of the preemption right regime.

69 Until Pankaj is able to discharge the ANZ debt and the receivership, any dispute about validity of the preemption provisions in the SD presents as sterile coming from his quarter. The observations in Ainsworth v Criminal Justice Commission are applicable.

70 Allied to that is the presently unresolved state of an appeal and crossappeals in CIV 3078 of 2010, involving complex construction issues visàvis the SD, and Radhika's unresolved Victorian litigation.

71 All in all, these issues present too many imponderables for a viable construction or validity assessment exercise of cl 10 to be undertaken.

72 In the circumstances, I was prepared to order a temporary stay of the action, applicable until resolution of the appeal and crossappeals from my September Reasons, or until further order.

The further directions hearing on 13 December 2011

73 On 9 December 2011, I received a letter from Yara's solicitors. By this letter I was informed that further facts had arisen since the directions hearing of 9 November 2011 which concerned matters that I had reserved for decision. To that end, the matter was relisted for directions on 13 December 2011.

74 At this hearing I was advised by counsel for Yara that the Receivers and Managers had issued Transfer Notices offering both Pankaj and Radhika's 65% stake in BHL for sale.

75 Yara's position was that, whilst the court needed to be informed of the development, its stance resisting this action remained essentially unchanged. The Receivers and Managers supported that position.

76 On the other hand, in light of the live Transfer Notice, Pankaj, by senior counsel, pressed for the programming of the matter to an early trial in January 2012.

77 At the hearing a number of points occurred to me. Firstly, the Transfer Notice that Yara referred to at the hearing was not then before me. This made it difficult, as I had no real insight into the material apart from what I was told by counsel from the bar table.

78 Second, the revelation of live Transfer Notices raised questions as to whether or not my initial concerns regarding the matter's hypothetical nature remained relevant. In reserving my decision, I allowed the parties 48 hours to put any further written submissions or materials regarding the progression of the matter.

79 Subsequently, I received three pieces of correspondence from the parties. By email to my Associate, Yara's solicitor indicated that Yara did not propose to file any further submission and continued to rely upon its previous submission, as qualified by the oral submission before me on 13 December 2011, specifically that Pankaj cannot advance inconsistent positions in the different actions; the court has ruled, in my September Reasons, that the parties have rights under the SD and lastly, the question still remains hypothetical as Pankaj is not likely to be either a buyer or seller of BHL shares.

80 Pankaj's solicitors took up the opportunity I afforded them to provide further evidence. Presently live Transfer Notices were submitted as attachments GOS14 to Mr O'Shannessy's affidavit affirmed on 15 December 2011.

81 I received written submissions from Radhika dated 16 December 2011 and an affidavit of Jennifer Mary Hill, sworn 15 December 2011 with attachment JMH1. In those submissions, Radhika now argues that, given the contents of attachment GOS14 to Mr O'Shannessy's third affidavit, the arguments advanced by Yara and the Receivers that the issue was hypothetical can no longer be maintained. It is on this basis that Radhika further argues that a live Transfer Notice for her BHL shareholding raises the following issues for further determination; whether a transfer of shares can only occur with other BHL shareholders' consent, whether the Transfer Notice is a valid notice and whether the Transfer Notice has been validly given.

82 These issues raised by Radhika's solicitors may well be live for Radhika, however, as I have previously stated at [61], it is not proper to deal with them until Radhika amends her counterclaim to reflect a position she indeed foreshadows in written submissions.

83 In my view, upon further reflection, these most recent developments do not alter my determination of Pankaj's application.

84 My view that it is not appropriate that Pankaj agitate the issues outlined in his amended statement of claim is not affected by the event of live Transfer Notices. It is a clear abuse of process by both Pankaj and Radhika to put forward arguments in CIV 3078 of 2010 that asserts they are afforded management rights under the SD, but to later advance arguments in the present matter that the same SD is wholly invalid.

85 For these reasons I order that the action be stayed until the Court of Appeal resolves the appeals and crossappeals in CIV 3078 of 2010 or until further order.

