YINGKOU YANGZHOU TRADE CO LTD -v- KIPOI HOLDINGS MAURITIUS LIMITED [2026] WASCA 26 (18 February 2026)

1. The litigation between the parties has a considerable history. That history has been set out at length in various decisions of this court. See in particular Kipoi [No 5][4] and Kipoi [No 6].[5] More generally the background to and ongoing circumstances of the appeal in CACV 106 of 2021 are dealt with in Kipoi [No 4]. We will not repeat the history and the present circumstances of appeal CACV 106 of 2021 again. These reasons should be understood in the context of the reasons we have given in Kipoi [No 4], Kipoi [No 5] and Kipoi [No 6].
2. In very summary terms:
   1. In appeal CACV 106 of 2021 Kipoi[6] challenged an order under s 444GA(1)(b) of the Corporations Act 2001 (Cth) granting leave to deed administrators to transfer the issued shares in Tiger Resources Ltd (Subject to Deed of Company Arrangement) (Tiger) for a nil consideration.
   2. The court accepted, in Kipoi [No 4], that Kipoi had established legal errors in the reasoning process that led to the s 444GA order. However, the court was not in a position to determine for itself, on the trial record and the additional evidence adduced on the appeal, whether a s 444GA order ought to have been made. Rather than remitting the matter for redetermination, the court directed that the following issue and question be tried and determined pursuant to s 59(4) of the Supreme Court Act:

What was the residual value of the ordinary issued shares in Tiger Resources Ltd (Subject to Deed of Company Arrangement), if any, as at 28 October 2021 (or such earlier date as close as possible thereto) based on a valuation of the assets and liabilities of the company by reference to a liquidation scenario rather than as a going concern?

1. Tiger is an Australian registered company. It is the holding company for a number of subsidiaries in other jurisdictions including subsidiaries in the Democratic Republic of the Congo (Congo). One of the subsidiaries, domiciled in the Congo, operated a copper mine in the Congo (the Kipoi copper mine). This was the Tiger group's sole income producing asset.
2. Tiger's principal realisable assets comprised intercompany loans owing to Tiger from its subsidiaries and, depending on asset values, Tiger's shareholdings in its subsidiaries. See generally Kipoi [No 4] [246] ‑ [250]. The implications of this for an evaluation of whether the issued shares in Tiger had a residual value were considered in Kipoi [No 4] (as can be seen from the discussion of the expert evidence at [307], [311], [326](2) ‑ (8), [331], [335](3)). The value of Tiger's issued shares as at the relevant date is heavily dependent on the value attributed to the Kipoi copper mine. Much of the expert evidence in the primary court concerned the value to be attributed to the Kipoi copper mine. It is to be expected that the value to be attributed to the Kipoi copper mine will also be the primary focus of the s 59(4) hearing.
3. The court directed the trial and determination of the issue and question pursuant to s 59(4) to bring about the necessary findings for this court to make dispositive orders on the appeal. In that respect, after hearing argument following the delivery of the court's reasons for decision in Kipoi [No 4], the court made orders stipulating the scope of the evidence to be adduced at the trial and determination under s 59(4).
4. Initial orders were made on 11 December 2024. Since that time the court has varied and amplified the orders providing for the parameters of the s 59(4) trial and determination on 8 April 2025 (as to which see the court's reasons in Kipoi [No 6]), 21 May 2025 (as to which see the court's oral reasons recorded at Appeal ts 860 ‑ 867) and 22 August 2025 (as to which see the court's oral reasons recorded at Appeal ts 938 ‑ 945).
5. At all times the court has been concerned to confine the dimensions of the s 59(4) trial and determination. In Kipoi [No 4] Vaughan JA stated (Buss P and Mitchell JA agreeing with this aspect of Vaughan JA's reasons):

The trial and determination the subject of the s 59(4) direction will require a further oral examination of the experts in relation to their evidence.

There will need to be consideration of whether the parties ought to be permitted to adduce additional expert or other evidence on the trial and determination the subject of the s 59(4) direction. Kipoi opposed the reception of new evidence. Prima facie there is merit in Kipoi's resistance to the potential introduction of a series of new experts. The interests of justice will not be served by allowing the parties free rein to recast or improve their respective cases at the trial and determination the subject of the s 59(4) direction by adducing evidence that could and should have been presented at the hearing before the master. It might, however, be appropriate to allow the parties to file short supplementary expert reports that update the experts' respective calculations to take account of movements in the copper price between the date of the original hearing and 28 October 2021 (the date of the master's order granting leave to transfer under s 444GA). I am also conscious that the court knows nothing about the continued availability of the expert witnesses and, in particular, whether the deed administrators' expert witnesses will make themselves available for engagement on behalf of YYT and Jinji. Such practical matters may influence whether the parties ought to be permitted to adduce additional evidence and, if so, the extent of that evidence [877] ‑ [878]. (citations omitted; emphasis added)

1. Similar sentiments were expressed in Kipoi [No 6] [62], [99], [101]. This has seen the court reject a number of applications by both parties seeking to expand the scope of the s 59(4) trial and determination. For example, on 21 May 2025 the court rejected YYT and Jinji's application to adduce the additional evidence contained in any affidavits in relation to matters relating to the affairs of Tiger and its subsidiaries up until 28 October 2021: Appeal ts 862 ‑ 865. Previously the court had rejected YYT and Jinji's oral application to remove all fetters on the scope of the additional evidence: Kipoi [No 6] [53], [109](1), [112] ‑ [113]. On 22 August 2025 the court rejected Kipoi's application to cross‑examine the deponent of some of YYT and Jinji's affidavits who was not required for cross‑examination at the primary hearing: Appeal ts 940 ‑ 942, 944.
2. There have, however, been some material modifications to the orders stipulating the scope of the evidence to be adduced at the trial and determination under s 59(4). Some of those modifications have been borne of necessity. Others have been due to new evidence that, for reasons previously explained when dealing with the various applications, the court has been persuaded to allow at the s 59(4) trial and determination in the interests of justice. See in particular Kipoi [No 6] [63], [92] ‑ [102].
3. It will be necessary, in due course, to examine some aspects of the evolution of this court's orders providing for the parameters of the s 59(4) trial and determination. We will refer to those orders as the 's 59(4) orders'. As at the time of the relevant hearing before this court (ie as at 16 January 2026) the s 59(4) orders relevantly provided:

1. [T]he trial and determination of the issue and question to be tried and determined pursuant to s 59(4) of the Supreme Court Act 1935 (WA) proceed on the affidavits and expert reports specified in the Schedules to these orders, as well as the documentary exhibits tendered at the original hearing in action COR/69/2021, together with:

(a) any further or supplementary expert reports of the expert valuers updating their valuations so as to take into account copper price movements up to 28 October 2021;

(b) any further or supplementary expert reports of the expert valuers and/or expert insolvency practitioners so as to take into account the impact (if any) of the further evidence led by [Kipoi] at the hearing of the appeal ... and any further evidence adduced pursuant to [earlier orders]... on their valuations, or their opinions as to the appropriate valuation methodology, or their opinions as to distressed sale discounts;

(bb) any new expert reports of the expert valuers and/or expert insolvency practitioners led by [Kipoi] and [YYT and Jinji] as contemplated by paras 3A and 3B below;

(d) no party may cross‑examine the deponent of any affidavit or the maker of an expert witness report if that witness was not required for the purpose of cross‑examination at the original hearing in action COR/69/2021 save for ... any new expert valuers and/or expert insolvency practitioners (if they should make new expert reports as contemplated by paras 3A and 3B below)[.]

...

