Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : MINERALOGY PTY LTD -v- SINO IRON PTY LTD [No 13] [2016] WASC 403

Equity - Injunction - Mandatory interlocutory injunction to pay money - Primary judge granted respondent a mandatory interlocutory injunction compelling the appellants to pay sums for royalties under a disputed term of a contract - Respondent's action to recover alleged unpaid royalties as debts or to recover damages in like amounts for breach of contract - Debts disputed as to both liability and quantum - Interlocutory orders requiring payments into court and payments to respondent - Interlocutory payment orders not made in terms of 'until after judgment in the action or further order' - Primary court finding to the effect that there was a legitimate concern of a strong likelihood that the respondent would not be able to repay moneys paid to it under interlocutory payment orders if appellants succeeded at trial - No finding that appellants would be unable to pay disputed debts if respondent succeeded at trial - Whether respondent had demonstrated an equity to interlocutory mandatory relief - Whether 'restoring balance' between the parties arising from earlier injunction proceedings brought by the appellants a relevant consideration - Whether interlocutory payment orders effectively circumvented summary judgment procedure

Practice and procedure - Application to adduce additional evidence - Turns on own facts

First Appellant : Mr C M Scerri QC & Ms T Spencer Bruce

Second Appellant : Mr C M Scerri QC & Ms T Spencer Bruce

Third Appellant : Mr C M Scerri QC & Ms T Spencer Bruce

Respondent : Mr T Bradley QC & Mr K S J Byrne & Mr T March

AB v CD [2014] EWCA Civ 229; (2015) 1 WLR 771

Action Cycles Pty Ltd v Ross [2011] VSCA 411

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Associated Bulk Carriers Ltd v Koch Shipping Inc [1978] 2 All ER 254

Attfield v D J Plant Hire and General Contractors Co Ltd [1987] Ch 141

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57

Bankstown City Council v Alamdo Holdings Pty Limited [2005] HCA 46; (2005) 223 CLR 660

Beswick v Beswick [1967] UKHL 2; [1968] AC 58

Bridge Wholesale Acceptance Corporation (Australia) Ltd v Burnard (1992) 27 NSWLR 415

Bristol City Council v Lovell (1998) 1 WLR 466

Burns Philp Trust Co Pty Ltd v Kwikasair Freightlines Ltd [1963] SR (NSW) 492

Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499

Cardile v LED Builders Pty Limited [1999] HCA 18; (1999) 198 CLR 380

CB Direct Pty Ltd v Challenger Mortgage Management Pty Ltd [2009] NSWSC 334

Coulls v Bagot's Executor and Trustee Company Limited [1967] HCA 3; (1967) 119 CLR 460

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Dougan v Ley [1946] HCA 3; (1946) 71 CLR 142

Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349

Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87

Golden Sands Pty Ltd v Excel Quarries Pty Ltd [2006] VSC 454

Greenwood v Turner (1891) 2 Ch 144

Harnett v Yeilding (1805) 2 Sch & Lef 549

Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56 NSWLR 298

Hodgson v Duce (1856) 2 Jur (NS) 1014

House v The King [1936] HCA 40; (1936) 55 CLR 499

Ireland v Norilya Minerals Pty Ltd [2010] WASCA 203

Issa v Berisha (1981) 1 NSWLR 261

Jackson v Sterling Industries Ltd (1986) 12 FCR 267

JC Williamson Limited v Lukey [1931] HCA 15; (1931) 45 CLR 282

Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822

Lewis v James (1886) 32 Ch D 326

Loan Investment Corporation of Australasia v Bonner [1969] UKPC 33; [1970] NZLR 724

McCarty v The Council of the Municipality of North Sydney [1918] NSWStRp 33; (1918) 18 SR (NSW) 210

McIntosh v Dalwood (No 4) [1930] NSWStRp 36; (1930) 30 SR (NSW) 415

Mills v Northern Railway of Buenos Ayres Company (1870) LR 5 Ch App 621

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2015] WASC 454

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55

Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [2016] WASC 403

Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14] [2017] WASC 17

Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 6] [2015] WASC 80

Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 8] [2015] WASC 473

Moore v Assignment Courier Ltd [1977] 1 WLR 638

Norilya Minerals Pty Ltd v Adam Jonathon Ireland as Named Executor of the Estate of Dean Edward Ireland [2010] WASC 260

Pakenham Upper Fruit Company Limited v Crosby [1924] HCA 55; (1924) 35 CLR 386

Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1

Proctor v Bayley (1889) 42 Ch D 390

R v MacFarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518

Reliance Financial Services v Lemery Holdings [2006] NSWSC 1079

Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238

Saunders v The Public Trustee [2015] WASCA 203

Simsek v MacPhee [1982] HCA 70; (1982) 148 CLR 636

Sydney Consumers' Milk and Ice Co Ltd v Hawkesbury Dairy and Ice Society Ltd [1931] NSWStRp 26; (1931) 31 SR (NSW) 458

Tait v R [1962] HCA 57; (1962) 108 CLR 620

Telstra Corporation Ltd v First Netcom Pty Ltd [1997] FCA 860; (1997) 78 FCR 132

Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107

Van Amstel v Country Roads Board [1961] VicRp 118; [1961] VR 780

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Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276

Wicks v Wicks [1997] EWCA Civ 3050; [1998] 1 All ER 977

Wight v Haberdan Pty Ltd [1984] 2 NSWLR 280

Wilson v Northampton & Banbury Junction Railway Company (1874) LR 9 Ch App 279

Young v Queensland Trustees Limited [1956] HCA 51; (1956) 99 CLR 560

1 This matter involves two related appeals. The first appeal (CACV 4 of 2017) is an appeal against a decision of Kenneth Martin J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13][1] (primary decision). The second appeal (CACV 13 of 2017) is an appeal against a decision of the same judge in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14][2] (Mineralogy No 14). Mineralogy No 14 is, in substance, a decision which is supplementary to the primary decision.

2 The decisions under appeal relate to certain mandatory interlocutory injunctions granted by the primary judge requiring the appellants (CITIC Parties) to pay disputed debts to the respondent (Mineralogy) and into court.

3 Mineralogy holds mining tenements and a general purpose lease over land in the Pilbara in Western Australia. On 21 March 2006, Mineralogy entered into certain agreements (Mining Agreements) with the first appellant (Sino) and the second appellant (Korean). The Mining Agreements are relevantly in identical terms. Sino and Korean are given, under their respective agreements, a right to mine for magnetite ore (up to an extraction limit), and a site lease for the construction and operation of their processing facilities. The third appellant (CITIC) is the holding company of Sino and Korean, and Mineralogy contends that it is the guarantor of Sino and Korean.

4 Sino and Korean now operate the Sino Iron Project, a large-scale magnetite mining ore project, on the land pursuant to the Mining Agreements. Sino and Korean have apparently expended $8.4 billion on the project.

5 The Mining Agreements, by cl 8, provide for the payment of royalty to Mineralogy, by quarterly payments.[4] The royalty has two components, 'Royalty Component A' (Royalty A) and 'Royalty Component B' (Royalty B). Royalty B (if enforceable) greatly exceeds Royalty A. A dispute in relation to Royalty A was determined in earlier proceedings in 2013.[5] There appears to be no dispute in this appeal that since the resolution of proceedings in relation to Royalty A, Sino and Korean have paid Royalty A in accordance with the Mining Agreements.

6 There remains a dispute about Royalty B. Royalty B applies to magnetite ore that has been produced into 'Product'. Product, for this purpose, was first produced in 2013.

7 In general terms, the contractual formula for Royalty B has two parts. One relates to the price of Brazilian pellets and the other relates to the price of Mount Newman fines. Each component is expressed in terms of the 'prevailing published annual FOB price' for the material (ie, for Brazilian pellets and Mount Newman fines).

8 From about the late 1960s to 2010, there was a global iron ore pricing system involving certain published prices for iron ore referred to as the Annual Benchmark Pricing System (AB Pricing System). The CITIC Parties contend that, on a proper construction of cl 8.2 of the Mining Agreements, the reference to 'prevailing published annual FOB price' is a reference to the AB Pricing System. It is not in issue that the AB Pricing System ceased operating in around early 2010. Accordingly, the CITIC Parties' primary contention is that there is no obligation to pay Royalty B payments to Mineralogy. More particularly, the CITIC Parties contend that:

(a) the Royalty B provision is void for uncertainty and may be severed whilst leaving the remainder of the Mining Agreements in operative effect; or

(b) alternatively, if severance is not available, there is an implied term to the effect that:

1. the parties must negotiate in good faith to seek to agree on a replacement formula or at least to negotiate in good faith before taking any steps to have any dispute as to the calculation of the royalty determined by a court; or
2. the royalty is one that is 'fair and reasonable'; or

(c) in the further alternative, the Mining Agreements are frustrated because of an inability to calculate Royalty B.

9 In relation to their alternative case that a 'fair and reasonable' royalty is payable, the CITIC Parties pleaded that the determination of a 'fair and reasonable' royalty would take into account matters including certain options granted to Mineralogy under the Mining Agreements, and payments and other benefits conferred on Mineralogy (in broad terms) pursuant to the Mining Agreements and related agreements, including the payment for the grant of the site lease, and amounts paid to Mineralogy pursuant to the 'Takeover Agreements' in sums totalling approximately $215 million and $200 million, as well as the expenditure incurred in developing the project since about 21 March 2006.[6]

10 Consequently, the CITIC Parties have not paid Royalty B to Mineralogy. This led to Mineralogy issuing certain notices of default and to litigation concerning, amongst other things, an alleged repudiation by Sino and Korean of the Mining Agreements (discussed below). In July 2013, Mineralogy alleged that the debt payable for Royalty B was $287,000. In September 2014, Mineralogy alleged that the amount it was owed was $22 million,[7] and by September 2015, Mineralogy alleged that the debt had increased to $48 million. Mineralogy alleged that by June 2016, the debt had increased to approximately $81 million.[8]

11 All references in these reasons to money payments in relation to the Mining Agreements are references to payments in US dollars, unless otherwise indicated.

The relevant provisions of the Mining Agreements

12 The effect of cl 8 of the Mining Agreements in relation to the payment of royalty to Mineralogy has been outlined above. The precise terms of cl 8 of the Mining Agreements were set out by the primary judge and it is unnecessary to reproduce the clause in full here.[9]

13 In addition to cl 8, the other provision of the Mining Agreements relevant for present purposes is cl 30. Clause 30 is, relevantly, in the following terms:[10]

If any amount payable by Sino under this Agreement is not paid by the due date, including without limitation amounts payable in respect of the Mineralogy Royalty, the State Government Royalty, and amounts payable to the Mining Contractor, then:

(a) such amount will accrue interest at the Default Interest Rate.

(b) Interest will be calculated from the due date until payment is made in full.

(c) Interest will be payable on demand.

30.2 Mineralogy may remedy default at cost of Sino

If Sino breaches any of its obligations under this Agreement then:

(a) Mineralogy may serve upon Sino a notice in writing specifying the obligation and requiring Sino to rectify the Sino must rectify the breach within the period specified in the notice [sic].

(b) If Sino fails to do so within that period, Mineralogy may enter the Mine Area and do all such things and execute all such works as Mineralogy considers necessary to rectify the breach. Sino will on demand, pay to Mineralogy the costs and liabilities incurred by Mineralogy in so acting.

(a) Subject to paragraph (b), nothing in this Agreement restricts the right of a party to claim damages from the other party for any failure by that other party to comply with the terms of this Agreement

(b) If any breach or default under this Agreement gives a party a right to damages, such damages shall be limited to damages for direct loss and damage attributable to such breach or default. The rights of a party to damages for indirect or consequential loss or damage are hereby excluded. No party shall be liable to any other for any loss of profit, special losses or damages suffered by a party to this Agreement or any other person.

(a) Certain breaches of this Agreement, including without limitation breaches of the conditions contained in Clauses 7 and 27(b), the Schedule and a failure to comply with Legal Requirements, will not be capable of remedy or of compensation by the payment of damages only.

(b) In relation to such a breach, Sino acknowledges that the breach will cause Mineralogy to suffer loss and damage. Sino agrees that Mineralogy will be entitled to an order for specific performance and/or an injunction to prevent or restrain the breach, and Sino will consent to any application brought by Mineralogy for specific performance or injunction.

(c) Sino will be liable to reimburse Mineralogy in respect of all costs and expenses (including, without limitation, any solicitors or other legal costs) in respect of such action.

(d) In the event that such default, or a default in Sino's obligations to pay Mineralogy the Mineralogy Royalty or the State Government Royalties payable pursuant to this Agreement or any, continues for a period of twenty one (21) days after written notice of such default requiring Sino to remedy the same, Mineralogy shall be entitled by notice in writing to Sino to require Sino to suspend all operations carried out by or on behalf of Sino upon the Project Area until payment is resumed. If such default has not been remedied after 90 days from the service of any notice pursuant to this clause, Mineralogy has the right on twenty one days written notice to terminate this Agreement.

Subject to clause 30.2, if Sino defaults in the due observance or performance of any covenant, condition or provision contained in this Agreement, other than the payment of money, then:

(a) Mineralogy may institute proceedings against Sino to enforce performance of any of the provisions of this Agreement.

(b) Sino will pay on demand all solicitors fees, court costs, and other costs reasonably incurred by the party taking action to enforce the provisions of this Agreement.

The remedies set out in this Agreement are without prejudice to any other remedies that may be available under statute, at law or in equity. The exercise of any remedy will be without prejudice to the exercise of any other remedy that may be available. (emphasis added)

14 Clause 1.1 of the Mining Agreements defined 'Default Interest Rate', relevantly for the purposes of cl 30.1, to mean:[11]

Default Interest Rate means a rate of interest per annum equal to the lending rate for loans exceeding $100,000 to prime borrowers charged from time to time by Mineralogy's bankers (or, if such rates are suspended or discontinued, the weighted average cost of moneys borrowed by Mineralogy), plus 1%.

15 For present purposes, the following may be noted. Mineralogy originally commenced proceedings in New South Wales. They were transferred to the Supreme Court of Western Australia on 30 April 2013 and were given file number CIV 1808 of 2013 (primary proceedings).[12]

Sino/Korean's interlocutory injunction application in 2013

16 On 26 July 2013, Mineralogy issued a default notice under the Mining Agreements on the basis that Sino and Korean had failed to pay the sum of $287,000 by way of Royalty B. Sino and Korean applied in the primary proceedings for an interlocutory injunction restraining Mineralogy from suspending operations or terminating the Mining Agreements based on the default notice. Sino and Korean's contention, as noted above, was that no Royalty B payments were payable. An interlocutory injunction was granted by Edelman J: Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2].[13] His Honour rejected Mineralogy's submission that any injunction should only be granted against it on terms that Sino and Korean pay, under protest, the claimed $287,000 Royalty B payment. His Honour did so for the following (related) reasons:[14]

(a) The disputed debt was only $287,000 and there was no basis, on the evidence, for an inference that Sino and Korean would refuse to pay Royalty B payments on any terms.

(b) Following the resolution of an earlier dispute, Sino and Korean had paid $1.8 million in relation to Royalty A.

(c) On the alternative case of Sino and Korean, some amount may be payable with respect to Royalty B, and Sino and Korean have not refused to pay any amount with respect to Royalty B at all.

(d) It is to be expected that a dispute of that nature should move quickly to final hearing.

17 His Honour observed that if, in the future, Royalty B payments were substantially greater than the relatively 'minuscule' sum then in dispute and Sino and Korean refused to pay any of that amount on any terms at all, the position might be different.[15]

18 On 14 October 2013, his Honour granted an interlocutory injunction precluding Mineralogy from, in effect, stopping operations or terminating the Mining Agreements in reliance on, or in respect of, the defaults alleged in Mineralogy's notice dated 26 July 2013.[16]

Sino/Korean's interlocutory injunction application in early 2015

19 In July 2014, Mineralogy issued further default notices in relation to certain alleged breaches by Sino and Korean in connection with steps allegedly required to be taken in the calculation of Royalty B. Some of these notices were later withdrawn.[17] Certain notices, dated 10 July 2014 and 18 July 2014, concerned alleged defaults by Sino and Korean in relation to the performance of certain contractual mechanisms with respect to payments for Royalty B. But there was no evidence that Mineralogy had issued a suspension or termination notice on the basis of the defaults alleged in the 10 July 2014 notices.[18] Mineralogy also issued certain default, suspension and termination notices in September 2014, but these did not relate to the non-payment of Royalty B payments.[19]

20 Sino and Korean sought an interlocutory injunction in the primary proceedings precluding Mineralogy from taking certain action with respect to the notices. In this application, according to Mineralogy, the amount due under Royalty B up to the quarter ending 31 December 2014 was $22 million.[20] However, there was no claim by Mineralogy, in the substantive proceedings, for the payment of any amount by way of Royalty B.[21]

21 This interlocutory application was heard by Chaney J, who delivered judgment on 5 March 2015. Justice Chaney said, in effect, that if Mineralogy did not offer an undertaking not to close down operations at the mine, it was an appropriate case for an injunction to restrain Mineralogy from taking steps to prevent Sino and Korean carrying on the project pending resolution of the primary proceedings.[22] The judge rejected a submission by Mineralogy that the 'price' for the injunction obtained by Sino and Korean should be undertakings by Sino and Korean to pay to Mineralogy the asserted sum of $22 million in respect of Royalty B, plus all future quarterly payments as they fell due in respect of Royalty B.[23] His Honour did so on the bases that:[24]

(a) the asserted figure of $22 million lacked any or any proper evidentiary foundation;

(b) Mineralogy had made no claim in the action for the payment of any amount by way of Royalty B, apparently on the basis that Sino and Korean had made it clear that if an amount were calculable for Royalty B, they would pay it;

(c) the current position was that Mineralogy was not receiving any Royalty B payments, and;

(d) the proceedings were proceeding to determination on the basis that Mineralogy would not receive any interim payment.

22 Chaney J made the following observations, quoted by Kenneth Martin J and described as powerful considerations:[25]

[The CITIC Parties] identified what are undoubtedly very substantial costs, losses and expenses which would flow from the defendants suspending their operations in the project area. It is not necessary to recite the details of these costs, losses and expenses. Given the enormous capital investment by the defendants in the project so far, the impact of suspension of operations and the immobilisation of the project employing thousands of people is obvious. I have no hesitation in concluding that, if the consequence of a refusal to grant the injunctions was that mining operations were to cease, either temporarily or permanently, then the balance of convenience would be overwhelmingly in favour of the grant of the injunctions [42].