CITATION : OSWAL -v- YARA AUSTRALIA PTY LTD [2011] WASC 355 (S)

YARA PILBARA HOLDINGS LTD (FORMERLY BURRUP HOLDINGS LIMITED)

YARA PILBARA FERTILISERS PTY LTD (FORMERLY BURRUP FERTILISERS PTY LTD)

Costs issue - Resolved on papers - Indemnity costs - Abuse of process

Plaintiff ordered to pay first defendant's costs on an indemnity basis

1 KENNETH MARTIN J: In the aftermath of my reasons for decision of 19 December 2011 granting a temporary stay in this action, the parties conferred in relation to dispositive orders.

2 The first defendant, Yara, submitted a minute of proposed orders dated 17 January 2012. Subsequently, I received Yara's written submissions of 1 March 2012 in support of orders proposed under its minute. I also received submissions on behalf of the third defendant (formerly Burrup Fertilisers Pty Ltd, which I will continue to identify as BFPL) and on behalf of the former receivers and managers appointed to BFPL. The third defendant's name is now changed to Yara Pilbara Fertilisers Pty Ltd.

3 I have also since received written submissions on behalf of the plaintiff (Pankaj) of 8 March 2012 and from the fourth defendant (Radhika) of 9 March 2012.

4 Yara's written submissions in reply were then received on 19 March 2012.

5 Yara's minute of 17 January 2012 proposed five orders. The first three orders are uncontentious. They relate to:

(a) the confidentially of an exhibit, GOS14 within the affidavit of Gregory O'Shannessy, affirmed 15 December 2011;

(b) the formalisation of Radhika's altered position as fourth defendant (see my reasons in Oswal v Yara Australia Pty Ltd [2011] WASC 355 [60]); and

(c) the temporary stay of this action pending the determination of appeals and crossappeals in the Court of Appeal of Western Australia numbered CACV 121 of 2011.

6 The fourth and fifth orders proposed under Yara's minute are problematic in parts. As formulated they seek:

1. The Plaintiff and the Fourth Defendant pay forthwith the First Defendant's costs of and incidental to the hearings in the proceeding on 14 October 2011 [corrected as to date by par 9 of Yara's submissions], 26 October 2011, 9 November 2011 and 13 December 2011 and the First Defendant's chamber summons dated 8 November 2011 except in so far as they are of an unreasonable amount or have been unreasonably incurred so that, subject to the above exceptions, the First Defendant will be completely indemnified by the Plaintiff and Fourth Defendant for its costs and that the amount of such costs, if not agreed, be taxed.
2. The Plaintiff and the Fourth Defendant pay forthwith:

(a) the Third Defendant's; and

(b) Ian Carson, David McEvoy and Simon Theobald's, the receivers and managers of certain shares in Burrup Holdings Ltd,

costs of and incidental to the hearings in the proceeding on 26 October 2011 and 13 December 2011 and the First Defendant's chamber summons dated 8 November 2011 and that the amount of such costs, if not agreed, be taxed.

7 Proposed order 4 of the minute seeks that Pankaj (as plaintiff) and Radhika (as fourth defendant) pay Yara's costs of the interlocutory proceedings, essentially on an indemnity basis. As to costs, Pankaj will accept an exposure to taxed costs only.

8 I say at the outset that I am not persuaded that any orders as to costs either on a taxed or indemnity basis should be made against Radhika. In my assessment Pankaj was the protagonist upon all applications, albeit supported by his wife, first as his coplaintiff, then subsequently as, in effect, a fourth defendant. She was in these applications separately represented by solicitors and counsel. Her own interests, as a BHL shareholder, were plainly distinct to those of Pankaj. On my assessment briefly expressed support she provided through independent counsel towards positions advocated by Pankaj from time to time did not to any significant extent result in any extra costs being incurred in the proceedings.

9 So the residual question finally presents as to whether, by Yara's proposed order 4, an order for indemnity costs against Pankaj should be made in favour of Yara. As I observed, Pankaj by written submissions would accept an order against him for taxed costs i.e. costs orders on a party and party basis; but not for indemnity costs.