3A. [YYT and Jinji] have leave to file and serve any expert evidence as to the residual value of the ordinary shares in Tiger Resources Limited, if any, as at 28 October 2021 (or such earlier date as close as possible thereto) based on a valuation of the assets and liabilities of the company by reference to a liquidation scenario rather than as a going concern.

3B. [Kipoi] have leave to file and serve any expert evidence in response to the expert evidence filed by [YYT and Jinji] as referred to in par 3A above. (emphasis added)

1. The underlined emphasis in the s 59(4) orders designates changes that were introduced by this court's orders made on 21 May 2025. It will be necessary, in due course, to examine the context in which those variations to the s 59(4) orders were made. The relevant context includes the court's reasons for the variations as allowed on 21 May 2025.
2. The schedules to the s 59(4) orders, as mentioned in the chapeau to par 1 of the orders, list out: (1) the materials that were tendered in the primary hearing; and (2) additional evidence that was adduced in appeal CACV 106 of 2021. The first category includes affidavits and reports on the part of various experts whose evidence was received at the primary hearing, namely: Jason Hughes and Hayden White (who were retained by the deed administrators); Campbell Jaski and Dermott McVeigh (who were retained by Kipoi); and Matthew Donnelly (who was retained by YYT and Jinji). The nature of the expert evidence is discussed in detail in Kipoi [No 4] [304], [306] ‑ [315], [321] ‑ [393].
3. It was uncontroversial, both at trial and on appeal, that Mr Hughes and Mr Jaski were valuers; Mr White, Mr McVeigh and Mr Donnelly were liquidators. As was explained in Kipoi [No 4]:

[T]he valuers called by the deed administrators and Kipoi assessed the residual value of Tiger's issued shares. In doing so, among other things, the valuers relied on various inputs. One of those inputs was a 'distressed sale discount'. The liquidators called by the deed administrators and Kipoi provided expert evidence going to the appropriate amount of the distressed sale discount (although Mr McVeigh's evidence went beyond the distressed sale discount and extended to expressing an opinion as to value). Each valuer adopted a distressed sale discount derived from the opinion of the liquidator to be called by the party who had engaged the valuer. By contrast, YYT and Jinji simply relied on Mr Donnelly's evidence. Mr Donnelly, a liquidator rather than a valuer, gave evidence as to the appropriate distressed sale discount and also expressed various opinions as to value [306].

1. Reflecting the witnesses' expertise, as described in the preceding paragraph, two distinct categories of opinion evidence were led from the experts (although, for reasons explained in Kipoi [No 4], the scope of Mr Donnelly's evidence exceeded his expertise). This explains the reference, in the s 59(4) orders, to the 'expert valuers' and the 'expert insolvency practitioners'. The terminology harkens back to the qualifications of, and the nature of the evidence given by, Messrs Hughes and Jaski (the 'expert valuers') and Messrs White, McVeigh and Donnelly (the 'expert insolvency practitioners').
2. This too is important context in construing the court's s 59(4) orders providing for the parameters of the s 59(4) trial and determination.

1. The primary judge considered the admissibility of Mr Bootsi's affidavit affirmed 11 November 2025. That affidavit attached Mr Bootsi's curriculum vitae and an expert report dated 11 November 2025. Broadly speaking, the affidavit confirmed that the matters stated in the report were true and correct, to the best of Mr Bootsi's knowledge and belief, and that the opinions expressed in the report were opinions that Mr Bootsi genuinely held.
2. Mr Bootsi's curriculum vitae establishes that he is a legal practitioner with some 20 years' experience practising in business law in the mining sector in the Congo. The core of Mr Bootsi's experience is in energy, natural resources, infrastructure, banking and insurance. However, Mr Bootsi detailed three specific instances where he had provided legal assistance and representation to clients in company dissolution and liquidation matters.
3. Mr Bootsi was briefed to prepare a report, having regard to his insolvency expertise in the Congo, that addressed six matters. Broadly speaking, as YYT and Jinji themselves explained in written submissions, Mr Bootsi provided evidence about the effect of the insolvency regime in the Congo.[7] He gave evidence of the practice of insolvency in the Congo. Mr Bootsi summarised the matters on which he opined as being:

Questions under the laws of the Democratic Republic of Congo ("DRC") regarding (1) the process and legal requirements for a sale of shares in a mining company; and (2) the funding of a liquidation process, the realisation of the assets of a liquidated company, the distribution of the proceeds received from such realisation, and the enforcement of security against the assets of company placed under liquidation (annexure 'PLB‑4' p 1).

1. YYT and Jinji seek to rely on Mr Bootsi's opinions on these matters to inform their expert valuer and expert insolvency practitioner in the preparation of their expert reports. Mr Bootsi, according to YYT and Jinji, gives insolvency evidence 'to provide inputs necessary for the valuation exercise, which inputs are beyond the expertise of the valuers themselves'.[8]
2. Accordingly, unlike the expert insolvency practitioners giving evidence at the primary hearing, Mr Bootsi's report is not directed to the provision of an opinion, by Mr Bootsi, as to a distressed asset discount. Rather, Mr Bootsi's opinions as to the laws and operation of the laws of the Congo are intended to be foundational to YYT and Jinji's other expert reports. In seeking to rely on evidence of the kind in Mr Bootsi's affidavit, YYT and Jinji proposed to take a materially different approach to that adopted at the primary hearing (both by themselves and by the other parties). At the primary hearing all of the experts acknowledged that they had no knowledge of the laws of or the operation of the law of the Congo. Instead they were prepared to assume that the insolvency regime that applied in the Congo was comparable to that which applied in Australia: Kipoi [No 4] [425].
3. In this respect, contrary to the approach endorsed by the court in the passage reproduced at [8] above, it is evident that in pressing for the admission of Mr Bootsi's evidence YYT and Jinji sought to recast and improve their case. YYT and Jinji were endeavouring to introduce expert evidence as to a completely new subject matter that might affect the resolution of the issue and question to be tried and determined pursuant to s 59(4).
4. The primary judge only considered Mr Bootsi's affidavit affirmed 11 November 2025. On 27 November 2025, undaunted by the primary judge's rejection of the admissibility of Mr Bootsi's affidavit affirmed 11 November 2025, the solicitors acting for YYT and Jinji instructed Mr Bootsi to prepare a supplementary expert report. Mr Bootsi was asked to consider the effect of more recent articles of association. Also, in a patent attempt to patch up a glaring deficiency in Mr Bootsi's initial expert report, Mr Bootsi was asked to provide additional details of all of his qualifications in relation to and experience acting on insolvency matters. These instructions resulted in Mr Bootsi affirming a further affidavit on 9 December 2025.
5. The report attached to and confirmed by Mr Bootsi's affidavit affirmed 9 December 2025 addressed the same kinds of matters as Mr Bootsi's earlier report but focused on the more recent articles of association. Mr Bootsi opined that the more recent articles introduced substantial legal and structural changes.
6. In the supplementary report, Mr Bootsi also asserted that he had 'extensive experience' advising on mining, corporate and insolvency matters under the laws of the Congo. However, while Mr Bootsi's revised curriculum vitae sought to contextualise 'insolvency credentials' in the Congo - and Mr Bootsi added his engagement as an expert in this matter - it remained the case that Mr Bootsi otherwise only referred to three specific instances where he had provided legal assistance and representation to clients in company dissolution and insolvency matters.

