Federal Court of Australia

Goldus Pty Ltd (subject to deed of company arrangement) v Australian Mining Pty Ltd (receivers and managers appointed) [2023] FCAFC 27

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The court:

1    Goldus Pty Ltd and Australian Mining Pty Ltd were parties to an unincorporated joint venture carrying out exploration and mining for alluvial gold and other minerals to a depth of no more than 15 metres on eight mining tenements (the relevant tenements) over land in the vicinity of Teetulpa, Flinders Ranges, South Australia (the joint venture). The terms of the joint venture were recorded in a joint venture agreement (JVA).

2    Goldus brought proceedings against Australian Mining, RnD Funding Pty Ltd (RnD), Mr Joseph Nakat and others concerning a dispute that had arisen as to whether the relevant tenements were the property of the joint venture. Goldus claimed that the relevant tenements were neither the property of the joint venture nor the subject of a security interest in favour of Australian Mining and that Australian Mining had not taken valid control or possession of such tenements. Australian Mining contended that the relevant tenements were the property of the joint venture or at least that Goldus had provided security over those tenements for any default under the terms of the JVA. Moreover, it said that there had been such default.

3    Australian Mining also advanced a cross-claim to the effect that Goldus had relinquished its participating interest in the joint venture and that the rights and interests of Goldus under the joint venture had passed to Australian Mining. But it said that notwithstanding this relinquishment, it could still enforce contractual rights under the JVA against Goldus.

4    Now there were three appeals that were heard before us and it is appropriate to describe each in turn.

5    The first appeal concerned the relevant tenements. The primary judge determined that Goldus should succeed in its claim that the relevant tenements were neither the property of the joint venture nor the subject of any security in favour of Australian Mining. But he held nevertheless that Australian Mining was entitled to the rights conferred by the JVA to undertake activities on the relevant tenements (Goldus Pty Ltd (Subject to Deed of Company Arrangement) v Cummins (No 4) [2021] FCA 1095) (Goldus (No 4)). In so holding, he found that the rights conferred by the JVA were contractual in character and had been conferred on Australian Mining when Goldus relinquished its interest as a joint venturer under the JVA by the terms of a deed of company arrangement entered into by Goldus on 11 May 2018 (the DOCA) and which bound the persons and entities referred to in ss 444D and 444G of the Corporations Act 2001 (Cth) and others.

6    Now the issues raised on appeal concerned whether there had been a relinquishment by Goldus of its interest in the joint venture by operation of cl 5.11 of the DOCA. Further, it was claimed by Goldus that the relinquishment of the interest of Goldus brought the JVA to an end. In this regard, reference was made by Goldus to cl 4.4(a) of the JVA which provided:

The Joint Venture shall terminate on the earlier of the following dates:-

(i)    The date that the Management Committee determines unanimously that all economically recoverable alluvial gold material has been recovered from the Designated Area.

(ii)    A date upon which the Non-Defaulters unanimously resolve to determine the Joint Venture.

(iii)    A date upon which the Joint Venture Assets are held beneficially by one Joint Venturer.

7    It was said by Goldus in reliance upon cl 4.4(a)(iii) that once the assets of the joint venture came to be held by one venturer, the terms of the JVA came to an end. But his Honour found that there were problems with such a contention based upon cl 4.4(a)(iii). He found that cl 4.4(a)(iii) did not provide for the JVA to terminate. Although it dealt with the termination of the joint venture brought into existence by the JVA, his Honour found that the JVA did more than create the joint venture. The JVA conferred contractual rights on the parties to the JVA which included a right to carry out mining operations in the alluvial zone. It also dealt with the circumstances in which the joint venture interests could be assigned or relinquished or a venturer could withdraw. Further, other provisions of the JVA dealt separately with termination of the JVA. In essence, his Honour rejected the contention by Goldus that the relinquishment of the interest of Goldus as a venturer to Australian Mining under cl 5.11 of the DOCA had the necessary consequence that the JVA was at an end.

8    Goldus challenges his Honour’s findings on both the relinquishment question and the JVA not terminating, but for the reasons that follow we would reject this appeal.

9    The second appeal that was heard by us concerns a tracing question. It is appropriate to briefly elaborate on the background to that question.

10    RnD, which was an entity controlled by Mr Nakat, had been taking steps to recover $1,670,000 advanced to Australian Tailings Group Pty Ltd (ATG), which was an entity controlled by Mr John Hillam. At the time of the advances, Australian Mining, which was another entity then controlled by Mr Hillam, agreed to be a joint obligor with ATG under the terms of a General Security Deed which had been provided as security for the facility agreements between RnD and ATG. The agreement of Australian Mining as joint obligor was recorded in instruments described as deeds of accession.

11    Now issues arose as to the nature and extent of the rights and interests of Australian Mining that RnD had, which concerned the advances made to ATG, in terms of pursuing its security rights under the General Security Deed against Australian Mining as a joint obligor.

12    In this respect, RnD claimed to have appointed receivers over the assets of Australian Mining, which assets were said to include the relevant tenements or at least an interest in those tenements. The receivers of Australian Mining in turn had claimed to have appointed receivers over the assets of Goldus.

13    Further, RnD claimed that funds, which had been received by Australian Mining and were the subject of RnD’s security, were paid through Prop Fest Pty Ltd, which was another company controlled by Mr Hillam, to Roncane Pty Ltd, which was another entity controlled by Mr Hillam. RnD said that those funds were used by Roncane to purchase shares in Goldus.

14    RnD said that it was entitled to trace those funds into the shares in Goldus now held by Roncane, and that such shares were held on constructive trust or were subject to a security interest in favour of RnD. But his Honour rejected the tracing claim, which rejection RnD challenged before us.

15    In summary, we have allowed this second appeal which is the subject of separate disposition and reasons; see RnD Funding Pty Ltd v Roncane Pty Ltd [2023] FCAFC 28, which was published by us at the same time as these reasons.

16    The third appeal before us concerns the ownership of various mining equipment.

17    Before the primary judge, RnD made a separate claim to certain mining equipment located on the land the subject of the relevant tenements held by Goldus which it said was the subject of a security interest in favour of RnD. The relevant equipment in issue, which we have described later as the gold plant, was said to have been held by either Goldus or Synergy Metals Group Pty Ltd, which was another entity controlled by Mr Hillam. Goldus and Synergy disputed RnD’s entitlement to the gold plant, but his Honour found in favour of RnD. Goldus and Synergy have challenged that determination.

18    In summary and for the reasons which follow, we would dismiss this third appeal.

The first appeal – operation of the DOCA

19    It is necessary to begin by saying something more about the background.

20    The underlying uncontroversial factual background for the purposes of the first appeal is set out in the primary judge’s reasons in Goldus (No 4) at [18] to [21] and [166] to [175] and Goldus Pty Ltd (Subject to Deed of Company Arrangement) v Cummins (No 5) [2021] FCA 1352 (Goldus (No 5)) at [1] and [2].

21    Now Goldus was and is the registered holder of the relevant tenements. In 2007, Goldus formed an unincorporated joint venture with another entity to carry out exploration and mining for gold, silver and other alluvial minerals on the relevant tenements. We also note that Goldus was the holder of a miscellaneous purpose lease (MPL28) and an exploration licence (EL5896) over land in the same area, but those tenements were not subject to the terms of the joint venture.

22    In 2012, Australian Mining acquired the participating interest of the other venturer and part of the participating interest of Goldus in the joint venture to become the holder of a 51% participating interest. Goldus retained a 49% participating interest. At that time the joint venture was described by the parties as the Teetulpa Alluvial Joint Venture. Goldus and Australian Mining recorded the ongoing terms of the joint venture in the JVA that amended and restated the agreed terms for the joint venture. In the JVA, the parties described the purpose and scope of the joint venture as being to explore for and mine alluvial minerals on the tenements to a depth of no more than 15 metres, which has been described as the alluvial zone. Goldus was the manager of the joint venture under the terms of the JVA. Later, Australian Mining became the manager.

23    Goldus and Australian Mining also entered into a Deed of Cross Security as required by the terms of the JVA. The extent of the security conferred by the Deed of Cross Security was a matter of debate before the primary judge.

24    In 2014, the sole shareholder in Australian Mining proposed to sell its shareholding to Teetulpa Metals Pty Ltd on terms that were to be guaranteed by ATG. Goldus claimed that it had pre-emptive rights and brought an action for breach of contract against Australian Mining, but that claim was unsuccessful. Teetulpa Metals, a company controlled by Mr Hillam, became the sole shareholder in Australian Mining. Later, Mr Hillam became a director of Australian Mining.