23 It appears that Chaney J did not grant an injunction. Rather, it appears that Mineralogy gave an undertaking (Mineralogy's March 2015 undertaking), confined to two of the September 2014 notices, to the following effect:[26]

[Mineralogy] undertakes that, until the hearing and determination of these proceedings, or earlier order, it will not take any step to retake possession of the Mine Area and Site Lease Area (as defined in the [Mining Agreements]), consequent upon the termination of the [Mining Agreements] pursuant to any of the Termination Notices dated 12 September 2014 and 18 September 2014, other than on [60 days] prior written notice to the [CITIC Parties] or in any action before a Court.

New actions commenced by Mineralogy stayed as abuse of process

24 In 2015, Mineralogy commenced two new actions against the CITIC Parties in CIV 2203 of 2015 and CIV 2368 of 2015. The issues raised by these actions substantially overlapped those in the primary proceedings. The latter action (2368 Action) included a claim that Sino and Korean had repudiated the Mining Agreements, including by failing to pay the Royalty B payments on production up to 30 September 2014, for which Mineralogy claimed loss of bargain damages and that the Mining Agreements had been terminated with effect from October 2014.[27] The CITIC Parties applied to have the new actions permanently stayed as an abuse of process. Mineralogy resisted the application on three bases. First, Mineralogy said it was more efficient to commence the new actions as it thereby avoided pleading disputes in the primary proceedings.[28] Secondly, Mineralogy intended to make, and had made, applications for summary judgment for, amongst other things, declarations that Sino and Korean had repudiated the Mining Agreements and an order for an amount of damages to be assessed, claimed to be in the order of approximately $6.4 billion, and that by starting new actions, and making summary judgment applications in the new actions, it avoided the need to seek leave (out of time) in the primary proceedings for that purpose.[29] Thirdly, isolating specific causes of action in different actions was 'simpler and more efficient'.[30]

25 Justice Chaney heard the application for a permanent stay and delivered reasons on 27 November 2015, granting a stay of the two new actions.[31]

26 No contention appears to have been made that insofar as there were new causes of action for debt and damages which accrued after the commencement of the primary proceedings, they were required to be the subject of separate proceedings: Civil Procedure Western Australia.[32]

Mineralogy's termination notices of 16 October 2015

27 By letters dated 16 October 2015, Mineralogy gave notice to Sino and Korean that:

(a) by reason of claims specified in the 2368 Action, Sino and Korean had repudiated the Mining Agreements;

(b) Mineralogy had terminated the Mining Agreements; and

(c) Mineralogy required Sino and Korean to deliver vacant possession of the mining site and to cease the conduct of any operations thereon.

28 Mineralogy also stated, in effect, that it did not regard these notices as falling within the terms of Mineralogy's March 2015 undertaking, but if the notices did fall within the undertaking, then the notices also served as the giving of the 60-day notice required by that undertaking.[33]

29 There was (unlike on earlier occasions) no interlocutory application by the CITIC Parties to restrain Mineralogy from acting on the notices of 16 October 2015.

Mineralogy's interlocutory injunction application of 27 November 2015

30 Next, Mineralogy applied for interlocutory injunctive relief against the CITIC Parties, by chamber summons dated 27 November 2015: Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 8].[34] That application was heard by Tottle J.

31 By this time, Mineralogy alleged that a further sum of $26 million had fallen due for Royalty B payments for the period since 30 September 2014 up to 30 September 2015 (making a total amount allegedly due in respect of Royalty B of $48 million).[35]

32 Although Mineralogy had still not then formally claimed in the primary proceedings an amount for Royalty B payments said to be accrued and owing, Tottle J nevertheless treated the interlocutory application on the basis that such a claim was being advanced by Mineralogy and would be pleaded.[36] His Honour observed that Mineralogy's primary claim was that it was owed $22 million in relation to Royalty B payments allegedly due up to October 2014, when the Mining Agreements had been terminated. His Honour said that Mineralogy's alternative claim was that if Mineralogy did not establish that the Mining Agreements had been terminated with effect from October 2014, it also claimed the additional sum of $26 million in respect of unpaid Royalty B payments from October 2014 to date.[37]

33 In broad terms, Mineralogy sought, relevantly, two interlocutory orders:[38]

(a) a mandatory interlocutory injunction to the effect that the CITIC Parties pay $48 million for Royalty B in respect of unpaid royalties;

(b) an injunction 'permitting' Sino and Korean to operate the project provided that they continued to make ongoing quarterly royalty payments (in relation to Royalty B payments) at a rate of $6 per dry metric tonne of concentrate shipped.

34 In dealing with Mineralogy's interlocutory injunction application, Tottle J said (with reference to Mineralogy's claim for loss of bargain damages consequent upon the alleged termination of the Mining Agreements) that there was 'simply no principled basis upon which a plaintiff may obtain an injunction compelling payment of damages in advance of a trial'.[39] His Honour said that a mandatory interlocutory injunction may be granted to compel performance of a contractual obligation, and that the only basis upon which Mineralogy may succeed in the interlocutory application is if it were properly characterised as an application for an order compelling the performance of a contractual obligation.[40] His Honour said, in effect, that Mineralogy's claims for the Royalty B payments were 'debt claims rather than damages claims',[41] and appears to have treated the claims in debt as claims for specific performance.

35 His Honour found that there was a serious question to be tried in respect of Mineralogy's entitlement to payments in respect of Royalty B, but said that he was not in a position to make any assessment of the strength of Mineralogy's claims, including, and especially, any provisional assessment of quantum.[42] The judge dismissed the application on the bases (in effect) that (1) there was no principled basis upon which to make a mandatory interlocutory order for the payment of damages in advance of trial; (2) in relation to the debt claims, granting the relief would involve determining (on a provisional basis) issues of liability and quantum in circumstances where such issues have been the subject of prolonged litigation and complex pleadings, which, in turn, would make such an assessment problematic; and (3) the balance of convenience weighed against the grant of the injunction, including having regard to the risk of loss to the third parties identified by Mineralogy.[43]

36 Justice Tottle dismissed Mineralogy's application.

37 Mineralogy appealed that decision. There was a notice of contention, but not on grounds equivalent to the grounds relied on by the CITIC Parties in this appeal.

38 The appeal was upheld: Mineralogy Pty Ltd v Sino Iron Pty Ltd.[44] The court found that most of the points raised by the notice of contention were incapable of resolution at the hearing of the appeal.

39 Consequently, Mineralogy's application for interlocutory injunctive relief was, in effect, remitted for a fresh hearing.

40 That matter ultimately came on for hearing before Kenneth Martin J in October 2016.

41 Before referring to that hearing, it is convenient to note Mineralogy's claims in the primary proceedings as at October 2016.

Mineralogy's claims in the primary proceedings as at October 2016

42 As at October 2016, Mineralogy's claims were contained in its fourth further amended statement of claim, referred to by the judge as the '4 FASOC'. That abbreviation will be adopted here. By 4 FASOC, Mineralogy's allegations and claims included, relevantly and in effect:

(a) a debt of $22 million for Royalty B payments in respect of production up to 30 September 2014, or alternatively damages for breach in that amount;[45]

(b) Default Interest on the sum of $22 million under cl 30.1 of the Mining Agreements;[46]

(c) an allegation that the Mining Agreements had been terminated with effect from early October 2014;[47]

(d) damages for the unlawful removal of ore in the period following termination in early October 2014, up to 30 June 2015, in the sum of $190.64 million;[48]

(e) repudiation following termination by Mineralogy of the Mining Agreements;[49]

(f) alternatively, a debt of $26 million for Royalty B payments in respect of production from 1 October 2014 to 30 September 2015;[50]

(g) alternatively, if cl 8.2 of the Mining Agreements was void and/or unenforceable, such that it did not provide for a royalty as alleged by Mineralogy, that the Mining Agreements be rectified;[51]

(h) alternatively, if cl 8.2 was void and/or unenforceable, and was to be severed, payment by way of restitution.[52]

43 As the primary judge noted, the prayer for relief by Mineralogy claimed:[53]

1. Payment of sums for Royalty Component B.
2. A declaration that the [Mining Agreements] have been terminated.
3. Damages for the repudiation of the [Mining Agreements].
4. Damages for the unlawful taking of concentrate.
5. Damages for breach of the [Mining Agreements].
6. In the alternative, a declaration that the [Mining Agreements] be rectified.
7. Payment by way of restitution.

44 In 4 FASOC, Mineralogy's earlier claims for specific performance in its prayer for relief were deleted.[54]

The October 2016 hearing before the primary judge

45 In Mineralogy's interlocutory application before Kenneth Martin J, it claimed the following interlocutory orders:[55]

1. An order that the [CITIC Parties] pay to the plaintiff the sum of $US80,894,166 (eighty million eight hundred and ninety four thousand one hundred and sixty six United States dollars) or such other sum as the court may determine.

1. An order that if the [CITIC Parties] comply with order 1, the first and second defendants are permitted to mine, process, ship or otherwise transport iron ore and iron ore products in respect of the project known as the Sino Iron Project provided that on 1 October 2016 and for each quarter thereafter until the final determination of these proceedings the first and second defendants pay to the plaintiff a sum calculated by multiplying $US6.00 by the number of dry metric tonnes of (iron ore) concentrate shipped in the preceding quarter.

46 Order 1 related to debts totalling approximately $81 million which had allegedly accrued by way of Royalty B payments up to and including 30 June 2016. This figure comprised approximately:[56]

(a) $22 million up to October 2014 (when Mineralogy allegedly terminated the Mining Agreements); and

(b) $59 million[57] between October 2014 and 30 June 2016 (of which $26 million fell due in relation to the period to 30 September 2015, and, it may be inferred, the balance of $33 million fell due in relation to the period 1 October 2015 to 30 June 2016).

47 The second order sought by Mineralogy (referred to as order 3 in [45] above) related, in effect, to Royalty B payments as they fell due under the Mining Agreements, from time to time from 1 October 2016 up to the determination of the primary proceedings.

48 It may be noted here that, as indicated in [42] above, Mineralogy's primary claims were for the alleged Royalty B debt of $22 million up to termination of the Mining Agreements in early October 2014, and damages for the ore wrongfully taken thereafter in the sum of approximately $190.64 million up to 30 June 2015, as well as loss of bargain damages. The claim for the debt of $26 million up to 30 September 2015 was an alternative claim.

49 Further, the payment of the $33 million component of order 1, and the payments sought by Mineralogy in order 3, were not claimed by Mineralogy as final relief in the primary proceedings.

50 In general terms, Kenneth Martin J held that Mineralogy was entitled to interlocutory payment orders. It is the decision of Kenneth Martin J which is the subject of the appeal herein.

51 The judge observed[58] that Mineralogy, in its pleadings, claimed in debt for the alleged Royalty B payments as well as alleging that it had terminated the Mining Agreements either by contractual termination with effect from early October 2014 or by accepting, in (around) October 2015, the repudiatory conduct of Sino and Korean.

52 The judge also noted that Mineralogy's pleaded case of loss of bargain damages was as follows:[59]

In the premises, by reason of the repudiation of the [Mining Agreements] by Sino and Korean, Mineralogy has suffered loss and damage in the sum of approximately $6.4 billion, or alternatively a sum representing the lost opportunity to be paid royalties within their present value of approximately $6.4 billion (on the assumption pleaded in paragraph 117 by Mineralogy that it would have received royalty payments from Sino and Korean up to and including the year 2044).

53 In relation to the disputed contractual formula in relation to Royalty B, the judge observed[60] that cl 8.2(a) did not in terms refer to the AB Pricing System. He said that he had not overlooked the CITIC Parties' plea that the expression 'prevailing published annual FOB price' is a descriptive term of industry custom and usage.

54 The judge also considered the expert evidence filed by the parties in relation to whether pricing mechanisms existed which reflected published annual FOB prices for Brazilian pellets and Mount Newman fines. Mineralogy's expert evidence was to the effect that such prices were calculable by reference to published spot prices.[61] The CITIC Parties' expert did not agree that the 'calculation of published iron ore spot market CFR indices and shipping prices can be used to derive "prevailing" FOB prices with any reasonable accuracy'.[62] His Honour said:[63]

It is apparent then that there is presently a strong clash of expert perspectives, as regards a legitimate use of anything other than an annual benchmark pricing system to source the pricing data required in a derivation of a royalty payment of money for Mineralogy as [Royalty B] under cl 8.2 of the [Mining Agreements], as an aspect of the 'Mineralogy Royalty'. Given that clash, it is convenient to recall the observations of the President at [24] of her reasons, where her Honour had observed:

'Prima facie, the standard for the calculation of [Royalty B] is the published market price for the relevant products ... during the relevant quarter. The fact that (unlike the [AB Pricing System]) the market price changes during the relevant period does not make the standard legally uncertain. How best to achieve and quantify the market price for the relevant period is a matter for expert evidence on a subject involving a well understood process that is neither ambiguous nor uncertain.'

Those highly persuasive observations, which I would respectfully apply on this application, were explicitly identified and agreed with concerning cl 8.2 by Corboy J in his reasons at [118] on that appeal.

At this point, I would simply observe once again that cl 8.2 in the [Mining Agreements] does not, as regards the derivation of [Royalty B] over time, say expressly that the input data source ... must be data obtained by using the (no longer operative post early 2010) [AB Pricing System]. References seen in cl 8.2 to a FOB (shipping) price pose no real difficulty. Nor is a conversion of a C&F price to a FOB price theoretically problematic.

The pragmatic obstacle to implementing [a Royalty B] calculation, if there is a problem, is tied to the absence post March 2010 of a published annual market price for [Brazilian pellets and Mount Newman fines] (which had once been the case under the [AB Pricing System]). The Brierley methodology in lieu of using what became the now inoperative [AB Pricing System] source takes an average of the published daily spot prices for Brazilian pellets and Mount Newman fines, gathered from other publicly available industry data sources.

This clash of expert perspectives is not an issue that I can or need to resolve on a final basis for this application. For present purposes, I now hold Mr Brierley's revised and reworked reports responding specifically to, and also adopting, a number of the criticisms raised by Mr Barkas, and then reworking his earlier calculations accordingly. Against that, I have the approach of Mr Barkas for the CITIC parties which basically opines that Mr Brierley's averaging approach by using spot price data to derive the annual prices for [Royalty B] is too far removed from the terms of cl 8.2 as regards meeting the proper input of the [Royalty B] calculation formula. (original emphasis)

55 As to the merits, his Honour considered[64] that Mineralogy had a strong prima facie case that it holds an entitlement to a reasonable amount of royalty funds in respect of Royalty B, or at least a reasonable amount of royalty 'worked out on a principled basis that international iron ore industry experts would assess as being fair and reasonable to Mineralogy'. He considered that Mineralogy's claims were only 'answered weakly' by the CITIC Parties' arguments concerning uncertainty and severance.[65]

56 His Honour was of the view, however, that Mineralogy could not claim relief in debt in relation to the period after October 2014 by reason of its allegation that the Mining Agreements were terminated in early October 2014, although the claim prior to then was unaffected.[66] His Honour considered that the claim that the Mining Agreements were terminated in October 2014 was inconsistent with the claim in debt for Royalty B payments after that time. He said, in effect, that Mineralogy would need to forego its claim of termination in order to obtain equitable relief. His Honour said:[67]

As Mineralogy seeks the assistance of equity to compel Korean and Sino to meet their asserted obligations to pay royalty moneys said to be falling due to Mineralogy as royalty payments by reference to [Royalty B] in the [Mining Agreements], or reasonable amounts in lieu thereof, Mineralogy first needs to do equity itself towards the other parties to the [Mining Agreements]. It will do that by showing itself to be fully ready, willing and able to perform its own obligations under the [Mining Agreements]. But this, in practical terms, does not now require very much at all from Mineralogy to fix, as I explain below.

Put another way, to obtain discretionary equitable relief by the remedy of injunction on an interlocutory basis, Mineralogy must be seen to be conducting itself on an equitable basis. I can envisage no greater scenario of a party presenting themselves to a court as being thoroughly unready, unwilling, and unable to perform their contractual obligations under an agreement, than by that party pleading as its case, that all the future obligations of performance under the parties' agreements have come to a complete end over two years ago.

Mineralogy's fundamentally inconsistent rights position of contractual [Mining Agreements] terminations at October 2014 must first be corrected, before any equitable relief as sought post October 2014 can be countenanced.

57 His Honour said in relation to the balance of convenience:

(a) there was no real 'fiscal prejudice' to the CITIC Parties in the sense that there was no evidence that they could not afford to pay the money;[68]

(b) there were 'persuasive concerns' about Mineralogy's financial condition and that the CITIC Parties had 'legitimately expressed concern' that there was a 'strong likelihood' that, if the moneys were paid to Mineralogy, they would not be recovered if the CITIC Parties succeeded at trial;[69]

(c) any moneys for Royalty B payments which were ultimately ordered to be repaid by Mineralogy might however be recovered by Sino and Korean setting off Royalty A payments against such sums (subject, in effect, to the difficulties asserted with the termination claim);[70]

(d) the non-payment of moneys on account of Royalty B by Sino and Korean has been a 'strong contributing factor' to Mineralogy's 'current fiscal problems', although Mineralogy had also contributed to its own fiscal problems;[71]

(e) a factor weighing in favour of Mineralogy is that under the Mining Agreements it is precluded from claiming damages for indirect or consequential loss or damage, or to claims for loss of profit, special loss or damages;[72] and

(f) prima facie, the non-payment by Sino and Korean of Royalty B payments was not repudiatory conduct. Although Sino and Korean were 'potentially mistaken', their conduct was not inconsistent with an acknowledgement of the ongoing contractual obligation to make the royalty payments.[73]

58 His Honour also had regard to the effect of the earlier injunctive proceedings. His Honour considered that an interlocutory mandatory injunction was necessary to 'restore a proper balance' to the contractual rights and obligations reflected in the parties' bargain, that balance having been interfered with by the injunction granted to the CITIC Parties on 14 October 2013 and by Mineralogy's March 2015 undertaking.[74]

59 His Honour considered that with respect to Mineralogy's proposed order 1:

(a) in relation to the Royalty B payments of $22 million allegedly due up to October 2014, he would order the whole amount to be paid, with 50% paid directly to Mineralogy and 50% to be paid into court;[75]

(b) with respect to the Royalty B payments totalling $59 million allegedly due from October 2014 to 30 June 2016, there would be no reason not to order the whole amount to be paid, again, with 50% paid to Mineralogy directly and 50% paid into court, if Mineralogy withdrew its termination claims.[76]

60 With respect to proposed order 3 (in broad terms, future quarterly payments on account of Royalty B - see [45] above), his Honour considered that interlocutory payments should be made and paid into court, subject, again, to Mineralogy withdrawing its termination claims.[77]

61 As noted below, immediately following the delivery of his reasons for judgment, the primary judge only ordered payment of the sum of $22 million in relation to the alleged debt for the period of production up to October 2014. His Honour evidently considered that the other orders could not be made whilst Mineralogy maintained its claims for repudiation and termination.