The reliance on Mr Bootsi's affidavits in this court

1. Mr Bootsi's affidavit affirmed 9 December 2025 was not before the primary judge. However, by an application in an appeal filed 11 December 2025 in appeal CACV 99 of 2025, YYT and Jinji sought leave to adduce Mr Bootsi's further affidavit as additional evidence on the appeal.
2. The application also sought leave to adduce Mr Bootsi's affidavit affirmed 11 November 2025 as additional evidence on the appeal. That aspect of the application in an appeal filed 11 December 2025 was redundant. Mr Bootsi's affidavit affirmed 11 November 2025 was before the primary judge. YYT and Jinji did not require leave to adduce that affidavit as additional evidence on the appeal. Mr Bootsi's affidavit affirmed 11 November 2025 was part of the court's record in any event.
3. YYT and Jinji's written submissions confirmed that one purpose of Mr Bootsi's further affidavit was to put before this court more comprehensive records of Mr Bootsi's training, study and experience.
4. We dismissed the application in an appeal filed 11 December 2025 so far as it sought to adduce Mr Bootsi's affidavit affirmed 9 December 2025 as additional evidence on the appeal. It was not in the interests of justice to allow YYT and Jinji to overcome a potential deficiency in Mr Bootsi's affidavit affirmed 11 November 2025 in this way.
5. There is a strong public interest in the finality of litigation; this public interest provides a powerful reason for strictly confining the circumstances in which a party will be allowed to augment the evidence led below: Saunders v The Public Trustee.[9] That consideration remains relevant in an appeal from an interlocutory decision: Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2].[10] The evidence of Mr Bootsi's qualifications sought to be relied on in this court was available at the time of the hearing before the primary judge. It could and should have been included in Mr Bootsi's affidavit affirmed 11 November 2025. That is a material consideration militating against the admission of additional evidence on appeal: Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd;[11] Saunders v The Public Trustee [88]. Moreover, the failure to include full details of Mr Bootsi's training, study and experience was inexplicable and went unexplained.
6. In any case, for reasons that will become apparent, the further evidence as to Mr Bootsi's training, study and experience did not establish error in the primary judge's conclusion that Mr Bootsi's affidavit affirmed 11 November 2025 and attached expert report were not admissible at the s 59(4) trial and determination.
7. It was, however, appropriate to receive Mr Bootsi's affidavit affirmed 9 December 2025 as evidence on YYT and Jinji's application in an appeal filed 11 December 2025 in appeal CACV 106 of 2021. Mr Bootsi's affidavit affirmed 9 December 2025 was part of the subject matter of the application. Accordingly, the affidavit was received for the purpose of the application in appeal CACV 106 of 2021 but was not received for the purpose of the application for leave to appeal in appeal CACV 99 of 2025.

1. The parties made submissions at a directions hearing on 17 November 2025 as to whether Mr Bootsi's affidavit affirmed 11 November 2025 was admissible for the purpose of the s 59(4) trial and determination.
2. The primary judge provided succinct oral reasons on the admissibility question three days after hearing argument. The primary judge referred to pars 1(bb), 3A and 3B of the s 59(4) orders providing for the parameters of the s 59(4) trial and determination. The primary judge identified, correctly, that there may be new expert reports of either 'expert valuers' or 'expert insolvency practitioners' (Appeal ts 1062). His Honour then considered Mr Bootsi's curriculum vitae and concluded:

Based on his curriculum vitae, I do not accept Mr Bootsi is an experienced [sic - meaning 'expert'] insolvency practitioner, and therefore his evidence is not admissible under order 1(bb) of the Court of Appeal's orders. (Appeal ts 1062)

Mr Bootsi's report does not address the residual value of the ordinary shares in Tiger Resources Ltd at the relevant time. Mr Bootsi's report is concerned with the laws of the Democratic Republic of Congo, including laws relating to the sale of shares and insolvency and the time it might take for certain steps to be taken in relation to the realisations of assets held by an insolvent company incorporated in the Democratic Republic of Congo. The report is therefore concerned with the law of the Democratic Republic and its application and practice. In that context, it does not address either valuation or insolvency issues. I accept that it may be evidence that is relevant to insolvency evidence, but it is not insolvency evidence in and of itself. It is accordingly outside the scope of the Court of Appeal's orders. (Appeal ts 1062 ‑ 1063)

1. It is readily apparent that, in reaching the latter conclusion, the primary judge had regard to the reasons given by this court on 21 May 2025 in varying the s 59(4) orders providing for the parameters of the s 59(4) trial and determination.
2. The primary judge identified, correctly, that in making the 21 May 2025 orders this court did not intend to allow any expansion of the scope of the expert evidence to be adduced at the s 59(4) trial and determination. To the contrary, this court intended no more than to allow YYT and Jinji to adduce the same kind of expert evidence from a different valuer expert and a different insolvency practitioner expert having regard to the circumstance that the relevant persons who had given such evidence at first instance had become unavailable through no fault of YYT and Jinji (Appeal ts 1063).

The application for leave to appeal in appeal CACV 99 of 2025

1. It is appropriate to deal first with YYT and Jinji's application for leave to appeal. The application for leave to appeal was confined to par 1(a) of the primary orders made 10 December 2025. This was the order that the affidavit of Pathy Bootsi affirmed 11 November 2025, and the expert report attached thereto, was not admissible at the trial and determination pursuant to s 59(4) of the Supreme Court Act.

1. The application for leave to appeal relied on a single ground of appeal in two parts. YYT and Jinji contended that the primary judge erred in law in finding that Mr Bootsi's affidavit was not admissible at the trial and determination pursuant to s 59(4) on the basis that:
   1. Mr Bootsi is not by reason of his training, study or experience an 'experienced insolvency practitioner'. (While the ground picks up the primary judge's use of the word 'experienced' it is clear that his Honour intended to use the word 'expert'. The ground should be understood to raise whether Mr Bootsi is an 'expert insolvency practitioner'.)
   2. Mr Bootsi's report is outside the scope of the s 59(4) orders.
2. YYT and Jinji's approach in separating out these two matters is explicable having regard to the primary judge's reasons. There is, however, no point in considering whether Mr Bootsi is an expert insolvency practitioner in the abstract. The real question is whether Mr Bootsi is an 'expert insolvency practitioner' for the purpose and within the meaning of this court's s 59(4) orders providing for the s 59(4) trial and determination.
3. YYT and Jinji submitted that the primary judge erred by adopting a construction of this court's s 59(4) orders providing for the s 59(4) trial and determination that was unduly technical and narrow. They contended that the primary judge introduced a constraint on the qualifications and expertise of experts that was not found in the orders. YYT and Jinji said that: (1) Mr Bootsi is an expert in a field of specialised knowledge (namely, insolvency practice in the Congo) and the evidence within Mr Bootsi's report is within that field of specialised knowledge; and (2) Mr Bootsi's report was within the scope of the s 59(4) orders providing for the s 59(4) trial and determination and was therefore admissible for the purpose of the trial and determination.
4. In oral submissions senior counsel for YYT and Jinji submitted that it was enough that Mr Bootsi gave expert evidence of an insolvency nature for the purpose of determining the distressed sale discount (Appeal ts 1078 ‑ 1079).
5. It was acknowledged, correctly, that YYT and Jinji required leave to appeal by virtue of s 60(1)(f) of the Supreme Court Act. In support of leave to appeal YYT and Jinji said that the primary decision was not discretionary. YYT and Jinji also asserted that the primary decision was wrong and, while conceding that their substantive rights were not adversely affected by the decision, said that the interests of justice called for leave to appeal to be granted. YYT and Jinji said that to allow the primary decision to remain unaddressed would cause delay or inconvenience far greater than would be caused were leave to appeal to be granted and the appeal allowed.
6. YYT and Jinji complained that, were the primary decision to stand, they would be deprived of the opportunity to put forward arguments at the s 59(4) trial and determination that would have a real prospect of affecting the outcome of the hearing.