25    In October 2017, voluntary administrators were appointed to Goldus. Thereafter there were extensive negotiations as between the administrators, Australian Mining and Mr Hillam as to the terms of a deed of company arrangement for Goldus.

26    In late December 2017, ATG entered into a facility agreement with RnD, and ATG granted security over all of its assets to RnD for the performance of its obligations under any agreement entered into by ATG with RnD including the facility agreement (General Security Deed). At that time RnD advanced $320,000 to ATG under the terms of the facility agreement.

27    On 10 May 2018, RnD and ATG entered into a further facility agreement for the purpose of providing funds that were to be used, inter-alia, to make payments into a fund to be established under the terms of a proposed deed of company arrangement for Goldus and also to undertake exploration and mining. On the same day, Australian Mining and Teetulpa Metals executed a deed of accession in favour of RnD pursuant to which Australian Mining and Teetulpa Metals agreed to comply with the General Security Deed.

28    On 11 May 2018, the DOCA was entered into concerning the affairs of Goldus. Mr Hillam and various entities associated with him including Australian Mining also became parties to the DOCA pursuant to which payments were to be made by the Hillam entities into a fund. Further, under the DOCA, control of Goldus was to pass to an entity nominated by Mr Hillam or if that could not occur then the relevant tenements the subject of the joint venture, plus the two other tenements outside the joint venture, were to be transferred to Mr Hillam’s nominee.

29    On 25 June 2018, leave was granted by this Court to the deed administrator under the DOCA to transfer all of the shares in Goldus to Roncane, the nominated entity of Mr Hillam, on the basis of an undertaking by the deed administrator that the shares would not be transferred until the required amounts had been paid into the relevant DOCA fund by the Hillam entities.

30    Between 17 April 2018 and 8 October 2018, RnD advanced $1,350,000 to ATG under a further facility agreement, and a further deed of accession was executed by Australian Mining and other entities concerning the General Security Deed.

31    On 15 October 2018, the principal outstanding under the original facility agreement was due for payment by ATG to RnD, but no payment was then made or has since been made by ATG.

32    On 10 October 2019, all of the shares in Goldus were transferred to Roncane. At that time Goldus became controlled by Mr Hillam.

33    On 22 October 2019, RnD issued a notice to Australian Mining stating that RnD was exercising powers under the General Security Deed. RnD purported to assume control of the property of Australian Mining secured by the General Security Deed.

34    On 25 October 2019, Australian Mining issued a notice to Goldus stating that Goldus was in default under the JVA and that Goldus was required to remedy that default within 30 days.

35    On 31 October 2019, Goldus gave a notice to Australian Mining claiming that Australian Mining was in default under the JVA.

36    On 25 November 2019, Australian Mining issued a notice to Goldus stating that an event of default had occurred under the Deed of Cross Security and also stating that Australian Mining had given notice to Goldus that Goldus was prohibited from dealing in any tenements held by Goldus.

37    On 12 March 2020, RnD appointed Mr Cummins and Mr Krejci as receivers and managers of Australian Mining. On the same day, Mr Cummins and Mr Krejci executed a deed of appointment on behalf of Australian Mining which purported to appoint themselves as receivers and managers of Goldus.

The matters in issue

38    Now in the cross-claim below, Australian Mining, which was under the control of receivers and managers, said that under cl 5.11 of the DOCA Goldus had relinquished its participating interest in the joint venture and that the rights and interest of Goldus under the JVA had passed to Australian Mining. Goldus disputed that construction of cl 5.11.

39    The primary judge upheld the cross-claim and held that by cl 5.11 of the DOCA, Goldus had relinquished its participating interest in the joint venture to Australian Mining. Consequently, his Honour held that as Goldus’ participating interest had been relinquished to Australian Mining, the latter continued as the sole venturer and remained entitled to the contractual rights conferred by Goldus as recorded in the JVA to which Goldus remained a party, although not as a participant in the joint venture.

40    His Honour found that pursuant to cl 4.4(a) of the JVA, Goldus’ relinquishment of its participating interest in the JVA only provided for the termination of the joint venture, and not termination of the JVA itself which remained in operation.

41    Further, his Honour found that as a result, the participating interest relinquished by Goldus to Australian Mining conferred contractual rights on Australian Mining to carry out and undertake mining operations on the relevant tenements under the JVA.

42    His Honour found that the JVA was not terminated by reason of the operation of cl 5.11 of the DOCA notwithstanding that Goldus no longer held any interest in the joint venture under the JVA. Accordingly, his Honour held that Goldus remained bound by the terms of the JVA and that Australian Mining had a continuing right under the JVA to carry out and undertake mining operations on the relevant tenements owned by Goldus.

43    Now Goldus says that the primary judge made three errors.

44    First, it is said that his Honour erred in his construction of cl 5.11 of the DOCA in finding that by cl 5.11 Goldus relinquished its participating interest in the joint venture to Australian Mining.

45    Second, it is said that his Honour erred in concluding that the JVA was not terminated in circumstances where it was found that by cl 5.11 Goldus no longer held a participating interest in the joint venture and that Australian Mining remained the sole joint venturer.

46    Third and relatedly, it is said that notwithstanding his Honour’s construction of cl 5.11 of the DOCA, he erred in finding that Australian Mining had a continuing right under the JVA to carry out and undertake mining operations on the relevant tenements.

47    Now at this point we should say something more concerning the DOCA.

The DOCA

48    There were five parties to the DOCA in addition to the administrators, being Goldus, Mr Hillam, Courela Minerals Pty Ltd, Sathya Holdings Pty Ltd and Australian Mining. At the time, Courela was a minority shareholder in Goldus; Courela was controlled by Mr Hillam. Sathya was also an entity controlled by Mr Hillam. So, the counterparties to the DOCA were the administrators on the one hand and Mr Hillam and entities controlled by him on the other hand. The DOCA defined “Hillam Entities” to mean “John Hillam personally and companies and persons associated with John Hillam”, which we have referred to as the Hillam entities.

49    The terms of the DOCA provided for the creation of a fund which was to comprise two tranches of funds to be provided by the Hillam entities and the current assets of Goldus, described in the DOCA as “the Company”, which comprised cash at bank and debtors (the Fund). But significantly, all assets of Goldus including any mining tenements were not included in the Fund (cl 4.3).

50    Clause 5, which dealt with conditions relevant to the Hillam entities, stated:

5.1    The Hillam Entities will pay to an account nominated by the Administrators the Costs Sum within 7 days of the execution of this deed by the Company.

5.2    The Costs Sum will be applied exclusively by the Administrators as required towards the costs and expenses incurred by them in achieving the condition set out in clause 5.4 and may be paid by the Administrators to any solicitors or agents engaged by them so as to satisfy that condition.

5.3    If there is any surplus of the Costs Sum following completion of the condition set out in clause 5.4, the Administrators will pay that surplus back to the Hillam Entities.

5.4    The Administrators will oversee and procure the Company to make all necessary applications and execute all necessary documents to obtain approval for a transfer of all shares in the Company to an entity nominated by Hillam for the purpose of receiving and owning such shares.

5.5    All legal work required to give effect to such transfer will be undertaken by the solicitors acting for the Administrators, under instructions from the Administrators, acting at all material times as agents of the Company.

5.6    The Administrators and the Company are to do all they reasonably can to ensure that the transfer of the shares will occur on or before 2 July 2018.

5.7    If the transfer of shares does not occur by 2 July 2018, then subject to them paying the contribution provided for in 4.2.2 of this deed, the Hillam Entities may request and require that the Company deliver up to them executed transfer documents to give effect to the transfer of all Mining and Exploration Licenses held by the Company.

5.8    Subject to clause 5.10, the Administrators agree that they will procure and obtain a sale and transfer to the Hillam Entities of EL number EL 5895, currently owned by Mintech, for a price of $75,000 plus GST.

5.9    Subject to clause 5.10, the Administrators will procure and obtain a sale and transfer to the Hillam Entities of EL number EL5894, currently owned by Mawson, for a price of $35,000 plus GST.

5.10    The parties acknowledge that all transfers of [mining tenements] provided for under this deed are subject to approval of the Minister and that the ultimate decision of the Minister in this regard is out of the control of the Administrators.

5.11    Subject to the contributions being paid under clause 4.2, the Company will provide full releases to the Hillam entities, and in particular [Australian Mining], to any and all rights, interest and or claims that it may have relating to the [joint venture] and any joint venture agreement with Sathya.

5.12    Subject to the contributions being paid under clause 4.2, the Company will transfer any and all rights to any royalties that the Company may receive or has a right to receive from any resource payments, production payments and/or any other royalty that may be payable on the value of any product that is payable by Magnetite Mines Limited to the Company pursuant to any and all agreements between the Company and Magnetite Mines Limited.

