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Vannin Capital Operations Ltd v QNI Resources Pty Ltd[2023] QSC 1

Vannin Capital Operations Ltd v QNI Resources Pty Ltd[2023] QSC 1

SUPREME COURT OF QUEENSLAND

CITATION:

Vannin Capital Operations Limited v QNI Resources Pty Ltd & Ors [2023] QSC 1

PARTIES:

VANNIN CAPITAL OPERATIONS LIMITED

(Company Number C74594)

(plaintiff)

v

QNI RESOURCES PTY LTD

(ACN 054 117 921)

(first defendant)

QNI METALS PTY LTD

(ACN 066 656 175)

(second defendant)

PALMER AVIATION PTY LTD 

(ACN 158 870 789) (in liquidation)

(third defendant)

QUEENSLAND NICKEL PTY LTD

(ACN 009 842 068) (in liquidation)

(fourth defendant)

FILE NO/S:

BS No 13947 of 2018

DIVISION:

Trial Division

PROCEEDING:

Claim filed on 18 December 2018

ORIGINATING COURT:

Supreme Court at Brisbane

REASONS:

13 January 2023

JUDGMENT:

1 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2021 – 30 April 2021; written submissions on behalf of the plaintiff dated 10 June 2021; outline of submissions on behalf of the first and second defendants dated 11 June 2021; further written submissions on behalf of the plaintiff dated 6 July 2021; reply submissions on behalf of the first and second defendants dated 19 July 2021; 13 January 2023; email correspondence from the parties regarding the terms of the judgment dated 20 January 2023 (plaintiff), 27 January 2023 (first and second defendants) and 30 January 2023 (plaintiff)

JUDGE:

Burns J

ORDER:

ON 13 JANUARY 2023, THE COURT ORDERED THAT:

  1. The defendants’ application to further amend their counterclaim is refused;
  2. The plaintiff and the first, second and fourth defendants are directed to bring in minutes of judgment to reflect these reasons within fourteen days.
  3. Liberty to apply on the giving of three days’ notice.

ON 1 FEBRUARY 2023, THE COURT DECLARED THAT:

  1. The fourth defendant entered into the agreement styled “US$ Aircraft Loan Facility Agreement” and dated 28 June 2012 (“the Agreement”) as agent for and on behalf of the first and second defendants.
  2. The first and second defendants are jointly and severally liable as guarantors pursuant to the terms of clause 16 and schedule 2 of the Agreement. 

AND PRONOUNCED JUDGMENT AS FOLLOWS:

  1. Judgment is entered for the plaintiff against each of the first, second and fourth defendants jointly and severally in the sum of US$30,835,112.14.
  2. The first, second and fourth defendants pay to the plaintiff, jointly and severally, the sum of US$30,835,112.14.
  3. The counterclaim is dismissed.  
  4. The first, second and fourth defendants are to jointly and severally pay the plaintiff’s costs of the proceeding on a full indemnity basis pursuant to clause 4 of schedule 2 of the Agreement.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – GENERALLY – where a predecessor in right to the plaintiff funded the purchase of an aircraft by the third defendant pursuant to a loan facility and associated documents – where repayment of the loan was secured by a mortgage over the aircraft – where the repayment obligations of the third defendant under the loan was the subject of a guarantee and indemnity provided by the fourth defendant – where the fourth defendant was the general manager of a joint venture in which the first and second defendant were participants – where the third and fourth defendants became insolvent and the loan was called up – where the liquidators of the third defendant later sold the aircraft to reduce the indebtedness under the loan – where the debt was subsequently assigned to the plaintiff – where the plaintiff sued the defendants for the outstanding debt under the loan – whether the existence and amount of the debt was proved – whether the fourth defendant entered into the guarantee and indemnity as agent for the first and second defendants – whether a condition should be implied in the guarantee and indemnity which, if breached, would relieve any guarantor from liability – whether the aircraft mortgage was discharged by variation – whether the liquidators marketed and sold the aircraft as agent for the predecessor in right to the plaintiff – whether the predecessor in right to the plaintiff owed a duty to the defendants, or any of them, in connection with the marketing and sale of the aircraft

Corporations Act 2001 (Cth), ss 436A, 439C, 477, 1305;

Evidence Act 1977 (Qld), s 84;

Property Law Act 1974 (Qld), s 57(1);

Uniform Civil Procedure Rules 1999 (Qld), rr 5, 190, 367(3).

Akins v National Australia Bank (1994) 34 NSWLR 155, cited

Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors [2019] QSC 163, cited

Australia and New Zealand Banking Group Ltd v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195, cited

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18, cited

Australian Trade Commission v Goodman Fielder Industries Limited (1992) 36 FCR 517, cited

Baburin v Baburin (No 2) [1991] 2 Qd R 240, cited

Bank of Western Australia Ltd v Abdul [2012] VSC 222, cited

Beefeater Sales International Pty Ltd v MIS Funding No 1 Pty Ltd [2016] NSWCA 217, cited

Blomley v Ryan (1956) 99 CLR 362, cited

BM Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 51 ALJR 254, cited

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, cited

Buckeridge v Mercantile Credits Ltd (1981) 147 CLR 654, cited

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 477, cited

Commonwealth v Verwayen (1990) 170 CLR 394, cited

Diddams v Commonwealth Bank of Australia Ltd (unreported, Federal Court of Australia, Branson J, 17 July 1998), cited

Dobbs v The National Bank of Australasia Limited (1935) 53 CLR 643, followed

Fitzgerald v Masters (1956) 95 CLR 420, followed

Florgale Uniforms Pty Ltd v Orders (2004) 11 VR 54, cited

Forsyth v Blundell (1973) 129 CLR 477, cited

GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, cited

Green & Ors v Pearson [2014] QCA 110, cited

Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1994) 8 BPR 15, 581, cited

Herrod v Johnston [2013] 2 Qd R 102, cited

Julong Pty Ltd v Fenn & Anor [2002] QCA 529, cited

Kyuss Express Pty Ltd v Sellers (2001) 37 ACSR 62, cited

Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336, cited

Mitchell v 700 Young Street Pty Ltd [2003] VSCA 42, cited

MBF Investments Pty Ltd v Nolan (2011) 37 VR 116, cited

Medforth v Blake [2000] Ch 86, cited

Moratic Pty Ltd v Lawrence James Gordon [2007] NSWSC 5, cited

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, cited

National Australia Bank Limited v Anderson [2004] VSC 193, cited

NMFM Property Pty Ltd v Citibank Ltd (No 8) (1999) 161 ALR 581, cited

Noble v State of Victoria [2000] 2 Qd R 154, cited

Norman v Federal Commissioner of Taxation (1963) 109 CLR 9, cited

Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676, followed

Perpetual Nominees Ltd v McGoldrick (No 3) (2017) 120 ACSR 32, followed

Pukallus v Cameron (1982) 180 CLR 447, cited

Queensland Independent Wholesalers Ltd v Coutts Townsville Pty Ltd [1989] 2 Qd R 40, cited

Railway Commissioners for New South Wales v Orton (1922) 30 CLR 422, cited

State Bank of NSW v Chia (2000) 50 NSWLR 587, cited

SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2019] QCA 201, cited

Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85, followed

Slee v Warke (1949) 86 CLR 271, cited

Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582, cited

The Fletcher Organisation Pty Ltd v Crocus Investments Pty Ltd [1988] 2 Qd R 517, cited

UBS v Tyne (2018) 265 CLR 65, cited

Ultimate Property Group Pty Ltd v Lord (2004) 60 NSWLR 646, cited

Upton v Tasmanian Perpetual Trustees Ltd (2007) 158 FCR 118, cited

Young v Queensland Trustees Ltd (1956) 99 CLR 560, applied

Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530, cited

Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445, cited

COUNSEL:

J Bell KC, with A O'Brien, for the plaintiff

P Dunning KC, with M Karam and K Byrne, for the first and second defendants

SOLICITORS:

Ashurst Australia for the plaintiff

Robinson Nielsen Legal for the first and second defendants

  1. [1]
    In June 2012, GE Commercial Australasia Pty Ltd (GEC), the predecessor in right to the plaintiff, Vannin Capital Operations Limited (Vannin), loaned money to the third defendant, Palmer Aviation Pty Ltd (PAPL), to finance the purchase of a 2001 Bombardier Global Express aircraft. 
  2. [2]
    The loan was the subject of several transaction documents but central to those was a written facility agreement between GEC as lender and PAPL as borrower, with the performance of the latter’s obligations guaranteed by the other signatory to the agreement being the fourth defendant, Queensland Nickel Pty Ltd (QN). At the time, the first defendant, QNI Resources Pty Ltd (Resources), and the second defendant, QNI Metals Pty Ltd (Metals), were participants in a joint venture by which a nickel refinery in Townsville was conducted. QN was the general manager of the joint venture and was owned by Resources and Metals. Mr Clive Palmer was a director of each of the defendant companies – Resources, Metals, PAPL and QN. 
  3. [3]
    For the purposes of the loan, Resources and Metals entered into a deed in which they confirmed, agreed and acknowledged that, inter alia, QN entered into the transaction in its personal capacity, as their nominee and agent under the joint venture and as general manager of the joint venture. The deed was provided to GEC. 
  4. [4]
    On 18 January 2016, PAPL and QN were both placed into voluntary administration, an event of default under the loan. Demands for payment of the amount due under the loan went unsatisfied and, by April 2016, both companies had been wound up in insolvency. After a long marketing campaign, the aircraft was sold by the liquidators of PAPL on 23 February 2018.
  5. [5]
    GEC changed its name to Harrenvale Australasia Pty Ltd (Harrenvale) on 4 May 2016 and, in October 2018, assigned all of its rights under the loan to Vannin. Earlier, on 9 November 2015, GEC had been acquired by Bain Capital Ltd (Bain) and, so, Bain was the ultimate beneficial owner of GEC/Harrenvale at the time when the aircraft was marketed for sale and sold.
  6. [6]
    On 16 October 2018, Harrenvale assigned all its rights under the loan (including the security for the loan) to Vannin.
  7. [7]
    By this proceeding, Vannin claims recovery of the amounts it alleges are outstanding under the loan for principal and interest. Resources and Metals have defended the claim and advanced a counterclaim. They also obtained leave to defend the claims made against QN. 
  8. [8]
    The defendants[1] raised a number of grounds of defence and also alleged that GEC/Harrenvale breached a duty owed to them to achieve the “best price obtainable” on the sale of the aircraft. That price, they say, would have been paid by Mr Palmer or another company controlled by Mr Palmer, Mineralogy Pty Ltd (Mineralogy). Had that come to pass, the difference between what could have then been obtained on sale and what was actually obtained gives rise, they contend, to a setoff in the form of an account or equitable compensation in the amount of their counterclaim which would be by itself sufficient to extinguish the whole of the debt claimed by Vannin.