Legal principles on an application for leave to appeal

1. The principles that apply to an application for leave to appeal are well settled. For present purposes it is sufficient to adopt, without repeating, what was said by this court in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[12] See also Clough Ltd v Forge Group Ltd (in liquidation) (receivers and managers appointed);[13] and Mineralogy Pty Ltd v CITIC Ltd.[14]
2. In summary, where leave to appeal is necessary, leave may be granted whenever the interests of justice require the grant of such leave. Ordinarily, while not being rigid or exhaustive criteria, two main considerations are taken into account. First, whether the decision is wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered. Second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong.
3. The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected. Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.
4. One of the matters mentioned in Clough Ltd v Forge Group Ltd (in liquidation) (receivers and managers appointed) ought to be emphasised. It is of particular significance to the present case. This is the principle that an appeal against a final judgment can correct an interlocutory order that affected the final result: Gerlach v Clifton Bricks Pty Ltd.[15] Often an interlocutory appeal is not justified in the interests of justice where, if and to the extent that an interlocutory order affects the final result, there can be subsequent appellate correction. Evidentiary rulings provide an obvious example of a circumstance in which the Gerlach principle applies. In evaluating the interests of justice the availability of the Gerlach principle ought to be taken into account and weighed against the unnecessary multiplication and fragmentation of proceedings that comes with granting leave to appeal in relation to an interlocutory order.

Consideration and determination of the application for leave to appeal

1. YYT and Jinji's application for leave to appeal was entirely without merit.
2. First, putting aside whether the primary decision was wrong or attended by sufficient doubt to warrant reconsideration, the interests of justice did not justify leave to appeal. This was a case where the Gerlach principle applied. There was, as YYT and Jinji conceded, no interference with their substantive rights. It could not be said that substantial injustice would result if the primary decision was left unreversed (supposing the decision to be wrong). The application for leave to appeal had the undesirable potential to disrupt and fragment the s 59(4) proceedings in a way that was incompatible with the achievement of the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).
3. YYT and Jinji sought to justify their application for leave to appeal on the basis that fewer resources would be consumed, and delay and inconvenience would be reduced, by an interlocutory appeal being heard and determined before the s 59(4) hearing. That submission is premised on the primary decision being wrong. It will be seen that YYT and Jinji's premise cannot be made good. YYT and Jinji also sought to make something of the circumstance that no discretion fell to be exercised in relation to a question of admissibility. That is true. But this alone cannot establish that it is in the interests of justice to allow leave to appeal against an interlocutory order. It cannot be supposed that this court will allow pre‑trial evidentiary rulings to be the subject of an interlocutory appeal as a matter of course. To do so would be to overlook the question of substantial injustice. It also assumes that the evidentiary ruling is likely, of itself, to be dispositive of the s 59(4) trial and determination in a manner that is adverse to YYT and Jinji. YYT and Jinji made no attempt to establish that this assumption was justifiable, let alone correct.
4. In contending for enhanced timeliness and efficiency by their interlocutory appeal being heard and determined before the s 59(4) hearing YYT and Jinji did not take into account this court's capacity to accommodate the appeal hearing and the effect of doing so on other litigants in the court.
5. This aspect of the interests of justice was affected by the circumstance that YYT and Jinji sought and obtained an urgent appeal order. The urgent appeal order was made because of the imminent commencement of the s 59(4) trial and determination. In making the urgent appeal order the question of leave to appeal was referred to the appeal hearing. Often it is practicable to take that course to avoid two hearings before different judges of appeal: Livingspring Pty Ltd v Kliger Partners.[16] It does mean, however, that the substantive merits of the proposed appeal tend to become the focus of the appeal hearing. It also tends to subvert the utility of the requirement of leave to appeal as a filter or control device (one which enables the court to control, in some measure, the volume of appellate work requiring its attention: Mineralogy Pty Ltd v CITIC Ltd [58]).
6. The mere circumstance that a litigant has been granted an urgent appeal order, and conformably the question of leave to appeal is referred to the appeal hearing, ought not to provide the litigant with a procedural advantage in obtaining leave to appeal. In the future it may be better to list the application for an urgent appeal order together with the application for leave to appeal at the first available opportunity. An applicant for leave to appeal in the position of YYT and Jinji will then need to establish that the interests of justice justifies leave to appeal unaffected by the court's facilitation of an early appeal hearing.
7. Second, we are not persuaded that the primary decision was wrong or attended by sufficient doubt to warrant reconsideration. To the contrary, the primary judge was correct to rule that Mr Bootsi's affidavit affirmed 11 November 2025 was inadmissible for the purpose of the s 59(4) trial and determination. On the proper construction of the s 59(4) orders the affidavit was not to be received for the trial and determination of the issue and question to be tried and determined pursuant to s 59(4) of the Supreme Court Act.
8. It is not necessary to consider whether, by reason of his training, study or experience, Mr Bootsi has specialised knowledge in the practice of insolvency in the Congo. However, there is limited material to support a contention of expertise as an insolvency practitioner. Mr Bootsi presents as a lawyer, and a person with legal qualifications and skills, rather than an 'insolvency practitioner'. That term, in ordinary parlance, refers to a professional person who is registered and authorised to administer insolvency procedures for corporations or natural persons. But, as we have already remarked, the real question is whether Mr Bootsi is an 'expert insolvency practitioner' for the purpose and within the meaning of this court's s 59(4) orders providing for the s 59(4) trial and determination.
9. YYT and Jinji sought to bypass this issue by emphasising the terms of pars 3A and 3B of the s 59(4) orders. They asserted that Mr Bootsi's evidence was expert insolvency evidence as to the residual value of the ordinary shares in Tiger. Accordingly, the evidence was, as far as YYT and Jinji were concerned, within the scope of par 3A. As the evidence could be fitted within the words of par 3A read in isolation it followed, according to YYT and Jinji's argument, that the evidence was therefore within the scope of par 1(bb) of the s 59(4) orders and admissible at the s 59(4) trial and determination.
10. The court determines the meaning of words in written instruments by reference to text, context and purpose. The starting point is the language used. It is necessary to identify the possible meanings that the words chosen may bear. The process is objective. Ascertaining meaning requires a determination of what a reasonable person in the position of the parties would have understood the words to mean. That inquiry requires consideration of the language used, the circumstances addressed and the purpose or object to be secured.
11. The purpose or object will often be apparent from a consideration of the instrument read as a whole. Knowledge of surrounding circumstances known to the parties may nevertheless assist where the task is facilitated by an understanding of the genesis of the instrument, its background, the context and the environment in which the parties are operating.
12. In relation to the construction of orders of a court, as opposed to written instruments generally, this court stated in Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2]:

In determining the meaning of ... orders, on their proper construction, it is permissible to have regard to context including surrounding circumstances (much the same as it is permissible to have regard to the surrounding circumstances known to the parties and to the purpose and object of a transaction when construing a commercial contract). However, in having regard to surrounding circumstances, it is relevant to keep in mind that orders are generally framed with a view to their being self‑contained and self‑explanatory. Also, the surrounding circumstances are not admissible to contradict the language of the orders where that language is unambiguous or susceptible of only one meaning. In this respect the position is no different to the position pertaining to the construction of a commercial contract.[17] (citations omitted)