51    Clause 5 provided for the administrators of Goldus to procure a transfer of all the shares in Goldus to an entity nominated by Mr Hillam. The effect of the transfer of that shareholding was to transfer to the relevant Hillam entity control over the mining tenements that were to remain with Goldus as stated in cl 4.3. However, if the shares could not be transferred, then at the request of the Hillam entities, Goldus was to deliver up executed transfer documents for all mining and exploration licences held by Goldus. Those mining tenements included the relevant tenements.

52    Clause 7 dealing with releases was expressed in the following terms:

7.1    Upon payment by the Hillam Entities of the contributions to be made by them pursuant to clause 4.2, the Company forever withdraws and releases Hillam, Courela, Sathya, Australian Mining and all other Hillam Entities from all claims it has or purports to have against them and will withdraw or discontinue any proceedings issued by the Company against Hillam, Courela, Sathya, Australian Mining and all other Hillam Entities and Hillam, Courela, Sathya, Australian Mining and all other Hillam Entities and the Company will execute all documents and consent to all and any applications necessary to give effect to such withdrawal and releases. This will include the Company consenting to the release to Australian Mining of the sum of $160,000 currently held by the Supreme Court of New South Wales.

7.2    Except to the extent necessary to ensure that all current Court proceedings as between them are withdrawn and discontinued on the basis the parties bear their own costs of such proceedings, Hillam, Courela, Sathya and Australian Mining do not release the Company from their claims against the Company, and the proofs of debt filed by each of them are not revoked by reason of this deed.

7.3    Hillam, Courela, Sathya, Australian Mining and all other Hillam Entities will discontinue any and all proceedings that have been issued by them or any of them against the Company, but otherwise do not release the Company from any claims they have or purport to have, except as otherwise provided for in this deed.

7.4    Upon payment by the Hillam Entities of the contributions to be made by them pursuant to clause 4.2, and upon completion of the conditions set out in clause 5 of this deed, noting and subject to clause 6 of this deed, Hillam, Courela, Sathya, Australian Mining and all other Hillam Entities release and discharge Mintech, Mawson and the Estate of Lewis from all claims they have or purport to have against them and will discontinue any and all proceedings they have against them and will execute all documents and consent to all applications as necessary to give effect to this clause. In consideration of this release being given the administrators will procure a reciprocal release and discharge from Mintech, Mawson and the Estate of Lewis to Hillam, Courela, Sathya, Australian Mining and all other Hillam Entities.

7.5    Upon payment by the Hillam Entities of the contributions to be made by them pursuant to clause 4.2, if Hillam or the Hillam Entities propose a deed of company arrangement, scheme of arrangement or similar for Mintech which is acceptable to the liquidators of Mintech, following which such proposal is submitted to the creditors of Mintech for approval, then the proofs of debt already submitted by Hillam and Hillam Entities to the liquidators of Mintech will be considered as proofs of debt for voting purposes only when considering and voting on that proposal for the same value as that which was accepted by the administrators of Mintech at the first and second meeting of creditors in that administration. Hillam and Hillam Entities accept and agree that if a proposal is put forward it will contain a condition that indicates there will be no distributions made to Hillam or the Hillam Entities under any circumstances whatsoever.

7.6    Upon payment by the Hillam Entities of the contributions to be made by them pursuant to clause 4.2 and upon completion of the conditions set out in clause 5 of this deed, noting and subject to clause 6 of this deed, Hillam, Courela, Sathya, Australian Mining and all other Hillam Entities release and discharge the Administrators and each of them from all claims they have or purport to have against them concerning their conduct of the Administrations of the Company, Mintech and the Estate of Lewis and will discontinue Supreme Court proceedings number 1283 of 2017 which they have issued against the Administrators, Goldus and Mintech.

7.7    Upon payment by the Hillam Entities of the contributions to be made by them pursuant to clause 4.2, and upon completion of the conditions set out in clause 5 of this deed, noting and subject to clause 6 of this deed, Australian Mining Pty Ltd will arrange for the appointment of receivers over the [joint venture] to end.

7.8    Any discontinuance, withdrawal or termination of any action by any party pursuant to this clause is to be on the basis that the parties will bear their own costs in all respects.

53    As is apparent, cl 7 included a general release by Goldus of all Hillam entities including Australian Mining. But it also provided that various Hillam entities including Australian Mining did not release Goldus from their claims against Goldus and maintained their proofs of debt in the administration of Goldus.

54    Now as is also apparent, these releases did not deal with the interests in the joint venture. Further, the releases did not deal with rights and interests. Rather, cl 7 dealt with claims and court proceedings that were made against identified parties, save for cl 7.7 which dealt with the receivership of Goldus. In that respect the language may be contrasted with cl 5.11 which dealt with “rights, interest and or claims” that the Hillam entities had relating to the joint venture.

55    Now within cl 7 there was also a “release and discharge” by the Hillam entities of various companies and a “reciprocal release and discharge” by those companies that would arise upon payment of the contributions provided for in the DOCA and provisions concerning future rights of the Hillam entities in the insolvent administration of another entity (cl 7.4 and cl 7.5). There was also a “release and discharge” of the administrators of Goldus (cl 7.6).

56    Clause 7.7 provided:

Upon payment by the Hillam Entities of the contributions to be made by them pursuant to clause 4.2, and upon completion of the conditions set out in clause 5 of this deed, noting and subject to clause 6 of this deed, Australian Mining Pty Ltd will arrange for the appointment of receivers over the Teetulpa Alluvial Joint Venture to end.

57    So, a further part of the context for the DOCA was that Australian Mining had appointed receivers over the joint venture. By cl 7.7 the receivership was to be brought to an end.

58    Now the contentious provision for present purposes is cl 5.11. And it had to be construed in the context just described and also in the context of the main provisions of the DOCA concerning the payments totalling $550,000 to be made by the Hillam entities in return for the control of Goldus including the relevant tenements or the transfer of the relevant tenements to an entity nominated by Mr Hillam, concerning the detailed provisions for the release and discharge of claims as expressed in cl 7, and concerning the end of the receivership of the joint venture.

59    Let us at this point say something about his Honour’s analysis.

His Honour’s analysis

60    His Honour found that cl 5.11 provided for a relinquishment to the Hillam entities of Goldus’ rights, interest and claims in respect of the joint venture. So, Goldus’ participating interest in the joint venture was relinquished. But he said that the assets of the joint venture did not include the relevant tenements. Therefore, Australian Mining did not become entitled to the relevant tenements by such relinquishment.

61    He recited that the DOCA was structured so that cl 5 recorded the dealings that were to take place with Mr Hillam and the Hillam entities. It recorded the commercial terms of the deal to be effected by the DOCA through the provisions of funds by the Hillam entities to establish the Fund. Clause 6 then dealt with the circumstances in which compliance with those conditions could be waived by Mr Hillam or the Hillam entities and the circumstances in which the conditions could be varied. He recited that cl 7 then provided for the releases and discontinuances of court proceedings that were to take effect if the conditions in cl 5 were completed. They included bringing to an end the appointment by Australian Mining of receivers to the joint venture. The structure indicated that the condition recorded in cl 5 formed part of that which had to occur before the consequential terms of cl 7 took effect.

62    He said that in contrast to the language used in cl 7, the terms in which cl 5.11 were expressed did not reflect the usual language of a release from claims. In particular, the language that was used referred to the provision of full releases to the nominated parties “to any and all rights, interest and or claims”. We would interpolate here that “interest” appears to have been intentionally used in the singular. Further “and or” has not been stipulated in its conventional form.

63    His Honour said that the words used indicated an intention that the rights, interest and claims of Goldus in the joint venture were to be relinquished by Goldus rather than an intention to provide a release of the Hillam entities from claims that Goldus may have against them concerning inter-alia the joint venture. His Honour made the following points.

64    First, the use of the terminology of a release “to” claims rather than a release “from” claims sits uncomfortably with a release as properly so-called.

65    Second, the clause provided for releases by Goldus to the nominated parties to “rights, interest and or claims” that Goldus may have to the joint venture. The use of the term “release” in respect of a right or interest held by the releasing party indicated a relinquishment of such rights.

66    Third, the clause referred to “interest” singular which was consistent with an intention that the clause was dealing with the interest that Goldus may have in the joint venture. So, it was that interest that was to be released to the Hillam entities, particularly Australian Mining.

67    Fourth, the subject matter of cl 5.11 was rights, interest and claims relating to the joint venture. His Honour considered that it is of the nature of a joint venture that the interest of a venturer may be relinquished by a party withdrawing from the venture. The effect of withdrawal is that the continuing parties accede to the interest of the relinquishing party. Therefore, so his Honour considered, the subject matter of the condition explained the use of the term “release” rather than transfer.