10 The fifth proposed order of Yara's minute also relates to legal costs. It addresses a claim to legal costs by BFPL (third defendant), plus a distinct further claim to costs by Ian Carson, David McEvoy and Simon Theobald personally, made as the individual nonparties who were formerly appointed receivers and managers to BFPL as well as the appointed receivers and managers over all of Pankaj's and some of Radhika's shares held in BHL (second defendant).

11 As regards such costs under proposed order 5, Pankaj submits by par 2 of his written submissions that, 'The plaintiff does not oppose the order sought by Messrs Carson, McEvoy and Theobald as the former receivers and managers of certain shares in the third defendant ... in par 18 of the third defendant's submissions'.

The receivers request that the Court exercise its broad discretion and order that the first plaintiff ... pay the receivers costs of and incidental to the hearings of 26 October 2011, the chamber summons of 8 November [2011] and the hearing of 13 December 2011 to be fixed in the amount of $3,000.

13 As to the three receivers and managers personally, I will make an order in due course that picks up this concession by Pankaj. But the proposed order 5 by Yara has wider dimensions.

14 Since it is the minor part of the controversy, I will first resolve the balance of proposed order 5, beyond what is effectively conceded by Pankaj at par 2 of his written submissions as regards the receivers and managers personally. I reiterate I do not think it appropriate that there be costs orders against Radhika.

15 The remaining issue as regards proposed order 5 concerns BFPL's claim for party and party costs under proposed order 5(a) in respect of hearings before me on 26 October and 13 December 2011 and of Yara's chamber summons of 8 November 2011. As I read Pankaj's submissions, he does not accept this part of the costs claim.

16 As BFPL's written submissions correctly observe, BFPL's attendance was requested by me, for 26 October 2011. That was essential, I thought, bearing in mind an urgent need then for the court to assess the potential utility (if any) in setting down for urgent hearing a construction exercise concerning the Shareholders Deed, mooted at the instigation of Pankaj.

17 On 26 October 2011, I was assisted by information provided by counsel for BFPL concerning the status of the sale process and surrounding matters. The like scenario applied on 13 December 2011, as regards a need for counsel for BFPL's attendance that day.

18 I am of the view that BFPL's costs of those exercises ought be borne by the ultimately unsuccessful party, Pankaj, as the relevant protagonist plaintiff. That should also be the case in respect of any costs incurred by BFPL, as regards Yara's chamber summons of 8 November 2011, seeking orders (including for the stay) that were opposed by Pankaj (but which I ultimately granted).

19 Accordingly, with its components addressed, order 5 will be:

The plaintiff pay forthwith:

(a) the third defendant's; and

(b) Ian Carson, David McEvoy and Simon Theobald's, the former receivers and managers of certain shares in Burrup Holdings Ltd,

costs of and incidental to the hearings in the proceeding of 26 October 2011 and 13 December 2011 and the first defendant's chamber summons dated 8 November 2011, which will be:

(i) as to the third defendant, its taxed costs if not agreed; and

(ii) as to the costs of Carson, McEvoy and Theobald, an amount fixed at $3,000.

20 With order 5 resolved I return to the disputed indemnity costs order sought against Pankaj by Yara under proposed order 4.

21 Principles applicable to the making of indemnity costs orders were summarised by Pullin JA and I in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. We identified 10 principles. Relevantly, principles 4 and 10 were these:

1. To obtain an indemnity costs order, it is not the case that the successful party needs to show a collateral purpose, or establish some species of fraud against the unsuccessful party. In JCorp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 42; (1993) 46 IR 301 303 French J by reference to the observations of Woodward J in Fountain Selected Meats, said:

It is sufficient, in my opinion, to enliven the discretion to award such costs that, for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case.