1. It should also be remembered that, ordinarily, the purpose of a court order is to give effect to reasons for decision - the reasons for decision are the source of the order. As the order is derived from the reasons the order must conform with the reasons. Hence it is said that reasons for decision have 'primacy' as a source for interpretation of an order: Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [169].
2. The text of pars 3A and 3B of the s 59(4) orders cannot be read and construed in isolation in the manner suggested by YYT and Jinji. Paragraphs 3A and 3B were introduced, by the court's orders of 21 May 2025, together with par 1(bb) and the modification to par 1(d). Paragraphs 3A and 3B must be read and construed with par 1(bb) and the modification to par 1(d). This clarifies that the 'expert evidence as to the residual value of the ordinary shares in Tiger' (par 3A) is to comprise of 'new expert reports of the expert valuers and/or expert insolvency practitioners' (par 1(bb)) (the modification to par 1(d) similarly referring to 'new expert valuers and/or expert insolvency practitioners').
3. Mr Bootsi is plainly not an 'expert valuer'. Nor is he an 'expert insolvency practitioner' for the purpose and within the meaning of the court's s 59(4) orders. The term 'expert insolvency practitioner', as used in pars 1(bb) and 1(d), refers to the language used in par 1(b); this existed at the time of the introduction of par 1(bb) and the modification to par 1(d). It also refers to the named expert insolvency practitioners in the schedules to the s 59(4) orders (ie Messrs White, McVeigh and Donnelly) who gave evidence as expert insolvency practitioners as to the distressed sale discount. See [13] ‑ [15] above. So understood and construed, the term 'expert insolvency practitioner' as used in the s 59(4) orders means the original experts giving evidence as to the distressed sale discount or a person with expertise of the same kind.
4. The surrounding circumstances support this construction.
5. The original iteration of the s 59(4) orders, as made on 11 December 2024, equated the 'expert insolvency practitioners' with Messrs White, McVeigh and Donnelly being persons providing opinion evidence as to the 'distressed sale discount' (par 1(b)). The court restricted the subject matter of this category of expert evidence conformably with the sentiments expressed in Kipoi [No 4] [878]. In making the orders of 11 December 2024 the court rejected YYT and Jinji's minute which sought unfettered leave to file and serve any expert evidence, from any expert, as to the residual value of Tiger's ordinary issued shares as at 28 October 2021. So far as YYT and Jinji raised issues as to the availability of Mr White (appeal ts 510 ‑ 512, 514 ‑ 515) the court granted YYT and Jinji leave to issue a subpoena to Mr White to attend and give oral evidence (par 4). But, importantly, the identity of the parties' experts - and hence the nature and character of the additional expert evidence permitted at the s 59(4) trial and determination - was to be of the same kind as that adduced at the primary hearing (although it might be updated to deal with various matters).
6. The s 59(4) orders were amended on 8 April 2025 for the reasons given in Kipoi [No 6]. But in so doing the court: (1) rejected YYT and Jinji's application to remove all fetters on the scope of the additional evidence to be permitted (see [9] above); and (2) rejected YYT and Jinji's application to remove the restriction in the s 59(4) orders as to the identities of the parties' experts (especially as concerned Mr White): Kipoi [No 6] [109](1), [111].
7. In providing, on 21 May 2025, for the amendments to the s 59(4) orders that YYT and Jinji now rely on, the court rejected the broad orders that YYT and Jinji sought that would have enabled them to adduce any additional evidence in relation to matters relating to the affairs of Tiger and its subsidiaries (see [9] above). The court stated:

[W]e are not satisfied that the scope of the admissible evidence for the s 59(4) proceedings should be expanded in so dramatic a fashion. The considerations that inform the court's orders of 11 December 2024 remain applicable. The intrusion that has been permitted to the principle of finality ought not to be bent so far as to permit a new trial, without fetters, under the guise of the s 59(4) proceedings. (Appeal ts 864)

1. However, the court accepted that the s 59(4) orders ought to be amended to deal with availability issues that YYT and Jinji faced as to the expert valuers (Mr Hughes and a proposed substitute Mr Collins) as well as the expert insolvency practitioner (Mr White). YYT and Jinji sought to be able to replace the expert valuer and expert insolvency practitioner with identified experts from a different firm (Mr Meredith and Mr Olde of the firm Ankura). It was clear, however, that YYT and Jinji were proposing to adduce evidence from experts who would give expert evidence of the same kind as that previously given by the expert valuer and expert insolvency practitioner who were to be replaced. Certainly this is how the court understood the thrust of YYT and Jinji's application and submissions. The court stated:

[A]lthough hitherto the court has resisted the briefing of new experts, and the substitution of new expert reports, that position cannot be maintained in the interests of justice.

In the changed circumstances that are now prevailing, [YYT and Jinji] must be permitted to adduce expert evidence from a different valuation expert. Insofar as, in this respect, there is to be a new valuation expert, we see no continued reason to confine [YYT and Jinji] to the liquidation expert who was - at the time of the hearing in the primary proceedings - associated with Mr Hughes and Mr Collins.

[YYT and Jinji] will be permitted to adduce expert evidence from a different liquidation expert. (Appeal ts 862)

1. The court accepted that YYT and Jinji were to be able to prepare and present their case as they saw fit. But this was to be 'within the confines' already provided for in the court's orders dealing with the s 59(4) proceedings (Appeal ts 862).
2. The court did not have in contemplation allowing the parties to call new experts in new areas of specialised knowledge to address issues not previously the subject of expert evidence in the primary proceedings. Nor was that the avowed purpose of YYT and Jinji's application. Had that been what YYT and Jinji were seeking, and the court was intending to allow, it would be expected that the court would have developed its reasons more fully. It would have represented a considerable departure from the sentiments expressed in Kipoi [No 4] [878] as had been consistently reiterated when dealing with attempts to expand the scope of the s 59(4) trial and determination - including on 21 May 2025 itself (see [67] above).
3. When the surrounding circumstances are considered it is obvious that the court contemplated no more than the substitution of experts - both expert valuers and expert insolvency practitioners - on a like for like basis. In that respect, consistently with the text and context of the s 59(4) orders, the term 'expert insolvency practitioner' means a person with expertise of the same kind as the original insolvency experts giving evidence as to the distressed sale discount. Mr Bootsi is not a person with specialised knowledge of this kind.
4. The primary judge was correct to rule that Mr Bootsi's affidavit affirmed 11 November 2025 was inadmissible for the purpose of the s 59(4) trial and determination. The affidavit was only admissible if Mr Bootsi was an 'expert insolvency practitioner'. Mr Bootsi is not an 'expert insolvency practitioner' for the purpose and within the meaning of the s 59(4) orders. On the proper construction of the s 59(4) orders the term 'expert insolvency practitioner' means the original experts giving evidence as to the distressed sale discount or a person with expertise of the same kind. It does not suffice for admissibility for the purpose of the s 59(4) trial and determination that Mr Bootsi may have specialised knowledge as to the insolvency regime of the Congo or the practice of insolvency in the Congo.
5. For these reasons we refused YYT and Jinji's application for leave to appeal in appeal CACV 99 of 2025. It followed that the appeal was to be dismissed.