The payment orders of the primary judge on 14 December 2016

62 His Honour's reasons were delivered on 13 December 2016. On 14 December 2016, the primary judge ordered relevantly, that:

1. Upon the timeous filing and service of the usual sealed written undertaking as to damages by [Mineralogy] concerning the interlocutory injunctions, [Sino] and [Korean] are hereby ordered by 4pm on 30 January 2017 to pay:

(a) into Court the sum of $10,690,270.50 (or the Australian dollar equivalent on the day that the funds are provided to the Court) to abide further orders of the Court; and

(b) to [Mineralogy] the sum of $10,690,270.50.

63 As noted above, these orders addressed, only, the sum of $22 million that was alleged to be due by way of Royalty B payments up to October 2014.

Subsequent developments in the primary proceedings Mineralogy's letter dated 28 December 2016

64 By letter dated 28 December 2016, Mineralogy wrote to the CITIC Parties' solicitors in, relevantly, the following terms:[78]

[Reference is made] to the Judgment of Martin J on 13 December 2016 and the Affidavit of Clive Frederick Palmer sworn on 21 December 2016. Mineralogy has unequivocally withdrawn any claims that the [Mining Agreements] have been terminated or repudiated. For the avoidance of any doubt Mineralogy advises that Mineralogy hereby unequivocally withdraws all claims that the [Mining Agreements] have been terminated or Repudiated as set out in all pleadings in all actions and any proposed or foreshadowed actions between Mineralogy and your clients. Mineralogy withdraws all Termination Notices and Default Notices issued by Mineralogy to either Sino or Korean up until the date hereof.

The notices which have been withdrawn deal with matters in the past ... Mineralogy reserves its rights to issue further notices as is its contractual right if Mineralogy determines it is in Mineralogy's interest to do so.

...

Other than as set out above Mineralogy reserves all its rights. (emphasis added)

The further hearing before the primary judge on 20 January 2017

65 Mineralogy's remaining claims for interlocutory payments were further addressed in Mineralogy No 14.[79] In that decision, his Honour gave leave to Mineralogy to file and serve an amended statement of claim which, in effect, deleted all allegations that the Mining Agreements had been terminated.[80] His Honour also timetabled the matter leading up to a 15-day trial commencing on 14 June 2017.[81]

66 His Honour also held that Mineralogy was 'ready, willing and able' to perform its obligations under the Mining Agreements.[82] On that basis, his Honour said that (subject to an undertaking as to damages) he would order Sino and Korean to make interlocutory payments in the sum of $59 million (50% into court and 50% to Mineralogy) and (in effect) to pay future quarterly amounts in respect of Royalty B payments into court.[83]

67 In relation to the latter payments, his Honour said that they should be calculated using the rate of $6 per tonne, which, according to his Honour, was a conservative figure based on Mineralogy's expert evidence.[84]

The payment orders made by the primary judge on 27 January 2017

68 On 27 January 2017, his Honour made the following orders, relevantly:

1. Upon the excisional amendments to Mineralogy's current statement of claim by excisions as identified and upon the basis of the undertaking as to damages by Mineralogy:

(a) the amount of $US29,801,812.50 should be made to Mineralogy by Sino and Korean by ... 28 February 2017; and,

(b) the same amount is to be paid into Court by that time.

1. As per paragraphs 232 and 235 of the [primary decision], amounts assessed as a payment of $US6 per dry metric tonne of iron ore concentrate shipped, be paid into court:

(a) in respect of the end of the quarter ended 30 September 2016, by ... 31 March 2017; and,

(b) in respect of the end of the quarter ended December 2016, by ... 31 March 2017; and,

(c) in respect of subsequent quarters, paid on a quarterly basis, each quarter in arrears.

69 Thus, order 1 applied to the sum of $59 million in relation to Royalty B payments which had allegedly fallen due for payment in relation to the period October 2014 to 30 June 2016. Order 2 related to, in effect, sums payable on account of Royalty B payments as they (on Mineralogy's case) fell due from time to time on a quarterly basis.

70 On 25 January 2017, Mineralogy filed its fifth further amended statement of claim (5 FASOC) which, in effect, excised the previous claims in relation to termination and repudiation.[85] Mineralogy no longer made any claim that the Mining Agreements had been terminated in October 2014. It also, correspondingly, deleted its claim for damages of approximately $190.64 million on the basis that Sino and Korean had wrongfully removed ore from the site after termination of the Mining Agreements.

71 Mineralogy claimed against Sino and Korean approximately $97 million in relation to Royalty B payments, allegedly payable in respect of production in the period up to 30 September 2016. It alleged that Sino and Korean were indebted to it in that amount, or were liable to it in damages for breach of contract in that amount.[86] Default Interest was also claimed.[87] Mineralogy also alleged that CITIC was liable to pay the $97 million amount plus interest as, in effect, guarantor.[88]

72 Mineralogy further claimed that Sino and Korean were liable to it in debt and damages for breach of contract in relation to Royalty B payments after 30 September 2016.[89] Default Interest was also claimed.[90] These claims relate to Royalty B payments not yet fallen due, but which (on Mineralogy's case) will fall due for payment up to the time of trial. Although it might be thought that claims of that kind would be in the nature of specific performance, Mineralogy appears to assert common law remedies of debt and damages for breach of contract.

73 Again, no contention appears to have been made that insofar as Mineralogy alleged causes of action for debt or damages accruing after the commencement of the primary proceedings, those claims should have been the subject of separate proceedings.

74 Mineralogy also filed a reply to the defence to the fifth further amended statement of claim and defence to the sixth further amended counterclaim on 10 February 2017.[91] In that pleading (although not in the statement of claim), Mineralogy contended that if cl 8.2 (on its proper construction) provided for the payment of a royalty that is a 'fair and reasonable royalty', such a royalty is to be determined by the expert by reference to the prevailing published price as determined by the expert pursuant to cl 8.6 or, alternatively, by the application of a formula as close as is practicable in operation to the formula set out in cl 8.2 as determined by an expert.[92] Accordingly, Mineralogy's plea in this ground had no real connection to or substantive equivalence with the CITIC Parties' alternative plea of the payment of the royalty that was 'fair and reasonable'. See [9] above.

The grounds of appeal The appeal against the primary judge's orders of 14 December 2016

75 In their grounds of appeal, the CITIC Parties contend, in effect, that:

1. The judge erred in law in granting an interlocutory mandatory injunction to compel the payment of a debt which is disputed as to both liability and quantum.
2. The judge, having correctly held that:

(a) the causes of action advanced by Mineralogy were grounded exclusively in common law rights,

(b) therefore the adequacy of damages needed to be assessed before equity would intervene to assist, and

(c) damages would plainly be a sufficient and adequate remedy where Mineralogy's claimed final relief is for loss of bargain damages,

should also have held, and erred in not doing so, that payment of a pecuniary sum by way of final relief would likewise be an adequate remedy for Mineralogy's accrued debt claims and therefore there was no basis for equity to intervene on an interlocutory basis.

1. The judge erred in failing to have any, or any sufficient, regard to the inadequacy of Mineralogy's undertaking as to damages in that:

(a) the judge correctly found that Mineralogy's financial position was 'precarious' and under a 'cloud', and that there was a strong likelihood that substantial sums would never be recovered were they required to be repaid following trial; and

(b) his Honour should have held that Mineralogy's undertaking required security in order for it to be effective.

1. The judge erred in law in ordering payment into court of a debt which is disputed as to both liability and quantum in circumstances where his Honour ought to have found that there was no reason to believe that, if Mineralogy is successful at trial, the CITIC Parties would not be able to pay all amounts ordered to be paid to Mineralogy in respect of Royalty B.
2. In addressing the balance of convenience, the judge erred in:

(a) holding that 'restoring balance' as between the parties to the Mining Agreements was a relevant consideration, and/or in the weight which his Honour gave to that consideration; and/or

(b) failing to have any, or any sufficient, regard to the contractual allocation of the risk of non-payment of the disputed debt which the parties to the Mining Agreements had adopted.

The appeal against the primary judge's orders of 27 January 2017

76 The appeal in CACV 13 of 2017 contains grounds of appeal to the same effect as those in the appeal against the primary decision, save that an additional ground is added, as follows:

Ground 6: The learned judge erred in being satisfied that Mineralogy was ready, willing and able to perform its obligations under the [Mining Agreements] without taking account of adequately, or at all, Mineralogy's unwithdrawn position in the Port Appeal (WAD 495 of 2015) that the Facilities Deeds have been terminated.

77 In relation to that matter, the CITIC Parties contend that in finding that Mineralogy was ready, willing and able to perform the Mining Agreements, his Honour failed to have regard to the 'practical reality' of the integrated nature of the Project.[93] They contend that the 'Facilities Deeds' form part of the suite of agreements pursuant to which the Sino Iron Project is conducted and, like the Mining Agreements, are subsidiary agreements contemplated by the State Agreement. They contend that without the continued operation of the Facilities Deeds, the project would effectively shut down. The CITIC Parties contend that whilst Mineralogy alleges (as it does in an appeal in the Federal Court) that the Facilities Deeds have been terminated, Mineralogy in substance remains unready and unwilling to perform the Mining Agreements.[94]

78 The arguments relied upon by the CITIC Parties are, in general terms, self-evident from the grounds of appeal, and need not be set out in detail, save to note the following matters. The CITIC Parties submitted, in effect, that the judge's orders allowed Mineralogy to obtain relief which would have been denied it in the exercise of the conventional powers of the court to grant summary judgment in appropriate cases, or to grant 'Mareva' or 'freezing' orders in appropriate cases. Also, in relation to ground 4, the CITIC Parties refer to evidence to the effect that if it is determined that Sino and Korean have any liability in relation to Royalty B payments, they will take immediate steps to pay the sums owing.[95] The CITIC Parties also contend, with reference to the financial reports of CITIC Ltd and a company called Sino Iron Holdings Pty Ltd (Sino Holdings), that the CITIC Parties have sufficient assets to meet any judgment against them.[96]

80 In relation to ground 1, Mineralogy's submissions (read with its general introductory submissions) are to the effect that there was nothing novel in Mineralogy's mandatory interlocutory injunction application. It submits that the application was for the performance, pending a trial, of payment obligations under the Mining Agreements and that courts are commonly asked to compel performance of disputed obligations pending final determination of the parties' rights.[97] Mineralogy emphasises that the judge made unchallenged findings that Mineralogy had a strong prima facie case.[98]

81 Mineralogy also contends, in effect, that certain observations made by members of this court in the earlier appeal against Tottle J's decision lend weight to the judge's conclusions.[99]

82 Mineralogy also refers to certain authorities, including Golden Sands Pty Ltd v Excel Quarries Pty Ltd[100] and CB Direct v Challenger Mortgage Management.[101]

83 In Golden Sands, the defendants (Excel/Darra) granted the plaintiff (Golden Sands) a right to extract sand from a quarry and use production facilities at the site in consideration for the payment of a royalty under a Royalty Agreement. Golden Sands alleged that there were defects in the production equipment and sued Excel/Darra for damages in relation to the defects. Excel/Darra counterclaimed for (relevantly) unpaid royalties of (approximately) $1.2 million. Excel/Darra also sought final declaratory relief to the effect that they were entitled to terminate the Royalty Agreement.

84 Golden Sands did not contest the quantum of $1.2 million and admitted the non-payment. Nevertheless, it denied any part of the $1.2 million was due, as a result of its own claims for damages against Excel/Darra. It was also not in dispute that the current minimum rate of royalty under the Royalty Agreement was approximately $42,000 per month.

85 The trial of the action started and the case ran for several days, but was not completed. It had to be adjourned to a date some months into the future. Excel/Darra thereupon sought an interlocutory order restraining Golden Sands from entering the site and using the equipment, unless it paid the minimum royalty payments of approximately $42,000 per month, pending determination or further order. The judge granted an interlocutory injunction on terms to the effect that, subject to further order and pending final determination, Golden Sands 'is to resume payments' under the Royalty Agreement by payments of approximately $42,000 per month. His Honour did so on the bases that:[102]

(a) Golden Sands' production was sufficient to meet the minimum monthly royalty payments as well as meeting its other expenses;

(b) if Golden Sands at trial succeeded and its claims were found to exceed the $1.2 million outstanding, it could recover what it has paid under the interlocutory order given that Excel/Darra, as well as their substantial related companies, had given undertakings as to damages; and

(c) on the other hand, if Excel/Darra succeeded at trial, or Golden Sands failed to prove offsetting damages equal to or greater than $1.2 million, there was a 'very considerable risk [given the financial situation of Golden Sands] that [Excel/Darra] will not recover the royalty payments which will fall due during [the period up to trial], nor will they recover the value of the sand which will be mined and removed [by Golden Sands from the site] over that period'. (emphasis added)

86 In CB Direct, the plaintiff (finance broker) had entered into a management agreement with (for present purposes) the defendant (Challenger), under which the finance broker was entitled to receive trailing commissions in respect of outstanding loan balances on loans it had introduced to Challenger. Challenger alleged that the finance broker had engaged in certain fraudulent activity and, under a provision of the management agreement, purported to terminate the agreement. Upon termination (if lawful) the finance broker had no further entitlement to trailing commissions. The finance broker commenced proceedings seeking (it seems) specific performance of the management agreement. It also sought a mandatory interlocutory injunction that Challenger, in effect, continue to pay trailing commissions pending final orders. The judge found that there was a serious question to be tried as to whether Challenger was entitled to terminate the agreement, and moreover, there was a strong prima facie case that Challenger had, in any event, affirmed the management agreement. His Honour also said that there was force in the finance broker's submission that damages would not be an adequate remedy because they would not compensate it if it were forced into administration or liquidation and lost the value of the goodwill of its business. As against that, there was little evidence of the value of any goodwill attaching to the business. Further, whilst the finance broker had offered to give an undertaking as to damages, it was likely to be worthless, and no such undertaking had been offered by those standing behind the plaintiff broker, and even if one had been forthcoming, there was no evidence as to their ability to meet such an undertaking as to damages. His Honour concluded:[103]

Mandatory interlocutory injunctions are not common. The usual reason for this is that the balance of convenience is tilted in the defendant's favour if the relief sought is mandatory (Meagher, Gummow & Lehane's Equity: Doctrines & Remedies 4th ed at [21-215]).

The plaintiff will be entitled to seek an expedited final hearing. Without binding the expedition judge, it would seem to me that such an application has some prima facie merit.

In preparing for a final hearing both parties' positions have been advanced by the work which has been undertaken in this interlocutory hearing, and subject to the availability of a judge to hear the matter, there is a reasonable prospect of the matter coming on for an urgent final hearing.

I do not regard the prospect of the plaintiff being forced into administration or liquidation with the closure of its business as being inevitable although I recognise the risk. Nonetheless, in the absence of a worthwhile undertaking as to damages, I am not satisfied that the lower risk of injustice would lie with granting the remedies sought.

87 Mineralogy also refers to s 25(9) of the Supreme Court Act 1935 (WA) and to the flexibility and adaptability of the court's power to grant an injunction.[104] It refers to observations made by Dr Spry that a power such as that contained in s 25(9) 'merely confirms the wide jurisdiction of the court' and that while the exercise of such powers is 'restricted in accordance with the general equitable principles', the principles 'are of great breadth and are capable of applying to new classes of cases as they arise'.[105]

88 Mineralogy submits that the injunctions granted by the primary judge are grounded in notions of mutuality and remedying the contractual imbalance: the CITIC Parties are reaping the benefit of the Mining Agreements, shipping a large quantity of ore without paying anything on account of Royalty B; while Mineralogy has been restrained from acting on its rights to terminate the agreements.[106]

This is not an ordinary commercial dispute ... The result of the orders made by the learned primary judge is that Sino and Korean are compelled, on an interlocutory basis, to make some payments in respect of the rights that Mineralogy, also on an interlocutory basis, is compelled to allow them to take its minerals and dispose of them for their own benefit [sic].

90 Mineralogy also emphasises the discretionary considerations found by the primary judge, including the prospect of Mineralogy allowing the CITIC Parties to set off future payments due to Mineralogy under Royalty A in the event that Mineralogy failed at trial and was liable to restore to the CITIC Parties some or all of the sums paid to them pursuant to the judge's interlocutory orders.[108]

91 Mineralogy also relied on the orders being part of a 'broader case management strategy'.[109]

92 Mineralogy contends that ground 2 is 'surprising' because the CITIC Parties had, at an earlier time, themselves sought to rely on cl 30.3(b) of the Mining Agreements, which excludes rights of a party to damages for indirect or consequential loss or damage. Mineralogy contends that the question of whether damages is an adequate remedy forms part of the inquiry as to the balance of convenience.