The loan transaction

  1. [9]
    It is useful to commence with the joint venture. It was governed by an agreement dated 17 September 1992 and entitled, “Queensland Nickel Joint Venture Agreement” (JVA). 
  2. [10]
    By clause 5.1 of the JVA, QN’s appointment as general manager was confirmed. By clause 5.2(a) it was agreed that the general manager would (subject only to the direction of a committee of owners) be in charge of, and responsible for the overall management, operation and administration of the joint venture, the management of the funds of the joint venture and the management and control of the joint venture property and all operations of the joint venture as agent for, and for the account of, the joint venturers. By clause 5.2(b) the general manager was required to undertake various activities including the acquisition of materials, supplies, machinery, equipment and services, the negotiation of financing on behalf and with the approval of each of the joint venturers in relation to their involvement in any activity of the joint venture and the doing of all “acts and things as may be necessary or advisable for efficient and economic operation” of the joint venture. 
  3. [11]
    Clause 5.5 of the JVA dealt with the performance of management functions. Amongst other things, it provided that, as one of the managers under the agreement, QN was prohibited from directly or indirectly carrying on or being interested in any other business or activity or other operation and, further, it was made plain that QN did “not have the authority to act for or to assume any obligation or liability on behalf of” the joint venturers, except such authority as was conferred on it by the agreement or by the joint venturers.
  4. [12]
    PAPL was incorporated on 7 June 2012 as a special purpose vehicle to borrow money from GEC and use that money to purchase the aircraft.
  5. [13]
    The facility agreement – entitled, “US$ Aircraft Loan Facility Agreement” – was entered into on 28 June 2012. It was executed by Mr Palmer on behalf of PAPL and QN and secured by a mortgage over the aircraft and guaranteed by QN on terms set out in a guarantee and indemnity set out in a schedule to the agreement.[2]
  6. [14]
    By clause 2 of the facility agreement, GEC agreed to provide PAPL with the facility on the terms set out in the agreement and PAPL was obliged to use the facility only to purchase the aircraft. The agreed limit of the facility was up to US$24,500,000. By clause 3, if PAPL decided to use the facility, it could do so by one drawing and a mechanism to achieve that was specified.
  7. [15]
    It is apparent from a reading of the facility agreement that the joint venturers – Resources and Metal – stood with PAPL and, indeed, QN. For example, the term “obligor” was defined in clause 1.1 to mean “individually or collectively, as the context may require, or permit, [PAPL], [QN] and any other person (if any) who gives, grants, enters into or otherwise provides any Security in connection with the Facility and/or any Transaction Document (each in any capacity)”. The expression, “Transaction Documents”, was in turn defined by clause 1.1 to include (in addition to the facility agreement) a document described as a “Joint Venturer Letter”. This document was defined by the same provision to mean “the letter dated on or about the date of this Agreement given by the joint venturers in favour” of GEC.
  1. [16]
    A Joint Venturer Letter was indeed given in favour of GEC by Resources and Metals, and on the same day the facility agreement was executed. It took the form of a deed. It was signed by Mr Palmer along with the secretary of the companies, Mr Derek Payne. The letter contained these acknowledgements:

“1.Acknowledgements

Each of [Resources] and [Metals] (Joint Venturers) confirm, agree and acknowledge that:

  1. (a)
    the Joint Venturers have appointed [QN] as the ‘General Manager’ of the Joint Venture under the [JVA], and such appointment includes the appointment of [QN] as manager for all purposes of the Joint Venture, inter alia, including in connection with the Transaction Documents;
  2. (b)
    [QN] is and remains the ‘General Manager’ of the Joint Venture and has not been removed as ‘General Manager’;
  3. (c)
    [QN] enters into the Transaction Documents in its personal capacity, as nominee and agent of the Joint Venturers under the [JVA] and as General Manager;
  4. (d)
    the Secured Property does not constitute Joint Venture Property;
  5. (e)
    all approvals required under the terms of the [JVA] for each of [QN] and Joint Venturer’s entry into, delivery and performance of the Transaction Documents to which it is a party and for its carrying out the transactions contemplated by those Transaction Documents have been obtained and remain in full force and effect;
  6. (f)
    the entry by [QN] into, delivery and performance of the Transaction Documents to which it is a party and its carrying out of the transactions contemplated by those Transaction Documents are actions taken by it in the performance of its duties and responsibilities as General Manager;
  7. (g)
    the costs, liabilities and expenses under or in connection with the Transaction Documents incurred by [QN] under this Agreement are:
    1. costs, liabilities and expenses properly incurred by it in performing its obligations under the [JVA]; and
    2. under the terms of the [JVA], required to be met by, and are, liabilities of the Joint Venturers; and
  8. (h)
    the copy of the [JVA] provided by [QN] to [GEC] is a true and complete copy of the [JVA], and the [JVA] remains in full force and effect and has not been terminated; and
  9. (i)
    the Joint Venturers have received a copy of the Facility Agreement.”[3] [Emphasis in original]
  1. [17]
    Resources and Metals went on in the Joint Venturer Letter to “agree and acknowledge” that GEC “entered into the Transaction Documents in reliance of the confirmations, agreements and acknowledgements in this document”.
  2. [18]
    A “verification certificate” was also provided by QN on the same day. This was required by clause 3.4 of the facility agreement.[4]  Amongst other things, it was there certified that QN “enters into the Transaction Documents in its own capacity as nominee and agent for the joint venturers of the Queensland Nickel Joint Venture, and as General Manager of that Joint Venture”. It was also signed on behalf of QN by Mr Palmer as chairman and Mr Payne as secretary. The certificate attached a copy of the minutes of a meeting of the Board of Directors of QN on the previous day (27 June 2012) where a draft of the facility agreement and associated documents were tabled, and this was recorded:

“Capacity

The Chairman noted that the Company would be entering into the [tabled] Documents personally (and not as trustee of any trust), as nominee and agent of the joint venturers of the Queensland Nickel Joint Venture, and as General Manager of that joint venture.” [Emphasis in original].

  1. [19]
    That explained, by clauses 4.1 and 5.1 of the facility agreement, PAPL agreed to repay the principal outstanding under the agreement plus interest in accordance with a repayment schedule which formed part of the agreement.  By clause 13.1, an event of default would occur, relevantly, if an obligor did not pay on time an amount payable under any Transaction Document in the manner required or if an obligor or any of its subsidiaries or any party to a Transaction Document (other than GEC) became insolvent. 
  2. [20]
    Clause 8.1(x) of the facility agreement was in these terms:

“8.1 Representations and warranties by Obligors

Each of the Obligors (to the extent applicable) represents and warrants (except in relation to matters disclosed to the Lender by it and accepted by the Lender in writing) that:

…

  1. (x)
    (not a trustee, agent or nominee) it does not enter into any Transaction Document or hold the Secured Property as trustee, agent or nominee for any person except in the case of the Guarantor, as set out in clause 1.4(c); and

…”[Emphasis in original].

  1. [21]
    Clause 13.2 allowed that, in the event of default, GEC had the right to declare at any time by notice to PAPL the principal outstanding, accrued but unpaid interest on the principal outstanding, and all other amounts owing or to become owing under the Transaction Documents to be immediately due for payment. By clause 15, if PAPL failed to pay an amount due under the agreement by the due date for payment, then GEC had the right to interest, payable on demand, on the unpaid amount at a higher rate of interest than would (without default) have otherwise applied along with a right to interest on the combined sum of the unpaid amount and that interest at the higher rate.
  2. [22]
    By clause 16, on execution and delivery of the facility agreement, QN agreed to be bound by the provisions of the guarantee and indemnity set out in the schedule to the agreement[5] in consideration of GEC “providing the Facility under this Agreement and for other good and valuable consideration, the receipt and sufficiency of which [was thereby] acknowledged”.
  3. [23]
    By clause 2 of the guarantee and indemnity the expression, “Guaranteed Money”, was defined to include all outstanding principal advanced by GEC to an obligor under the facility agreement including interest payable on that principal and the expression, “Guaranteed Obligations”, was defined to include the obligations of an obligor to pay the Guaranteed Money. By clause 3, QN unconditionally and irrevocably guaranteed payment to GEC of the Guaranteed Money and, further, guaranteed to GEC the due and punctual performance by each obligor of the Guaranteed Obligations as a principal obligation. In this regard, it was further provided that, if an obligor did not pay the Guaranteed Money on time, QN agreed to pay that sum to GEC on demand.
  4. [24]
    By clause 4 of the guarantee and indemnity, QN “unconditionally and irrevocably” indemnified GEC as a “separate and independent principal obligation” against any loss arising, and any costs and taxes GEC suffers or incurs if, relevantly, an obligor did not (or is unable to) pay the Guaranteed Money in accordance with the Transaction Documents or defaults under the agreement or under any Transaction Document.
  5. [25]
    Lastly, and as earlier mentioned, the facility was secured by a mortgage over the aircraft. This was recorded in a “Deed of Mortgage of Aircraft and Contractual Rights” executed by PAPL as mortgagor and GEC as mortgagee on the same day as the facility agreement and associated documents.
  6. [26]
    On the following day (29 June 2012), PAPL drew down the facility to the full extent of its limit – US$24,500,000 – and, with that, the aircraft was acquired by PAPL.

Default

  1. [27]
    On 18 January 2016, PAPL and QN were placed into voluntary administration pursuant to s 436A of the Corporations Act 2001 (Cth). This was, as earlier mentioned (at [20]), an event of default within the meaning of clause 13.1 of the facility agreement.
  2. [28]
    On 28 January 2016, GEC sent a letter to PAPL in terms notifying the default, declaring pursuant to clause 13.2 of the facility agreement the total of the outstanding principal and interest (then, US$18,640,195.88) and demanding payment of that sum by 5 February 2016. 
  3. [29]
    PAPL failed to pay any part of the sum demanded by 5 February 2016. Accordingly, on 8 February 2016, GEC forwarded another letter to PAPL in which it demanded pursuant to clause 15.1 of the facility agreement that PAPL pay interest on the amount owing at the higher rate of interest payable under the facility agreement. On the same day, GEC also forwarded letters to QN, Resources and Metals in which each was notified of the default, advised that GEC had declared the amount owing to be immediately due for payment and further advised that PAPL had failed to pay the amount owing in accordance with the demand made on it on 28 January 2016. In each letter, GEC demanded that the recipient – QN, Resources and Metals – pay the amount owing under the guarantee and indemnity.
  4. [30]
    None of PAPL, QN, Resources or Metals complied with these demands, whether in whole or in part, and that remained the position at trial.
  5. [31]
    On 23 February 2016, PAPL was wound up in insolvency by resolution of its creditors pursuant to s 439C of the Corporations Act.
  6. [32]
    On 22 April 2016, QN was also wound up in insolvency by resolution of its creditors and, on 27 February 2017, it was ordered to be wound up in insolvency.
  7. [33]
    On 4 May 2016, GEC changed its name to Harrenvale.
  8. [34]
    On 23 February 2018, the aircraft was sold by the liquidators of PAPL for US$5,600,000.

Assignment

  1. [35]
    On 16 October 2018, a few things happened.
  2. [36]
    First, under clause 18.13 of the facility agreement, the lender (as well as its successors and permitted assigns[6]) had the right to give an obligor a certificate about an amount payable under, inter alia, the facility agreement and, in that event, such a certificate would constitute conclusive evidence of the amount payable in the absence of manifest error. On that date, Harrenvale issued to PAPL, QN, Resources and Metals a certificate pursuant to that provision certifying that the amount of US$20,886,002.06 was due and payable by each of them jointly and severally under the guarantee and indemnity. 
  1. [37]
    Second, Harrenvale “absolutely and unconditionally” assigned to Vannin “all of its rights, title, interests and benefits in respect of” the facility agreement and the aircraft mortgage pursuant to a deed of assignment entered into by them on that date. 
  1. [38]
    Third, notices of assignment in writing were given to each of PAPL and QN.[7]

This proceeding

  1. [39]
    This proceeding was commenced by claim on 18 December 2018. As of that date, it was alleged that the amount of US$20,886,002.06 was outstanding. 
  2. [40]
    On 5 December 2019, Resources and Metals were given leave to defend the claims made against QN. On 29 January 2020, Vannin was granted leave to proceed against QN pursuant to s 471B of the Corporations Act. 
  3. [41]
    By the time of trial, the pleadings were constituted by an amended claim filed on 5 February 2020, a second further amended statement of claim filed on 19 February 2021, a defence of the first and second defendants to the second further amended statement of claim filed on 2 March 2021, a reply and answer to the further amended defence of the first and second defendants filed on 9 March 2021, an amended rejoinder filed by the first and second defendants on 12 March 2021 and the first and second defendants’ reply to the answer to the amended counterclaim filed on 12 March 2021.

Vannin’s claim and the pleaded defences

  1. [42]
    By the time of trial, Vannin contended – based on a certificate of indebtedness dated 27 April 2021 and given pursuant to clause 18.13 of the facility agreement – that US$26,973,811.08 was then outstanding under the loan, and that it was entitled to judgment in that amount against Resources, Metals and QN.
  2. [43]
    The basis of Vannin’s claim against QN is as guarantor[8] but neither Resources nor Metals was named as a party to the facility agreement. However, Vannin’s primary case was that, on the proper construction of that agreement, QN entered into the guarantee and indemnity which forms part of that agreement as agent for and on behalf of Resources and Metals and, on that basis, that Resources and Metals are jointly and severally liable with QN for the debt. Alternatively, Vannin alleged that, by executing the Joint Venturer Letter, Resources and Metals are estopped from denying that QN was authorised to enter into the guarantee as agent for and on behalf of them. In the further alternative, Vannin contended, it is entitled to have the facility agreement rectified to reflect the parties’ subjective intention that QN was to enter into the guarantee as agent for and on behalf of Resources and Metals.
  3. [44]
    For the defendants, it was pleaded and argued that there are several obstacles standing between Vannin and the success of its claim.
  4. [45]
    First, the defendants argued that the certificate of indebtedness by which Vannin seeks to prove the overall debt is invalid and, for that reason, the debt has not been proved. 
  1. [46]
    Second, the defendants alleged that an essential condition to be implied in the guarantee and indemnity had been breached by GEC/Harrenvale with the consequence that they were entitled to terminate, and by their pleading terminated, the guarantee and indemnity and stand discharged from any liability under it.[9]
  2. [47]
    Third, the defendants alleged that the aircraft mortgage had been discharged by variation and that this had the same consequence, that is to say, that the defendants are discharged from any liability under the guarantee and indemnity.[10]
  3. [48]
    Fourth, the defendants disputed each of the bases advanced by Vannin for its claim against Resources and Metals.
  4. [49]
    Last, the defendants claimed an entitlement to an equitable set off or compensation based on the allegation to which I earlier referred (at [8]) that GEC/Harrenvale breached a duty owed to them to achieve the “best price obtainable” on the sale of the aircraft.[11]
  5. [50]
    I shall deal with each of these issues in turn.