68    Fifth, his Honour said that it was cl 7 and not cl 5 that dealt with releases properly so-called. Now he noted that the DOCA provided that headings did not affect interpretation (cl 1.2.1), but he said that it was the collection of the release provisions in cl 7 that was significant rather than its heading. He said that therefore, the inclusion of cl 5.11 within the body of provisions which set out the dealings with Mr Hillam and the Hillam entities was significant.

69    Sixth, his Honour considered that there was within cl 7.1 a general release by Goldus of “all claims it has or purports to have” against Australian Mining and all other Hillam entities, so there was no need to repeat such a release in more limited terms in cl 5.1.

70    Seventh, his Honour said that evidence of proposals and drafts exchanged and matters known to Mr Hillam and others about the context that were not evident from the terms of the DOCA itself were not relevant to the construction of its terms. He said that the DOCA operated as a form of statutory instrument which had binding effect upon the persons specified in s 444D and s 444G of the Corporations Act. He said that it was necessary to focus upon the terms of the instrument itself and perhaps matters of context that would be known to anyone interested in the affairs of Goldus.

71    But against the possibility of an appeal in which reliance was sought to be placed upon the surrounding circumstances, his Honour also made various factual findings which we do not need to set out in any detail save as to one aspect.

72    At the time of the negotiation of the DOCA, detailed formal proposals were advanced by Australian Mining to the administrators of Goldus. Two such proposals were contained in letters dated 16 March 2018 and 21 March 2018, which were sent on the letterhead of Australian Mining and were signed by Mr Hillam. Mr Hillam accepted in cross-examination that he had read the first of the two letters and signed it before it was sent. His Honour found that the same conclusion should be reached as to the second letter. Nevertheless, his Honour found that Mr Hillam sought to distance himself from their contents suggesting that the contents had been included without his instructions.

73    His Honour concluded that Mr Hillam was familiar with the terms of the two proposals at the time that they were sent. He also inferred that they reflected his knowledge and understanding of the factual circumstances at the time, as well as his intentions and, to the extent that the document was drafted by others, his instructions.

74    His Honour rejected the evidence of Mr Hillam. He found that the proposals reflected the circumstances at the time in relation to the affairs of the joint venture and the dealings between Goldus and Australian Mining. He also found that at the time Mr Hillam’s interest was in Australian Mining and he was seeking to advance its interests and his own interests in the terms that he proposed.

75    His Honour said that it may be inferred from the contents of the two letters that, at the time, the proposals were being advanced on the basis of a context where it was known to the administrators and to Mr Hillam that the position being maintained by Mr Hillam and Australian Mining was the following. First, Australian Mining had served a notice of default under cl 11 of the JVA. Second, Australian Mining maintained that the notice was valid and that Goldus had not remedied the default within 30 days. Third, Australian Mining maintained that Goldus had forfeited its interest under the JVA. Fourth, the proposal being advanced by Mr Hillam through Australian Mining, and in the interest of the Hillam entities, was one which would reflect those claims and release Australian Mining from any claim to compensation as a result of the forfeiture by Goldus of its participating interest in the joint venture.

76    But as we have said, his Honour did not take the evidence of surrounding circumstances into account in construing the terms of the DOCA.

77    Now before turning to the relevant appeal grounds, we should say something about the relevant principles.

Some relevant principles

78    We are here concerned with the construction and effect of the DOCA, and in that regard a number of observations should be made.

79    First, the DOCA derives its force and effect from Part 5.3A of the Corporations Act and particularly ss 444D and 444G and binds the relevant company, all creditors concerning claims arising on or before the s 444A(4)(i) day, the company’s officers and members and the DOCA administrators. Accordingly, the DOCA is more than a contract.

80    As said by the majority in MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636 at [25]:

It may be, however, that the deed of company arrangement is not simply a contract. No doubt a deed of company arrangement will contain stipulations and promises of a kind found in contracts between parties. But a deed of company arrangement is more than a set of promises between those who are parties to it. (The only essential parties to a deed of company arrangement are the company and the deed administrator (s 444B(6)).) First, it is a document that, on execution, effects a change in status of the company — from a company under administration to a company subject to a deed of company arrangement. Secondly, it is a document that contains terms that bind all creditors of the company “so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i)” (s 444D(1)). Those obligations stem from the combined operation of the deed of company arrangement and the Law, not from any contractual bargain between the persons bound, and are imposed on all creditors — not just those who voted in favour of any composition or moratorium reflected in the deed of company arrangement.

81    Second, the DOCA can also however have contractual force to the extent that it contains and purports to bind persons or entities in addition to the company, its creditors and other s 444G persons or entities, particularly where those additional persons or entities are themselves parties to the DOCA.

82    Third, as the DOCA can be seen to operate as a form of statutory instrument, in terms of the construction of a particular provision one must focus on its text read in the context of the other provisions of the DOCA. Further, broader contextual matters may be considered such as the terms of other documents or transactions referenced or incorporated by reference in the DOCA. Further, surrounding circumstances may be considered, but given the status of the DOCA there are significant limitations. In that respect, and generally speaking, we agree with what the primary judge said (Goldus (No 4) at [182] to [184]):

As has been indicated, the evidence of the drafts exchanged and matters known to Mr Hillam and others about the context which provided part of the background (not evident from the terms of the DoCA itself) are not relevant to the construction of its terms. Even though the DoCA is a commercial instrument, it is public in character and affects the rights of other parties, particularly creditors, who are not parties to the dealings that preceded the terms. It is presented to the creditors, and in the present case the Court, for approval. Those parties will consider the instrument divorced from its context.

The DoCA operates as a form of statutory instrument which has binding effect upon the persons specified in s 444D and s 444G of the Corporations Act. For those reasons, it is necessary to focus upon the terms of the instrument itself and perhaps matters of context that will be known to anyone interested in the affairs of the company. As to these matters see: MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636 at [25] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Reed Constructions Australia Ltd v DM Fabrications Pty Ltd [2007] NSWSC 1190 at [20]–[24] (Barrett J); City of Swan v Lehman Brothers Australia Ltd [2009] FCAFC 130; (2009) FCR 243 at [5]–[9] (Stone J), [62]–[63] (Rares J) expressing views not disturbed on appeal to the High Court); and Re Antqip Hire Pty Ltd (subject to deed of company arrangement) (in liq) [2020] NSWSC 487 at [65]–[73] (Rees J).

If indeed a deed of company arrangement is to be understood in a particular commercial context then the appropriate course is for those matters to be recited within the deed. Then parties whose interests will be affected by the terms of the instrument (and who will have to decide whether to challenge its operation) will be able to understand the manner of its operation by considering its terms.

83    Fourth, the DOCA must be construed in light of the object of Part 5.3A set out in s 435A and only in a fashion consistent with the provisions of Part 5.3A.

84    Additionally but subject to what we have said, the following principles that are usually applied in construing the terms of a commercial instrument also relevantly apply in the present context.

85    First, it is necessary to ask what a reasonable businessperson would have understood the terms to mean, and in that regard consideration must be given to the language used, the surrounding circumstances known to the parties and the commercial purposes or objects secured by the contract; see Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35] per French CJ, Hayne, Crennan and Kiefel JJ.

86    Second, the terms must be given a businesslike interpretation. The task should be approached on the basis that the parties intended to produce a result that made commercial sense given the evident commercial object; see Electricity Generation Corporation at [35] and Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [19] per Allsop P (as his Honour then was). But care must be taken to ensure that it is the evident commercial object that is being given effect, recognising that minds may differ as to the commerciality of a particular outcome. There is a difference between resolving an ambiguity in language so as to avoid a construction which is commercially unreasonable or plainly inconsistent with the evident commercial object of the instrument and choosing between alternatives on the basis of a sense of commercial fairness. The task is to construe the words used, rather than to remake the commercial bargain; see Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109 per Gibbs J (as his Honour then was) in dissent, but the principle is not in doubt.

87    Third, commercial instruments should be construed fairly and broadly without being too astute or subtle in finding defects; see Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 at 514 per Lord Wright, cited in Australian Broadcasting Commission at 109 and 110. They should be interpreted in a practical and realistic way, and not by adopting an overly theoretical approach. Words in a commercial contract should not be approached pedantically or in a manner that would be prone to defeat the evident commercial purpose of the document; see Franklins at [19].

88    Fourth, documents that form part of a suite of commercial instruments should be construed together.

89    Let us then turn to the first appeal ground.

First appeal ground – error in the construction of cl 5.11

90    As we have already set out, cl 5.11 of the DOCA relevantly provides:

Subject to contributions being paid under clause 4.2, [Goldus] will provide full releases to the Hillam Entities, and in particular [Australian Mining], to any and all rights, interest and or claims it may have relating to the [Joint Venture] and any joint venture agreement with Sathya.