93 Mineralogy relies on the judge's finding that there is a 'fundamental distinction' between 'a claim to compel a contractual right' and a 'claim for damages'. Mineralogy contends that a mandatory injunction may lie with respect to the former claim, but not with respect to the latter claim.[110]

94 Mineralogy submits that the judge did not find damages to be an adequate remedy and that damages are not, in any event, an adequate remedy, as Mineralogy is 'being kept out of ... a substantial sum over ... a long period pending the final resolution of these proceedings'.[111]

95 Mineralogy submits that the prejudice to it was its likely loss of profits it would have made from pursuing, in accordance with its practice, investment opportunities including through related entities and further, those related entities and their employees were likely to suffer harm from Mineralogy's inability to invest money in them.[112]

96 Mineralogy further submits that the effect of cl 30.3 is that any such lost profits and special damages would be irreversible, with the result that confining it to its legal remedies of debt or damages would not be just in all the circumstances.[113]

97 Mineralogy further submits with respect to the position of its related companies and other third parties:[114]

The consequential losses and effects of the [CITIC Parties'] refusal to pay any sum on account of [Royalty B] cannot be imagined away. Queensland Nickel Pty Ltd is in liquidation. Over 700 employees had their employment terminated when Queensland Nickel was placed into administration, then liquidation. Over 320 people have lodged expressions of interest for re-employment should Mineralogy be in a position to finance the reopening of the refinery.

98 Mineralogy contends that an undertaking as to damages is not a jurisdictional requirement to grant an injunction.[115] Reference is made to Jackson v Sterling Industries Ltd.[116]

99 Mineralogy says that, given the judge's finding as to the strong prospects of Mineralogy's claims, the possibility of the undertaking being called upon is very low.[117] Mineralogy also contends that although security was not formally ordered to support the undertaking, the CITIC Parties effectively have the benefit of security having regard to the following matters:[118]

(a) the judge only ordered 50% of the payments to be made to Mineralogy in respect of the accrued debts;

(b) Mineralogy has offered to permit the CITIC Parties to set off any sum repayable by the undertaking against the Royalty A payments due to Mineralogy under the Mining Agreements;

(c) Mineralogy has offered to permit the CITIC Parties to set off any sum repayable by the undertaking against the option payment of $64.44 million under the China Option Payment Agreement;[119] and

(d) Mineralogy has offered to retain 2 billion tonnes of ore for the CITIC Parties' use against which they may set off any sum repayable by the undertaking.

100 Mineralogy submits, in effect, that the CITIC Parties' contention that on the evidence before the primary judge, there was no reason to believe that the CITIC Parties would be unable to pay all amounts due in respect of Royalty B if Mineralogy succeeds at trial, is not correct. Reference is made to evidence relied on by the CITIC Parties at the hearing on 20 January 2017 to the effect that there would be unspecified 'serious implications' if an order were made in terms of the future quarterly payments based on $6 per tonne. Mineralogy also observes that CITIC is a Hong Kong company and that Sino Holdings is not a party to the litigation. Mineralogy contends that there is no evidence that Sino and Korean could themselves repay substantial amounts to Mineralogy if it succeeded at trial.[120]

101 Mineralogy also contends that, in any event, the payments into court were made to address the CITIC Parties' concerns regarding Mineralogy's allegedly precarious financial position.[121]

102 Mineralogy refers to cl 30.4(d) of the Mining Agreements and contends that its rights are clear, namely Mineralogy is entitled to exercise rights of suspension and termination where Royalty B has not been paid. Mineralogy, with reference to the earlier appeal decision,[122] contends that the 'total effect' of the previous interlocutory injunction proceedings resulted in Mineralogy being unable to terminate the Mining Agreements whilst being obliged at the same time to continue to supply the CITIC Parties with magnetite ore. Mineralogy contends that, as a consequence, it has been effectively deprived of its contractual right to suspend or terminate the Mining Agreements, not just in respect to specific default notices, but more generally. Mineralogy notes that the judge described the position as 'startlingly curious'.[123] Mineralogy contends that the interlocutory mandatory injunction has, to some extent, restored the contractual bargain struck between the parties.[124]

103 Mineralogy submits that this court ought not intervene to disturb the primary judge's orders where:[125]

(a) the CITIC Parties accept that their primary defence is very weak, and that their other defences will result in an order for payment of a royalty to Mineralogy;

(b) despite that assessment, the CITIC Parties refuse to make any payments, on any terms, at any time, until final orders are made;

(c) the CITIC Parties are too entrenched to be evicted, or to be suspended, and enjoy the court's protection by means of interlocutory injunctions and undertakings extracted from Mineralogy; and

(d) as the proceeding continues - having started almost four years ago - Mineralogy solely bears the risk and consequences of the CITIC Parties' refusal to pay Royalty B, and the CITIC Parties enjoy the financial windfall of producing and exporting product without payment of any royalty to the mining lease holder.

In addition to its availability at common law, the granting of an interim payment order in advance of trial is statutorily recognised in Civil Procedure Act 2005 (NSW) section 82 and the Civil Procedure Rules (UK), Part 25, especially rule 25.6 and 25.7.

105 Section 82 of the Civil Procedure Act 2005 (NSW) provides:

(1) In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings.

(2) The court may make such an order against a defendant on the application of the plaintiff at any stage of the proceedings.

(3) The court may not make such an order unless:

(a) the defendant has admitted liability, or

(b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or

(c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant.

(4) The court may not make such an order if the defendant satisfies the court that:

(a) the defendant is not insured in respect of the risk giving rise to the plaintiff's claim for the recovery of damages, and

(b) the defendant is not a public authority, and

(c) the defendant would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made.

(5) The court may order a defendant to make one or more payments of such amounts as it thinks just, but not exceeding a reasonable proportion of the damages that, in the court's opinion, are likely to be recovered by the plaintiff.

(6) In estimating those damages, the court is to take into account any relevant contributory negligence, and any cross-claims, on which the defendant may be entitled to rely.

(7) The court may make an order under this section in proceedings for the recovery of damages to which Chapter 5 of the Motor Accidents Compensation Act 1999 applies, but only an order for one or more payments to be made to the plaintiff of part of the damages for economic loss sought to be recovered in the proceedings and only if the court is satisfied that the plaintiff would suffer financial hardship if such a payment were not made.

106 In appeal CACV 13 of 2017, Mineralogy further submits, in relation to ground 5, that the CITIC Parties' submissions concerning the question of 'restor[ing] balance' were not put to the primary judge. Mineralogy also contends that the orders of 27 January 2017 related to obligations of Sino and Korean at a time when Mineralogy was prohibited from acting to suspend or terminate the Mining Agreements.[127]

107 Mineralogy also contends, in effect, that even absent any current curial or equivalent restraints on termination, the practical reality is that the CITIC Parties would not (without the mandatory interlocutory injunctions) pay any Royalty B until trial. If (without the interlocutory orders) such payments were not made, and Mineralogy then sought to issue new default or termination notices based on non-payment, they would inevitably be restrained, on balance of convenience grounds, from terminating prior to trial.[128]

108 Mineralogy also submits that it has undertaken and remains ready, willing and able to perform its obligations under the Mining Agreements and 'the new undertaking has the same effect as the injunctions granted by Justice Edelman and the undertaking extracted by Justice Chaney'.[129]

109 In relation to ground 6 in CACV 13 of 2017, Mineralogy submits that the judge was correct to confine his attention to the Mining Agreements; that the judge correctly observed that the issue was not sufficiently developed to provide a proper basis for a ruling;[130] that the CITIC Parties contended that they were entitled to occupy the mining area irrespective of any termination under the Facility Deeds; and that the CITIC Parties have misread cl 4.3(c) and cl 12.1(e) of the Mining Agreements.[131]

Mineralogy's applications to adduce additional evidence

110 By applications dated 24 and 28 February 2017, Mineralogy applied to adduce additional evidence in the appeals in the form of affidavits of Mr C F Palmer dated 24 and 28 February 2017.[132] In the affidavits, Mr Palmer:

(a) annexes a document described by Mr Palmer as a 'communication' which appears to be a CITIC media release headed 'Sino Iron Project Update' dated 15 February 2017, which foreshadows an 'estimated impairment of USD800 million to USD1 billion (net of tax) ... to be made in the 2016 accounts ... Impairment is a non-cash accounting item, but it will reduce the company's 2016 reported profits';[133]

(c) annexes a letter dated 27 August 2013 from CITIC's solicitors to Mineralogy's solicitors;

(d) refers to the granting of the mandatory injunctions;

(e) says that 'Mineralogy needs the funds the subject to [sic] the order to properly fund its operations and to fund the trial in June 2017';[134]

[I]f the [CITIC Parties] are awarded damages recoverable under Mineralogy's undertaking as to damages and the payment of that amount of damages and any interest awarded by the Court has not been satisfied within 24 months from the date damages are awarded, by the [CITIC Parties] retaining payments of Royalty Component A, I will personally pay the balance of the amount of any such damages and interest due and owing at the conclusion of the 24-month period.

...

As security for my personal undertaking ... above, I am prepared to undertake not to deal with, dispose of or encumber the following land owned by Palmer Leisure Australia Pty Ltd (a company of which I am director) at Port Douglas, Queensland.

(g) says that the Port Douglas land in question has been valued at approximately $11 million and annexes a copy of a valuation dated 10 February 2017;

(h) states that there is '[a]dditional property', which is 'unencumbered' which 'would be available to be liquidated' to satisfy the 'undertaking', including:

(i) the Palmer Coolum Resort, which Mr Palmer estimates to be worth $200 million;

(ii) the Avica Resort on the Gold Coast, which Mr Palmer estimates to be worth $200 million; and

111 Senior counsel for Mineralogy indicated that Mineralogy did not seek to tender the additional material on the basis that, if admitted, it would prove facts which would provide an alternative basis upon which the judge's orders could be upheld. That is correct, in the absence of a notice of contention. Senior counsel for Mineralogy appeared to suggest, however, that Mineralogy would seek to tender the material on the basis that if certain grounds of appeal were allowed, the material might be relevant to any re-exercise of the court's discretion. He nevertheless appeared to accept that even in that regard, the material could have no relevance if, for example, ground 1 were upheld and the court concluded that it was not open to the judge to make the orders which he did.[136]

112 The principles relevant to an application to adduce additional evidence on an appeal have been set out relatively recently in Saunders v The Public Trustee[137] and need not be repeated here.

113 In summary, for the reasons explained below, the affidavits are largely inadmissible, including on the grounds of relevance. Insofar as they might be admissible, they lack any probative value. Further, most of the material is not fresh evidence.

114 As to the document which appears to be the CITIC media release, there is no notice of contention to the effect that the appeals ought to be upheld on the additional basis that the CITIC Parties would be unable to pay any judgment sums in respect of Royalty B awarded against them after trial.

115 The newspaper articles are not evidence of anything.

116 The letter dated 27 August 2013 refers to a letter dated 26 August 2013 which is not annexed. Accordingly, the context of the letter of 27 August 2013 is lacking. In any event, it is not a communication with respect to Mineralogy's injunction application pursuant to which the orders under appeal were made. Nor is it fresh evidence.

117 The statement referred to in par (e) of [110] above is inadmissible, or at least lacks cogency, without reference to any accounting material or other financial records.

118 The valuation report of the Port Douglas property lacks cogency as it states that it is provided on the bases that:[138]

No Title Searches were undertaken. Our valuation is subject to there being no adverse restrictions or encumbrances attached to the parcels.

119 Mr Palmer's statements as to the value and unencumbered nature of the other properties are not admissible. Even if admissible, they lack any cogency.

120 Mr Palmer's proposals or undertakings are not, in any sense, fresh evidence. There is no explanation as to why these matters were not put before the primary judge in the primary proceedings.

121 Also, there is no cross-appeal in relation to which the additional evidence might arguably be relevant.

122 Although the decisions under appeal are interlocutory rather than final, there remains a public interest in substantial interlocutory disputes such as this (involving thousands of pages of affidavit material), not being revisited at the appellate level on the basis of different evidentiary considerations from those upon which the case was fought in the primary court. This consideration, together with the considerations referred to in [113] above, indicate that it is not in the interests of justice to receive Mr Palmer's affidavit in the appeals. Further, even if the material were potentially relevant to a re-exercise of the court's discretion, for the reasons explained below, the appeal should be allowed and there is no occasion for the re-exercise of the discretion.

123 The applications to adduce additional evidence should be dismissed.

124 At this point, it is convenient to refer to a number of the relevant principles and authorities, including the principal cases referred to by the parties. As noted earlier, Mineralogy relied on the decisions in Golden Sands and CB Direct, referred to in [82] - [86] above.

125 In order to succeed in the appeal, the CITIC Parties must demonstrate error on the part of the primary judge that would warrant disturbance of his interlocutory order. Accordingly, the principles in House v The King[139] apply:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

126 We begin with some observations directed to the grant of final relief. Injunctions in aid of legal rights are grounded in the auxiliary jurisdiction of equity.[140] In equity's auxiliary jurisdiction, an injunction is granted for the effectual protection of the plaintiff's enjoyment of a legal right: Hodgson v Duce.[141] Injunctions in equity's auxiliary jurisdiction may be differentiated from injunctions in equity's exclusive jurisdiction, ie, its jurisdiction over matters in which a court of equity alone has jurisdiction to grant relief.[142]

127 Equity's auxiliary jurisdiction is nevertheless exercised in the context that the common law itself provides particular causes of action and a range of remedies, which strike balances between competing claims and policies: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.[143] A plaintiff cannot establish an equity to an injunction simply because the plaintiff's legal rights are breached or are in jeopardy: Proctor v Bayley;[144] Lawrence v Fen Tigers Ltd;[145] Meagher, Gummow & Lehane.[146]

128 The common law remedy for breach of contract is damages: Harris v Digital Pulse Pty Ltd.[147] Accordingly, in equity's auxiliary jurisdiction, injunctive relief would ordinarily only be ordered if damages were not ascertainable or otherwise not an adequate remedy: Bankstown City Council v Alamdo Holdings Pty Limited.[148]

129 However, that principle is not confined to the legal remedy of damages. It applies to the adequacy of any legal remedy for the legal right sought to be enforced by the plaintiff: Goodson v Richardson;[149] Cardile v LED Builders Pty Limited.[150] In Cardile, Gaudron, McHugh, Gummow and Callinan JJ referred with approval to the observations of Lord Hoffmann in Bristol City Council v Lovell,[151] as follows:[152]

The reason why an injunction is a discretionary remedy is because it formed part of the remedial jurisdiction of the Court of Chancery. If the Chancellor considered that the remedies available at law, such as damages, were inadequate, he could grant an injunction to give the plaintiff more effective relief. If he did not think that it was just or expedient to do so, he could leave the plaintiff to his rights at common law. The discretion is therefore as to the remedy which the court will provide for the invasion of the plaintiff's rights. (emphasis added)

130 We turn to interlocutory injunctions. Where equity's jurisdiction is invoked in an application for an interlocutory injunction, it is necessary to identify the legal or equitable rights which are said to be determined at trial and in respect of which final relief is sought. The power to grant an interlocutory injunction is not to be exercised by reference to unconstrained notions of what appears to be just: it must be exercised by reference to the rights claimed by the applicant in the proceedings.[153] The final relief itself need not be injunctive in nature in this connection: Lenah.[154] An interlocutory injunction in the auxiliary jurisdiction can only lie in order to protect an equitable or legal right which the plaintiff might enforce by final judgment: Lenah.[155] The usual form of the interlocutory injunction in this court is 'until after judgment in this action, or further order'.[156] The usual form of the order, as well as the purpose of the order, indicates that there is no 'free-standing' right to an interlocutory injunction: Lenah.[157] The first question to be answered by the plaintiff in seeking an interlocutory injunction is, 'what is your equity?'[158]

131 The parties to this appeal did not take issue with the observations made in Mineralogy Pty Ltd v Sino Iron Pty Ltd[159] as to the general principles to be applied in the exercise of the power to grant an interlocutory injunction. Those observations proceed, at least implicitly, on the basis that the question of adequacy of damages is an aspect of the balance of convenience, not a separate requirement.[160] We will also proceed on that basis. Three further points should, however, be observed. First, in an interlocutory injunction application in equity's exclusive jurisdiction, the question of whether damages or other remedies at law are adequate does not arise: Heavener v Loomes.[161] Secondly, in equity's auxiliary jurisdiction, the question of whether the plaintiff will suffer irreparable injury for which damages will not be adequate compensation involves no more than a consideration of whether the injury cannot properly be compensated in damages, or by an order for accounts or some other interim remedy. The question of whether the injury cannot properly be compensated in damages involves a consideration of whether it is just in all the circumstances that the plaintiff be confined to their remedy in damages. See R v MacFarlane; Ex parte O'Flanagan and O'Kelly;[162] McCarty v The Council of the Municipality of North Sydney;[163] Action Cycles Pty Ltd v Ross;[164] Meagher, Gummow & Lehane.[165] Thirdly, as the Full Court of the Federal Court observed in Samsung Electronics Company Ltd,[166] in assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; whether those interests tend to favour the grant or refusal of an injunction in any given case depends upon the circumstances of the case; and hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive.

Specific performance and analogous equitable relief

132 Specific performance is not a remedy of right, but a discretionary remedy for the enforcement of contracts, although the discretion is to be exercised on a principled basis and not arbitrarily or capriciously: Loan Investment Corporation of Australasia v Bonner.[167]

133 In Pakenham Upper Fruit Company Limited v Crosby,[168] Isaacs and Rich JJ drew attention to the distinction between, on the one hand, specific performance in its 'true' sense, and relief 'approximate to specific performance', on the other. The former presupposes an executory agreement and the order is made to ensure that something is done such as the execution of a deed or conveyance, in order to put the parties in the legal position relative to each other in which they had agreed to be placed: JC Williamson Limited v Lukey;[169] Sydney Consumers' Milk and Ice Co Ltd v Hawkesbury Dairy and Ice Society Ltd;[170] Bridge Wholesale Acceptance Corporation (Australia) Ltd v Burnard;[171] Burns Philp Trust Co Pty Ltd v Kwikasair Freightlines Ltd.[172]

134 In the case of specific performance in the sense of relief analogous to specific performance, the plaintiff seeks an order that the defendant perform its obligations according to the terms of the contract, and the remedy is frequently sought by way of injunction, including mandatory injunction: Sydney Consumers' Milk;[173] Burns Philp Trust.[174] Equity will not, however, make such an order if it considers that the plaintiff's remedies at law are adequate: Dougan v Ley;[175] Coulls v Bagot's Executors;[176] Sydney Consumers' Milk;[177] Burns Philp Trust;[178] McIntosh v Dalwood (No 4).[179]

135 In Dougan v Ley,[180] Dixon J said that the foundation of decrees for specific performance was 'that damages at law would not give the party the compensation to which he was entitled; that is, would not put him in a situation as beneficial to him as if the agreement were specifically performed'. Further, Dixon J quoted Lord Selborne's statement that '[t]he Court gives specific performance instead of damages, only when it can by that means do more perfect and complete justice'.[181]

136 There has been some suggestion that there is a question of whether inadequacy of damages is a jurisdictional requirement or a discretionary consideration,[182] and of whether inadequacy of damages is a separate requirement or part of a broader inquiry as to whether it is just in all the circumstances that the plaintiff be confined to damages.[183] It is not necessary to decide any such questions in this case. However, it might be thought that what is said by the High Court in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (No 3)[184] maintains the fundamental need to show that damages would be an inadequate remedy.