The application in an appeal dated 11 December 2025 in appeal CACV 106 of 2021 The scope of and basis for YYT and Jinji's application

1. YYT and Jinji's application in an appeal dated 11 December 2025 in appeal CACV 106 of 2025 was in two parts. First, premised on appeal CACV 99 of 2025 failing, as it did, YYT and Jinji sought a variation to the s 59(4) orders to allow them to adduce Mr Bootsi's affidavit affirmed 11 November 2025 in evidence at the s 59(4) trial and determination. Second, YYT and Jinji sought a variation to the s 59(4) orders to allow them to adduce various additional evidentiary items at the s 59(4) trial and determination.
2. As to the second aspect of the application, YYT and Jinji sought a variation to the s 59(4) orders to allow them to adduce the following at the s 59(4) trial and determination:
   1. Mr Bootsi's affidavit affirmed 9 December 2025 (it was accepted that this aspect of the application would stand or fall with whether Mr Bootsi's affidavit affirmed 11 November 2025 was to be received as additional evidence at the s 59(4) trial and determination).
   2. The articles of association of three of Tiger's subsidiaries (as these were relied on in relation to Mr Bootsi's expert reports it was accepted that this aspect of the application would stand or fall with whether Mr Bootsi's affidavits were to be received as additional evidence at the s 59(4) trial and determination).
   3. An expert report prepared in connection with a scheme of arrangement undertaken by Tiger before the appointment of the deed administrators (for reasons that we will come to this aspect of the application fell away).
   4. A 'life of mine' financial model. This is in the form of an Excel spreadsheet. Mr Naidoo, whose expert technical evidence was admitted without objection or cross‑examination at the primary hearing, mentioned the life of mine model in his expert report (see [93] ‑ [95] below). YYT and Jinji's replacement expert valuer, Mr Meredith, sought to rely on the life of mine model in valuing the mineral assets on a discounted cashflow basis. However, while the life of mine model was included in various tender bundles at the primary hearing, it was not tendered in evidence at the primary hearing.
3. The application in an appeal dated 11 December 2025 in appeal CACV 106 of 2025 was supported by the affidavit of Jing Yun Soh sworn 11 December 2025. Ms Soh is a lawyer employed by the firm acting for YYT and Jinji. Her affidavit was received without objection. It addressed the data room made available to the experts in the primary proceedings; documents comprised in the tender bundles at the primary hearing; the briefs to YYT and Jinji's replacement expert valuer (Mr Meredith) and expert insolvency practitioner (Mr Olde); and the circumstance that the replacement experts had relied on additional documents not tendered at the primary hearing. These included, in particular, the life of mine model and the scheme expert report.
4. Ms Soh's affidavit also dealt with the supplementary instructions to Mr Bootsi, and the articles of association for the Tiger subsidiaries, that led to Mr Bootsi's affidavit affirmed 9 December 2025.
5. Nothing in Ms Soh's affidavit sought to explain why YYT and Jinji had not raised the possibility of adducing expert evidence of the kind contained in Mr Bootsi's affidavits at an earlier time. It became apparent at the appeal hearing that YYT and Jinji first raised the possibility of expert evidence of the kind sought to be adduced by Mr Bootsi's affidavits by correspondence issued on 29 October 2025 (Appeal ts 1082).
6. This court has considered previous applications to vary the s 59(4) orders to allow an expansion of the evidentiary materials for the s 59(4) trial and determination. The applicable legal principles, and the court's approach to such an application in the context of the s 59(4) trial and determination which is to be conducted by the primary judge, were addressed in Kipoi [No 6] [66], [68] ‑ [71], [89], [96] ‑ [108], [112] ‑ [113]. It is not necessary to repeat those matters. We relied on the same principles and considerations in determining YYT and Jinji's application in an appeal dated 11 December 2025 in appeal CACV 106 of 2025.

1. YYT and Jinji sought to rely on the scheme expert report in support of the proposition that Tiger incurred interest on its senior debt facility at 8% per annum.
2. It was said that the same figure could have been derived from affidavit evidence that is already to be adduced in the s 59(4) trial and determination. That begs the question why it was thought necessary to raise the matter before this court. The apparent lack of any point as to this aspect of the application may be put aside. Prior to the hearing on 16 January 2026 the parties filed a consent notice. This sought to modify the s 59(4) orders by allowing the parties to provide a statement of agreed facts regarding the interest rate applicable to the secured debt. The court was satisfied that it was just to make an order in those terms.
3. In the circumstances this aspect of the application in an appeal became redundant.

Admission of Mr Bootsi's affidavits and the articles of association

1. YYT and Jinji argued that, if the s 59(4) orders did not presently permit evidence to be led addressing the content, operation and practice of insolvency law in the Congo, then the orders should be amended to make such evidence admissible. They acknowledged that, for the purpose of the primary hearing, the experts proceeded on an assumption that a liquidator could be appointed to the relevant Tiger subsidiaries. YYT and Jinji nevertheless stated that whether this was correct involved a question of insolvency law in the Congo.
2. YYT and Jinji submitted that:
   1. It was in the interests of justice that, in conducting the s 59(4) trial and determination, the primary judge have expert evidence on this subject to enable the valuation exercise to be informed by relevant evidence rather than assumption.
   2. Mr Bootsi's evidence did not introduce a new issue but rather provided admissible evidence on an issue that is central to the s 59(4) hearing and was central to the valuation exercise at first instance.
   3. The admission of such expert evidence would be consistent with the court's findings in Kipoi [No 6] as to the introduction of evidence relating to the resumption of production at the Kipoi copper mine.
3. There was no merit in these submissions. If YYT and Jinji were permitted to adduce Mr Bootsi's evidence a new intermediate issue would have arisen for determination at the s 59(4) trial and determination. At the primary hearing there were no issues before the master concerning the laws or operation of the laws relating to the insolvency regime of the Congo. Instead, as has been noted, the experts who gave evidence at the primary hearing were prepared to assume that the insolvency regime that applied in the Congo was comparable to that which applied in Australia. To this extent there was common ground - or, at the least, a common approach - at the primary hearing. Whether this was central to the valuation exercise or simply accepted as part of the context for the valuation exercise is beside the point. The parties proceeded with the primary hearing without any expert evidence as to the insolvency regime of the Congo. YYT and Jinji sought to depart from that common ground or common approach by seeking leave to adduce Mr Bootsi's evidence.
4. There is no proper analogy to be drawn between Mr Bootsi's evidence and the evidence that the court permitted in Kipoi [No 6]. Among other things:
   1. YYT and Jinji did not seek to establish that the omission to adduce expert evidence of the kind now sought to be adduced occurred without a lack of reasonable diligence on their part. Compare Kipoi [No 6] [103] ‑ [107].
   2. There is, in this respect, a qualitative difference between the nature of the additional evidence now sought to be adduced and the nature of the additional evidence allowed to be adduced in Kipoi [No 6]. In Kipoi [No 6] the court permitted Kipoi to adduce evidence going to the Kipoi copper mine's status in circumstances where that matter was unknown to Kipoi at the time of the primary hearing but was known to YYT and Jinji. By contrast the availability of expert evidence as to the insolvency regime of the Congo ought to have been well apparent to all parties including YYT and Jinji as at the time of the primary hearing. YYT and Jinji could and should have investigated the matter before the primary hearing; and, if then thought material to the valuation exercise, ought to have adduced the evidence at that time. It is plain that, with the benefit of hindsight, YYT and Jinji are now belatedly seeking to recast and improve their case for the purpose of the s 59(4) trial and determination.
   3. There was considerable delay by YYT and Jinji in raising the matter. Mr Bootsi's evidence was not foreshadowed until late October 2025. Application was not made until 11 December 2025. This was 12 months after the initial s 59(4) orders and many months after multiple prior applications in early to mid‑2025 to vary the s 59(4) orders to permit additional evidence. YYT and Jinji's inaction went unexplained. By contrast the evidence the subject of Kipoi [No 6] was the subject of a timely application once the evidence came to Kipoi's attention. See Kipoi [No 6] [1] ‑ [2], [9], [11] ‑ [13], [105].
5. The substantial delay by YYT and Jinji is all the more surprising in circumstances where the absence of expert evidence of the kind now sought to be relied on was well appreciated at the primary hearing in 2021. Senior counsel for YYT and Jinji made submissions at the primary hearing based on the absence of such evidence (ts 433 ‑ 434). The necessity for the assumption was also averted to in the master's reasons: Kirman v Yingkou Yangzhou Trade Co Ltd [No 2].[18]
6. In Kipoi [No 6] we accepted that the principle of finality in litigation was applicable on an application of the present kind [66], [69] ‑ [70], [96], [99]. We also reiterated the court's previously expressed view that the interests of justice would not be served by allowing the parties free rein to recast or improve their respective cases by adducing evidence that could and should have been adduced at the primary hearing (see [8] ‑ [9] above). Both of those factors militated strongly against it being in the interests of justice to allow YYT and Jinji to adduce additional evidence in the form of Mr Bootsi's affidavits and the articles of association. There was also a further significant factor. This was the prejudice to Kipoi in allowing the additional evidence to be led given the proximity of the s 59(4) trial and determination.
7. There was, in our view, a real risk that allowing YYT and Jinji to adduce Mr Bootsi's affidavits and the articles of association would result in the vacation of the February dates for the s 59(4) trial and determination. It cannot be doubted that, as well as conflicting with the achievement of the goal and objects in O 59 r 4A and r 4B of the Rules of the Supreme Court, any further prolongation of this already much delayed litigation would be prejudicial to Kipoi. Senior counsel for YYT and Jinji conceded that there would not be much that he could say against an application to vacate the trial dates were Kipoi to make such an application on the basis that time was required to respond to the additional evidence (Appeal ts 1082). There was a half‑hearted suggestion that Kipoi might have obtained responsive evidence before the hearing of the application before the court (Appeal ts 1093 ‑ 1094). That suggestion was fanciful. It cannot be thought that a litigant in Kipoi's position would choose to incur the cost of obtaining expert evidence as to matters of foreign law and practice where the primary judge had ruled, correctly, that such evidence was inadmissible.
8. In any event, there would have been real and not insignificant prejudice to Kipoi insofar as the late introduction of the new issue, and the attendant need to answer and respond to that new issue, would disrupt and impair Kipoi's legal representative's preparation for the s 59(4) trial and determination.
9. We were and are willing to assume, favourably to YYT and Jinji, that evidence of the kind proposed to be adduced through Mr Bootsi's affidavits, together with the articles of association, might be material - or even 'central' - to the valuation exercise to be carried out at the s 59(4) trial and determination. We also accept that it is ordinarily preferable for the court to be assisted by evidence as to such matters rather than to proceed by way of assumption. But, in our opinion, those factors in favour of leave to adduce Mr Bootsi's affidavits and the articles of association were substantially outweighed by the contrary factors we have previously referred to at [85] ‑ [90] above. That was particularly so given YYT and Jinji's unexplained delay in bringing the application. YYT and Jinji had previously been afforded sufficient opportunity to seek to introduce evidence of this kind. YYT and Jinji could and should have raised this issue far earlier. The timing of the application in an appeal dated 11 December 2025 was inexplicable given the many interlocutory hearings that have occurred in the appeal since Kipoi [No 4] was delivered. The undoubted prejudice to Kipoi that would have been caused by the introduction of this evidence meant that, even putting aside considerations as to the desirability of finality in litigation, YYT and Jinji were unable to demonstrate that it was in the interests of justice that they be granted leave to adduce this additional evidence at the s 59(4) trial and determination.
10. For these reasons it was contrary to the interests of justice to vary the s 59(4) orders to allow YYT and Jinji to adduce additional evidence in the form of Mr Bootsi's affidavits and the articles of association. This aspect of the application in an appeal had to be refused.