91    The primary judge was said to be in error in construing cl 5.11 to mean a relinquishment by Goldus of its participating interest in the joint venture to Australian Mining in the following circumstances.

92    First, it was said that cl 5.11 speaks expressly of the provision of releases by Goldus to Australian Mining, not the relinquishment of anything. It was said to be wrong to state that “cl 5.11 provides for a relinquishment to the Hillam Entities of rights, interest and claims of Goldus in respect of the Teetulpa Venture rather than a release of the Hillam Entities from claims against the Hillam Entities by Goldus in respect of the Teetulpa Venture” (Goldus (No 4) at [179]). It is said that his Honour’s reasoning departs from the express language of cl 5.11 which speaks of the provision of releases not relinquishment.

93    Second, it was said that the object of the said releases were the rights, interests and claims that Goldus may have had against Australian Mining relating to the joint venture, not Goldus’ participating interest in the joint venture. It is said that if the parties had intended the object of the releases to be Goldus’ participating interest in the joint venture, the clause would have read “the Company releases its interest in the joint venture to Australian Mining”.

94    Third, it was said that the words “will provide full releases to… [Australian Mining], to any and all rights, interest and or claims that it may have relating to the [Teetulpa Venture]”, contrary to the reasoning of the primary judge, are the usual language of a release. They are not the usual language of a transfer of rights which was the legal effect of the construction adopted by his Honour. Further, it was said that there is nothing unusual in Goldus agreeing to provide full releases to Australian Mining “to” any and all rights, interest and/or claims that it may have had against Australian Mining relating to the joint venture. Although grammatically the word “from” would have been better, this did not change the evident meaning of the clause.

95    Fourth, it was said that none of the above words or language found in cl 5.11 are what one would expect to be the usual language that lawyers would have employed to transfer, assign or dispose of Goldus’ participating interest in the joint venture to Australian Mining. It was said that more violence is done to the grammatical language of cl 5.11 by giving it the construction adopted by the primary judge than giving it the construction advanced by Goldus.

96    Fifth, it was said that the word “releases” or “release” is regularly used throughout the DOCA in cll 7.1 to 7.4, 7.6 and 19, in contrast to “transfer” that is also regularly used in the DOCA in cll 5.4 to 5.9 and 5.12. So, it was said to be wrong for the primary judge to effectively assimilate the meaning of those expressions.

97    Sixth, it was said that although the primary judge reasoned that releases were dealt with in cl 7, not cl 5, the releases in cl 7 did not deal specifically with claims which Goldus had against Australian Mining in relation to the joint venture. That subject matter was specifically addressed in cl 5.11.

98    Seventh, Goldus said that his Honour acknowledged that there was a degree of obscurity in the language of cl 5.11 and referred to an alternative construction to that advanced by Australian Mining (Goldus (No 4) at [180]):

Alternatively, the terms of cl 5.11 may be referring to ‘rights, interest or claims’ that Goldus may otherwise have as a continuing joint venturer in the Teetulpa Venture as against Australian Mining as the other continuing venturer. On such an approach, cl 5.11 ensures that Goldus is left with its original agreed participating interest and no more. In effect, any basis upon which Goldus might claim that it has some other rights, interest or claims in the Teetulpa Venture are abandoned.

99    Goldus said that this alternative construction of cl 5.11 was correct, and that by cl 5.11 it did not relinquish its participating interest in the joint venture.

100    It is also appropriate at this point to address Goldus’ broader lens. It was said that other contextual matters known to the parties supported Goldus’ construction of cl 5.11 and militated against the construction adopted by the primary judge.

101    In construing cl 5.11 it was said that his Honour failed to have proper regard to the terms of the JVA, and that the JVA was a relevant contextual matter given that cl 5.11 concerned rights, interests and claims relating to the joint venture established by and documented in that instrument.

102    First, it was said that the primary judge effectively construed the word “interest” in cl 5.11 as meaning “participating interest”, an expression found in the JVA. The expression “participating interest” is defined in cl 1.1 of the JVA to include the obligations of a joint venturer. Adopting the express language of cl 5.11, it is said that it made little sense conceptually and grammatically for Goldus to provide “full releases” to Australian Mining in respect of Goldus’ own obligations relating to the joint venture. But it is said that that is the necessary effect of the construction adopted by his Honour.

103    Second, and relatedly, it was said that if the intent of cl 5.11 was for Goldus to relinquish its participating interest in the joint venture, then it could have been expected that cl 5.11 would use that particular expression.

104    Third, it was said that the JVA by cl 4.2(c) stated:

The Participating Interests of the Joint Venturers may be adjusted from time to time as a result of any sale, assignment, transfer, disposal or acquisition of all or any of a Joint Venturer’s Participating Interest pursuant to this Agreement.

105    It was said that there is no reference to an adjustment of a participating interest by way of a release or relinquishment. Further, any transaction by which a participating interest of one of the joint venturers was to pass to the other was to occur only pursuant to and in accordance with the mechanisms contained in the JVA. It was said that cl 5.11 did not effect a disposal of Goldus’ participating interest in accordance with those mechanisms because it was never intended to have the effect of disposing of Goldus’ participating interest.

106    Fourth, it was said that the JVA contained a detailed and prescriptive regime in respect of the withdrawal or disposal of one joint venturer’s participating interest in the joint venture to another party. Clause 11 concerned a deemed withdrawal of a joint venturer from the joint venture in circumstances where it had committed an event of default, in which instance the defaulting venturer had to transfer its participating interest in the joint venture to the non-defaulting party in consideration for a price determined by an independent valuer. Clause 12 concerned the withdrawal from the joint venture by a non-defaulting joint venturer, by which mechanism the withdrawing party would be deemed to have assigned to the other joint venturer their participating interest in the joint venture. And cll 13.2 to 13.8 concerned the disposal of a joint venturer’s participating interest in the joint venture to a related party or third party. Relevantly the term “dispose” was defined in cl 1.1 of the JVA as meaning to “sell, assign, transfer, or otherwise dispose” of any participating interest in the joint venture. And relevantly, there was no reference in the JVA to a party disposing of its participating interest in the joint venture by “releasing” or “relinquishing” their participating interest in the joint venture to the other joint venturer.

107    Fifth, it was said that if the parties had objectively intended by operation of cl 5.11 of the DOCA to transfer Goldus’ participating interest in the joint venture to Australian Mining, it would have been reasonably expected that the same terminology used in the JVA in respect of a disposal of a participating interest by Goldus or a withdrawal of that interest would have been adopted, namely, a transfer, disposal or assignment as opposed to an unnatural use of the words in cl 5.11 “will provide releases” to effect a transfer, disposal or assignment.

108    Sixth, it was said that if the parties had objectively intended by operation of cl 5.11 to modify or vary the circumstances under the JVA in which a participating interest in the joint venture could be transferred, disposed of or withdrawn by Goldus, it would have been reasonably expected that careful wording would have been employed to make that position clear as opposed to the obscurity of the brief and unnatural language used in cl 5.11 to achieve that outcome.

109    Seventh, it was also said to be telling that there was nothing in the DOCA which identified what would be the effect on the joint venture, the JVA or the parties as a consequence of such a relinquishment, by Goldus of its participating interest in the joint venture, in circumstances where such an event was not addressed by the JVA.

110    In summary, Goldus said that his Honour erred in his construction of cl 5.11 and ought to have concluded that properly construed that clause did not have the effect of Goldus relinquishing its participating interest under the JVA to Australian Mining.

111    We would reject Goldus’ construction of cl 5.11 and its supporting arguments. But before turning to the specific provisions of the DOCA, we should say something about context.

112    First, his Honour held that reliance was not able to be placed upon matters only known to Mr Hillam and others, including earlier drafts of the deed, on the basis that the DOCA had a public character. We agree with his Honour’s approach that accorded with principle.

113    Second, the JVA was not a public document falling within the scope of what his Honour found could be regarded as relevant context. And the private arrangements in the JVA could have little bearing on the proper construction of the DOCA. Moreover, the parties to the DOCA included the administrators. The administrators were strangers to the JVA and there was no reason to believe that when drafting the DOCA they had in mind the provisions of that specific agreement beyond Goldus relinquishing “any and all rights, interest and or claims” relating to the joint venture. But even if the JVA and its provisions were to be given greater contextual weight, we do not consider that they can trump the text of cl 5.11 read in context with the other provisions of the DOCA.