Has Vannin proved the debt?

  1. [51]
    A number of certificates of indebtedness are in evidence but Vannin relies on the last in time, being a certificate issued by the regional managing director of Vannin, Mr McDonald, on 27 April 2021.[12] 
  2. [52]
    The certificate was given under clause 18.13 of the facility agreement. Although I have already touched on the effect of this provision (at [37]), it is worth setting it out in full:

“18.13 Certificates

The Lender may give an Obligor a certificate about an amount payable or other matter in connection with a Transaction Document. The certificate is conclusive evidence of the amount or matter in the absence of manifest error.” [Emphasis in original]

  1. [53]
    The term, “Lender” is defined in clause 1.1 of the facility agreement as “the person described as such in the Details section” and, there, one finds this:

“Lender:Name:GE Commercial Australasia Pty Ltd

ABN: 98 096 876 292

Address:Level 13, 255 George Street

SYDNEY NSW 2000

Facsimile:(02) 8249 3784

Attention: Corporate Aviation, Director – Underwriting.” [Emphasis in original]

  1. [54]
    The defendants argued that the certificate was invalid because “the lender is not the plaintiff” and, therefore, Vannin was not entitled to give the certificate. The certifier, they submitted, should have been GEC and, more probably, the person identified i.e., the person occupying the position of “Corporate Aviation, Director – Underwriting”. Further, although it was conceded that clause 18.13 was “for the advantage of the lender so that it has a ready and easy means of proving the amount of indebtedness, and that the borrower agreed to that”, it was submitted that “the parties did not agree that just anybody could issue such a certificate”, such as an assignee. Rather, they argued, the agreement “contemplated only an individual in a position to have actual knowledge of the indebtedness to be able to provide such certification”, a topic that was explored with Mr McDonald in cross-examination at the trial.
  2. [55]
    Whether the defendants’ arguments in this respect have substance will depend on the proper construction of the facility agreement.[13] However, as to that, the agreement makes clear that a reference to “a party to any document” includes “that party’s successors and permitted assigns”[14] and the right on the part of the lender to assign the whole of its rights under the agreement is expressly preserved.[15] That bundle of rights must necessarily include the right to issue a certificate of indebtedness; there is nothing in the agreement to even suggest that such a right is incapable of being assigned or was in some way excluded from the express right to “assign, sell, transfer, encumber or otherwise deal with the whole or any part of its rights under the Transaction Documents in any way it sees fit”.[16] The defendants’ construct of the facility agreement cannot be accepted. 
  3. [56]
    It follows that, from the point in time when Harrenvale assigned to Vannin “all of its rights, title, interests and benefits in respect of” the facility agreement, Vannin became the “Lender” for the purposes of that agreement and the only entity entitled to issue a certificate of indebtedness under clause 18.13. 
  4. [57]
    There was otherwise no challenge to the correctness of the certificate. It was not, for example, suggested when Mr McDonald was cross-examined that the certificate was affected by “manifest error” or even that it was incorrect in some respect. As such, it affords at least prima facie evidence of the fact of the indebtedness – the “amount payable” – and the quantum of that debt at the date of issue.[17] 
  1. [58]
    The onus of showing that the certificate is wrong is on the defendants.[18] As the prima facie proof of the indebtedness and its amount has not been put in issue, the certificate must stand as proof on the balance of probabilities of the amount of the debt.[19] It is otherwise supported by the spreadsheets containing detailed calculations of the overall debt that were placed in evidence through Mr McDonald.[20] Of those spreadsheets, as Mr McDonald made plain in a supplementary statement, a spreadsheet prepared by Harrenvale (around the time of the assignment) contained some minor errors but these were corrected in the spreadsheet later prepared by Vannin. It was the latter spreadsheet on which the certificate was based. It was not to the point, as the defendants attempted at trial, to demonstrate that Mr McDonald had limited personal knowledge of the source documents for the Harrenvale spreadsheet; the certificate being validly issued, it was for the defendants to show that it was wrong and they did not do that.
  2. [59]
    I am satisfied that Vannin has proved the debt in the amount certified on 27 April 2021, that is to say, US$26,973,811.08.

Was there an implied condition of the guarantee that GEC hold a legal mortgage over the aircraft to secure the debt?

  1. [60]
    The defendants allege that it was an “implied essential condition” of the guarantee and indemnity that GEC would hold a legal mortgage in its name as security for the debt owing by PAPL under the facility agreement and then act in accordance with, comply with, and enforce the terms of the aircraft mortgage. This implied condition, they allege, was breached by GEC because it failed to take any steps to perfect the legal transfer of ownership of the aircraft as contemplated by the aircraft mortgage, that it permitted PAPL to register itself as the owner of the aircraft on the Australian civil aircraft register, and that it then authorised or permitted PAPL or its liquidators to sell the aircraft. 
  2. [61]
    The implication, it is alleged, arises on the proper construction of various clauses of the facility agreement and the guarantee and indemnity[21] and because, it was argued, such an essential condition was necessary to give business efficacy to the agreement. In consequence, the defendants allege, QN was entitled to terminate the guarantee and be discharged from liability thereunder and, if Resources and Metals are found to be guarantors under the facility agreement, they were also entitled to do so. 
  3. [62]
    It cannot be doubted that the aircraft mortgage, by its terms, transferred and assigned the aircraft to GEC “by way of legal mortgage”[22] and that it further provided for the “transfer back” and reassignment of the aircraft to PAPL when there was no longer any money owing with respect to the facility.[23] Equally, there can be no doubt that the parties did not take any steps to perfect the legal transfer of ownership of the aircraft to GEC. To the contrary, they seem to have conducted themselves as though PAPL was at all times the legal owner of the aircraft, and that remained the position right up until the point in time when PAPL’s liquidators sold it on 23 February 2018. It should be added though for completeness, it was always contemplated that PAPL would retain possession of the aircraft and, under the aircraft mortgage, PAPL  was authorised to sell it with GEC’s consent.[24]
  1. [63]
    I am not persuaded that there is a proper constructional basis for the implication of such a condition, let alone a condition so fundamental that a breach of it could have the consequence that the defendants are relieved from liability under the facility agreement (including the guarantee and indemnity). Nor am I persuaded that the implication of such a condition is necessary to give the agreement (including the guarantee and indemnity) business efficacy or, to use the well-known formulation, so obvious that it goes without saying.[25]
  2. [64]
    Importantly, to be implied, the provision “must not contradict any express term of the contract”.[26] Here, a condition to the effect contended by the defendants would fly in the face of express terms of the guarantee and indemnity, as well as the aircraft mortgage. Subclauses 6.1(f) and (h) of the guarantee and indemnity were in these terms:

“6.1 Preservation of rights

Rights given to the Lender under this Guarantee (and each Guarantor’s liabilities and obligations under it) are not affected by any act or omission by the Lender or by anything else that might otherwise affect them under law or otherwise, including:

…

  1. (f)
    the loss or impairment of a Security[27] or a negotiable instrument;

…

  1. (h)
    a person dealing in any way with a Security Interest,[28] guarantee, judgment or negotiable instrument (including, taking, abandoning, or releasing (wholly or partially), realising, exchanging, varying, abstaining from perfecting or taking advantage of it).” [Emphasis added].
  1. [65]
    The effect of these provisions is that QN bargained away the right to be discharged from liability because of conduct on the part of the lender about which it complains.[29] Such a conclusion is also consistent with the terms of the aircraft mortgage which provided that the rights of enforcement of the security were in GEC’s discretion.[30]
  1. [66]
    It was not an “implied essential condition” of the guarantee and indemnity that GEC would hold a legal mortgage in its name as security for the debt owing by PAPL under the facility agreement and then act in accordance with, comply with, and enforce the terms of the aircraft mortgage. It is therefore unnecessary to consider to any further degree whether such a condition was breached.

Was the guarantee discharged by variation of the mortgage?

  1. [67]
    As to the defendants’ contention to the effect that the guarantee and indemnity has been discharged by variation of the aircraft mortgage, this it was said could be inferred from the same conduct it alleged constituted a breach of the “essential implied condition” and was to the effect that GEC and PAPL had agreed to vary clauses 2.1, 5.2 and 9.1(a)(ii) of the aircraft mortgage and, or alternatively, clause 9.2 of the same instrument to permit PAPL to sell the aircraft contrary to these terms. The defendants complained that QN was not notified of that variation, that it was not selfevidently beneficial, or not prejudicial, to QN and that it gave rise to “a new arrangement” which was “not within the contemplation of the Guarantors as defined in the Facility Agreement when the Guarantee was granted” to GEC. On that basis, the defendants claim that the guarantee was discharged.
  2. [68]
    Reference again to clause 6.1 of the guarantee and indemnity puts these claims to rest. Subclauses 6.1(c) and (f) provided as follows:

“6.1Preservation of rights

Rights given to the Lender under this Guarantee (and each Guarantor’s liabilities and obligations under it) are not affected by any act or omission by the Lender or by anything else that might otherwise affect them under law or otherwise, including:

…

  1. (c)
    any variation or novation of the Lender’s rights or a right of any other person, or of any document (including, a material alteration of any document or an increase in the limit of accommodation or advances);

…

  1. (f)
    the loss or impairment of a Security or a negotiable instrument.” [Emphasis added].
  1. [69]
    Even if, as appears to be the case, the parties conducted themselves as though PAPL was at all times the legal owner of the aircraft and GEC failed to take any steps to perfect the legal transfer of ownership of the aircraft to it, GEC’s rights under the guarantee are, by these express provisions, unaffected. Again, that state of affairs is consistent with the terms of the aircraft mortgage as well as the facility agreement.[31]
  1. [70]
    Furthermore, by clause 4 of the guarantee and indemnity, QN “unconditionally and irrevocably” indemnified GEC “as a separate and independent principal obligation” against any loss suffered or incurred if, amongst other things, an obligor is not obliged to pay under the guarantee. By this provision, QN “agreed to be sued as if it was the principal debtor”,[32] so even if Vannin’s rights under the guarantee and indemnity were in some way compromised, it is nonetheless entitled to hold QN to account as a principal debtor. 

Did QN enter into the guarantee as agent for Resources and Metals?