137 Accordingly, for example, a contract merely to lend money will not generally be specifically enforced.[185] Nevertheless, where adequate relief at law is not available, the court may, by way of final relief, order specific performance of an obligation to pay money, including, for example, an agreement to pay an annuity: Bonner;[186] Beswick v Beswick;[187] Wight v Haberdan Pty Ltd;[188] see also Meagher, Gummow & Lehane.[189]

138 In a suit by a vendor for specific performance (proper) of a contract for the sale of land, where the purchaser has gone into possession prior to completion, a court of equity may grant an interlocutory order requiring the purchaser to pay the balance of the purchase price into court, subject to allowing the purchaser to elect to go out of possession pending trial: Lewis v James;[190] Greenwood v Turner;[191] Attfield v D J Plant Hire and General Contractors Co Ltd.[192] The rationale for the court making such an order is to preserve the property which is the subject of the proceedings. It is considered unjust to allow the purchaser to have both the land and the purchase money in its possession pending the trial of the suit for specific performance: Attfield.[193]

139 Lewis was itself a case where that principle was applied with modification and by analogy. In that case, the plaintiff had agreed to lease a coal mine to the defendant in consideration for the defendant paying to the plaintiff a royalty on the coal raised at the mine. The plaintiff alleged the agreement was for a royalty of 10 pence per tonne. The defendant alleged that the agreement was to pay a royalty of 9 pence per tonne. Each of the plaintiff and defendant sought specific performance of the agreement for lease (ie, it appears, specific performance 'proper') in the respective terms alleged. The defendant also had an action for damages in the Queen's Bench Division based on alleged misrepresentation. The plaintiff sought an interlocutory order that the defendant pay into court the amount of royalties at 10 pence per tonne on the coal raised. The Court of Appeal held that the defendant should pay into court that royalty which at least the defendant agreed he would have to pay when the rights of the parties were eventually decided, ie, a sum representing a royalty of (in effect) 9 pence per tonne. Cotton LJ said:[194]

This is in some respects like a case where a purchaser being in possession is required to pay into Court, if he remain in possession, the purchase-money agreed upon, but it is well known that in such a case under ordinary circumstances an option is given to the purchaser to go out, and the order only is that if he continue in possession he must pay the price into Court. But that is not necessarily the only order which the Court can make in such a case. Special circumstances may vary it and there are two cases to which Lord Justice Fry referred: Cutler v Simons and Pope v Great Eastern Railway Company in which, where a purchaser in possession was doing acts which were diminishing the property or interfering with the value of the property, the Court ordered the money to be paid into Court without giving him an option of going out and leaving the property which he had interfered with ... The principle of those cases is this, that although under ordinary circumstances a purchaser in possession has the option of going out, and is not ordered to pay the purchase-money unless he elects to stay in, yet where he has done that which has interfered with the value of the property, the Court does not give him the option. Here the Defendant is in possession, and although he may have erected valuable machinery he is taking away part of the very subject matter of the contract, and he insists that he is in possession under an agreement of which he himself is asking for specific performance. He ought then, in my opinion, to pay into Court until the rights of the parties are decided that royalty which he says he will have to pay when the contention between the parties is decided. (emphasis added) (footnotes omitted)

I entirely agree with what the Lord Justice has said about the power of the Court to make this kind of order in an action for specific performance ... Treat the action as you like, it is admitted that in any view of the case there is a liquidated sum due in respect of coal taken. It may be, for anything I know, that the Defendant may have a good cause of complaint against the Plaintiffs in respect of misrepresentation, or in respect of the damage and expenditure into which he has been led by the misconduct of the Plaintiffs, but that would be in the nature of a counter-claim for a sum to be set off against what stands as a liquidated sum due in respect of coal taken. I think that is clear. The Plaintiffs desire specific performance. They claim royalty at 10d. per ton for coal taken. The Defendant does not deny that he made an agreement which he intended to be binding, in which the royalty was (subject to what may be said as to figures) a smaller sum which I will call 9d. The Defendant indeed complains that there has been misrepresentation on the part of the Plaintiffs, and that the Plaintiffs cannot give him what they promised to do, but what is the residuum of fact which is beyond all dispute? Why, that the Defendant is going on working this very coal and carrying it away. Now either he has a right to do it, or he has not a right to do it. If he has not a right to do it, he ought to account for the value of the coal, at all events to the extent of the royalty which he himself says he was to pay. If he has a right to do it, his only claim of a right to do it can be upon the footing of what he alleges to be the agreement, viz, that he should pay a royalty of 9d. In either view something ought to be paid for the coal, and that something is the sum fixed by the Defendant himself. What, then, is the power of the Court on facts which stand as I have described the facts here? The Plaintiffs at any moment, on motion for judgment, could get an order for payment of the minor royalty on the coal taken, and although it would not be reasonable to make the Defendant pay over that sum to the Plaintiffs, because he says that he has a counter-claim in the nature of a claim for misrepresentation and for moneys spent on the mine, yet to secure that sum in Court seems to me under the circumstances to be clearly within our jurisdiction. (emphasis added)

141 Also, a plaintiff may itself be required to pay a disputed sum into court as a means of doing equity where it is the plaintiff who is applying for injunctive relief. Payments into court pending trial are not uncommon in the context of a suit to restrain the defendant from withdrawing services under an agreement which the defendant had purportedly terminated. In Businessworld Computers Pty Ltd v Australian Telecommunications Commission,[196] the respondent (Telecom) had disconnected the applicant's telephone services for alleged non-payment of accounts. The applicant commenced proceedings challenging the lawfulness of the disconnection, and sought an interlocutory injunction, pending trial, under which Telecom was to be 'restrained ... from continuing the disconnection' of the services.[197] The order sought was, in substance, a mandatory injunction for restoration of the telephone services.[198]

142 The unpaid amounts totalled $22,000.[199] Gummow J found that even if the accounts were authorised, there was a serious question to be tried as to the quantum of at least $7,000. His Honour observed that that itself would not support the grant of interlocutory injunctive relief, and that the applicant was still required to show some legal right attracting injunctive relief.[200] His Honour found, in effect, that the applicant had done that in relation to the question of Telecom's right to withdraw services in the context of the contractual and statutory scheme under which the services were supplied.[201] His Honour granted the interlocutory injunction subject to the applicant giving to the court undertakings, including that it would pay $15,000 ($22,000 less $7,000) into court, pay its current accounts, and pay to Telecom 'all sums due and payable under any further account issued by [Telecom] during the pendency of these proceedings'.[202] His Honour said:[203]

The present case is appropriate for mandatory interlocutory relief. The grant thereof will not, in any practical sense, decide the case on a final basis because the consequences can be undone if final relief is refused; if the applicant fails at the trial, disconnection will be a simple and inevitable step. In the meantime, the position of the respondent is secured by undertakings, on the part of the applicant, inter alia, to pay promptly into court a substantial proportion of the sum claimed by the respondent. On the other hand, the denial of mandatory relief is likely to mark severe injustice to the applicant by damage to its business and goodwill, and damage to goodwill is not readily reducible to monetary compensation. Nor, as I have already said, is this a case where there is any significant element of personal trust or confidence between the parties upon which the effective continuance of their relationship depends, or where there is difficulty in framing or observing the terms of an injunction. (emphasis added)

143 A somewhat similar circumstance to Businessworld arose in Telstra Corporation Ltd v First Netcom Pty Ltd.[204] There, Telstra Corporation Ltd (Telstra) supplied certain telecommunications services to the customers of First Netcom Pty Ltd (First Netcom), an intermediate purveyor of telecommunications services. Telstra sued First Netcom to recover unpaid amounts for the services in the sum of approximately $13.9 million. It also gave notice that it would disconnect First Netcom's customers under a contractual right to terminate if accounts were unpaid. First Netcom cross-claimed seeking damages for $30 million, and also, it appears, sought an interlocutory injunction restraining Telstra from (amongst other things) discontinuing the provision of services to First Netcom's customers. The trial judge granted the interlocutory injunction without requiring First Netcom to pay into court or secure the payment of the disputed amounts. That decision was overturned in the Full Court. The Full Court said:[205]

It is a fundamental maxim of equity that he who seeks equity must do equity. The learned authors R P Meagher, W M Gummow, J R F Lehane Equity: Doctrines and Remedies (3rd ed, 1992), par 311, describe this as among the most important of the maxims, for it is at the heart of the remedies which a court administering an equitable jurisdiction will grant.

Thus, a court of equity will not make an order for specific performance of an agreement (and there is an analogy between an order for specific performance and the mandatory injunction sought in the present case) unless the party seeking that order is ready, willing and able to perform his or her side of the bargain. (emphasis added)

144 The Full Court observed, in effect, that, where a party (applicant) seeks a mandatory injunction to restrain the other party (respondent) from terminating their agreement in the (alleged) exercise of a contractual right, the applicant should itself show its readiness and willingness to perform the agreement to which it seeks to hold the respondent. In such a case where moneys were allegedly due under the agreement, that would ordinarily require the applicant, in addition to the usual undertaking as to damages, to pay any amounts not in dispute to the respondent, and to pay into court any disputed amounts, although in some circumstances (as in Businessworld) the court may require some amount less than the full disputed amounts to be paid into court.[206] In determining what amount should be paid into court in that regard, consideration should be given to the solvency of the applicant. Where the applicant does not pay all the disputed amounts either to the respondent or into court, or does not give security for all the disputed amounts (in addition to an undertaking to pay all future amounts), then the respondent could 'be forced to continue to do business, and incur perhaps ever greater indebtedness, and ultimately be left lamenting for amounts unpaid'.[207]

Thus the failure to direct attention to the need for First Netcom to do equity as a condition of the grant of the mandatory injunctive relief and the related failure to treat the question of the solvency of First Netcom as a matter requiring immediate examination rather than full litigation in the future, both involved, in our view, errors of principle. Before granting interlocutory relief in the form of a mandatory injunction it was incumbent upon the learned primary judge to determine what provision should be made to secure the position of Telstra, should trading continue between the parties and, to the extent that the whole amount owing was not paid or secured, the financial situation of First Netcom was a matter of the greatest significance. This was particularly so in the present case when such evidence as there was before his Honour as to the capacity of First Netcom to pay indicated that that company had a share capital of only $4 ...

In these circumstances in our view it would be quite wrong in principle to require Telstra to continue to perform its side of the agreement with First Netcom, when that company has neither offered to pay, paid into court or offered to secure payment, of the amounts in dispute.

146 Reference should also be made to the English Court of Appeal decision in AB v CD[209] relied on by Mineralogy and referred to by the primary judge. In that case, CD owned the intellectual property rights in an internet-based platform for a market for goods and services in, primarily, the international mining and metals business. CD granted AB a licence to market the internet platform in the Middle East. CD later purported to terminate the licence under the terms of the licence agreement. AB alleged that it was not entitled to do so and commenced arbitration proceedings in that regard. In the meantime, AB also sought an interim injunction under the relevant arbitration statute in the High Court in England (the licence agreement being governed by English law). AB sought an order to the effect that pending the award in the arbitration, CD continue to perform its obligations under the licence agreement and be restrained from terminating or suspending it. AB contended, it appears, that unless the interim injunction was granted, it would not be adequately compensated in damages for the alleged wrongful termination because there was a clause of the licence agreement which excluded liability for loss of profits in the event of breach.

147 At first instance, AB failed in its claim for an interim injunction. The judge found, in effect, that AB had an adequate remedy in damages if it established, in due course, that the licence agreement was wrongfully terminated. In that regard, the judge said that as AB contracted on the basis of the limited liability clause, it was not unjust to exclude the effect of that clause when considering whether AB should be left to its remedy in damages.[210]

148 That decision was overturned in the Court of Appeal. The Court of Appeal held that the effect of the limited liability clause was to limit the recoverability of a head of loss once breach is established. In other words, it merely limited the damages recoverable for an established breach.[211] In a context in which the question of AB's right to continue licensing the product was still to be determined (by arbitration) and the interim injunction was itself designed to avoid any cause for a claim in damages for breach if AB succeeded in the arbitration, the limited liability clause did not preclude the court from granting such relief as was appropriate. Lord Justice Underhill, who wrote the principal judgment of the court, said:[212]

As for why I consider that the reasoning in Bath v Mowlem [2015] 1 WLR 785 is not only binding on us but, with respect, right, my reasons in truth go little further than how Mance LJ puts it in para 15 of his judgment. The primary obligation of a party is to perform the contract. The requirement to pay damages in the event of a breach is a secondary obligation, and an agreement to restrict the recoverability of damages in the event of a breach cannot be treated as an agreement to excuse performance of that primary obligation ...

Viewed in this way, there is no question of, as [counsel for CD] contended, the commercial expectations of the parties being undermined. The primary commercial expectation must be that the parties will perform their obligations. The expectations created (indeed given contractual force) by an exclusion or limitation clause are expectations about what damages will be recoverable in the event of breach; but that is not the same thing.

149 There is an inherent power of all superior courts to preserve the subject matter of litigation before them: Tait v R;[213] Simsek v MacPhee.[214] Further, s 167(1)(oa) of the Supreme Court Act 1935 (WA) contains an express power to make rules in respect of the preservation of property - as to which see O 52 r 2 of the Rules of the Supreme Court 1971 (WA).

150 An interlocutory order to preserve property pending litigation is to be distinguished from a 'Mareva' order or 'freezing' order. A property preservation order protects specific property rights. On the other hand, a 'Mareva' type of order is concerned with a risk that a plaintiff with a personal remedy may find that the defendant has no assets to meet it: Reliance Financial Services v Lemery Holdings.[215]

151 The power to make a 'Mareva' order exists to protect the court's process: Patrick Stevedores Operations No 2.[216] It is not an injunction in equity's auxiliary jurisdiction in aid of a legal right, because it is settled that a simple contract creditor has no equity to restrain the defendant from dealing with its assets as it pleases, on the ground that the defendant is diminishing the fund for payment of the debt: Cardile;[217] Mills v Northern Railway of Buenos Ayres Company.[218]

152 The statutory conferral of power on a court in New South Wales to order interim payments, referred to by Mineralogy (see [104] above), is to be understood against the background that it was held, some 40 years ago, that the court has no inherent jurisdiction to make orders for interim payment: Moore v Assignment Courier Ltd.[219] In that case, a lessor claimed forfeiture of a lease for breaches of covenants by the lessees. The lessor also claimed mesne profits for the period from the date of forfeiture. The lessor also applied for interlocutory orders compelling the lessees to make interim payments pending determination of the action. The claim was made on the basis that the lessees could not, in justice, retain occupation of the property without paying any price for the occupation. Sir John Pennycuick observed that the plaintiffs' position, and the question for resolution, were as follows:[220]

[T]he landlord must, says counsel for the plaintiffs, by one road or another be entitled to compensation for the occupation by the tenant of the landlord's property: if the claim in forfeiture succeeds, then he will get that compensation in the form of mesne profits; if, on the other hand, the claim for forfeiture fails, then the relationship of landlord and tenant will have continued to subsist throughout and the landlord will get that compensation in the form of rent under the lease.

That last statement is, I think, correct. By one road or another, the landlord will ultimately be entitled to receive or be credited with compensation for the use of his land. I put it that way because there might in certain cases be (I do not suppose there is one here) a cross-claim by the tenant based on breach of the landlord's covenant to repair. Again, the tenant might have a cross-claim in costs. The question, however, is whether in that state of affairs the court has any jurisdiction to order an interim payment corresponding to the minimum amount which, by one road or another, the landlord will receive by way of compensation for the use of his land. (emphasis added)

153 The court held that it had no inherent jurisdiction to make the orders sought, which went beyond procedure, and were matters of substantive right. In that regard, the court observed that whilst the Rule Committee had statutory authority to make rules regarding certain interim payments (in personal injury matters), no broader powers for rule-making in relation to interim payments were conferred, and no such rules had been made.[221]

154 The decision in Moore was followed and applied by the Court of Appeal in England in Wicks v Wicks,[222] and was referred to by Le Miere J in Norilya Minerals Pty Ltd v Adam Jonathon Ireland as Named Executor of the Estate of Dean Edward Ireland.[223] An application for leave to appeal against Le Miere J's decision (although this point was not raised in the appeal) was dismissed: Ireland v Norilya Minerals Pty Ltd.[224]

155 The common law does not, and never did, conceive of indebtedness in a sum certain for an executed consideration as a mere breach of contract. Rather, indebtedness is the detention of a sum of money and, under the common law, that was so whether the creditor enforced his or her demand by an action of debt, or by indebitatus assumpsit: Young v Queensland Trustees Limited.[225]

156 An action to recover a debt does not involve specific performance of the contract.[226]

157 The grounds of appeal allege, in a variety of related ways, a number of errors of principle in the judge's approach to the making of the interlocutory orders. Before dealing with the specific grounds of appeal, the following observations about the primary judge's orders may be made at the outset.

158 First, they are not framed in the usual form of an interlocutory injunctive order in this court, ie, 'until after judgment in this action, or further order'. By their terms, they are free-standing interlocutory orders which operate irrespective of the final outcome at trial. An order for a defendant to pay money to a plaintiff in advance of a determination of whether the money is due, could not conventionally be framed as 'until after judgment in this action, or further order'. That is particularly so, although not confined to the situation, where the finding is that the plaintiff may not be good for the money even if the defendant succeeds at trial. This point of form reflects the fundamental character of the orders made for payment to Mineralogy and into court. The orders for payment are unconditional, and do not control Mineralogy's freedom to deal with the monies received. Success on the part of the CITIC Parties at trial would not lead to the return of the fund constituted by the monies paid to Mineralogy (there is no obligation to preserve those monies); rather such success would result in the creation of a new obligation on Mineralogy to pay a like amount to the CITIC Parties.