114    Third, the meaning of cl 5.11 had to be determined within the context of the whole of the DOCA and the objectives and transactions that the DOCA sought to achieve. What the DOCA sought to achieve, in addition to the usual objectives of Part 5.3A of the Corporations Act, was to grant to Mr Hillam control over the assets of Goldus either through acquiring its shares or the transfer of its assets to an entity under the control of Mr Hillam. That control was the consideration given to Mr Hillam in exchange for the payment of moneys to constitute the DOCA fund. Further, the parties to the DOCA are also relevant to discerning the objectives of the DOCA. Apart from the administrators and Goldus, of which Mr Hillam at that time was only a minority shareholder through Courela Minerals Pty Ltd, all the parties including at that time Australian Mining were entities under the control of Mr Hillam. Further, the Hillam entities were to pay the administrators’ costs. Further, the administrators were to procure that the shares in Goldus were transferred to an entity nominated by Mr Hillam. Further, if that could not be achieved by 2 July 2018, then, subject to the DOCA contribution being paid, Goldus had to transfer all the mining and explorations licences held by it to the Hillam entities.

115    Fourth, the relevant clauses of the DOCA ensured that Mr Hillam had control of the assets of Goldus, in particular its mining and exploration licences, either through a transfer of Goldus shares to his nominated entity or a direct transfer from Goldus to his nominated entity. It is objectively apparent that cl 5.11 was intended to ensure that the interest that Goldus held in the joint venture moved to Australian Mining, bearing in mind that Mr Hillam controlled Australian Mining at that time. That would ensure that, regardless of whether the share transfer occurred, Mr Hillam through Australian Mining would have complete ownership of the joint venture.

116    Let us then turn to cl 5.11 more directly.

117    In our view, his Honour was correct in holding that the better construction of cl 5.11 involved a relinquishment of Goldus’ participating interest. Further, to so hold does not entail that the JVA also came to an end or that Goldus was freed of any contractual obligations under the JVA.

118    In relation to cl 5.11 we would note the following at the outset.

119    First, the word “releases” must be read in the context of cl 5.11 itself. As is apparent, cl 5.11 does not just deal with claims. It refers to “rights”. And it also refers to “interest”, particularly in the singular. In context therefore, we do not see why the reference to releases would not also include the concept of surrender or relinquishment.

120    Second, cl 5.11 must be read in the context of other parts of cl 5 which inter-alia and in part deal with shares in or assets of Goldus and others. Such a broader context more re-inforces the ambit that we, like the primary judge, would give to cl 5.11.

121    Third, cl 5.11 is also to be read in the context of the other provisions of the DOCA, and importantly cl 7 dealing with releases in a more traditional form.

122    It is appropriate at this point to say something more concerning “releases”.

123    It would seem that the problematic drafting of cl 5.11 is in the use of the word “releases”, and Goldus seeks to transform its use as a noun in cl.5.11 to have the same meaning and effect as it is used as a verb in cl 7. Now we accept that the phrase “will provide full releases” is suggestive of a release of the type contemplated by cl 7, but that phrase in context does not have that confined meaning.

124    First, the phrase cannot work to provide a release by Goldus in the cl 7 sense if it is a release of “any and all rights, interest and or claims that it may have relating to the [joint venture] and any joint venture agreement with Sathya”. Whilst one can release another from “claims”, one does not release in the cl 7 sense another from “rights” and “interests”.

125    Second, the use of the word “to” in the phrase “provide full releases to the Hillam Entities … to any and all rights, interest and or claims” is inconsistent with a cl 7 meaning where the word would have been “from”.

126    Third, the words “against them” are missing from cl 5.11. And too many changes to the wording of the clause are required to give that clause, even on a grammatical basis, the meaning for which Goldus contends.

127    Fourth, as his Honour found, the construction contended for by Goldus makes cl 5.11 otiose in that cl 7 deals extensively with releases by Goldus against claims it may have against the Hillam entities, including Australian Mining.

128    Fifth, although Goldus now contends for the construction of cl 5.11 noted by the primary judge (Goldus (No 4) at [180]) and which we have set out earlier, at first instance Goldus’ position was more equivocal. Having submitted below that cl 5.11 did not, on its face, make sense, it contended below that:

[w]hatever it was intended to achieve, it is respectfully submitted that cl 5.11 cannot purport to effect a conveyance of Goldus’ interest in the Tenements of the Joint Venture or a release of claims that might arise in future (sic) (as distinct from a release of claims as at the date of the DOCA).

129    But in any event it is clear from [179] and the first declaration embodied in his Honour’s orders made on 3 November 2021 that the alternative construction referred to at [180] was rejected by his Honour notwithstanding some infelicity in expression. His Honour was correct to reject the alternative construction.

130    In summary, in our view no error has been shown in his Honour’s construction or the reasons that he gave. This ground of appeal has not been made out.

Second and third appeal grounds – termination of the JVA

131    Goldus says, in the alternative, that his Honour erred in concluding that, first, the JVA was not terminated in circumstances where he found that Goldus no longer held a participating interest and, second, that Australian Mining had a continuing right under the JVA to carry out and undertake mining operations on the tenements.

132    Let us address the submissions concerning the first matter.

133    Goldus says that by reason of the construction of cl 5.11 of the DOCA adopted by his Honour, the joint venture was terminated with the consequence that the JVA was also terminated such that no future right to mine under the JVA subsisted. Reference was made to various clauses of the JVA.

134    Clause 4.1(a) provided for the creation of an unincorporated joint venture between Goldus and Australian Mining as joint venturers on the terms and subject to the conditions contained in the JVA.

135    Clause 4.3 provided that:

The Joint Venture is constituted for the purposes of accessing the Tenements and carrying out exploration and Mining Operations on the Designated Area for alluvial gold, silver and all other alluvial minerals as may be considered by the Joint Venturers convenient to include in its exploration and mining programmes (Alluvial Mineral Rights)

136    Clause 4.4(a)(iii) provided that the joint venture would terminate on the date that the joint venture assets were held beneficially by one joint venturer.

137    Now his Honour found that by cl 5.11 of the DOCA, Goldus had relinquished its rights and participating interest in the joint venture to Australian Mining. Goldus says that by reason of that finding, the joint venture assets as defined in cl 1.1 of the JVA came to be held beneficially solely by Australian Mining with the consequence that the joint venture was terminated by operation of cl 4.4(a)(iii).

138    Further, cl 4.4(b) provided that upon termination of the joint venture, the joint venture assets and any proceeds from their disposal were to be distributed and partitioned between the joint venturers in accordance with their respective participating interests at the time of termination.

139    Goldus said that, accordingly, the effect of the termination of the joint venture was to bring to an end the underlying object and purpose of the JVA which as expressed in cll 4.1 and 4.3 was to establish the joint venture for the purpose of accessing the tenements to carry out exploration and mining operations. So, it was said that once the underlying object and purpose of the JVA came to an end, the JVA itself came to an end. Further, it was said that this conclusion was reinforced by the fact that the provisions of the JVA, including those concerning the alluvial mineral rights, were predicated upon the continued existence of the joint venture.

140    Let us address the submissions concerning the second matter.

141    It was said that his Honour erred in concluding that Australian Mining had a continuing right under the JVA to carry out and undertake mining operations on the relevant tenements. It was said that there was no express term in the JVA for Goldus to provide access to the tenements it holds to Australian Mining. Nor was there any express right under the JVA for Australian Mining to have access to carry out and undertake mining operations on the tenements. It was said that instead cl 4.3 defined “Alluvial Mineral Rights” within the context of the joint venture being constituted for the purposes of accessing the tenements and carrying out exploration and mining operations on the designated area within those tenements. Clause 4.11(a) then provided that the joint venture was the holder of the alluvial mineral rights.

142    It was said that in circumstances where the joint venture had been terminated, the alluvial mineral rights ceased to exist. Further, the holder of the alluvial mineral rights was expressed to be the joint venture. Once the joint venture was terminated, cl 4.11(a) had no further operation. Furthermore, it was said that in circumstances where his Honour ought to have found that the JVA was terminated, any right to mine under that agreement was terminated.

143    For these reasons, it was said that the primary judge ought to have concluded that upon the relinquishment by Goldus to Australian Mining of its participating interest in the joint venture, the JVA came to an end, and further or alternatively that Australian Mining had no continuing right under the JVA to carry out and undertake mining operations on the tenements.

144    Now we would reject these arguments of Goldus as well.

145    As to the first matter, the fact that there has been a relinquishment of Goldus’ participating interest in the joint venture may entail the termination of the joint venture; see cl 4.4(a) of the JVA. But the termination of the joint venture does not also entail termination of the JVA.

146    First, cl 4.4(c) clearly distinguishes termination of the JVA from termination of the joint venture (cll 4.4(a) and (b)). Clause 11.1 also addresses the concept when the joint venture may be at an end, in contrast with the termination of the JVA itself.