  1. [71]
    I turn now to a consideration of the bases advanced by Vannin for its claim against Resources and Metals.[33]
  2. [72]
    Vannin’s primary contention was that, on the proper construction of the Transaction Documents, the guarantee and indemnity was provided by QN in its own capacity and as agent for Resources and Metals. I accept that contention.
  3. [73]
    As earlier discussed (at [12]), QN was the general manager of the JVA but was prohibited from carrying on or being interested in any other business, activity or operation. Importantly for the purposes of this discussion, QN did not have authority to act for or to assume any obligation or liability on behalf of Resources or Metals save for such authority as was conferred on it by the JVA or those companies. On the other hand, Resources and Metals agreed to share in the benefits and to assume the obligations arising out of the actions of QN in the performance of its duties and responsibilities as general manager of the JVA.
  4. [74]
    That said, the verification certificate (and attached minutes of meeting) supplied by QN and executed by Mr Palmer at the time of the transaction confirmed that QN entered into the Transaction Documents in its own capacity and as nominee and agent for Resources and Metals, as well as in its capacity as general manager of the JVA. The Joint Venturer Letter further supplies Resources and Metals’ confirmation and agreement that QN entered into the transaction in its personal capacity and as nominee and agent of them under the JVA. To the point, each of Resources and Metals confirmed and agreed in the Joint Venturer Letter that the “costs, liabilities and expenses” properly incurred by QN under the Transaction Documents, including as they did the guarantee and indemnity were their liabilities.
  5. [75]
    How the rights and obligations of the respective parties came to be recorded in this way is important.
  6. [76]
    In the negotiation of the documents that would govern the loan transaction, it was originally proposed by GEC that QN would be the borrower under the proposed facility and that it would enter into it as agent for Resources and Metals. As will appear in more detail from the summary below (at [93] to [99]) in connection with Vannin’s claim for rectification, in emails exchanged between Mr Perry on behalf of GEC and Mr Tam on behalf of QN, Resources and Metals on 6 and 7 June 2012, and in an email forwarded by Mr Wolfe on behalf of PAPL, QN, Resources and Metals to Mr Nolan on behalf of GEC on 8 June 2012, the parties discussed a new structure for the facility which would involve a special purpose vehicle, PAPL, being the borrower, QN providing a guarantee of PAPL’s obligations as borrower and Resources and Metals acknowledging that QN’s liabilities as guarantor would be binding on each of them. In consequence of those discussions, a revised draft facility agreement was emailed by Mr Nolan to Mr Tam on 13 June 2012 under which PAPL replaced QN as borrower, QN became a party to the facility agreement as guarantor of PAPL’s obligations, Resources and Metals were also parties to the agreement and each of QN, Resources and Metals expressly confirmed, agreed and acknowledged that QN would enter into the facility agreement in its own capacity and as agent of Resources and Metals. Subsequently, it was agreed that Resources and Metals would be removed as parties to the facility agreement on the basis that the confirmation, agreement and acknowledgement supplied by Resources and Metals in the 13 June draft of the agreement would be removed but still recorded in the Joint Venturer Letter (as well as the verification certificate).
  1. [77]
    Contrary to one of the submissions made on behalf of the defendants,[34] as Transaction Documents, the facility agreement and the Joint Venturer Letter must be read and construed together. Put another way, the facility agreement must be given a construction that is conformable with the Joint Venturer Letter and in a way that avoids “making commercial nonsense or working commercial inconvenience”.[35] Its meaning is to be objectively determined by reference to a consideration of the language used, the circumstances addressed by the contract and the commercial purpose secured by the contract.[36]
  2. [78]
    Also, it is not to be overlooked that both Resources and Metals, as providers of a Transaction Document, that is to say, the Joint Venturer Letter, was each an “obligor” for the purposes of the facility agreement and therefore the guarantee and indemnity. It is also consistent with the role of QN, limited as it is by the terms of the JVA. Simply, it could not have given the guarantee and indemnity other than with the actual authority of Resources and Metals and, if there was any doubt about that, the purpose of the Joint Venturer Letter was to make express QN’s authority to bind Resources and Metals and to give it as their agent.
  3. [79]
    Further support for Vannin’s construction can be found in clause 1.4(a) of the facility agreement which was in these terms:

“1.4Dealings with the Guarantor

The parties agree and acknowledge that:

  1. (a)
    The Lender shall be entitled to treat any receipt, discharge, act or other matter or thing given or done by the Guarantor in connection with the Transaction Documents as having been given or done on behalf of and with the full authority and consent of the Joint Venturers;

…” [Emphasis added]

  1. [80]
    In the same vein was clause 13.1(h) of the facility agreement which extended events of default to include the insolvency of “any party to a Transaction Document” as well as clause 8.1(bb) which records, as representations and warranties by the obligors, that QN’s entry into the Transaction Documents and its carrying out of the transactions contemplated by those documents were “actions taken by it in the performance of its duties and responsibilities under” the JVA and clause 8.1(cc) which records that QN’s “costs, liabilities and expenses under or in connection with the Transaction Documents” are liabilities of the joint venturers. 
  2. [81]
    The only support for the construction contended for by the defendants is to be found in clause 8.1(x) of the facility agreement (extracted above at [21]) because it would appear at first glance to be to the effect that, relevantly, QN did not enter into any Transaction Document as agent or nominee for “any person” however, the opening chapeau to clause 8.1 cannot be ignored and, in particular, the exception expressed in parenthesis in relation to matters disclosed to GEC by it and accepted by GEC in writing. Here, the Joint Venturer Letter which was of course accepted by GEC discloses the agency.
  3. [82]
    In addition, for the reasons I will shortly express in relation to Vannin’s claim for rectification (below at [100] and [101]), clause 8.1(x) contains a mistake as well as an omission, and both are obvious.[37] The facility agreement does not contain a “clause 1.4(c)”, but the Joint Venturer Letter contains a clause 1(c) which deals with precisely the same subject matter – the capacities in which QN entered into the Transaction Documents. When the mistake is corrected and the omission is supplied – through removal of “1.4(c)” at the end of clause 8.1(x) and the addition of the phrase, “1(c) of the Joint Venturer Letter”[38] – the result conforms with the other provisions of the facility agreement (including the guarantee and indemnity) as well as the verification certificate and the Joint Venturer Letter. To approach this anomaly in any other way would give rise to patent inconsistency if not absurdity and, for those reasons, clause 8.1(x) should be read in this way.[39]
  4. [83]
    On the true construction of the Transaction Documents, QN entered into the guarantee and indemnity in its personal capacity, as nominee and agent of Resources and Metals and as general manager of the JVA. 
  5. [84]
    It follows that QN, Resources and Metals are not only “obligors” within the meaning of the facility agreement, they are liable for the debt as guarantors and, on the same basis, as principal debtors. This is not a case where, the existence and name of its principals having been disclosed, the agent can escape liability,[40] but one where the terms of the Transaction Documents make it clear that liability can still be imposed on QN as agent as well as on Resources and Metals as principals.[41]

Are the defendants estopped in any event?

  1. [85]
    If I am wrong about the conclusion just expressed then Resources and Metals ought be estopped from denying that QN was authorised to enter into the guarantee and indemnity as their agent.[42] Here, Resources and Metals represented in the Joint Venturer Letter that they had appointed QN as general manager of the JVA for all purposes including in connection with the Transaction Documents, that QN entered into the Transaction Documents as their agents as well as in its personal capacity and as general manager of the JVA and that the “costs, liabilities and expenses” under or in connection with the Transaction Documents incurred by QN were required to be met by, and were liabilities of, them. GEC’s reliance on those representations in entering the Transaction Documents is expressly acknowledged in clause 2 of the Joint Venturer Letter but was, in any event, just as apparent from the course of negotiations in relation to the structure (and terms) of the loan transaction. 
  2. [86]
    Contrary to those representations, Resources and Metals maintain that they are not liable under the guarantee and indemnity. If they are permitted to depart from those representations, GEC would suffer obvious detriment because it will have lost the opportunity to structure the transaction in such a way as to ensure that Resources and Metals were bound by the guarantee and indemnity.
  3. [87]
    Indeed, the same facts give rise to an estoppel by convention to the same effect.[43] Shortly stated, GEC entered into the facility agreement in reliance on the assumption that QN was authorised by Resources and Metals to provide the guarantee and indemnity as their agent and, based at least on clause 2 of the Joint Venturer Letter, Resources and Metals adopted the same assumption as to the basis of the transaction. That being the case, the parties must be taken to have accepted that assumption as true and intended for it to govern the legal relationship with GEC on the one hand and Resources and Metals on the other.

Rectification

  1. [88]
    Again, if I am wrong about those conclusions, a clear case emerges on the evidence for rectification of the facility agreement. Such relief is of course sought by Vannin in the alternative and it is for an order rectifying clause 8.1(x) by the addition of the phrase underlined below:
  1. “(x)
    (not a trustee, agent or nominee) it does not enter into any Transaction Document or hold the Secured Property as trustee, agent or nominee for any person except in the case of the Guarantor, as set out in clause 1(c) of the Joint Venturer Letter.”
  1. [89]
    A contract may be rectified in equity so as to make it “conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately”.[44] In order to succeed in a claim for rectification, it must be shown that, at the time of the execution of the contract, there was an agreement between the parties in the sense that the parties had a “common intention” and that the written instrument was to conform to that agreement.[45] To do this, it must be demonstrated that the contract does not reflect the agreement between the parties because of a common mistake.[46] In Simic v New South Wales Land and Housing Corporation,[47] Gageler, Nettle and Gordon JJ had this to say about the approach the court should take:

“The issue may be approached by asking – what was the actual or true common intention of the parties? There is no requirement for communication of that common intention by express statement, but it must at least be the parties’ actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party.”[48] [References omitted]

  1. [90]
    The first thing to notice has already been highlighted (above at [83]); the facility agreement does not contain a clause 1.4(c) but the Joint Venturer Letter contains a clause 1(c) dealing with the same subject matter. Next, clause 8.1(x) in its current form provides that QN did not enter into any Transaction Document as, relevantly, agent for any person except as set out in the non-existing clause, clause 1.4(c). That is at odds with the Joint Venturer Letter which of course is one of the Transaction Documents and it is also inconsistent with the verification certificate (including the attached minutes of meeting) which was provided by QN on the day of the transaction.
  2. [91]
    Furthermore, reference to the documents which were generated during the course of negotiation of the facility agreement demonstrates that clause 8.1(x) does not accord with the actual common intention of the parties. 
  3. [92]
    In that regard, on 4 June 2012, GEC emailed a draft of the facility agreement to the defendants which contained a clause 1.4 in terms to the effect that QN entered into the agreement “in its personal capacity, in its capacity as nominee and agent for the Joint Venturers under the Joint Venture Agreement and as General Manager”. Clause 8.1(x) of that draft was to the effect that QN represented and warranted that “it does not enter into any Transaction Document or hold the Secured Property as trustee, agent or nominee for any person except as set out in clause 1.4”. This draft agreement did not contain a guarantee. 
  1. [93]
    Two days later, GEC forwarded an email to the defendants in which it advised that it required a document described as a “Deregistration Power of Attorney” but stated that, if this was not acceptable:

“[A] solution could be to create a SPV, with a guarantee from QN. The SPV would own the Aircraft & be the GE borrower (with a guarantee from QN). Please note, this would require changes to the documentation and would take some time to complete.”

  1. [94]
    The next day (7 June 2012), the defendants responded by email in terms that advised they would “set up a SPV (owned by QN) to be the Borrower and owner” of the aircraft and that “QNPL” will act as guarantor. Later that day, GEC responded, advising:

“…

  1. –
    Given the transfer of QN from Borrower to Guarantor, we would need confirmation from the JV partners so that QN’s liabilities will remain the JV liabilities.

…

  1. –
    The JV Partners will need to execute the documents to acknowledge and consent that QN’s liabilities will be the JV liabilities …”
  1. [95]
    On 8 June 2012, the defendants forwarded an email to GEC in these terms:

“[W]hile Palmer Aviation’s shareholders are QNI Resources and QNI Metals, Palmer Aviation is not part of the Queensland Nickel Joint Venture, and this aircraft will not be JV property. Palmer Aviation is however part of the Queensland Nickel Group. Queensland Nickel being named as Guarantor will bind the JV partners in the same manner as previously indicated.”