159 The character of the orders for payment to Mineralogy as final and not interlocutory is reinforced when, as was found to be so in this case, the plaintiff (Mineralogy) may not be good for the money even if the defendant succeeds at trial.

160 We note that the primary judge referred to the fact that the relief sought by Mineralogy was akin to final relief in its favour, and stated that that was a consideration demanding 'very considerable caution' in the exercise of the balance of convenience discretion.[227]

161 Secondly, despite having found, relevantly, that Mineralogy's causes of action in 4 FASOC were 'exclusively grounded in common law claims',[228] his Honour's emphasis on the need for Mineralogy to be ready, willing and able to perform the Mining Agreements suggests that he considered that its claims were tantamount to a suit for specific performance or relief analogous to specific performance. However, in 4 FASOC, Mineralogy was not seeking specific performance or analogous relief, or a mandatory injunction, requiring the CITIC Parties to pay the amounts said to be owing in respect of Royalty B payments. Rather, as his Honour had observed, Mineralogy's claims were at common law, including for debt.[229] That remained the position in 5 FASOC, at least in relation to the sum of $97 million claimed for Royalty B in relation to production up to 30 September 2016.

162 Thirdly, and related to the last point, his Honour does not, with respect, appear to have examined upon what basis it might be said that Mineralogy's claims for debt, including contractual Default Interest under cl 30.1 up until the day of payment, required the protection of equity in the interval prior to trial. Those common law rights would subsist and remain undiminished and unimpaired up to the point of their determination at trial without the aid of equity. Insofar as his Honour considered the adequacy of damages,[230] we refer to what is said below as to ground 2.

163 The fourth and related observation concerns his Honour's finding that a factor weighing in favour of Mineralogy was the existence of the contractual provision excluding damages for indirect or consequential loss, ie, cl 30.3(b) of the Mining Agreements (see [13] above). As noted earlier, Mineralogy's claims for final relief were for the recovery of debt plus Default Interest. To the extent that cl 30.3(b) could apply to non-payment of debts on time,[231] it would apply to Mineralogy's claimed final relief irrespective of whether any interlocutory orders for payment were made. The case is unlike AB v CD where the interim injunction precluding termination by CD of the licensing agreement pending final hearing, provided full protection to AB's claimed legal rights to continue marketing the internet platform and its contention that CD's purported termination was ineffectual. In that case, the alternative, legal, remedy of damages would be inadequate if AB ultimately succeeded at trial in showing that CD's purported termination was ineffectual, because the extent of its loss in being prevented from marketing pursuant to the licence agreement would exceed the damages which it could recover for its loss. Here, the legal remedy in debt, including Default Interest, is precisely the same whether interlocutory orders for payment are made or not.

164 Fifthly, insofar as his Honour considered that it was relevant to take into account the conditions (or absence of conditions) on which the interlocutory injunction to the CITIC Parties on 14 October 2013 had been granted, and Mineralogy's March 2015 undertaking had been given, with a view to restoring a 'proper balance' to the parties' contractual relationship, his Honour appears to have overlooked the limited reach of those matters and the effect of Mineralogy's notices of 16 October 2015. There was no curial restraint, or undertaking in lieu of curial restraint, precluding Mineralogy from terminating the Mining Agreements for breaches or repudiatory conduct subsequent to, or not otherwise falling within, the limited terms of these earlier restraints. Also, the restraint in Mineralogy's March 2015 undertaking was revocable on 60 days' notice. Mineralogy relied on additional or other matters, and/or the giving of the requisite 60 days' notice, in purporting to terminate the Mining Agreements pursuant to its notices dated 16 October 2015. In other words, there was no relevant court order or undertaking precluding Mineralogy from terminating the Mining Agreements in accordance with the 16 October 2015 notices. Those notices relied, amongst other things, on the alleged repudiation of the Mining Agreements as a result of the non-payment of the alleged Royalty debt of $22 million. Moreover, in circumstances where the judge envisaged that Mineralogy, as a condition of the grant of the orders, would withdraw the rights it had asserted to terminate based on past breaches in relation to the non-payment of Royalty B, any pre-existing imbalance in the contractual relationship, based on Mineralogy's inability to pursue such rights, would be an irrelevant consideration to the making of the orders. For these reasons we reject Mineralogy's submission summarised at [88].

165 Sixthly, even if it were assumed that Mineralogy was seeking final relief in the form or nature of specific performance, and it were assumed that a principle analogous to that applied in Lewis were applicable, the payment orders made by the primary judge go beyond any equity that Mineralogy could ordinarily assert on those hypotheses. That is because in such circumstances, Mineralogy might prima facie have an equity to compel Sino and Korean to pay to it any undisputed amounts in relation to Royalty B payments, and to pay any disputed amounts into court. But it would not, prima facie, have an equity to compel Sino and Korean to pay disputed amounts to Mineralogy. That is particularly so in the context of a finding that there were legitimate concerns of a strong likelihood that any moneys paid to Mineralogy would not be recovered if the CITIC Parties succeeded at trial.

166 The seventh point assumes for present purposes that Mineralogy's claims were for specific performance and a principle analogous to that applied in Lewis were applicable, and assumes, further, that the effect of the judge's finding as to the strength of Mineralogy's case was that there was no chance of a court finding cl 8.2 void and severing it, and that (according to this argument) the only dispute or question requiring a trial was in relation to Sino and Korean's alternative case that a 'fair and reasonable' sum was payable. That might arguably generate an equity to compel payment into court pending trial of a 'fair and reasonable' sum, as alleged by the CITIC Parties, or an amount approximating that sum. However, the judge did not approach the making of the interlocutory payment orders on that basis. Nor, as counsel for Mineralogy conceded on appeal,[232] was there evidence before the primary judge as to the quantification of a 'fair and reasonable' royalty. Rather, his Honour applied the Royalty B formula as advanced by Mineralogy in its case, and adopted a 'conservative' figure of the price per tonne based on Mineralogy's expert evidence. In other words, his Honour effectively granted Mineralogy the final relief that it sought, albeit calculated on a 'conservative' figure. The CITIC Parties' case, on the other hand, was that the determination of a 'fair and reasonable' royalty would take into account matters including certain alleged options granted to Mineralogy under cl 14 of the Mining Agreements, and payments and other benefits conferred on Mineralogy pursuant to the Mining Agreements and related agreements, including the payment for the grant of the site lease and the amounts paid to Mineralogy pursuant to the 'Takeover Agreements' in sums totalling approximately $415 million, as well as the expenditure incurred in developing the project since 21 March 2006.[233]

167 The eighth and related point proceeds, for present purposes, on an assumption that Sino and Korean were in substance applying to restrain Mineralogy from terminating the Mining Agreements in reliance on the 16 October 2015 notices or were otherwise enforcing some relevant curial or equivalent restraint on termination. Mineralogy, in effect, appears to make such an assumption, although for the reasons given earlier, that is not the position as the litigation stood as at October 2016. Nevertheless, in seeking and doing equity in such a case, prima facie, Sino and Korean would arguably be required as a condition of the grant of relief to pay into court the disputed amounts in relation to Royalty B payments, in addition to giving an undertaking as to damages. They would not, however, prima facie, be required to pay the disputed amounts to Mineralogy, particularly, as noted earlier, in the context of a finding that there were legitimate concerns of a strong likelihood that any moneys paid to Mineralogy would not be recovered if the CITIC Parties succeeded at trial. That is so even though the judge also found that the non-payment of Royalty B had been a strong contributing factor to Mineralogy's fiscal problems, but Mineralogy had itself also contributed to those problems.

168 Finally, the court has established processes for the early obtaining of judgment under the summary judgment procedure provided for in O 14 of the Rules of the Supreme Court.[234] The interlocutory payment orders made by the judge have effectively allowed Mineralogy to bypass the requirements for summary judgment in what was, in effect, an action for debt and damages. Under this procedure, if it is not possible to say without doubt on the whole of the material that there is no real question to be tried, there should be leave to defend.[235] That is because a court whose jurisdiction is regularly invoked should not decide the issues raised in proceedings in a summary way, except in the clearest of cases.[236] Where the only triable issue is the quantification of damages, the court may not give judgment for part of the damages and give leave to defend as to the balance, unless the part for which judgment is given is ascertained and is indisputably true.[237] The Rules of the Supreme Court impose time constraints on parties seeking to invoke that procedure which reflect the desirability of bringing applications for summary judgment promptly before the parties have incurred unnecessary costs.[238] Further, the general rule is that if there is a fair issue to be tried, the defendant should have unconditional leave to defend, although the court has a discretion to impose conditions. For example, where the court concludes in an application for summary judgment that the defence is 'shadowy', or the court doubts the defendant's bona fides, the giving of security or the payment into court may be ordered as a condition of leave to defend.[239]

169 Turning to the individual grounds of appeal, ground 1 should be upheld. The judge's orders were not made in accordance with equitable principles, or any other recognised principles having regard to the considerations outlined above. For the purpose of ground 1 of the appeal, the following matters in particular indicate the absence of any relevant equity in Mineralogy:

(a) both liability and quantum in relation to Royalty B were in dispute, and it was evident (and Mineralogy did not contend otherwise) that such a dispute could not be resolved summarily in favour of Mineralogy;

(b) the judge accepted that although the CITIC Parties were 'potentially mistaken' in relation to the construction and operation of cl 8.2 of the Mining Agreements, their position was not inconsistent with an acknowledgement of an ongoing contractual obligation to pay the royalty payments;

(c) Mineralogy's remedies at trial were at law, including for Default Interest under the Mining Agreements, and the contractual limitation on damages in cl 30.3(b) did not point to or give rise to any inadequacy in Mineralogy's legal remedies;

(d) there was no finding (or notice of contention contending for a finding) to the effect that the CITIC Parties would be unable to pay any sums awarded against them on final judgment after trial, or that there was any material risk in that regard;

(e) there was no finding that Mineralogy faced external administration, with the resultant loss of goodwill to its business, if it only received Royalty A payments pending final determination at trial;

(f) Mineralogy, in 5 FASOC, was not contending that the Mining Agreements had been terminated in October 2014, or at all; and

(g) as at the date of the decisions under appeal and the grant of the interlocutory payment orders, there was no curial or equivalent restraint by way of undertaking to the court which precluded Mineralogy from terminating the Mining Agreements for the non-payment of the Royalty B payments which had allegedly fallen due after 26 July 2013 (including on the basis of the 15 October 2015 notices), and there was no occasion for his Honour to consider that interlocutory payment orders were required to restore a 'proper balance' to the parties' contractual relationship in that regard.

170 Mineralogy's arguments to the contrary should be rejected. Even accepting that Mineralogy had a strong prima facie case on its claim for debt and Default Interest, for the reasons already given, the rights at law which it was asserting by way of final relief did not require and did not justify equitable protection pending trial. Further, the observations of the Court of Appeal in the appeal from Tottle J's decision could not be determinative of the matter. That was an appeal from an interlocutory decision. When the matter came on for hearing before the primary judge, the primary judge had before him further pleadings and evidence beyond those which were available in Mineralogy's earlier injunction proceedings. Also, it is not clear from the earlier appeal decision whether the point was raised that Chaney J did not grant an injunction in March 2015, but rather Mineralogy gave an undertaking revocable on 60 days' notice.[240] Further, the court does not appear to have been asked to consider the effect of Mineralogy's termination notices of 16 October 2015. Finally, the notice of contention in that appeal did not cover the grounds relied upon by the CITIC Parties in this appeal.[241]

171 The decision in Golden Sands has no analogous application. In that case, the owners of the site were seeking, by way of final relief, the recovery of past royalties and a declaration that they were entitled to terminate the Royalty Agreement on the basis of Golden Sands' earlier defaults. There was no dispute that past royalties totalled $1.2 million, the liability for which Golden Sands denied on the basis that it had (in effect) an offsetting unliquidated damages claim. There was no dispute that whilst the agreement continued until trial, and prior to any declaration that the site owners were entitled to terminate the agreement, the royalty payments were approximately $42,000 per month. The risk, according to the judge, was that if Golden Sands failed at trial, or recovered damages less than $1.2 million, and the agreement was found to be terminable at an earlier time, the resource would have continued to be depleted by the continued removal of sand until trial, in circumstances where the site owners would then be left without any adequate legal remedy, because of the financial position of Golden Sands.

172 The present case has none of the material features of the Golden Sands case which the judge found supported the interlocutory injunction requiring Golden Sands to resume current monthly royalty payments pending final determination. In this case:

(a) there was no finding that there was a 'very considerable risk' that Sino and Korean would not be in a position to meet any money sums awarded in judgment against them, and there is no notice of contention to that effect;

(b) the liability for both past and future Royalty B payments was in dispute;

(c) the only undisputed royalty payments as at October 2016 were Royalty A payments, and they were being paid, and there was no reason to suppose that their payment would not continue until trial;

(d) even if it were assumed that, in substance, it was undisputed by the CITIC Parties that they would have to pay a 'fair and reasonable' royalty for Royalty B as pleaded by the CITIC Parties, Mineralogy did not seek, and the orders did not require, the payment of such a 'fair and reasonable' royalty; and

(e) in any event, by the time the judge made order 2 of the orders on 27 January 2017 requiring, in effect, quarterly payments assessed at $6 per tonne of iron ore to be paid into court in the period up to the time of trial, Mineralogy had withdrawn its claims of termination.

173 Further, it was not suggested in Golden Sands that the site owners could recover on an interim basis the past royalty debts of $1.2 million which were, in substance, disputed on the basis that Golden Sands had offsetting claims for damages.

174 As to the decision of CB Direct, that was a case where the plaintiff sought to, in effect, enforce an agreement under which it was entitled to receive trailing commissions and which the defendant had purported to terminate. There was a serious question to be tried as to whether the defendant was entitled to terminate, and, in any event, there was a strong prima facie case that, if it was entitled to do so, it nonetheless elected to affirm the agreement. It alleged, in effect, that without the continued receipt of commissions, it faced external administration and the resultant loss of the goodwill of its business. There was, however, (apparently) no dispute about Challenger's liability for, or the quantum of, the trailing commissions if the purported termination was unlawful. In the present case, however, the CITIC Parties are not seeking to terminate the Mining Agreements and are not seeking, on that account, to avoid the payment of the Royalty B payments. Rather, in general terms, they contend that the Royalty B provision is uncertain and severable, or that they have a liability to pay a 'fair and reasonable' royalty to be determined by taking into account various alleged payments and other advantages retained by Mineralogy. Both liability and quantum are in dispute. Also, there is no finding or suggestion that Mineralogy is facing external administration, with the resultant loss of goodwill to its business, if it only received Royalty A payments pending trial. The CB Direct decision is of no material assistance to Mineralogy.

175 Mineralogy's submissions as to the scope of s 25(9) of the Supreme Court Act recognise that the court's power is to be exercised in accordance with general equitable principles. However, for the reasons given in [157] - [168] above, the judge's interlocutory payment orders were not made in the exercise of recognised equitable principles.

176 As to Mineralogy's 'offer'[242] to allow for the offset of Royalty A payments in the future if the CITIC Parties succeeded wholly or partly at trial, four observations may be made. First, it appears that there was no formal written undertaking given to the court in the usual form (or at all), and nor was such an undertaking required by the judge. Secondly, the commercial efficacy of the offer is open to question absent an ancillary undertaking not to charge future Royalty A payments in favour of third party creditors. Thirdly, even if the offer provided a secure source of recovery to the CITIC Parties in the event that they succeeded at trial, full recoupment would not be immediate (or even short term) and would not be free of risk as Royalty A payments are only payable quarterly, and out of future production. Fourthly, and in any event, Mineralogy's remedies are legal remedies, and they have not been shown to be inadequate.

177 Nor is it correct to say, as Mineralogy contends, that by virtue of or pursuant to the interlocutory orders, Mineralogy itself is being 'compelled to allow [Sino and Korean] to take [Mineralogy's] minerals and dispose of them for their own benefit'.[243] The litigious context is, relevantly, as follows.

178 Although Mineralogy contends that the debt of $22 million in respect of Royalty B accrued for the production period to 30 September 2014, there was no claim by way of substantive relief for unpaid Royalty B until late 2015. By October 2016, when the judge heard Mineralogy's application for injunctive relief, its primary claims were for the alleged debt of $22 million, and for loss of bargain damages and damages for the wrongful taking of ore after the (alleged) termination in October 2014. It had foreshadowed (in the proceedings which were stayed as an abuse of process) a summary judgment application, but that appears not to have been pursued. The claims for (alleged) accrued Royalty B payments totalling approximately $81 million were accorded a significance in the interlocutory application which they had not had prior to that point and, as the judge in effect observed, $59 million of those claims were inconsistent with Mineralogy's primary claims for substantive relief. The election made by Mineralogy in January 2017 to affirm the Mining Agreements and sue for debts up to and including 30 September 2016 (totalling $97 million on its case), was a course which was always open to Mineralogy.

179 Mineralogy was not, in any sense, 'compelled' by the judge's interlocutory orders to abandon its claims for loss of bargain damages (pleaded at $6.4 billion) and damages for the wrongful taking of the ore subsequent to termination (pleaded at $190.64 million). If Mineralogy considered that it was entitled to obtain the interlocutory payment orders without them being conditioned by a requirement to withdraw its existing termination claims, it should have maintained the termination claims, and then appealed the primary decision. If Mineralogy considered that the judge was correct in conditioning the interlocutory payment orders in that way, its choice was either to take the benefit of the interlocutory payment orders, or maintain its claims in relation to termination. That was entirely a matter for Mineralogy. It is not correct to say that Mineralogy is being 'compelled' by the judge's orders to 'allow' Sino and Korean to take the ore pending trial.

180 Finally, the imperatives and policies of case management cannot salvage the interlocutory orders if they are contrary to equitable principles, which they are.