1. Nonetheless, an indemnity costs order will constitute an appropriate sanction marking the disapproval of improper or unreasonable conduct: see Brookvista Pty Ltd v Meloni [2009] WASCA 180 [32], Flotilla [25]. In Flotilla Pullin J said [26]:

A solicitor should not, in my view, resort to an application for an indemnity costs order merely to secure the recovery which could be achieved by a properly formulated special costs order, unless the unsuccessful party's conduct is genuinely to be impugned by the successful party.

22 Here, I did ultimately grant the temporary stay as sought by Yara, for a number of reasons. The significant reason identified at [54], [55] and [84] was that in pursuing a contention that the Shareholders Deed was globally void, Pankaj would be advancing a position that would be fundamentally inconsistent with an earlier position that he and Radhika had advanced (essentially as between the same parties), on the preliminary issue I determined in September 2011: see Oswal v Yara Australia Pty Ltd [No 3] [2011] WASC 255 (where Radhika sought declaratory relief supported by Pankaj as to their rights under that Shareholders Deed).

23 At [84] I identified that an abuse of process would arise, were I to allow Pankaj (or Radhika) to advance inconsistent arguments, as regards his and Radhika's management rights under the Shareholders Deed. The position then sought to be advanced by Pankaj in this action - that the Shareholders Deed was void - was wholly at odds, in my assessment, with the earlier stance by Pankaj and Radhika in CIV 3078 of 2010.

24 Written submissions of Yara filed in support of its present application for indemnity costs show that the inconsistency of position by Pankaj had been clearly pointed out by Yara as far back as 13 June 2011. But no response of any kind, let alone the obvious concession, was ever received in response.

25 Yara then put Pankaj (and Radhika) on notice that indemnity costs orders would be sought, if they persisted. Notwithstanding all that, Pankaj's application was still pressed. Ultimately Yara's stance as regards a potential abuse of process by Pankaj has been vindicated by its success in obtaining the temporary stay.

26 The stance of Pankaj in first advancing in this action, then pressing, an inconsistent position that I ultimately assessed would be an abuse of process, supports here an invocation of principle 10, as explained in Swansdale. There has been, as I assess it, unreasonable conduct by Pankaj in adhering to a stance which was inconsistent, particularly so after the very problem was clearly pointed out, but then essentially ignored. So it is appropriate the court mark its disapproval of what followed in consequence. The legal costs of participants drawn into unnecessary disputation should be the subject of an indemnity costs order against Pankaj.

27 But, as indicated, the adverse costs order should only be directed against Pankaj, as the operative unsuccessful protagonist.

28 Accordingly, there will be an order in terms of par 4 of the minute as proposed, save that I will excise its proposed references to Radhika (the fourth defendant).

29 I now make orders in those adjusted terms by reference to the minute submitted, as follows:

1. Exhibit GOS14 to the affidavit of Gregory O'Shannessy affirmed 15 December 2011 be placed in a sealed envelope and not be available for inspection by any person not a party to the proceeding other than officers of the court.
2. Radhika Oswal be granted leave to:

(a) cease being a coplaintiff in this proceeding; and

(b) be joined as a fourth defendant to the proceeding.

(a) the determination of the appeal and crossappeals in Supreme Court of Western Australia Court of Appeal proceeding numbered CACV 121 of 2011; or

1. The plaintiff pay forthwith the first defendant's costs of and incidental to the hearings in the proceeding on 14 October 2011, 26 October 2011, 9 November 2011 and 13 December 2011 and the first defendant's chamber summons dated 8 November 2011, except insofar as they are of an unreasonable amount or have been unreasonably incurred so that, subject to the above exceptions, the first defendant will be completely indemnified by the plaintiff for its costs and that the amount of such costs, if not agreed, be taxed.
2. The plaintiff pay forthwith:

(b) Ian Carson, David McEvoy and Simon Theobald's, the former receivers and managers of certain shares in Burrup Holdings Ltd,

costs of and incidental to the hearings in the proceeding of 26 October 2011 and 13 December 2011 and the first defendant's chamber summons dated 8 November 2011, which will be:

(i) as to the third defendant, its taxed costs if not agreed; and

(ii) as to the costs of Carson, McEvoy and Theobald, an amount fixed at $3,000.