  1. [96]
    This resulted in the provision, by GEC, of a further draft of the facility agreement on 13 June 2012. Under this draft, PAPL was substituted as borrower, QN was named as guarantor and Resources and Metals were named as joint venturers. Clause 1.4 of that draft was greatly expanded to include a number of acknowledgements on the part of the joint venturers. These included, in subclause (c), an acknowledgement that QN “enters into the Transaction Documents in its personal capacity, as nominee and agent of the Joint Venturers under the Joint Venture Agreement and as General Manager”, and, in subclause (g), that the “costs, liabilities and expenses under or in connection with the Transaction Documents incurred by the Guarantor” under the agreement were, relevantly, “under the terms of the Joint Venture Agreement, required to be met by, and are, liabilities of the Joint Venturers”. Importantly, subclause 8.1(x) of this draft was in these terms:
  1. “(x)
    (not as trustee, agent or nominee) it does not enter into any Transaction Document or hold the Secured Property as trustee, agent or nominee for any person except in the case of the Guarantor as set out in clause 1.4(c).” [Emphases in original].
  1. [97]
    Next, on 15 June 2012, GEC forwarded an email to the defendants in which they set out a number of proposed amendments to the facility agreement, including, that the “Joint Venturers … be removed from the Loan Facility document (will put together a separate acknowledgement letter); …”.
  2. [98]
    On 19 June 2012, an updated draft of the facility agreement was emailed by GEC to the defendants along with what was described as a “separate JV Acknowledgement Letter” for their review. This draft was between GEC as lender, PAPL as borrower and QN as guarantor. Metals and Resources were not parties to the agreement, however a definition of “Joint Venturer Letter” appeared in the same terms as later appeared in the executed facility agreement. Also, “Transaction Documents” were defined to include the Joint Venturer Letter. The whole of clause 1.4 from the 13 June draft was deleted, including clause 1.4(c). However, despite that deletion, the reference in clause 8.1(x) to clause 1.4(c) remained. The draft Joint Venturer Letter included the whole of the clause which had appeared in the 13 June draft as clause 1.4 and included, as clause 1(c), clause 1.4(c) from the 13 June draft.
  3. [99]
    In the result, the executed facility agreement did not include clause 1.4(c) because the clause in which that provision was contained in the draft had been wholly removed and inserted in the Joint Venturer Letter.
  4. [100]
    This was, as I have already found (at [83]), an obvious mistake. The reference to “clause 1.4(c)” in clause 8.1(x) of the facility agreement should have been a reference to clause 1(c) of the Joint Venturer Letter. Indeed, at no time during the drafting process which I have briefly examined above did the proposition that QN was entering the transaction in its own capacity and as nominee and agent for Resources and Metals ever waiver. The exchange of emails on 7 and 8 June 2012 make it clear that QN’s liabilities would remain liabilities of Resources and Metals. The common intention of the parties was plainly to the effect that the reference in clause 8.1(x) to clause 1.4(c) was to be a reference to the provision that ultimately appeared in clause 1(c) of the Joint Venturer Letter. Because clause 8.1(x) of the facility agreement does not conform with that common intention and agreement, had I not already found for Vannin on their construction of the guarantee and indemnity, I would rectify clause 8.1(x) by the insertion of the phrase sought by Vannin.
  5. [101]
    For the defendants, it was submitted that the evidence was insufficient to reach such a conclusion and that a party seeking rectification of a contract will need to advance “convincing proof” to show that, at the time of the execution of the contract, the parties held a common intention which was inconsistent with what was provided for in the agreement.[49] Whilst the second of those propositions is undoubtedly correct, I have no hesitation in concluding that the evidence adduced at trial in support of the claim to rectification reaches that standard. In this regard, one of the submissions made on behalf of the defendants was to the effect that Vannin had adduced no evidence of the subjective intentions of the parties to the facility agreement, but that is not so. The emails and attachments which I have summarised taken with the terms of the facility agreement and Joint Venturer Letter as finally executed, leave me in no doubt about the subjective intentions of the parties or, to the point, the true common intention of the parties. As appears from the extract from Simic v New South Wales Land and Housing Corporation set out above (at [90]) there is no requirement for the communication of the common intention to be by express statement, and the overwhelming inference from the documents I have examined permits no other conclusion other than the one I have reached. 

Laches

  1. [102]
    For completeness, I deal with an equitable defence that was pleaded in two respects but was not in the end supported by any argument. The defendants alleged that Vannin was prevented by laches from relying on estoppel or obtaining relief by way of rectification.[50] 
  1. [103]
    The first point is that laches is a notoriously difficult defence to mount and, in order to succeed, it must be properly supported.[51] It was not. 
  2. [104]
    Second, the guarantee and indemnity by its terms excludes laches as a defence: clause 6.1(b).[52] 
  3. [105]
    Third, I have found for Vannin on its primary case for the imposition of liability on Resources and Metals, that is to say, on its construction argument. Relief by way of estoppel and rectification was only sought in the alternative. To be clear though, the allegation of laches has not been made out on the evidence and would not in any event bar relief by way of estoppel or rectification.

Is there a set off?

  1. [106]
    That only leaves the question whether there is a set off. In that regard, the defendants pleaded, and argued, that if Vannin was entitled to the relief sought in its second further amended statement of claim against QN or Resources and Metals, then they are entitled to an equitable set off by way of an account or, in the alternative, equitable compensation in accordance with their amended counterclaim. I deal with that next.

The counterclaim

  1. [107]
    A convenient précis of the counterclaim advanced by the defendants appears in their closing submissions:
  1. “15.
    By their counterclaim, the first and second defendants allege that, in summary, GE/Harrenvale failed to sell the Aircraft at the best price obtainable. The first and second defendants rely on evidence and on admissions made by the plaintiff to establish that:
  1. (a)
    the GE/Harrenvale (from whom the plaintiff took an assignment of the present claim) had a duty to act in good faith in relation to the sale of the Aircraft and ensure that the aircraft was sold for the best price obtainable. 
  2. (b)
    This duty subsisted irrespective of the fact that it was the liquidators that sold the Aircraft. The liquidators were acting as agents of GE/Harrenvale in exercising the power of sale. 
  3. (c)
    On 19 May 2016, a third party associated with the defendants, Mineralogy Pty Ltd (Mineralogy), made an offer to purchase the Aircraft for AU$20,000,000 which was conditional on it obtaining a favourable judgment in specified proceedings in Western Australia.
  1. (d)
    By a counter-offer dated 25 May 2016, the plaintiff offered to sell the Aircraft for US$20,000,000 and proposed other conditions relating to the time for payment.
  2. (e)
    No other meaningful negotiations were attempted by the secured creditor with Mineralogy or Mr Palmer.
  3. (f)
    In November 2017, judgment was obtained by Mineralogy in the proceedings in Western Australia, and in January 2018 Mineralogy had a sum of over US$278,000,000 available to it.
  1. (g)
    In the period after judgment in November 2017 to time of sale of the Aircraft in April 2018, Mr Palmer and Mineralogy remained ready, willing and able to purchase the aircraft for US$20,000,000.
  2. (h)
    The best price obtainable was US$20,000,000 and GE/Harrenvale consequently breached its duty to achieve the best price obtainable in selling the Aircraft for US$5,600,000.
  3. (i)
    Had the best price obtainable in fact been achieved, it could not have been said by the plaintiff that any sums were owing under the Facility Agreement.”
  1. [108]
    In my view, the counterclaim involves several misconceptions.

The content of the duty is overstated

  1. [109]
    The first involves the statement of the content of the general law duty owed by a mortgagee exercising a power of sale. What is pleaded on behalf of the defendants in that regard is that the lender “had a duty to act in good faith and to not deal with the Aircraft in such a manner that the interests of PAPL were wilfully or recklessly sacrificed, including relevantly a duty to take reasonable steps to ensure the Aircraft was sold for the best price obtainable”.[53]
  2. [110]
    As Sir Samuel Griffith long ago held in Pendlebury v Colonial Mutual Life Assurance Society Ltd,[54] a mortgagee exercising a power of sale owes a duty to exercise the power in good faith.[55] The duty is not just owed to the mortgagor; it will also be owed to a guarantor of the mortgage debt.[56] To act in good faith, the mortgagee must not wilfully and recklessly deal with the mortgaged property in such a manner that the interests of the mortgagor are sacrificed.[57]
  1. [111]
    More than “mere negligence or carelessness in carrying out the sale”[58] is required to be shown before the duty will be found to have been breached. In this regard, I respectfully agree with what McLelland CJ said in Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd:[59]

“What matters is the underlying equitable principle, which in the modern idiom usually finds expression in terms of unconscionability. … Any departure from reasonable standards must be so serious as to be properly characterised as unconscionable, in order to render the mortgagee accountable. If a failure by a mortgagee to take reasonable steps to obtain a proper price is sufficiently serious to be characterised as unconscionable as that expression is understood in equity, then in the taking of accounts between the mortgagee and the mortgagor, the mortgagee will be accountable on the basis of wilful default for the price which would have been obtained if the mortgagee had not been guilty of unconscionable conduct”.[60]

  1. [112]
    As to what might qualify as unconscionable conduct, a helpful summary was supplied by Bongiorno J in National Australia Bank Ltd v Anderson[61] as follows:

“To be unconscionable conduct must be unfair, unjust, unscrupulous, unreasonable or excessive. It must be against the dictates of conscience as recognised by a court of equity. It must be seen, in accordance with the ordinary concepts of humanity, to be so unfair and against conscience that a court would intervene or so unreasonable and [oppressive] so as to affront minimum standards of fair dealing”.[62]

  1. [113]
    Contrary to the defendants’ pleading and submissions, the duty does not require the mortgagee to sell for the best price obtainable or to act in such a way as to advance the interests of the mortgagor.[63] The power is given to the mortgagee for its own benefit to enable realisation of the debt. Its exercise is subject only to the qualification that the mortgagee must act in good faith in the sense I have just explained. That has been the position in this country for over a century and caution is required before mistaking conclusions of fact for statements of principle regarding the scope of the duty, especially where those conclusions concern duties which are imposed by statute.[64] It may be in a particular case that a “failure to follow up the prospect of obtaining a higher price when it was known that a prospective purchaser was prepared to pay more” might amount to such a “serious departure from accepted standards” as to amount to a breach of the duty to act in good faith[65] but, in the end, if a duty was owed by GEC/Harrenvale, the relevant enquiry is whether it acted in good faith or whether it sacrificed the interests of Resources, Metals and/or QN by acting in a wilful or reckless way.[66]

Harrenvale did not exercise its power of sale

  1. [114]
    The next misconception is even more fundamental, and it supplies a complete answer to the counterclaim. 
  2. [115]
    Harrenvale (or its owner, Bain) did not sell the aircraft; it was sold by the liquidators through their agent, Avpro Inc, in accordance with the power vested in them to do so by s 477(2)(c) of the Corporations Act. The liquidators are not parties to this proceeding and, so, complaints about shortcomings in the marketing and sale of the aircraft go nowhere. Although Harrenvale gave its consent to the sale and agreed to release its security, that is quite a different thing to exercising its power of sale under the aircraft mortgage. In such circumstances, no duty of the kind alleged can be said to have been owed by the lender to the defendants, or any one of them.

There was no agency

  1. [116]
    In an attempt no doubt to overcome this hurdle, the defendants alleged that “the Liquidators caused the Aircraft to be sold as agent for, or otherwise on behalf of, [GEC] in the exercise of [GEC’s] power of sale pursuant to the Aircraft Mortgage”.[67]
  1. [117]
    It is true that, in certain circumstances, a corporate administrator such as liquidator or receiver may become an agent of the appointing security holder, but whether that is so in any given case will always be a question of fact and degree. In Perpetual Nominees Ltd v McGoldrick (No 3),[68] Vickery J summarised the applicable principles:

“The statements of law on this issue commonly pertain to receivers.  However, the statements are sufficiently broad to invite application by analogy to liquidators.

In Medforth v Blake[69] Scott V-C stated the following principle:[70]

‘If a mortgagee establishes a relationship with the receiver he has appointed under which the receiver exercises his powers in accordance with instructions given by the mortgagee, I can see the force of an argument that if the receiver is liable to the mortgagor then so will the mortgagee be liable.  If the mortgagee chooses to instruct the receivers to carry on the business in a manner that is a breach of the receiver's duty to the mortgagor, it seems to be quite right that the mortgagee, as well as the receivers, should incur liability. This conclusion does not in the least undermine the receivership system. What it might do is to promote caution on the part of mortgagees in seeking to direct receivers as to the manner in which they (the receivers) should exercise their powers. I would regard that as salutary.’

In Bank of Western Australia Ltd v Abdul Croft J took a similar approach.[71] Applying State Bank of NSW v Chia,[72] his Honour remarked that a receiver is obliged to inform the mortgagee about the sale process and that such communication ‘is not to be confused with direction, interference and instruction necessary to displace the agency with the mortgagor, the secured debtor’. [73] Communications between the two are ‘proper’ and ‘desirable’.[74] Further, his Honour commented:[75]

‘Communication between the receiver and the mortgagee, the secured creditor, is entirely proper and will not lead to displacement of the agency relationship unless it goes beyond mere consultation or the communication of preferences by the mortgagee, the secured creditor. This position is unsurprising, as it is the mortgagee, the secured creditor, that appoints the receiver and pays the receivers fees during the course of the receivership.  In general terms, both parties, the mortgagor and mortgagee, have a direct interest in the outcome of the receivership, but the mortgagee significantly more so where the secured assets are unlikely to realise sufficient funds to meet the principal, interest and costs associated with the default and realisation of assets.  The present circumstances are just such a case. It is for these practical and commercial reasons that more than mere consultation or the communication of preferences, is required.  As is indicated by the judgment in Chia, it is necessary to establish in a case like the present that the mortgagee, the secured creditor, was ‘heavily involved’ in the performance of the activities of the receiver. The evidence must show that the mortgagee, the secured creditor, was so intimately involved in the performance of the receiver’s activities as to transform the character of the relationship between the mortgagee, the secured creditor, and the receiver into one of principal and agent.’”[76] [Emphasis added].