1. The dispute about the admission of the life of mine model was related to the expert evidence that has been filed in anticipation of the s 59(4) trial and determination. Mr Meredith, YYT and Jinji's replacement expert valuer, uses the life of mine model to value the mineral assets on a discounted cashflow basis. If Mr Meredith cannot have regard to the life of mine model he would have to rely on a comparable transactions method to value the assets. The difference between the two valuation figures is relatively small. Mr Meredith values the mineral assets at US$281.1 million on a comparable transactions basis and at US$279.6 million on a discounted cashflow basis (assuming that the Kipoi project is operating). See Mr Meredith's expert report dated 10 November 2025 pars 1.5.1 (Table 2), 1.6.1, 1.6.2, 6.3.1 (Table 18).
2. YYT and Jinji submitted that the life of mine model was 'central' to the valuation exercise at the primary hearing.[19] That is a considerable overstatement. It is true that Mr Naidoo's technical assessment and valuation report mentioned the life of mine model. Mr Naidoo stated that there had been a high‑level metallurgical review on the inputs to the life of mine plan and financial model. He stated:

• The life‑of‑mine (LOM) model appears well constructed, albeit complex for the objective, with inputs clearly separated from the calculations within the model. A basis for most inputs was provided that was extremely useful given the overall complexity of the model ...
• The LOM financial model operating costs, incorporating the modifications recommended above, are reasonable.
• A number of general risks were also identified. Although no recommendations are made to change specific parameters within these models based on these risks, they provide useful supporting information ...
• There was limited testwork data or suitable existing plant data provided to support some of the key metallurgical parameters used in these models ...[20]

1. Mr Naidoo went on to record that he had completed a high‑level review of the Kipoi copper project in the Congo. The review was based, among other things, on the life of mine model.[21] However, as has previously been observed in this court, Mr Naidoo provided his opinion on the market value of the mineral assets based on an analysis of comparable transactions: Kipoi [No 4] [317] ‑ [319]. The life of mine model was not central to Mr Naidoo's conclusions.
2. The expert valuer relied on by the deed administrators, Mr Hughes, relied on the life of mine model - determining that it was sufficiently robust and reliable to adopt as an input to his assessment.[22] Mr Hughes did so insofar as he preferred to use a discounted cashflow analysis to value the copper mine assets: Kipoi [No 4] [324], [326](5) ‑ (6) (see also [311], [313](1)). Accordingly, as Kipoi correctly submitted in opposing YYT and Jinji's application in an appeal dated 11 December 2025, Mr Hughes' discounted cashflow model drew on the life of mine model;[23] and, in that respect, the life of mine model was only 'central' to Mr Hughes' discounted cashflow valuation.[24] However, while the life of mine model was included in pre‑hearing tender bundles, it was never tendered in evidence at the hearing that resulted in the s 444GA order.
3. Kipoi accepted that there was no objection to the admissibility of Mr Hughes' expert report at the primary hearing by reason of the non‑tender of the life of mine model (Appeal ts 1087).
4. YYT and Jinji described the failure to tender the life of mine model as a 'procedural quirk'.[25] This is an inapt description. It is true that, when put to proof, a litigant must establish a proper foundation for an expert's opinion. This will require a party to establish the foundational facts on which an expert relies for his or her opinion. But that is not always the case. Sometimes those foundational facts may be uncontroversial. For example, in a land valuation case there may be no contest about the fact of the various sale transactions relied on by competing expert valuers (ie there is tacit acceptance by both parties of the date, amount and subject matter of the comparable sales and that the comparable sales were an arm's length transaction). In those circumstances it would be unusual, and productive of unnecessary cost, for any party to require the other - or itself to take on the burden - to formally prove the underlying comparable sale transactions. That will commonly be understood to be the position where neither party objects (or foreshadows an intention to object) to the admissibility of expert evidence on the basis of failure to establish the foundational facts on which an expert relies for his or her opinion.
5. In a civil case, the admission at trial without objection of expert evidence that is strictly inadmissible, due to an omission to formally prove a foundational fact, has implications for the grounds that may be advanced on an appeal. As this court stated in Fitzroy River LLC v Tucker:

Ordinarily ... in a civil case it will be untenable for an appellant who did not object at trial to the admission of expert evidence to pursue a ground on appeal to the effect that the trial judge erred in law in admitting the expert opinion in evidence as it was inadmissible. The appellant will be bound by the conduct of its case at trial.[26]