181 Ground 2 should also be upheld. There is, at least for present purposes in relation to the injunctive relief sought by Mineralogy, no material difference between the need to consider the adequacy of legal remedies for the legal remedy of damages, and the legal remedy for debt.

182 The judge referred to the question of adequacy of damages as a consideration relevant to the balance of convenience.[244] His assessment of the balance of convenience referred to matters said to go to the adequacy of damages.[245] In context, that may be taken as referring to or encompassing the question of the adequacy of Mineralogy's common law remedy in debt. His Honour's findings as to the adequacy of damages are, with respect, not clear. His Honour referred to findings by Tottle J, and to the summary in Newnes JA's reasons in the earlier appeal.[246] Many of those involved Tottle J expressing reservations about matters that had been asserted by Mineralogy to be adverse consequences of not receiving payments of Royalty B, in circumstances where Tottle J refused Mineralogy's application.

183 The focus of Mineralogy's submissions and evidence are the adverse consequences for it, and for related third parties, of it not receiving payments of Royalty B. Orders for payment into court do nothing to ameliorate those consequences, and so such consequences are not relevant to an assessment of the adequacy of legal remedies in the context of the orders for payment into court. Neither Mineralogy's submissions nor the judge's reasons appear to consider the adequacy of damages in that context.

184 In relation to the orders for payment to Mineralogy, the following observations may be made. The judge did not make any specific findings as to profits that would have been lost or other damage suffered by Mineralogy if its receipt of the monies it claimed were delayed until trial. Mineralogy's evidence and submissions in that respect did not demonstrate in any cogent way that any such losses would be suffered. In any event, for the reasons already given, the fact that cl 30 entitles Mineralogy to Default Interest in the event of delay in payment, and no more, and that cl 30.3(b) may have precluded recovery of consequential damages for breach by late payment, did not and could not sustain the orders made by the primary judge.

185 As to the submission that Mineralogy is 'being kept out of ... a substantial sum over ... a long period pending the final resolution of these proceedings', two points may be made. First, there has been no curial determination about whether Mineralogy is being 'kept out' of any sum due to it at this stage. Secondly, the period taken to recover any money due on account of Royalty B is, at least in part, a product of the course that Mineralogy has taken in the pursuit of this litigation, as outlined above.

186 Mineralogy's submission with reference to the liquidation of Queensland Nickel Pty Ltd (QN), that the consequential losses and effects of the non-payment of Royalty B cannot be 'imagined away' appears to involve the assertion that had the Royalty B payments been paid, QN would have avoided liquidation. There was no finding of fact to that effect by the primary judge.[247] Although Mineralogy referred this court to a hearsay statement to the effect that Mr and Mrs Palmer had said that if Mineralogy received the Royalty B payments, Mineralogy would provide 'financial support' to a company called Queensland Nickel Sales Pty Ltd (not QN), without which it would not be possible to recommence production, that evidence lacks specificity, and in any event, does not, on its face, support an inference that without the Royalty B payments, QN would have avoided liquidation.[248]

187 Also this was not a case analogous to Beswick, where the plaintiff sought specific performance of an agreement, to which she was not a party, under which the defendant agreed to pay annuities to the plaintiff. Here, the Mining Agreements between these parties did not oblige Royalty B payments to be made to a third party such as QN.

188 Further, whilst hardship visited on third parties by the grant of an interlocutory injunction may be relevant but rarely decisive (see [131] above),[249] Mineralogy did not explain on what basis hardship to third parties would be relevant in the assessment of the balance of convenience if an injunction were not granted.

189 In respect of ground 3, if this were otherwise an appropriate case for mandatory interlocutory payment orders to be made in favour of Mineralogy, the inference that Mineralogy's undertaking was sufficient to meet the justice of the case was not open. That is so even accepting that an undertaking for damages is not a jurisdictional requirement and making full allowance for the judge's finding as to the prima facie strength of Mineralogy's case. The orders requiring interlocutory payments to Mineralogy itself, in the context where the judge found in effect that there were legitimate concerns that there was a strong likelihood that Mineralogy could not repay the money after trial, had the practical effect that the CITIC Parties were in real jeopardy of losing the case even if they succeeded at trial. That result is not consistent with, and does not reflect, the conduct of a party doing equity.

190 Finally, contrary to Mineralogy's submissions, security has not 'in effect been provided' to the CITIC Parties. The interlocutory payments to Mineralogy were not in any sense secured by the fact that the judge ordered other payments to be made into court. The Royalty A offer has been discussed earlier. Similar observations apply to the other offers referred to by Mineralogy. Further, the money said to be payable to Mineralogy under the China Option Payment Agreement, is the subject of other proceedings in this court: CIV 1514 of 2016. The CITIC Parties have sued for specific performance of that agreement. The defendants, Mineralogy and Mr Palmer, resist that claim on the bases, amongst other things, that they were entitled to terminate the agreement or that the agreement is frustrated, including on the basis that there is insufficient ore in the relevant area.[250] Mineralogy cannot contend that the CITIC Parties are adequately secured by an offset against a receivable, when Mineralogy itself contends that the agreement under which the receivable is payable has been terminated.

191 For the reasons given earlier, this was not a case in which the proper application of principles would sustain the interlocutory orders for payment made by the primary judge, either to Mineralogy or into court. It is not necessary to determine ground 4.

192 For the reasons given earlier, 'restoring balance' under the Mining Agreements was not a relevant consideration once the judge had determined that Mineralogy should give up its present claims for termination for past breaches. In any event, there was no curial restraint and no undertaking to the court, which would have prevented Mineralogy from acting on its termination notices dated 16 October 2015.

193 Mineralogy's reference to statutes in other jurisdictions conferring the power to make interim payments does not assist Mineralogy. There is no equivalent statute in this State.

194 Mineralogy's arguments in relation to ground 5 in CACV 13 of 2015 are largely a restatement of its other arguments, which have been rejected for the reasons previously given. One matter requires further specific mention. That is Mineralogy's contention that the CITIC Parties did not raise the 'restoring balance' point with the primary judge at the hearing on 20 January 2017. Whilst perhaps the CITIC Parties could have sought to agitate that issue prior to the making of the orders on 27 January 2017, in substance, the judge had already decided the issue in his primary decision. In the particular circumstances of this case, the point falls for determination in the context of the appeal against the primary decision and, even if that were not correct, the point raises a discrete question of law which it is in the interests of justice to allow the CITIC Parties to raise in these appeals.

195 Ground 5(a) should be upheld. It is unnecessary to address ground 5(b).

196 As both appeals succeed on grounds 1 - 3 and 5, it is unnecessary to consider ground 6 in the second appeal.

197 The appeals should be allowed and the judge's orders dated 14 December 2016 and 27 January 2017 should be set aside.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SINO IRON PTY LTD -v- MINERALOGY PTY LTD [No 2] [2017] WASCA 76 (S)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : MINERALOGY PTY LTD -v- SINO IRON PTY LTD [No 13] [2016] WASC 403

Costs - Special costs orders - Whether inadequacy under relevant costs determinations - Whether inadequacy arose by reason of the unusual difficulty, complexity or importance of the matter

Legal Profession Act 2008 (WA), s 280

Cape Lambert Resources Ltd v MCC Australia Pty Ltd [2013] WASCA 66 (S)

Corp v Robinson [2012] WASC 490 (S)

Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S)

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95

Frigger v Lean [2012] WASCA 66

Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S)

Kidd v The State of Western Australia [2015] WASCA 62 (S)

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76

Town of Port Hedland v Reece William Hodder By Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212 (S)

Wainwright v Barrick Gold of Australia Limited [2014] WASCA 15 (S)

1 In these two appeals, the appellants applied, in reliance on s 280 of the Legal Profession Act 2008 (WA) (Act), for special costs orders to the effect that:

1. the relevant limits imposed by scale items 10, 23 and 24 in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2014 (WA) (2014 Scale) and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2016 (WA) (2016 Scale) be removed, and the maximum hourly and daily rates for solicitors and counsel be raised by 50%; and
2. the appellants' costs are to include an allowance for instructing solicitors at various hearings and (in CACV 4 of 2017) the disbursement of an invoice of an expert witness.[251]

2 Proposed order 1 (above) therefore had two elements. The first sought the removal of the limits imposed by the relevant scale limits, and the second sought an order raising the maximum hourly and daily rates for solicitors and counsel by 50%.

3 On 17 July 2017, this court effectively allowed order 1 to the extent of removing the scale limits, and allowing the hourly and daily rates of Queens Counsel to be raised by 50%, but not otherwise. Proposed order 2 was rejected. We said we would subsequently provide reasons. These are our reasons.

4 Sections 280(1) and (2) of the Act provides:

(1) Subject to any costs agreement made in accordance with Division 6 or the corresponding provision of a corresponding law, section 306 and the Legal Aid Commission Act 1976 section 14 -

(a) the taxation of bills of law practices; and

(b) any other aspect of the costs charged by law practices,

is regulated by an applicable costs determination.

(2) Despite subsection (1), if a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following -

(a) order the payment of costs above those fixed by the determination;

(b) fix higher limits of costs than those fixed in the determination;

(c) remove limits on costs fixed in the determination;

(d) make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed. (emphasis added)

5 The special costs orders were sought in respect of two related appeals to this court, and related primary proceedings in the General Division of the Supreme Court. The relevant primary proceedings involved injunction proceedings brought by the respondent against the appellants in the context of large-scale, hard-fought and complex commercial litigation in the General Division in which the parties were represented by senior counsel. In particular, the special costs orders were sought in respect of each of the following proceedings:

(a) interlocutory mandatory injunction proceedings heard before Tottle J in 2015;

(b) interlocutory mandatory injunction proceedings heard before Kenneth Martin J in late 2016 and early 2017; and

(c) appeals to this court from Kenneth Martin J's decisions,[252] including the appellants' applications for urgent appeals and for stays pending the determination of the appeals.

6 The appellants' evidence comprised affidavits filed in each appeal by Ms Rifici, a solicitor in the employ of the solicitors for the appellants. Ms Rifici's affidavit in CACV 4 of 2017 was a substantial affidavit (approximately 30 pages of text). Ms Rifici set out the long and involved history of the injunction proceedings commenced by the respondent against the appellants. She also deposed to the urgency which attended the injunction proceedings and the consequent appeals to this court (including the stay applications). She also deposed to the extensive volume of materials adduced in evidence by the parties at the various stages of the proceedings. For example, Ms Rifici's evidence is that in the proceedings before Tottle J, the respondent relied on 11 affidavits running into thousands of pages in length (including annexures). She also said that that evidence, together with substantial additional evidence, was adduced in the hearings before Kenneth Martin J. Ms Rifici also explained, by reference to the scale items, the general nature of the work undertaken by the appellants' solicitors and counsel, and the time spent. The evidence indicated that the time spent by the appellants' solicitors resulted in costs which vastly exceeded the limits imposed by the relevant scale items. Ms Rifici's second affidavit, filed in CACV 13 of 2017, was to a similar effect, although framed in terms of the work done in relation to those proceedings.

7 The respondent relied on an affidavit filed in CACV 13 of 2017 and sworn by its solicitor, Mr Jones, on 8 June 2017. The respondent's contentions were, in summary, that:[253]

(1) with respect to certain items in the scale, no special costs orders may or should be made because the appellants' evidence was insufficient to enable the court to form the opinion specified in s 280(2) of the Act; and

(2) with respect to the remaining items, in the absence of a proper or valid explanation for what the respondent submitted were 'manifestly excessive costs', the court should not remove the applicable scale limits. Rather, the court should itself determine modified limits, and impose such modified limits by way of an order under s 280(2)(b) of the Act.

8 The respondent submitted[254] that the appropriateness of lifting or removing individual scale items 'ought [to] be assessed severally and not on a global basis'.[255] The respondent also submitted that s 280(2) of the Act was a provision 'designed to protect against taxation of unlimited costs where that could lead to an abuse'.[256]

9 The respondent accepted that aspects of the dispute between the parties were unusually complex and important, but said that this should not be exaggerated.[257] It emphasised that all issues were interlocutory in nature; it was not in dispute that there was a serious question to be tried; there was no cross-examination; the difference between expert evidence was minor and occupied limited hearing time; and only a small proportion of the material tendered was referred to. It also submitted, in effect, that as the ultimate trial of the matter 'took weeks', this weighed against a conclusion that the proceedings were difficult or complex.[258]

10 The respondent also said that it could be assumed from the evidence that the appellants used a large legal team, and that the evidence showed that the appellants expended large amounts of unnecessary time in the absence of any or any proper explanation.[259] Amongst other things, the respondent referred, for example, to time spent by the appellants' solicitors on the application for a stay of Kenneth Martin J's orders and for the hearing of an urgent appeal (170.6 hours) and contended that there should have been some explanation as to why the 10 hours provided in the scale was not adequate.[260] Other matters relied on by the respondent in this regard included, for example, the time spent by the appellants' solicitors and junior counsel on the appeal notices and service certificates (approximately 23 hours over the two appeals),[261] the time spent by the appellants' solicitors (119.45 hours) and counsel (153.5 hours) on the appellants' case documents,[262] and the time spent by the appellants' solicitors (46.55 hours) and junior counsel (6.5 hours) on the drafting and settling of the appeal books indexes.[263]

11 By s 280(1) of the Act, a party's recoverable costs are confined, in effect, by the scale limits. To that extent, s 280(1) is protective of the party charged and, more generally, serves the due administration of justice by limiting the allowable scope for legal costs. Section 280(2) operates as an exception to s 280(1) of the Act. Section 280(2) of the Act operates to give the successful party the opportunity to recover those costs which have been reasonably and properly incurred where, in the court's opinion, the scale is inadequate because of the unusual difficulty, complexity or importance of the matter. To that extent, s 280(2) of the Act is protective of the successful party to the litigation and, on that account, also serves the administration of justice by facilitating, within the limits imposed by the statutory criteria, the operation of the general principle that a successful party is entitled to its costs of the litigation. Even where orders are made under s 280(2) of the Act, it nevertheless remains the task of the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required.[264]

12 Before such a power will be exercised, the court must form an opinion that has two components. First, the court must form the view that the maximum amount allowable under the relevant scale item is inadequate in the sense that there is a fairly arguable case that the bill to be presented to the taxing officer may properly tax at an amount which is greater than the limit which would be imposed by the relevant cost determination. Secondly, the court must also form the opinion that the inadequacy of the costs allowable under a costs determination arises because of the 'unusual difficulty, complexity or importance of the matter'.[265] Issues of the kind which arise are addressed as matters of impression, rather than as matters of detailed evaluation, precision or science.[266]

13 For the purposes of exercising the powers conferred by s 280(2) of the Act, it will not ordinarily be necessary for the court to determine what amount should be allowed on taxation, but only whether there is a fairly arguable case that a greater amount should be allowed than that which is allowable under the relevant determination: Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd.[267]

14 A fairly arguable case to that effect will not be established merely because a party incurred greater costs than those allowable under the relevant determination. However, depending on the particular case and all the circumstances, the fact that a party has applied significantly greater legal resources to each step in the litigation than those for which allowance is made under items of the relevant determinations, when viewed in the context of the difficulty, complexity or importance of the matter, may sustain the conclusion that there is a fairly arguable case that each of the items identified is inadequate (and thereby the amount of costs allowable in respect of the matter is inadequate) because of the unusual difficulty, complexity or importance of the matter.[268]

15 The word 'unusual' in s 280(2) of the Act qualifies only the 'difficulty' of the matter, and not its 'complexity' or 'importance'.[269] The word 'unusual' in this context means unusual having regard to what one might describe as the usual run of civil cases determined in the court. That essentially involves the making of a value judgment by the court, having regard to the court's experience of the particular case when compared with the usual run of cases: Wainwright v Barrick Gold of Australia Limited.[270] Also, the reference to 'importance' in this context allows the court to have regard to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties, or because of the significance of the issues to other prospective parties, or to the public or community generally: Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq).[271]

16 In Kidd v The State of Western Australia,[272] this court observed, with reference to Electricity Generation,[273] that the question of unusual difficulty, complexity or importance arises in respect of the proceedings as a whole and not in respect of each individual item in the relevant costs determination. In Electricity Generation, Martin CJ observed:[274]

[T]here are no words within [s 280(2)] which suggest that the court is required to assess the difficulty, complexity or importance of the work done in respect of each and every item in the relevant determination before exercising the power conferred by s 280(2). The natural and ordinary meaning suggested by the words used is that the 'matter' is the matter in respect of which legal services were provided.

17 Insofar as the respondent advanced a construction of s 280 of the Act inconsistent with the foregoing, it cannot be accepted. The words of s 280(2) do not compel a different approach to that outlined above.

18 We were satisfied, in all the circumstances, that each of the relevant proceedings involved unusual difficulty, complexity and importance within the meaning of s 280(2) of the Act. The injunction proceedings taken by the respondent, to compel the interlocutory payment of very large disputed debts, stood well outside of the usual run of civil cases seen in the court in terms of the nature of the claims made, and the amounts involved (approximately $80 million in the proceedings before Kenneth Martin J). The proceedings also had a broader importance generally in relation to the proper scope and limits of interlocutory relief. We also had regard to the urgency with which the proceedings were dealt with, the fact that the interlocutory injunctive orders sought by the respondent were tantamount to final relief, the fact that the proceedings raised complex questions of law in their application to the relevant facts, and in the context of the operation of the mining agreements underlying the dispute, the fact that the affidavits and annexures ran to thousands of pages, all of which the parties had to be abreast of, even if not all of the materials were specifically referred to in the course of argument, and the fact that the proceedings before Kenneth Martin J were fought against the background of an earlier appellate decision of this court adverse to the appellants and in favour of the respondent in connection with the issues in dispute.[275] Also, even though it appears that the ultimate trial of the matter went for approximately two weeks, it remained a substantial piece of litigation in the General Division and, in any event, the issues in the trial were effectively narrowed following the obtaining of injunctive relief, and were not (generally speaking) confined at the time of the hearings for injunctive relief.

19 Further, Ms Rifici's affidavit evidence, viewed in the context of our awareness of the complexity and importance of the issues, and the unusual difficulty of the matter, satisfied us that there was a fairly arguable case to be presented to the taxing officer to the effect that the amount which should be allowed in respect of each relevant item is greater than the limit which would be imposed in respect of those items under the relevant scale, and that the inadequacy of the scale amount arises because of the unusual difficulty, complexity or importance of this matter.