  1. [118]
    Accepting as I do the correctness of that statement of the applicable principles, the evidence at trial does not support the conclusion that the liquidators acted as agents for GEC/Harrenvale or its owner, Bain, in the marketing and sale of the aircraft. 
  2. [119]
    The defendants’ own employee, Mr Wolfe, stated that GEC did not appear to him to have actively participated in the sale of the aircraft,[77] and nothing to the contrary emerged when he was called to give brief evidence at the trial. Indeed, one of the emails exhibited to his statement evidenced the careful approach taken by the liquidators to mark out the lines of demarcation. It was sent by one of the liquidators, Mr Quentin Olde of FTI Consulting, to the selling agent, Mr Anderson Bell of Avpro, on 28 May 2016, and referred to Mr Matt Cannan of Bain/ Harrenvale. The email was in these terms:

“Anderson,

Can we keep the comms on the sale process in the first instance between FTI and Avpro. We will keep Matt informed as required. The vendor is Palmer Aviation via its liquidators and not Bain/Sankaty. They are the Mortgagee and will be fully consulted but for reasons [of] due process I can explain it is in all out interests for the process to be managed this way.

Thanks,

Quentin Olde

Senior Managing Director, Corporate Finance & Restructuring FTI Consulting”[78]

  1. [120]
    Mr O'Brien, who assisted with the liquidation, was cross-examined at the trial by senior counsel for the defendants. He rejected any notion that the lender was at liberty to deal directly with the selling agent and gave “very firm instructions that Avpro was not to engage with anyone outside the direct line of communications with the” liquidators, something that was communicated by him directly to Mr Bell. Likewise, he refuted the proposition that it was the lender who was “deciding whether the sale price was an acceptable one” or that Mr Cannan had “a significant input” into a counteroffer agreed by the liquidators and communicated to Mr Bell on 3 June 2016. Otherwise, he confirmed that there was no instruction from the liquidators not to deal with Mr Palmer should he make an approach and, if an approach at a price higher than the then available offers was made, he would have pursued it.
  2. [121]
    A large volume of documents was placed in evidence on this point. Based on many of those documents as well as selected portions of the witness statements provided by Mr O'Brien, Mr Palmer and Mr Jacobson, the defendants invited the court to make factual findings in accordance with a table incorporated in their closing submissions.[79] Not all of the entries on that table are sourced from documents or evidence proved at the trial. For example, some entries are based on descriptions in a schedule that was prepared with respect to documents obtained on subpoena from Bain but which are the subject of a claim for privilege and other entries are said to arise from admissions – express, implied or deemed – on the pleadings. 
  3. [122]
    It is necessary to say something at this point about Mr Palmer’s statement. It was provided on 19 January 2021 and later served on Vannin. By that time, the trial was set to commence on 27 April 2021. On 11 March 2021, the defendants filed an application for the recusal of another judge of the trial division from presiding over the trial and that application was heard by that judge the next day. During the course of argument on the application, senior counsel for Vannin informed the judge that Mr Palmer would not be required for cross-examination at the trial and that the evidence in his statement regarding the continuing willingness and ability of he and/or Mineralogy to purchase the aircraft in a sum of up to US$20,000,000[80] would not be challenged and nor would Mr Palmer’s credit be put in issue. The judge was also informed that Mr Palmer’s statement would be accepted on its face and that Vannin would not be submitting that the court should look at anything to suggest that Mr Palmer’s contention regarding “readiness and willingness” should be brought into question or doubted. In the event, the judge recused himself from presiding over the trial but, in the lead up to it, Vannin gave notice that it required Mr Palmer for crossexamination. When the trial came on for hearing, the defendants submitted that Vannin should be kept to its promise. After hearing argument, I agreed with that submission. Vannin made a deliberate tactical decision which was communicated to the court in an unqualified way. There is no right at common law to cross-examine a witness,[81]and to the extent that the existence of such a right might be thought to be implied by r 367(3) of the Uniform Civil Procedure Rules 1999 (Qld), the same rule empowers the court to make any order or direction about the conduct of a proceeding that it considers appropriate. I was not prepared to allow Vannin to change the position it so clearly communicated to the court[82] and, as a result, Mr Palmer was called as a witness at the trial to prove his statement but not cross-examined. Moreover, the evidence comprised by his statement falls to be assessed by reference to the concessions made by senior counsel for Vannin during the recusal application but also, of course, by reference to the other evidence in the case. [83]That is the approach I have taken.
  1. [123]
    That said, I return to the defendant’s table. Senior counsel for Vannin responded to it in his closing address, re-producing the table with the addition of a column setting out “Vannin’s response to relevance as to agency conclusion”.[84]
  2. [124]
    I have considered both tables but, even more importantly, the evidence and documents to which reference was made, save of course for references to entries on the schedule of documents subpoenaed from Bain over which privilege was claimed. Having done so, and even accepting for the purposes of this point the submissions of the defendants as to the existence of the deemed and implied admissions arising on the pleadings relied on in their table, I find myself in general agreement with the submissions made on behalf of Vannin with respect to the various entries in its response. But, more than that, on my assessment of all of the evidence on this point (and, again, proceeding on the basis that the deemed and implied admissions submitted by the defendants are admissions), I am quite unable to conclude that there was here anything other than an expected, and entirely proper, level of communication between the liquidators (and their selling agent) on the one hand and GEC/Harrenvale (or Bain) on the other. At no time could it be sensibly said that the communications went beyond mere consultation or the communication of preferences by the lender as secured creditor, to adopt the language used by Croft J in Abdul.[85]   Neither GEC/Harrenvale nor Bain was “heavily involved” in the performance of the activities of the liquidators and certainly not involved to the extent where the character of the relationship with the liquidators transformed to one of principal and agent. They did not tell the liquidators what to do.
  1. [125]
    It follows that there is nothing in this body of evidence to displace the conclusion I earlier reached (at [115]) to the effect no duty of the kind alleged by the defendants was owed to them, or any one of them, by GEC/Harrenvale or Bain.
  2. [126]
    That makes it unnecessary to consider how the aircraft was marketed and sold, such as how prospective purchasers were treated or how negotiations were conducted. It is instead sufficient to record that the aircraft was sold after an extensive campaign for a price in excess of its then valuation. It is therefore also unnecessary to consider, as a component of that, how any offer made by Mr Palmer or Mineralogy was communicated, treated or followed up, but because what has been alleged and submitted by the defendants in that respect is also the subject of misconception, it is useful to conclude with a brief overview of the true effect of that evidence. 

What did Mr Palmer or Mineralogy offer?

  1. [127]
    The defendants pleaded that, after an offer to purchase the aircraft on certain terms including payment of AU$20,000,000 was made by Mineralogy on 19 May 2016 and rejected, a counteroffer was made on 25 May 2016 to sell the aircraft for US$20,000,000 on different terms.[86] This, it was pleaded that, by this exchange of offers, the parties were agreed as to the purchase price for the aircraft.[87] That is not correct.
  2. [128]
    Mineralogy’s offer was accompanied by a “Term Sheet” in the form of a letter in which the “terms and conditions upon which [it] would be willing to effect the Transaction” were recorded.  Amongst other things, the lender would be required to provide a complete release to QN, Resources and Metals and it was subject to Mineralogy succeeding in the proceedings in Western Australia to the extent of at least AU$21,000,000 within 120 days. Further, if for any reason it did not receive that payment by that time, Mineralogy was entitled to buy the releases for AU$5,000,000. Mineralogy’s offer was therefore an offer to buy not just the aircraft; it was an offer to buy the aircraft and the debt. 
  3. [129]
    When rejecting the offer, the lender made clear its disappointment, remarking that the offer was “both unconstructive and unilaterally favourable to Mr Palmer”. The lender also recorded that it was “unable to accept a position which provides [the lender] with uncertainty around any purchase” of the aircraft. The counteroffer was then in a substantially larger sum – US$20,000,000 – and was restricted to the sale of the aircraft and was not conditioned upon the result of the proceedings in Western Australia.
  1. [130]
    There was accordingly no agreement as to price, and there the matter lay (despite Mr Cannan twice following up Mr Wolfe for no result). In the result, the offer Mineralogy made had been rejected and the counteroffer made by Harrenvale fell on deaf ears. The negotiation, such as it was, reached a dead end.
  2. [131]
    Despite that, Mr Palmer had this to say (none of which is disputed by Vannin): 
  3. [132]
    Mr Palmer stated:
  1. “17.
    Mineralogy and myself remained willing to acquire the Aircraft, for personal use, and I had a sentimental attachment to the Aircraft and it was fitted-out for my personal use.
  1. In 2017, I caused enquiries to be made to ascertain if the Aircraft remained for sale through the web page: controller.com. I was able to ascertain from controller.com that the Aircraft remained for sale.
  2. At no time after the Royalty B Judgment was received did Harrenvale Australasia Pty Ltd (Harrenvale), Bain Capital Pty Ltd (Bain Capital) or Palmer Aviation Pty Ltd (in liquidation) (by its appointed liquidators) approach myself or Mineralogy regarding acquisition of the Aircraft or the offer made in May 2016.
  3. In or about late 2017, I telephoned the brokerage who were marketing the Aircraft (Avpro) approximately 2 times and spoke to a man who I understood to be responsible for the sale of the Aircraft. On each occasion the Avpro representative was not prepared to engage with me in relation to the sale of the Aircraft. In early 2018, when I again telephoned the Avpro representative, he advised me that there was a contract for the purchase of the aircraft that had been executed, but it remained subject to conditions. He was still not prepared to engage with me in a discussion as to the sale of the aircraft to Mineralogy and/or myself. I later instructed Domenic Martino and James Notaras of Indian Ocean Capital Pty Ltd to make an approach directly to Matt Cannan / Bain Capital (on behalf of Harrenvale) in early 2018 with a view to seeking to acquire the Aircraft. A negotiation commenced but did not progress. l am aware that a contract of sale for the Aircraft completed in April 2018.
  4. Mineralogy and/or I were ready, willing, and able after the Judgment to pay up to USD$20,000,000 for the Aircraft, if that figure was arrived at as a result of commercial negotiations with Harrenvale.”
  1. [133]
    The effect of this evidence is that Mr Palmer or Mineralogy remained “ready, willing and able” to negotiate the purchase of the aircraft and would have been prepared to pay “up to” the amount of the counteroffer made on 25 May 2016 that was not the subject of any response. There however is no evidence to suggest that the liquidators (or Bain for that matter) knew that he had undergone such a change of heart apart from the failed negotiation referred to at paragraph 20, and Mr O'Brien confirmed when he gave evidence that he was unaware of this development.
  1. [134]
    At trial, the defendants attempted to remedy the deficiency in the evidence regarding knowledge with admissions to parts of its counterclaim that they contended were deemed through operation of the rules.[88] The difficulty though with that attempt is that the allegations they contended are the subject of deemed admissions are, in the main, premised on an allegation of agency and that is something I have expressly rejected for lack of support in the evidence.
  2. [135]
    The last point on this topic can be stated even more succinctly. The defendants pleaded that “the best price obtainable [for the aircraft] in April 2018 [when the aircraft was in fact sold] was in the order of AU$20,000,000”. That allegation has not been proved; Mr Palmer may have been ready, willing and able to pay up to US$20,000,000 but only after “commercial negotiations”. In that regard, there is evidence of two failed attempts but, even had a third been successful, it would be rank speculation on the limited evidence before me on this point to conclude that a sum much greater than the price actually obtained on sale would have been achieved. Indeed, on what evidence does exist regarding the second attempt in 2018, the offer was for the aircraft and the debt and the highest offer communicated by Mr Notaras was in the sum of US$7,500,000.[89]  No offer was made at that time to purchase just the aircraft.

Conclusion on the counterclaim

  1. [136]
    Harrenvale did not exercise its power of sale; the aircraft was marketed for sale, and sold, by the liquidators for PAPL. When doing so, the liquidators were not acting as the agents for Harrenvale or, for that matter, Bain. The counterclaim fails.

The application to amend

  1. [137]
    In the defendants’ written closing, it was submitted that GEC/Harrenvale permitted the liquidators to sell the aircraft but “then kept them out of the loop in relation to critical negotiations that would have resulted in a much higher return had they been carried through”. To like effect were submissions that Bain provided an instruction to the selling agent not to deal with Mr Palmer and that it was selective in the information it gave to the liquidators.
  2. [138]
    These submissions went well beyond what was pleaded in the amended counterclaim and, for that reason, were the subject of objection. Subsequently, on 6 June 2021, the defendants sought leave to further amend their counterclaim. A draft pleading was provided in support of that application.
  3. [139]
    I refuse leave to further amend the counterclaim. This was a managed case. The defendants had ample time to formulate their case in advance of the trial. There is no warrant for allowing them to supplement it by allegations of deliberate, wrongful conduct at such a late stage. That would be a radical alteration to the case Vannin was required to meet on the current pleadings and would necessarily entail a re-opening of Vannin’s case to adduce evidence to meet the expanded case. There is little if any support on the evidence already adduced for even the drawing of an inference to the effects now contended but, even if there was, the making good of such allegations will do nothing to overcome the conclusion I have reached regarding the absence of any duty on the part of the lender in connection with the sale of the aircraft. To the point, they could do nothing to add to the case that was run by the defendants in an attempt to establish a relationship of agency between the lender and the liquidators.