147    Second, although there is no express provision dealing with the termination of the JVA and cl 2 of the JVA is open ended in terms of the duration of the JVA, cll 11 and 12 in substance, if operable, could bring about the consequence of termination of the JVA in the context of default or withdrawal.

148    But the short point for present purposes is that the JVA makes a distinction between termination of the joint venture and termination of the JVA.

149    Further, as to the point that once the underlying object and purpose of the joint venture came to an end, the JVA itself came to an end, that proposition is problematic. There is no reason to assume that the termination of the joint venture would have the effect of releasing Goldus from its obligations under the JVA to provide access to the alluvial mineral rights or to deprive Australian Mining of the benefit of exploiting such rights. Further, on its argument, if Goldus ever breached the JVA, and Australian Mining became entitled to the benefit of cl 11, there would no longer be any mining business left to operate as the JVA would come to an end and the alluvial mineral rights would be lost. Goldus would be the beneficiary of its own breach.

150    And as to the second matter, we agree with Australian Mining that the submissions advanced by Goldus overlook the effect of his Honour’s findings in Goldus (No 4) at [61] to [63] where his Honour said:

For all those reasons, the asset that the Teetulpa Venture had was a contractual right to exploit the Alluvial Zone for alluvial minerals. It was conferred by the agreement of Goldus as a party to the JVA. The Tenements themselves remained the property of Goldus and the venturers acquired no interest in the Tenements beyond the contractual rights conferred by the JVA.

Therefore, under the terms of the JVA, Goldus retained ownership of the Tenements and created contractual rights in favour of Australian Mining, being the Alluvial Mineral Rights.

The JVA contemplated the forfeiture of the interest of a joint venturer by a process of deemed withdrawal in circumstances of default. There was a detailed provision as to how that may occur in cl 11 of the JVA. It dealt with the transfer of the participating interest of the ‘Defaulter’ to the ‘Non-Defaulter’. Therefore, inherent in the terms of the joint venture that were confirmed by the JVA was the prospect that Goldus may cease to have a participating interest in the Teetulpa Venture. However, the transfer of the participating interest would not terminate the provisions of the JVA. In particular, it would not terminate the provisions by which Goldus conferred contractual rights in favour of the participants in the joint venture to access and undertake exploration and mining in the Alluvial Zone. Those provisions would continue to take effect even if Goldus no longer had a participating interest by operation of cl 11. The absence of any provision dealing with an interest in the Tenements in the event of forfeiture of the participating interest of Goldus is consistent with the construction already outlined. Therefore, if the participating interest of Goldus was forfeited, the ownership of the Tenements and any interest in them remained with Goldus.

151    Moreover, the relinquishment of Goldus’ interest in the joint venture is not inconsistent with Australian Mining alone conducting the business contemplated by the JVA and nor does it release Goldus from its obligations under that agreement (Goldus (No 4) at [256]).

152    Further, it cannot sensibly be suggested that the effect of relevant aspects of cl 4 of the JVA is anything other than to afford a right to Australian Mining to have access to and to carry out and undertake mining operations on that part of the relevant tenements defined as the alluvial mineral rights, and to the relevant tenements generally, to the extent necessary to do so.

153    In summary, the first appeal must be dismissed. Let us turn to the third appeal.

The third appeal – the gold plant

154    At trial, RnD sought orders against Goldus and Synergy for the delivery up of certain plant and equipment that RnD claimed was owned by ATG and subject to RnD’s registered security interest. RnD’s case at trial was that it was owed a substantial amount by ATG, which indebtedness was secured by the General Security Deed. In particular, RnD claimed that certain mining equipment situated on land the subject of mining tenements held by Goldus including the gold plant was owned by ATG and subject to RnD’s security.

155    Goldus and Synergy denied that the gold plant was owned by ATG. It said that the agreement between Australian Mining and ATG, pursuant to which Australian Mining agreed to sell the gold plant to ATG, was subject to a retention of title clause pursuant to which title to the gold plant did not pass to Australian Mining until it made payment for the gold plant in accordance with the agreement. Goldus and Synergy pleaded that by reason of a failure of ATG to pay for the gold plant, title did not pass to ATG and it was subsequently sold to Synergy.

156    The primary judge found that the plant and equipment listed as items (1) to (11) of the schedule to his Honour’s order of 10 September 2021 were the property of ATG and therefore subject to the security held by RnD including what was identified as gold plant and equipment (the gold plant).

157    The narrow issue before us is whether RnD before the primary judge discharged its onus of proving that the gold plant was owned by ATG so as to be subject to RnD’s registered security interest. Goldus and Synergy assert that the primary judge erred in finding that the gold plant was the property of ATG. It is said that that finding was not open on the evidence.

158    Now there was no appearance for Goldus or Synergy at the trial on this aspect. Nevertheless, RnD bore the onus of establishing that the gold plant was the property of ATG. At trial, RnD principally relied on the affidavit evidence of Mr Phillip Wood, a consultant and explosives engineer. This evidence of course was unchallenged. It is appropriate that we say a little more about it.

Evidence concerning the gold plant

159    Mr Wood’s evidence in respect of the gold plant was to the following effect. On or about 19 August 2020, he was instructed by RnD to conduct a stock-take of assets located on mining tenements in the Teetulpa gold fields and to locate plant and equipment owned by ATG. In order to conduct the stock-take, he was provided with a copy of the ATG balance sheet as at June 2019 by RnD. Whilst on site at the Teetulpa Gold Field, he took photos of equipment that he identified as being owned by ATG by reference to the June 2019 balance sheet. By reference to the June 2019 balance sheet, the gold plant was located on ML 5550.

160    In addition to the evidence of Mr Wood, an affidavit of Mr Angelos Mathas sworn 25 June 2020 was admitted into evidence. Mr Mathas was the solicitor for RnD. The Mathas affidavit annexed a letter Mr Mathas received from the liquidator of ATG dated 25 June 2020, which annexed the June 2019 balance sheet, a balance sheet for ATG as of January 2020 and a balance sheet for ATG as of 9 April 2020.

161    The balance sheet for ATG as of June 2019 provided by the liquidator to Mr Mathas was identical, including the same date stamp of 27/05/20 at 2:44pm, to the June 2019 balance sheet provided to Mr Wood by RnD on 19 August 2020 for the purpose of enabling Mr Wood to carry out his stocktake in August 2020. It listed the gold plant as an asset of ATG.

162    Contrastingly, neither the January 2020 balance sheet nor the April 2020 balance sheet provided by the Liquidator to Mr Mathas, being more contemporaneous records, listed the gold plant as an asset of ATG.

163    The primary judge did not make express reference to the Mathas affidavit, the January 2020 balance sheet or the April 2020 balance sheet in determining whether the gold plant was an asset of ATG. And apparently, no explanation was provided at trial by RnD as to why the more contemporaneous balance sheets were not provided to Mr Wood for the purpose of enabling him to undertake his stocktake in August 2020 notwithstanding that they were apparently available.

His Honour’s findings

164    His Honour’s recitation of the relevant evidence and his findings were set out in separate reasons (RnD Funding Pty Ltd v Goldus Pty Ltd (subject to Deed of Company Arrangement) [2021] FCA 1096) from which we have drawn the following summary.

165    RnD claimed to be owed a substantial amount by ATG and claimed that the funds were secured by the General Security Deed. It said that certain mining equipment including the gold plant owned by ATG and located on land the subject of the relevant tenements held by Goldus was subject to that security. RnD said that the gold plant was in the possession of Goldus or Synergy.

166    RnD raised its claims to the mining equipment including the gold plant by way of a cross-claim to the proceedings brought by Goldus which we have already referred to. The equipment claims were ordered to be determined separately to the issues the subject of the proceedings commenced by Goldus. The equipment claims were dealt with on the basis that the evidence that had been adduced in the other part of the proceedings formed part of the evidence in the cross-claim concerning the equipment claims.

167    When the equipment claims came on for hearing below, counsel who appeared for Goldus and Synergy sought an adjournment, but this was refused. Counsel was then given leave to withdraw and the matter proceeded on the basis that there was no appearance for Goldus or Synergy as to the equipment claims.

168    So, affidavits that had been filed by Mr Hillam concerning certain claims that were made to the mining equipment including the gold plant were not received into evidence because those affidavits were not read by counsel for RnD and did not form part of the evidence in relation to the claims made by Goldus in that part of the proceedings that were determined separately.