1. Senior counsel for Kipoi analysed this in terms of waiver of the right to object (Appeal ts 1086). There is some support for this in one of the cases referred to in Fitzroy River LLC v Tucker. On some occasions, however, it might be that the circumstances sustain a conclusion that the parties have tacitly agreed the foundational facts on which the expert opinion is based. While implied waiver may suffice, all the more so a party will be bound by the conduct of its case at trial where that conduct consists of agreeing - even tacitly - a foundational fact on which the admission of an expert opinion depends.
2. It should be remembered that, although the s 59(4) trial and determination is an unusual proceeding, it is a proceeding occurring within and under the rubric of an appeal. The principle enunciated in Fitzroy River LLC v Tucker applies for the purpose of the s 59(4) trial and determination.
3. At the primary hearing before the master Kipoi did not object to the admissibility of Mr Hughes' expert report on the ground that there was no tender or formal proof of the life of mine model. Presumably Kipoi did so because the life of mine model was not in dispute for the purpose of the primary hearing. After all, the life of mine model was accepted by Mr Naidoo; and Mr Naidoo's expert technical evidence was admitted without objection or cross‑examination. Had the objection been taken it would have been a simple matter for the deed administrators or YYT and Jinji to rectify the omission and to have brought about the tender of the life of mine model. It was not necessary to do so in circumstances where there was no objection to the admissibility of Mr Hughes' report and Mr Naidoo's evidence was uncontroversial.
4. It follows that, having chosen not to object to the admissibility of Mr Hughes' expert report at the primary hearing, Kipoi is precluded from objecting to the admissibility of that report at the s 59(4) hearing on the ground that there was no tender or formal proof of the life of mine model. In written submissions Kipoi contended to the contrary.[27] We reject that submission. For the reasons we have given it would not be open to Kipoi, at the s 59(4) trial and determination, to object to the admissibility of Mr Hughes' expert report by reason of the life of mine model not being in evidence. The same position must prevail at the s 59(4) hearing so far as YYT and Jinji have now retained a new expert valuer, Mr Meredith, in place of Mr Hughes because of availability issues. Kipoi remains bound by the conduct of its case at trial. The s 59(4) trial and determination does not provide Kipoi with an opportunity to revisit earlier forensic choices as to such objections to admissibility.
5. Senior counsel for Kipoi submitted, as a fall‑back, that if Kipoi was stuck with the forensic choice it had made below, that was only a matter that went to admissibility; it remained open to Kipoi to argue that a valuation report that relied on the life of mine model was of little or no weight where the life of mine model was not tendered (Appeal ts 1087 ‑ 1088).
6. We accept that this argument is open to Kipoi at the s 59(4) hearing. The force of the argument will be a matter for the primary judge when adjudicating on the s 59(4) trial and determination. At the primary hearing Kipoi contended that Mr Hughes' opinion carried no weight for various reasons. These included that Mr Hughes simply relied on Mr Naidoo's valuation, did not conduct material aspects of the analysis, and that Mr Hughes did not expose his reasoning. Kipoi referred expressly to 'underlying datasets' not being in evidence (ts 455 ‑ 456).
7. The argument that Kipoi foreshadowed before us as to the weight to be afforded to any expert opinion that relied on the life of mine model, in the absence of the tender of the life of mine model, was in substance the same kind of argument as it had advanced before the master at the primary hearing.
8. The position as to the life of mine model may be summarised as follows. Kipoi is precluded from objecting to the admissibility of Mr Meredith's expert report on the ground that there has been no tender or formal proof of the life of mine model. There is, in the circumstances, no compelling basis to vary the s 59(4) orders to allow YYT and Jinji to adduce the life of mine model as additional evidence at the s 59(4) trial and determination. It is not necessary that such an order be made to avoid an objection as to admissibility. Indeed, to the contrary, such an order might unjustly adversely affect Kipoi by depriving it of an argument as to weight and reliability (such an argument having been advanced at the primary hearing).
9. The interests of justice, including considerations of finality, supported leaving YYT and Jinji's new expert valuer in the same place, as regards the life of mine model, as previously prevailed for Mr Hughes (and as would have prevailed for Mr Hughes had he been available to give evidence at the s 59(4) trial and determination).
10. For these reasons we were not persuaded that there should be leave to tender the life of mine financial model at the s 59(4) trial and determination. It followed that all contentious aspects of YYT and Jinji's application in an appeal dated 11 December 2025 failed and that the application ought therefore to be dismissed.

1. For the foregoing reasons, the court made the following orders on 16 January 2026:
   1. In appeal CACV 99 of 2025:

(1) The appellants' application in an appeal filed 11 December 2025 is dismissed so far as it seeks leave to adduce the affidavit of Pathy Bootsi affirmed 9 December 2025 as additional evidence on the appeal.

(2) The application for leave to appeal is dismissed.

(4) The appellants pay the first respondent's costs of the appeal, including any reserved costs, to be assessed if not agreed.

(1) The second and third respondents' application in an appeal filed 11 December 2025 is dismissed.

(2) Order 1 of the orders made by the Court of Appeal on 11 December 2024 (as amended by the orders of the court made on 8 April 2025 and 21 May 2025) be amended to include a reference to a new sub‑paragraph (aaaaa) as follows:

'(aaaaa) any statement of agreed facts regarding the interest rate applicable to the secured debt;'

so as to accord with the composite document attached at Schedule A;

(3) The second and third respondents pay the appellant's costs of the application, including any reserved costs, to be assessed if not agreed.

1. Order 2 in appeal CACV 106 of 2021 was made by consent (see [81] above). The composite document at Schedule A has not been reproduced in these reasons.
2. The costs orders followed the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Referring to Kipoi Holdings Mauritius Ltd v Kirman & Ors [No 4] [2024] WASCA 145.

[2] Referring to the first appellant in appeal CACV 99 of 2025, Yingkou Yangzhou Trade Co Ltd.

[3] Referring to the second appellant in appeal CACV 99 of 2025, Jinji Resources Finance Pty Ltd.

[4] Referring to Kipoi Holdings Mauritius Ltd v Kirman [No 5] [2025] WASCA 60 (see esp. [2] ‑ [10).

[5] Referring to Kipoi Holdings Mauritius Ltd v Kirman [No 6] [2025] WASCA 65 (see esp. [2] ‑ [13], [15] ‑ [20], [29] ‑ [30], [39] ‑ [40], [44], [46] ‑ [56], [63], [67], [90] ‑ [115]).

[6] Referring to the first respondent in appeal CACV 99 of 2025, Kipoi Holdings Mauritius Ltd.

[9] Saunders v The Public Trustee [2015] WASCA 203 [87].

[10] Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142 [47].

[11] Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10 [12], [14].

[12] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] ‑ [118].

[13] Clough Ltd v Forge Group Ltd (in liquidation) (receivers and managers appointed) [2022] WASCA 179 [18] ‑ [23].

[14] Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168 [56] ‑ [63].

[15] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 [5] ‑ [8].

[16] Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377 [4] ‑ [5].

[17] Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108 [157].

[18] Kirman v Yingkou Yangzhou Trade Co Ltd [No 2] [2021] WASC 354 [8].

[19] YYT and Jinji's submissions dated 18 December 2025 par 14.

[20] Affidavit of T Naidoo sworn 23 June 2021, attachment 'TN-2' pp IV - V.

[21] Affidavit of T Naidoo sworn 23 June 2021, attachment 'TN-2' p 57 (par 7.1).

[22] Affidavit of J H Hughes sworn 23 June 2021, attachment 'JH-3' pp 4 - 6, 11 - 12, 28, 31.

[23] Kipoi's submissions dated 22 December 2025 par 8.

[24] Kipoi's submissions dated 22 December 2025 par 9.

[25] YYT and Jinji's submissions dated 18 December 2025 par 15.

[26] Fitzroy River LLC v Tucker [2025] WASCA 118 [114].

[27] Kipoi's submissions dated 22 December 2025 par 11.