Judgment

  1. [140]
    For these reasons, Vannin must wholly succeed on its claim and the counterclaim must be dismissed. QN, Resources and Metals are jointly and severally liable for the debt which, at the time of trial, was proved in the sum of US$26,973,811.08.
  2. [141]
    Vannin is therefore entitled to judgment on the whole of its claim against Resources, Metals and QN. That will necessarily include the making of the declaration of capacity sought in the amended claim,[90] along with orders for payment. There would be no utility in the making of a declaration if I ordered rectification but that has proven to be unnecessary because I have upheld Vannin’s construction argument as the foundation for the liability of Resources and Metals.
  3. [142]
    The costs of the claim and the counterclaim (including the costs of the failed application for leave to amend) should follow the event and, ordinarily, would be assessed on the standard basis. But, here, Vannin claims an entitlement to costs on a “full indemnity basis” pursuant to clause 4 of the guarantee and indemnity.[91] That is of course the provision by which each guarantor jointly and severally indemnified the lender against any loss arising, and any “Costs”[92] which the lender incurs, inter alia, in connection with the exercise of rights under the guarantee and indemnity. That would appear to be a sound basis for the basis of assessment sought by Vannin but, if it is disputed, the parties will be free to advance submissions in writing to assist the resolution by the court of that dispute.
  1. [143]
    The parties will be directed to bring in minutes of judgment to reflect this outcome and these reasons.

Addendum

  1. [144]
    The above reasons were handed down on 13 January 2023 and the following orders made:
  1. “1.
    The defendants’ application to further amend their counterclaim is refused;
  1. 2.
    The plaintiff and the first, second and fourth defendants are directed to bring in minutes of judgment to reflect these reasons within fourteen days; 
  1. 3.
    Liberty to apply on the giving of three days’ notice.”
  1. [145]
    Subsequently, email correspondence was received from the parties on 20 January 2023 (plaintiff), 27 January 2023 (first and second defendants) and 30 January 2023 (plaintiff) regarding the proposed minutes of judgment. In the end, the parties reached agreement on all but one issue and, on 1 February 2023, I heard argument and determined that issue. Final orders were then made as follows:

“THE COURT DECLARES THAT:  

  1. The fourth defendant entered into the agreement styled “US$ Aircraft Loan Facility Agreement” and dated 28 June 2012 (“the Agreement”) as agent for and on behalf of the first and second defendants.
  2. The first and second defendants are jointly and severally liable as guarantors pursuant to the terms of clause 16 and schedule 2 of the Agreement. 

THE JUDGMENT OF THE COURT IS THAT: 

  1. Judgment is entered for the plaintiff against each of the first, second and fourth defendants jointly and severally in the sum of US$30,835,112.14.
  2. The first, second and fourth defendants pay to the plaintiff, jointly and severally, the sum of US$30,835,112.14.
  3. The counterclaim is dismissed.  
  4. The first, second and fourth defendants are to jointly and severally pay the plaintiff’s costs of the proceeding on a full indemnity basis pursuant to clause 4 of schedule 2 of the Agreement.”

Footnotes

[1]Here, and throughout these reasons, a reference to “the defendants” means Resources, Metals and QN.

[2]Facility agreement, Schedule 2.

[3]The terms and expressions used in these acknowledgments were stated to have the meanings ascribed to them in the facility agreement. 

[4]And see facility agreement, Schedules 3 and 4.

[5]Facility agreement, Schedule 2.

[6]Facility agreement, clauses 1.2(i) and 18.11.

[7]On 14 December 2018, notices of assignment were also given to Resources and Metals.

[8]Vannin also advanced a further basis for liability on the part of QN as a principal debtor under clause 4 of the guarantee and indemnity. See below at [71].

[9]Defence of the first and second defendants to the second further amended statement of claim, paragraphs 27-29.

[10]Defence of the first and second defendants to the second further amended statement of claim, paragraphs 28, 30, 31.

[11]Defence of the first and second defendants to the second further amended statement of claim, paragraph 32.

[12]On 24 April 2020, written notice was given to PAPL and QN of Mr McDonald’s appointment as an “authorised officer” for the purpose of the agreement.

[13]Beefeater Sales International Pty Ltd v MIS Funding No 1 Pty Ltd [2016] NSWCA 217, [98].

[14]Facility agreement, clause 1.2(i).

[15]Facility agreement, clause 18.11.

[16]Norman v Federal Commissioner of Taxation (1963) 109 CLR 9, 21; Beefeater Sales International Pty Ltd v MIS Funding No 1 Pty Ltd [2016] NSWCA 217, [96], [99].

[17]The facility agreement was governed by the law in force in Victoria: clause 18.16. Although no submissions were directed to this point at trial, if in that jurisdiction there is a provision to the same effect as s 57(1) of the Property Law Act 1974 (Qld) or, given the place of trial, the Queensland provision governs the reception in evidence of the certificate, it must be read down: Julong Pty Ltd v Fenn & Anor [2002] QCA 529, [50]-[52]. In either case, the certificate is not received as conclusive evidence of the facts certified but is received as prima facie evidence of those facts, that is to say, the fact of the indebtedness and its amount: Dobbs v The National Bank of Australasia Limited (1935) 53 CLR 643, 651.

[18]Young v Queensland Trustees Ltd (1956) 99 CLR 560, 562; Noble v State of Victoria [2000] 2 Qd R 154,158.

[19]Julong Pty Ltd v Fenn & Anor [2002] QCA 529, [52].

[20]And admissible in proof of the transactions recorded in them pursuant to s 1305 of the Corporations Act and s 84 of the Evidence Act 1977 (Qld).

[21]Which provisions are particularised in subparagraph 27(b) of the defence of the first and second defendants to the second further amended statement of claim. 

[22]Aircraft mortgage, clause 2.1. To similar effect were the short particulars of the mortgage created by PAPL when the mortgage was registered in the Isle of Man Register of Aircraft Mortgages on 29 June 2012 (as required by paragraph 6(c) of the conditions precedents set out in Schedule 3 to the facility agreement).

[23]Aircraft mortgage, clause 2.2.

[24]Aircraft mortgage, clause 5.2(a).

[25]BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283; SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2019] QCA 201, [28].

[26]BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283.

[27]By clause 1.1 of the facility agreement, the term, “Security”, is defined to include the aircraft mortgage.

[28]By clause 1.1 of the facility agreement, the expression, “Security Interest”, is defined to mean “an interest in relation to property provided for by a transaction that, in substance, secures payment of money or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property) … [and] also includes a guarantee”.

[29]See Buckeridge v Mercantile Credits Ltd (1981) 147 CLR 654, 671, 675.

[30]Aircraft mortgage, clauses 9.2 and 20.3. And see clause 18.4 of the facility agreement.

[31]Aircraft mortgage, clauses 9.2 and 20.3; Facility agreement, clause 18.4.

[32]The Fletcher Organisation Pty Ltd v Crocus Investments Pty Ltd [1988] 2 Qd R 517, 527.

[33]Summarised above at [44].

[34]See, for example, paragraph 44 of the defendants’ closing submissions.

[35]Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530, [82].

[36]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, [47].

[37]Resort to evidence of surrounding circumstances is permissible where “something has clearly gone wrong with the language”: Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors [2019] QSC 163, [107].

[38]See [90] below.

[39]Fitzgerald v Masters (1956) 95 CLR 420, 426-427.

[40]As to which, see Railway Commissioners for New South Wales v Orton (1922) 30 CLR 422, 425-426.

[41]See Australian Trade Commission v Goodman Fielder Industries Limited (1992) 36 FCR 517, 521522.

[42]As to which, see Commonwealth v Verwayen (1990) 170 CLR 394, 413, 422. 

[43]See Queensland Independent Wholesalers Ltd v Coutts Townsville Pty Ltd [1989] 2 Qd R 40, 46; Moratic Pty Ltd v Lawrence James Gordon [2007] NSWSC 5, [31]-[33].

[44]Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336, 350; Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85, [103].

[45]Slee v Warke (1949) 86 CLR 271, 281; Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336, 350-351; Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85, [103].

[46]Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336, 350-351.

[47](2016) 260 CLR 85.

[48]Ibid, [104].

[49]Relying on authorities such as Pukallus v Cameron (1982) 180 CLR 447, 452.

[50]Defence of the first and second defendants to the second further amended statement of claim, paragraphs 11 and 12.

[51]See BM Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 51 ALJR 254, 259; Baburin v Baburin (No 2) [1991] 2 Qd R 240, 255-257; Herrod v Johnston [2013] 2 Qd R 102, [67]-[69].

[52]Clause 6.1(b) of the guarantee and indemnity provides that the rights given to “the Lender … and each Guarantor’s liabilities and obligations under [the guarantee and indemnity] are not affected by any act or omission by the Lender or by anything else that might otherwise affect them under law or otherwise, including … (b) laches, acquiescence, delay, acts, omissions or mistakes on the Lender’s part or the part of any other person or both”. 

[53]Amended counterclaim; paragraph 13.

[54](1912) 13 CLR 676.

[55]Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676, 680. And see Forsyth v Blundell (1973) 129 CLR 477, 481; Australia and New Zealand Banking Group v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195, 222; Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1994) 8 BPR 15,581, 15,583.

[56]Buckeridge v Mercantile Credits Ltd (1981) 147 CLR 654, 675.

[57]Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676, 680.

[58]Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676, 700; Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1994) 8 BPR 15,581, 15,583.

[59](1994) 8 BPR 15,581.

[60]Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1994) 8 BPR 15,581, 15,583.

[61][2004] VSC 193.

[62]National Australia Bank Ltd v Anderson [2004] VSC 193, [74]. His Honour cited Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445, Commonwealth v Verwayen (1990) 170 CLR 394, Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 477, Blomley v Ryan (1956) 99 CLR 362, Akins v National Australia Bank (1994) 32 NSWLR 155, Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 and Mitchell v 700 Young Street Pty Ltd [2003] VSCA 42 as authority for these propositions.

[63]Upton v Tasmanian Perpetual Trustees Ltd (2007) 158 FCR 118, [15]-[27].

[64]For example, Diddams v Commonwealth Bank of Australia Ltd (unreported, Federal Court of Australia, Branson J, 17 July 1998); Kyuss Express Pty Ltd v Sellers (2001) 37 ACSR 62; Florgale Uniforms Pty Ltd v Orders (2004) 11 VR 54; Ultimate Property Group Pty Ltd v Lord (2004) 60 NSWLKR 646; and MBF Investments Pty Ltd v Nolan (2011) 37 VR 116.

[65]Forsyth v Blundell (1973) 129 CLR 477, 481; Australia and New Zealand Banking Group v Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195, 227-228.

[66]Upton v Tasmanian Perpetual Trustees Ltd (2007) 158 FCR 118, [28].

[67]Amended counterclaim; paragraph 19.

[68](2017) 120 ACSR 32.

[69][2000] Ch 86.

[70][2000] Ch 86, 95.

[71][2012] VSC 222.

[72](2000) 50 NSWLR 587.

[73]Bank of Western Australia Ltd v Abdul [2012] VSC 222, [41].

[74]Bank of Western Australia Ltd v Abdul [2012] VSC 222, [37].

[75]Bank of Western Australia Ltd v Abdul [2012] VSC 222, [41].

[76]Perpetual Nominees Ltd v McGoldrick (No 3) (2017) 120 ACSR 32, [224]-[226].

[77]Statement of Daren Wolfe dated 8 October 2020, paragraphs 54 and 71.

[78]Statement of Daren Wolfe dated 8 October 2020, paragraph 55 and exhibit DW-49.

[79]Defendants’ closing submissions, paragraph 60.

[80]Statement of Clive Palmer dated 19 January 2021, paragraphs 12, 17 and 21.

[81]GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15, 22; NMFM Property Pty Ltd v Citibank Ltd (No 8) (1999) 161 ALR 581, [16]; Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582, [34]. And see UCPR, r 5.

[82]As to which, see UBS v Tyne (2018) 265 CLR 65, [45].

[83]Such as the email correspondence to and from Mr Notaras in 2018.

[84]This table was marked for identification: exhibit MFIL.

[85]Bank of Western Australia Ltd v Abdul [2012] VSC 222, [41].

[86]Amended counterclaim, paragraphs 17 and 18. Paragraph 18 erroneously refers to the purchase price in Australian currency.

[87]Amended counterclaim, paragraph 18A.