169    Now in support of its claim to the mining equipment being property of ATG, RnD relied upon the unchallenged affidavit evidence of Mr Wood, which his Honour found established the following matters. Mr Wood and his mining partner Mr Kemp sold various assets to ATG under the terms of an agreement dated 22 June 2017. The assets were delivered to ATG but much of the agreed price was not paid. Mr Wood came to provide consulting services to ATG in respect of its mining operations. As a consultant to ATG, Mr Wood had access to the books and records of ATG and was involved in acquiring plant and equipment for ATG. In August 2020, Mr Wood was asked by RnD and Mr Cummins one of the receivers appointed by RnD to ATG to conduct a stocktake of the plant and equipment of ATG that were located on mining tenements in Teetulpa. Mr Wood had access to records of ATG when he undertook that stocktake in person. And Mr Wood took photographs of items of property that he identified as corresponding with the records of ATG or his personal knowledge of the property of ATG, including the property that he and Mr Kemp had sold to ATG.

170    Mr Wood produced the photographs and gave evidence of descriptions of the property which his Honour accepted. His Honour then said that he was satisfied on the evidence that Mr Wood was sufficiently familiar with the property of ATG to be able to identify, in some instances with the assistance of the records to which he referred, those items which formed part of the property of ATG. On the basis of that evidence his Honour was satisfied that the relevant items listed were each the property of ATG the subject of the security held by RnD. Those matters listed included the gold plant.

Analysis

171    Goldus and Synergy say that the primary judge was in error in finding that the gold plant was the property of ATG without regard to the subsequent balance sheets.

172    Now the primary judge was satisfied that Mr Wood was sufficiently familiar with the property of ATG to be able to identify, in some instances with the assistance of the records to which he referred, those items which formed part of the property of ATG. And it was that finding that led him to conclude that the various items of plant and equipment including the gold plant was the property of ATG. But Goldus and Synergy say that the finding is ambiguous.

173    It is said that it does not identify those items of plant and equipment in respect of which Mr Wood relied upon the records of ATG, as opposed to his personal knowledge, to form the view that they were the property of ATG. It is said that this is an important distinction in respect of the gold plant.

174    It is said that to the extent that the finding by the primary judge was that Mr Wood had sufficient familiarity with the gold plant to be able to identify that as property of ATG, that finding was in error as it was not borne out by Mr Wood’s evidence. In particular, the following propositions were put. First, Mr Wood was not and had never been a director or officer of ATG. Second, Mr Wood’s evidence was that on 22 June 2017 he entered into an Asset Sale and Purchase Agreement with ATG, but whilst he identified certain plant and equipment as belonging to ATG based on that agreement, there was no suggestion by him that the gold plant was included in that agreement. Third, contrastingly, Mr Wood’s evidence in respect of the gold plant was that he identified it as being owned by ATG by reference to the June 2019 balance sheet provided to him by RnD.

175    It is said that to the extent that the finding by the primary judge was that Mr Wood had been able to identify that at the relevant time ATG owned the gold plant by reference to the June 2019 balance sheet, that finding was in error in circumstances where there was evidence of two subsequent more contemporaneous balance sheets of ATG, being the January 2020 balance sheet and the April 2020 balance sheet, neither of which showed that the gold plant was listed as an asset of ATG.

176    Goldus and Synergy say that in the absence of clear and direct evidence from Mr Wood that he was able to identify the gold plant as being the property of ATG at the relevant time based upon his own personal knowledge and in particular his personal familiarity with the affairs of ATG, his evidence could not rise higher than the inferences to be drawn from the financial records themselves.

177    They say that the only inference available based upon the up to date contemporaneous financial records of ATG was that it did not own the gold plant. It is said that that inference is fortified by the lack of any explanation by RnD as to why Mr Wood was provided with an outdated balance sheet and not the more up to date records for the purpose of carrying out his stocktake of ATG property in August 2020.

178    Generally, Goldus and Synergy say that the finding that the gold plant was the property of ATG was not reasonably open upon the whole of the evidence adduced. That finding was not based upon or supported by any proven direct knowledge of Mr Wood. And at most, it was based upon an inference to be drawn from the June 2019 balance sheet. But it was said that any such inference to be drawn from the 2019 financial records of ATG was displaced by the subsequent more up to date financial records of ATG which were in evidence, the accuracy of which was not challenged.

179    We would reject the arguments of Goldus and Synergy.

180    Now the general principles guiding appellate review of findings of fact made by the primary judge are not in doubt. Such principles have been carefully and conveniently summarised by Bromwich, O’Callaghan and Wheelahan JJ in Jadwan Pty Ltd v Rae & Partners (a firm) (2020) 278 FCR 1 at [402] to [415], particularly at [405], and it would be supererogation on our part to engage in any elaborate restatement save to note that the authorities distinguish between cases where findings of fact depend upon some benefit enjoyed by the trial judge that is not available to an appellate court, and those where the impugned findings are inferences drawn from uncontroverted facts. Clearly, in relation to the former, an appellate court should show restraint with respect to interfering with a trial judge’s findings unless they are glaringly improbable or contrary to compelling inferences. But with respect to the latter, an appellate court is in as good a position as a trial judge to determine what are the proper inferences to be drawn from facts found by the judge. Indeed, Dixon CJ and Williams J said in Mann v Mann (1957) 97 CLR 433 at 440:

…Where the question is, not what are the facts but what is the proper inference to be drawn from the facts proved, the appellate tribunal is no less competent to decide what these inferences should be than the judge who actually hears the case…

181    Of course, in deciding what is the proper inference to be drawn, an appellate court will give respect and weight to the conclusion of the trial judge. But once having reached its own conclusion it should not shrink from giving it effect let alone restrain itself by any misplaced notion that the inferences drawn by the trial judge are not to be departed from unless clearly wrong.

182    Now it is said that the primary judge erred in finding that RnD had discharged the onus of proving that the gold plant was the property of ATG and that such a finding was not open on the evidence. But there was evidence upon which the primary judge came to his finding. Moreover, it is not to the point that there was other evidence that was, perhaps, inconsistent with the evidence relied upon by the primary judge in making his finding.

183    The uncontested evidence of Mr Wood was that he took photographs of equipment on the mine that belonged to ATG, which included the gold plant. And in light of the uncontested evidence of Mr Wood’s familiarity with the assets of ATG, it was open to the primary judge to accept that evidence and to rely upon that evidence in making the finding that he did.

184    Further, that finding was not made on the basis of inferences drawn by the primary judge from the June 2019 balance sheet. It was a finding made on the direct evidence of Mr Wood. In any event, it was open to the primary judge to rely upon the June 2019 balance sheet alone to make a finding of ownership.

185    Further, Mr Wood’s evidence was not based upon an inference that he drew from the June 2019 balance sheet. Rather, the June 2019 balance sheet was used as a checklist rather than the basis for Mr Wood’s knowledge of the ownership of the gold plant. Indeed, as RnD correctly submitted, if Mr Wood’s knowledge of the ownership of the gold plant were limited to what he could infer from the June 2019 balance sheet and was not derived from his personal knowledge of the assets of ATG, it is difficult to understand how he came to identify what particular equipment situated on the mining site actually constituted the gold plant and to then photograph it. The June 2019 balance sheet did no more than describe the gold plant as “Gold Plant & Other Equip” in a list of more than 50 other items of mining equipment.

186    Further, Goldus’ and Synergy’s reliance upon the absence of stipulation of the gold plant in the January 2020 balance sheet and the April 2020 balance sheet is problematic to say the least. The only evidence as to the provenance of those documents is that they were produced from the liquidator’s file without any meaningful or sufficient evidence as to their provenance or utility. Further, they were not signed by any director nor is there any explanation on the face of the documents why, for example, one was prepared as at 9 April 2020 and not at month’s end. Further, in the absence of some explanation as to why the gold plant did not appear in the later balance sheets, there are a number of reasonable inferences that might be drawn. One inference might be that the later documents were incomplete or erroneous. Another inference might be that Mr Hillam wished to conceal the existence of those assets from ATG’s creditors. In the absence of some proper explanation as to why the gold plant was recorded as an asset of ATG in the June 2019 balance sheet but not in the January 2020 and April 2020 balance sheets, one cannot simply infer that the probable inference is that it ceased to be an asset of ATG, particularly given the other evidence that his Honour was entitled to act on. Finally, if Goldus and Synergy wished to challenge Mr Wood’s evidence and to rely upon the January 2020 and April 2020 balance sheets, it was open to them to do so at trial. They chose not to do so.

187    No error has been shown in his Honour’s approach to the evidence before him and in light of how the trial was conducted. This appeal should also be dismissed.

Conclusion

188    For the foregoing reasons, both the first appeal and the third appeal must be dismissed. We also see no good reason why costs should not follow the event in each appeal.

189    As for the second appeal and as we have said, its disposition is the subject of separate reasons and orders.

Associate:

Dated:    9 March 2023