20 Accordingly, we were of the opinion that it was appropriate to order that the limits imposed by the relevant scale items be removed.

21 That, however, should not be taken as an indication that we hold the view that all of the costs claimed by the appellants would be regarded as reasonable in the context of the taxation of party-party costs. On the contrary, we had considerable doubts that all of the time claimed by the appellants would be regarded as reasonable in the context of such a taxation. Nevertheless, that question remains a question for the taxing officer. This was not a case where the court considered that it would be in the interests of justice to impose its own limits as contended for by the respondent. In our view, having formed the opinion required by s 280(2) of the Act, it was appropriate to leave it to the experience and common sense of the taxing officer to consider the reasonableness of and necessity for the work undertaken, and to make a judgment about the remuneration reasonably required.

22 In relation to hourly and daily rates, the respondent accepted that it was appropriate to increase the maximum rates for Queen's Counsel by 50%.[276] That, in our view, was reasonable in the circumstances. We were not, however, persuaded that there should be an increase in the hourly and daily rates otherwise. The fact that a party's counsel or instructing solicitor has charged at a rate higher, or even significantly higher, than the scale does not of itself justify the lifting of the scale.[277] We were of the view that the scale rates were, in all the circumstances, reasonable, particularly in a context where, as we have indicated, it was appropriate to remove the scale limits.

23 The second proposed order was advanced by the appellants on the basis that it allowed this court to give 'guidance' to the taxing officer.[278] In our view, there was nothing in the evidence to indicate why such guidance would be necessary or appropriate. The experience and common sense of the taxing officer could be relied on to arrive at a reasonable assessment without intervention by this court in terms of proposed order 2. For that reason, we rejected the appellants' application in that regard.

[1] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 13] [2016] WASC 403.

[2] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14] [2017] WASC 17.

[3] Unless otherwise indicated, the relevant background is taken from Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105, referred to by the primary judge at [7] of the primary decision.

[5] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] WASC 194.

[6] Defence to the fourth further amended statement of claim and proposed fifth further amended counterclaim, par 28, read with pars 16(c), 165 - 167; BB 170, 178 - 180, 240 - 241.

[7] This figure is the subject of rounding, and, up to 30 September 2014, the actual figure later claimed by Mineralogy was approximately $21.4 million. In these reasons, despite differences in rounding from time to time, the amount of the debt up to 30 September 2014 will be consistently referred to as $22 million.

[12] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [31].

[13] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2013] WASC 375 (Mineralogy No 2).

[14] Mineralogy No 2 [60], [62] - [66].

[17] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 6] [2015] WASC 80 (Mineralogy No 6) [15], [51].

[18] Mineralogy No 6 [12] - [14], [17] - [21].

[24] Mineralogy No 6 [52], [54] - [60].

[27] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2015] WASC 454 (Mineralogy 454) [2] - [11].

[32] Civil Procedure Western Australia [20.10.1] and the cases there cited.

[34] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 8] [2015] WASC 473 (Mineralogy No 8).

[35] Mineralogy No 8 [60(a)], [60(b)].

[36] Apparently on the basis that the claims in the stayed, new, actions would be made in the primary proceedings. See Mineralogy No 8 [25] - [28], read with [59] - [60].

[37] Mineralogy No 8 [63] - [64]. The reference to 'to date' appears to be a reference to 30 September 2015. See [60(f)].

[43] Mineralogy No 8 [103] - [127].

[44] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105.

[45] 4 FASOC, pars 31 - 36; BB 127 - 128.

[48] 4 FASOC, pars 111 - 116; BB 151 - 152.

[49] 4 FASOC, pars 107 - 110, 117 - 120; BB 151 - 152.

[54] BB 158 - 159, former pars 2C, 2G, 2H.

[57] The figure was approximately $59.6 million, but in light of the earlier upward rounding of the $21.4 million figure to $22 million, this has been rounded down to $59 million.

[60] Primary decision [113] - [114].

[61] Primary decision [177] - [178].

[63] Primary decision [194] - [198].

[64] Primary decision [203], [206].

[66] Primary decision [204] - [206].

[67] Primary decision [223] - [225].

[74] Primary decision [166], [219].

[75] Primary decision [218] - [220].

[77] Primary decision [235] - [236].

[79] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 14] [2017] WASC 17 (Mineralogy No 14).

[86] 5 FASOC, pars 34, 37; BB 347 - 348.

[89] 5 FASOC, pars 35, 37; BB 347 - 348.

[92] Reply to the defence to the fifth further amended statement of claim and defence to the sixth further amended statement of claim, par 20(c); BB 534.

[93] Appellants' submissions in CACV 13 of 2017, pars 7 - 8; WB 44.

[94] Appellants' submissions in CACV 13 of 2017, pars 10 - 13; WB 44 - 46. Since the making of those submissions, the appeal in that matter appears to have been dismissed: Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55.

[95] Appellant's submissions; par 33; WB 30; Mason affidavit sworn 2 December 2015, par 106; GB 947; O'Donahoo affidavit sworn 2 December 2015, pars 18 - 19; GB 829 - 830.

[96] Appellant's submissions; par 33; WB 30; O'Donahoo affidavit sworn 2 September 2016, annexures POD 28 and POD 29; GB 1089 - 1476.

[97] First respondent's submissions, par 18; WB 52.

[98] First respondent's submissions, par 34; WB 55.

[99] Reference is made to Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [15], [27], [107] - [108].

[100] Golden Sands Pty Ltd v Excel Quarries Pty Ltd [2006] VSC 454.

[101] CB Direct v Challenger Mortgage Management [2009] NSWSC 334.

[103] CB Direct [66] - [69].

[104] First respondent's submissions, par 28; WB 54.

[105] First respondent's submissions, footnote 32; WB 54; citing Spry, The Principles of Equitable Remedies (9th ed, 2014) pages 468 - 469.

[106] First respondent's submissions, pars 29 - 30; see also par 88; WB 54 - 55, 64.

[107] First respondent's submissions, par 30; WB 55; see also appeal ts 93 - 96.

[108] First respondent's submissions, par 36; WB 56.

[109] First respondent's submissions, par 36; WB 56.

[110] First respondent's submissions, par 45; WB 57.

[111] First respondent's submissions, par 46 - 47; WB 58; see also appeal ts 75.

[114] First respondent's submissions, par 53; WB 59.

[115] First respondent's submissions, par 55; WB 59.

[116] Jackson v Sterling Industries Ltd (1986) 12 FCR 267, 275.

[117] First respondent's submissions, par 58; WB 60.

[118] First respondent's submissions, par 59; WB 60.

[120] First respondent's submissions, pars 65 - 69; WB 61 - 62.

[121] First respondent's submissions, par 70; WB 62.

[122] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [15], [17], [22].

[124] First respondent's submissions, pars 73 - 75; WB 62 - 63.

[125] First respondent's submissions, par 80; WB 64.

[126] First respondent's submissions, footnote 29; WB 54.

[127] First respondent's submissions in CACV 13 of 2017, pars 7 - 9; WB 68.

[128] First respondent's submissions in CACV 13 of 2017, pars 12 - 13; WB 69.

[129] First respondent's submissions in CACV 13 of 2017, par 16; WB 70.

[130] Reference was made to Mineralogy No 14 [50].

[131] First respondent's submissions in CACV 13 of 2017, pars 19 - 29; WB 70 - 71.

[132] The affidavits are in the same terms with the same annexures, and can be treated as one.

[133] Palmer affidavit sworn 24 February 2017, annexure CP-1; YB 8.

[134] Palmer affidavit sworn 24 February 2017, par 12; YB 5.

[135] Palmer affidavit sworn 24 February 2017, pars 14(a), 16; YB 5.

[137] Saunders v The Public Trustee [2015] WASCA 203 [83] - [90].

[138] Palmer affidavit sworn 24 February 2017, annexure CP-3; YB 32.

[139] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [96], [98], [178] (dissenting but not on this point, see [34], [90]).

[140] Heydon J D, Leeming M J and Turner P G, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [21-025].

[141] Hodgson v Duce (1856) 2 Jur (NS) 1014.

[142] Heydon J D, Leeming M J and Turner P G, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [1-090].

[143] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [80].

[144] Proctor v Bayley (1889) 42 Ch D 390, 398; .

[145] Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822 [159] - [160].

[146] Heydon J D, Leeming M J and Turner P G, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [21-040].

[147] Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56 NSWLR 298 [2].

[148] Bankstown City Council v Alamdo Holdings Pty Limited [2005] HCA 46; (2005) 223 CLR 660 [11].

[149] Goodson v Richardson (1874) 9 Ch App 221, 223.

[150] Cardile v LED Builders Pty Limited [1999] HCA 18; (1999) 198 CLR 380 [32]; see also Heydon J D, Leeming M J and Turner P G, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [3-015].

[151] Bristol City Council v Lovell (1998) 1 WLR 466, 453.

[155] Lenah [60], [105]; see also [11] - [15]..

[156] Kendall and Curthoys, Civil Procedure Western Australia Vol 2 [8095], Supreme Court Common Form 19.

[159] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [85] - [87].

[160] That is the approach taken by the Full Federal Court in Samsung Electronics Company Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 [61] and Warner-Lambert Co LLC v Apotex Pty Ltd [2014] FCAFC 59 [68] - [70]. It is unnecessary in this appeal to consider whether, in circumstances where the grant of a mandatory interlocutory injunction is tantamount to the grant of final relief for specific performance, there is any tension between that approach and the matters referred to in [136] below. That is because, as we explain below, Mineralogy's claim is for debt, and not for specific performance.

[161] Heavener v Loomes [1924] HCA 10; (1924) 34 CLR 306, 326. See also Heydon J D, Leeming M J and Turner P G, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [21-345].

[162] R v MacFarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518, 550 - 551.

[163] McCarty v The Council of the Municipality of North Sydney [1918] NSWStRp 33; (1918) 18 SR (NSW) 210, 214 - 215.

[164] Action Cycles Pty Ltd v Ross [2011] VSCA 411 [30].

[165] Heydon J D, Leeming M J and Turner P G, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [21-345].

[166] Samsung Electronics Company Ltd [69].

[167] Loan Investment Corporation of Australasia v Bonner [1969] UKPC 33; [1970] NZLR 724, 746.

[168] Pakenham Upper Fruit Company Limited v Crosby [1924] HCA 55; (1924) 35 CLR 386, 394.

[169] JC Williamson Limited v Lukey [1931] HCA 15; (1931) 45 CLR 282, 297.

[170] Sydney Consumers' Milk and Ice Co Ltd v Hawkesbury Dairy and Ice Society Ltd [1931] NSWStRp 26; (1931) 31 SR (NSW) 458, 462 - 463.

[171] Bridge Wholesale Acceptance Corporation (Australia) Ltd v Burnard (1992) 27 NSWLR 415, 423.

[172] Burns Philp Trust Co Pty Ltd v Kwikasair Freightlines Ltd [1963] SR (NSW) 492, 497.

[173] Sydney Consumers' Milk (468).

[175] Dougan v Ley [1946] HCA 3; (1946) 71 CLR 142, 150.

[176] Coulls v Bagot's Executor and Trustee Company Limited [1967] HCA 3; (1967) 119 CLR 460, 503.

[177] Sydney Consumers' Milk (468 - 469).

[179] McIntosh v Dalwood (No 4) [1930] NSWStRp 36; (1930) 30 SR (NSW) 415, 418.

[180] Dougan (150) quoting Lord Redesdale in Harnett v Yeilding (1805) 2 Sch & Lef 549, 553; see also Dougan (153) (Williams J).

[181] Dougan (150), quoting Lord Selborne in Wilson v Northampton & Banbury Junction Railway Company (1874) LR 9 Ch App 279, 284. See also Coulls (503) (Windeyer J); Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107, 119 - 120 (Mason CJ & Wilson J, Gaudron J agreeing).

[182] As to which see, for example, Spry ICF, Equitable Remedies (9th ed, 2014) 62 - 63.

[183] Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349, 379 - 380 (Sachs LJ, Edmund Davies & Cairns LJJ agreeing); see Young PW, Croft C, and Smith ML, On Equity (2009) [16.860].

[184] Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 [78] - [79] (Brennan CJ, McHugh, Gummow, Kirby & Hayne JJ). See also Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276 [75] - [77], [95] - [97] (Beazley JA, Campbell JA agreeing).

[186] Bonner (742) (Sir Garfield Barwick, albeit dissenting in the result).

[187] Beswick v Beswick [1967] UKHL 2; [1968] AC 58, 88 - 91, 97 - 99.

[188] Wight v Haberdan Pty Ltd [1984] 2 NSWLR 280, 289 - 292.

[189] Heydon J D, Leeming M J and Turner P G, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [20-050].

[190] Lewis v James (1886) 32 Ch D 326.

[191] Greenwood v Turner [1891] 2 Ch 144.

[192] Attfield v D J Plant Hire and General Contractors Co Ltd [1987] Ch 141.

[196] Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499

[198] Businessworld (500 - 501).

[200] Businessworld (505 - 506).

[204] Telstra Corporation Ltd v First Netcom Pty Ltd [1997] FCA 860; (1997) 78 FCR 132.

[209] AB v CD [2014] EWCA Civ 229; (2015) 1 WLR 771.

[213] Tait v R [1962] HCA 57; (1962) 108 CLR 620, 623.

[214] Simsek v MacPhee [1982] HCA 70; (1982) 148 CLR 636, 640 - 641.

[215] Reliance Financial Services v Lemery Holdings [2006] NSWSC 1079 [21].

[216] Patrick Stevedores Operations No 2 [35]; Cardile [41] - [42].

[218] Mills v Northern Railway of Buenos Ayres Company (1870) LR 5 Ch App 621.

[219] Moore v Assignment Courier Ltd [1977] 1 WLR 638.

[221] Moore (643), (645) - (646).

[222] Wicks v Wicks [1997] EWCA Civ 3050; [1998] 1 All ER 977, 985 - 986.

[223] Norilya Minerals Pty Ltd v Adam Jonathon Ireland as Named Executor of the Estate of Dean Edward Ireland [2010] WASC 260 [67].

[224] Ireland v Norilya Minerals Pty Ltd [2010] WASCA 203.

[225] Young v Queensland Trustees Limited [1956] HCA 51; (1956) 99 CLR 560, 567 - 569.

[226] If reference be needed, see, eg, Carter & Harland, Contract Law in Australia (3rd ed) [2203].

[227] Primary decision [164] - [165].

[228] Primary decision [156] (although there was an equitable claim for rectification as an alternative claim, if successful, that would prima facie allow Mineralogy to recover the debt as claimed, as rectification is effected ab initio: Issa v Berisha (1981) 1 NSWLR 261, 265).

[229] Primary decision [74] - [82].

[230] Primary decision [159] - 162], [211] - [212].

[231] Cf Van Amstel v Country Roads Board [1961] VicRp 118; [1961] VR 780.

[233] Defence to the fourth further amended statement of claim and proposed fifth further amended counterclaim, par 28 read with pars 16(c), 165 - 167; BB 170, 178 - 180, 240 - 241.

[234] Summary judgment is available not only for common law claims but also, for example, for a claim for specific performance: Civil Procedure Western Australia [14.1.2].

[235] Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, 99; see also Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91.

[236] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57].

[237] Associated Bulk Carriers Ltd v Koch Shipping Inc [1978] 2 All ER 254, 263.

[238] Civil Procedure Western Australia [14.01]; Shell Co of Australia Ltd v Pengro Pty Ltd (Unreported, WASC, Library No 920163.2, 1992).

[239] Civil Procedure Western Australia [14.4.3].

[240] See Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [17], [49] - [52].

[241] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [109] - [113].

[242] See Miley affidavit sworn 20 November 2015, pars 62 - 63; GB 399 - 400.

[243] First respondent's submissions, par 30; WB 55; see also appeal ts 93 - 96.

[244] Primary decision [158] - [161].

[245] Primary decision [209] - [212].

[247] cf primary decision [212]. The judge also appears to have found that Mineralogy had no obligation to fund QN, see [173].

[248] See also Wolfe affidavit sworn 22 July 2016, par 17; GB 974 - 975..

[249] See also Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies (5th ed, 2014) [21-375] - [21-380].

[250] Further amended defence to the amended statement of claim, 13 January 2017, pars 85, 93, 94.

[251] The appellants did not press for an allowance for clerks and paralegals. See appeal ts 22.

[252] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76.

[253] Appeal ts 28 - 32; respondent's written submissions, par 6.

[254] Appeal ts 29 - 30; respondent's written submissions, par 22.

[255] Reference was made to Corp v Robinson [2012] WASC 490 (S) [14(b)].

[257] Respondent's written submissions, pars 1 - 2.

[259] Respondent's written submissions, pars 30 - 33.

[260] Respondent's written submissions, pars 62 - 63.

[261] Respondent's written submissions, pars 53 - 54.

[262] Respondent's written submissions, pars 55 - 58.

[263] Respondent's written submissions, pars 59 - 60, appeal ts 33.

[264] Frigger v Lean [2012] WASCA 66 [81].

[265] Cape Lambert Resources Ltd v MCC Australia Pty Ltd [2013] WASCA 66 (S) [3].

[266] Town of Port Hedland v Reece William Hodder By Next Friend Elaine Georgina Hodder [No 2] [2012] WASCA 212 (S) [14] - [15].

[267] Electricity Generation and Retail Corporation trading as Synergy v Woodside Energy Ltd [2014] WASC 469 (S) [28].

[268] Electricity Generation [28].

[269] See Cape Lambert Resources [5].

[270] Wainwright v Barrick Gold of Australia Limited [2014] WASCA 15 (S) [9].

[271] Heartlink Ltd v Jones as liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [19].

[272] Kidd v The State of Western Australia [2015] WASCA 62 (S) [10].

[273] Electricity Generation [5] - [9]. The citation in Kidd refers to the substantive judgment but is clearly meant to refer to the supplementary decision in Electricity Generation.

[274] Electricity Generation [8].

[275] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105.

[276] Respondent's written submissions, par 7.

[277] See, for example, Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S); (2003) 28 WAR 95 [22].

[278] Appellants' written submissions, par 23.