[88]UCPR, r 190. In this regard, reliance was placed on Green & Ors v Pearson [2014] QCA 110, [20][23].

[89]Mr Notaras sent a terms sheet to Mr Cannan in that amount on 20 March 2018 which nominated this price along with a range of other conditions.

[90]Amended claim, paragraph 1(a); Second further amended statement of claim, paragraph 1(d) of the prayer for relief. 

[91]Amended claim, paragraph 1(d); Second further amended statement of claim, paragraphs 1(d) and 3(c) of the prayer for relief.

[92]The term, “Costs” is defined in clause 1.1 of the facility agreement to include “charges, expenses and internal administration costs, and costs, charges and expenses in connection with advisers on a full indemnity basis …”.

Close

Editorial Notes

  • Published Case Name:

    Vannin Capital Operations Limited v QNI Resources Pty Ltd & Ors

  • Shortened Case Name:

    Vannin Capital Operations Ltd v QNI Resources Pty Ltd

  • MNC:

    [2023] QSC 1

  • Court:

    QSC

  • Judge(s):

    Burns J

  • Date:

    01 Feb 2023

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QSC 101 Feb 2023Trial of proceedings to recover debt; judgment for plaintiff; counterclaim dismissed: Burns J.
Appeal Determined (QCA)[2023] QCA 21603 Nov 2023Appeal dismissed: Boddice JA (Mullins P and Applegarth J agreeing).
Appeal Determined (QCA)[2023] QCA 23524 Nov 2023Costs judgment: Mullins P, Boddice JA and Applegarth J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Akins v National Australia Bank (1994) 34 NSWLR 155
1 citation
Jump To
Cite 1 - (1994) 34 NSWLR 155
Akins v National Australia Bank (1994) 32 NSWLR 155
1 citation
Jump To
Cite 1 - (1994) 32 NSWLR 155
ANZ Banking Group Ltd v Bangadilly Pastoral Co Ltd (1978) 139 CLR 195
3 citations
Jump To
Cite 1 - (1978) 139 CLR 195
Cite 2 - (1978) 139 CLR 195
Cite 3 - (1978) 139 CLR 195
Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd(2019) 1 QR 392; [2019] QSC 163
2 citations
Jump To
Cite 1 - [2019] QSC 163
Cite 2 - [2019] QSC 163
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) HCA 18
2 citations
Jump To
Cite 1 - (2003) HCA 18
Cite 2 - (2003) HCA 18
Australian Trade Commission v Goodman Fielder Industries Ltd (1992) 36 FCR 517
2 citations
Jump To
Cite 1 - (1992) 36 FCR 517
Cite 2 - (1992) 36 FCR 517
B.M. Auto Sales Pty Ltd v Budget Rent A Car System Pty Ltd (1976) 51 ALJR 254
2 citations
Jump To
Cite 1 - (1976) 51 ALJR 254
Cite 2 - (1976) 51 ALJR 254
Baburin v Baburin (No 2) [1991] 2 Qd R 240
2 citations
Jump To
Cite 1 - [1991] 2 Qd R 240
Cite 2 - [1991] 2 Qd R 240
Bank of Western Australia Ltd v Abdul [2012] VSC 222
6 citations
Jump To
Cite 1 - [2012] VSC 222
Cite 2 - [2012] VSC 222
Cite 3 - [2012] VSC 222
Cite 4 - [2012] VSC 222
Cite 5 - [2012] VSC 222
Cite 6 - [2012] VSC 222
Beefeater Sales International Pty Ltd v MIS Funding No 1 Pty Ltd [2016] NSWCA 217
3 citations
Jump To
Cite 1 - [2016] NSWCA 217
Cite 2 - [2016] NSWCA 217
Cite 3 - [2016] NSWCA 217
Blomley v Ryan (1956) 99 CLR 362
2 citations
Jump To
Cite 1 - (1956) 99 CLR 362
Cite 2 - (1956) 99 CLR 362
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
3 citations
Jump To
Cite 1 - (1977) 180 CLR 266
Cite 2 - (1977) 180 CLR 266
Cite 3 - (1977) 180 CLR 266
Buckeridge v Mercantile Credits Ltd (1981) 147 CLR 654
3 citations
Jump To
Cite 1 - (1981) 147 CLR 654
Cite 2 - (1981) 147 CLR 654
Cite 3 - (1981) 147 CLR 654
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 477
2 citations
Jump To
Cite 1 - (1983) 151 CLR 477
Cite 2 - (1983) 151 CLR 477
Commonwealth v Verwayen (1990) 170 CLR 394
3 citations
Jump To
Cite 1 - (1990) 170 CLR 394
Cite 2 - (1990) 170 CLR 394
Cite 3 - (1990) 170 CLR 394
Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643
2 citations
Jump To
Cite 1 - (1935) 53 CLR 643
Cite 2 - (1935) 53 CLR 643
Fitzgerald & Anor v Masters (1956) 95 CLR 420
2 citations
Jump To
Cite 1 - (1956) 95 CLR 420
Cite 2 - (1956) 95 CLR 420
Florgale Uniforms Pty Ltd v Orders (2004) 11 VR 54
2 citations
Jump To
Cite 1 - (2004) 11 VR 54
Cite 2 - (2004) 11 VR 54
Forsyth v Blundell (1973) 129 CLR 477
3 citations
Jump To
Cite 1 - (1973) 129 CLR 477
Cite 2 - (1973) 129 CLR 477
Cite 3 - (1973) 129 CLR 477
GPI Leisure Corp. Ltd v Herdsman Investments Pty Ltd (No. 3) (1990) 20 NSWLR 15
2 citations
Jump To
Cite 1 - (1990) 20 NSWLR 15
Cite 2 - (1990) 20 NSWLR 15
Green v Pearson [2014] QCA 110
2 citations
Jump To
Cite 1 - [2014] QCA 110
Cite 2 - [2014] QCA 110
Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1994) 8 BPR 15
5 citations
Jump To
Cite 1 - (1994) 8 BPR 15
Cite 2 - (1994) 8 BPR 15
Cite 3 - (1994) 8 BPR 15
Cite 4 - (1994) 8 BPR 15
Cite 5 - (1994) 8 BPR 15
Herrod v Johnston[2013] 2 Qd R 102; [2012] QCA 360
2 citations
Jump To
Cite 1 - [2013] 2 Qd R 102
Cite 2 - [2013] 2 Qd R 102
Julong Pty Ltd v Fenn [2002] QCA 529
3 citations
Jump To
Cite 1 - [2002] QCA 529
Cite 2 - [2002] QCA 529
Cite 3 - [2002] QCA 529
Kyuss Express Pty Ltd v Sellers (2001) 37 ACSR 62
2 citations
Jump To
Cite 1 - (2001) 37 ACSR 62
Cite 2 - (2001) 37 ACSR 62
Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336
4 citations
Jump To
Cite 1 - (1973) 128 CLR 336
Cite 2 - (1973) 128 CLR 336
Cite 3 - (1973) 128 CLR 336
Cite 4 - (1973) 128 CLR 336
MBF Investments Pty Ltd v Nolan (2011) 37 VR 116
2 citations
Jump To
Cite 1 - (2011) 37 VR 116
Cite 2 - (2011) 37 VR 116
Medforth v Blake [2000] Ch 86
3 citations
Jump To
Cite 1 - [2000] Ch 86
Cite 2 - [2000] Ch 86
Cite 3 - [2000] Ch 86
Mitchell v 700 Young Street Pty Ltd [2003] VSCA 42
2 citations
Jump To
Cite 1 - [2003] VSCA 42
Cite 2 - [2003] VSCA 42
Moratic Pty Ltd v Gordon (2007) NSWSC 5
2 citations
Jump To
Cite 1 - (2007) NSWSC 5
Cite 2 - (2007) NSWSC 5
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
2 citations
Jump To
Cite 1 - (2015) 256 CLR 104
Cite 2 - (2015) 256 CLR 104
National Australia Bank Limited v Anderson [2004] VSC 193
3 citations
Jump To
Cite 1 - [2004] VSC 193
Cite 2 - [2004] VSC 193
Cite 3 - [2004] VSC 193
NMFM Property Pty Ltd v Citibank Ltd (No 8) (1999) 161 ALR 581
2 citations
Jump To
Cite 1 - (1999) 161 ALR 581
Cite 2 - (1999) 161 ALR 581
Noble v State of Victoria[2000] 2 Qd R 154; [1999] QCA 110
2 citations
Jump To
Cite 1 - [2000] 2 Qd R 154
Cite 2 - [2000] 2 Qd R 154
Norman v Federal Commissioner of Taxation (1963) 109 C.L.R 9
2 citations
Jump To
Cite 1 - (1963) 109 C.L.R 9
Cite 2 - (1963) 109 C.L.R 9
Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676
5 citations
Jump To
Cite 1 - (1912) 13 CLR 676
Cite 2 - (1912) 13 CLR 676
Cite 3 - (1912) 13 CLR 676
Cite 4 - (1912) 13 CLR 676
Cite 5 - (1912) 13 CLR 676
Perpetual Nominees Ltd v McGoldrick (No 3) (2017) 120 ACSR 32
3 citations
Jump To
Cite 1 - (2017) 120 ACSR 32
Cite 2 - (2017) 120 ACSR 32
Cite 3 - (2017) 120 ACSR 32
Pukallus v Cameron (1982) 180 CLR 447
2 citations
Jump To
Cite 1 - (1982) 180 CLR 447
Cite 2 - (1982) 180 CLR 447
Queensland Independent Wholesalers Limited v Coutts Townsville Pty. Ltd.[1989] 2 Qd R 40; [1988] QSCFC 146
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 40
Cite 2 - [1989] 2 Qd R 40
SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2019] QCA 201
2 citations
Jump To
Cite 1 - [2019] QCA 201
Cite 2 - [2019] QCA 201
Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85
3 citations
Jump To
Cite 1 - (2016) 260 CLR 85
Cite 2 - (2016) 260 CLR 85
Cite 3 - (2016) 260 CLR 85
Slee v Warke (1949) 86 CLR 271
2 citations
Jump To
Cite 1 - (1949) 86 CLR 271
Cite 2 - (1949) 86 CLR 271
State Bank of New South Wales Ltd v Chia (2000) 50 NSWLR 587
2 citations
Jump To
Cite 1 - (2000) 50 NSWLR 587
Cite 2 - (2000) 50 NSWLR 587
Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582
2 citations
Jump To
Cite 1 - [2012] FCA 582
Cite 2 - [2012] FCA 582
The Fletcher Organisation Pty Ltd v Crocus Investments Pty Ltd[1988] 2 Qd R 517; [1987] QSCFC 55
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 517
Cite 2 - [1988] 2 Qd R 517
The Railway Commissioners for New South Wales v Orton & Knight (1922) 30 CLR 422
2 citations
Jump To
Cite 1 - (1922) 30 CLR 422
Cite 2 - (1922) 30 CLR 422
UBS v Tyne (2018) 265 CLR 65
2 citations
Jump To
Cite 1 - (2018) 265 CLR 65
Cite 2 - (2018) 265 CLR 65
Ultimate Property Group Pty Ltd v Lord (2004) 60 NSWLR 646
1 citation
Jump To
Cite 1 - (2004) 60 NSWLR 646
Ultimate Property Group Pty Ltd v Lord (2004) 60 NSWLKR 646
1 citation
Jump To
Cite 1 - (2004) 60 NSWLKR 646
Upton v Tasmanian Perpetual Trustees Ltd (2007) 158 FCR 118
3 citations
Jump To
Cite 1 - (2007) 158 FCR 118
Cite 2 - (2007) 158 FCR 118
Cite 3 - (2007) 158 FCR 118
Young v Queensland Trustees Limited (1956) 99 CLR 560
2 citations
Jump To
Cite 1 - (1956) 99 CLR 560
Cite 2 - (1956) 99 CLR 560
Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530
2 citations
Jump To
Cite 1 - (2004) 218 CLR 530
Cite 2 - (2004) 218 CLR 530
Zoneff v Elcom Credit Union Ltd (1990) 94 ALR 445
2 citations
Jump To
Cite 1 - (1990) 94 ALR 445
Cite 2 - (1990) 94 ALR 445

Cases Citing

Case NameFull CitationFrequency
QNI Resources Pty Ltd v Vannin Capital Operations Ltd [2023] QCA 131 citation
QNI Resources Pty Ltd v Vannin Capital Operations Ltd [2023] QCA 2161 citation
QNI Resources Pty Ltd v Vannin Capital Operations Ltd [No 2] [2023] QCA 2351 citation
1

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